Neutral Citation: 2016 ONFSCDRS 96

FSCO A13-006325

BETWEEN:

MS. K

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Richard Feldman

Heard: October 26-29, 2015 and December 21, 2015 at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Peter Waldmann and Cizan Suliman (student-at-law) for the Applicant

Harry Brown for the Insurer

Issues:

The Applicant was involved in a motor vehicle accident on November 19, 2009 (the "accident"). She applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.¹ Disputes arose concerning the Applicant’s entitlement to certain accident benefits. The parties were unable to resolve their disputes through mediation, and the Applicant applied for arbitration at the Financial Services Commission of Ontario (“FSCO”) under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Due to the sensitive nature of some of the information relating not only to the Applicant but other persons who are not parties to this proceeding, I have removed from this decision the name of the Applicant and her non-expert witnesses.

Evidence was heard on October 26-29, 2015. The Applicant testified at the hearing and called as witnesses: her husband; her housekeeper, Ms. W.; and her treating orthopaedic surgeon, Dr. Manolopoulos. The Insurer called no witnesses. The hearing was reconvened for closing arguments on December 21, 2015.

The issues in this hearing are:

Is the Applicant entitled to receive weekly income replacement benefits in the amount of $400.00 per week from November 24, 2010 onwards (less appropriate adjustments for CPP Disability payments received by the Applicant)?
Is the Applicant entitled to payments for housekeeping and home maintenance services in the amount of $100.00 per week from August 25, 2010 through November 19, 2011?
Is the Applicant entitled to receive a medical/rehabilitation benefit for the following: a. $1,417.32 for treatment recommended by Dr. Bigness of Prime Healthcare Inc. in a plan dated June 15, 2011? b. $1,563.72 for treatment recommended by Dr. Bigness of Prime Healthcare Inc. in a plan dated June 22, 2011? c. $1,532.22 for treatment recommended by Dr. Bigness of Prime Healthcare Inc. in a plan dated July 29, 2011? d. $1,698.60 for the cost of psychotherapy pursuant to a treatment plan from Dr. Leon Steiner dated July 12, 2010? e. $149.90 for the cost of an assistive device recommended by Maria Elma (OT) of Scarborough East Assessment Centre in a plan dated October 19, 2011 (as part of a total claim for $219.90)? f. $61.67 for the cost of prescription medication from Wal-Mart Pharmacy, submitted on December 31, 2011 ($39.47) and January 3, 2012 ($22.20)?
Is the Applicant entitled to the cost of the following examinations: a. $2,000.00 towards the cost ($6,215.00) of a psycho-vocational assessment pursuant to a plan by Access Rehab dated January 6, 2012? b. $2,000.00 towards the cost ($4,294.00) of an orthopaedic assessment pursuant to a plan by Access Rehab dated November 16, 2011?
Is the Applicant entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?
Is the Insurer liable to pay the expenses of the Applicant in respect of the arbitration under subsection 282(11) of the Insurance Act?
Is the Applicant liable to pay the expenses of the Insurer in respect of the arbitration under subsection 282(11) of the Insurance Act?

In addition, the Applicant originally claimed attendant care benefits ($181.15 per month from August 25, 2010 through November 19, 2011) and the cost ($12,853.75) of a comprehensive chronic pain program recommended by Health Recovery Clinic in a plan dated December 2, 2010. Both of these claims were withdrawn by the Applicant during closing arguments.

The Applicant also originally claimed a special award. At the pre-hearing discussion that took place on December 15, 2014, the Applicant (through her counsel) undertook to provide particulars of her claim for a special award, in writing, within 60 days. No such particulars were ever provided by the Applicant to the Insurer or to FSCO. At the hearing, counsel for the Applicant could provide no reasonable explanation for this failure to provide particulars. Consequently, I advised the parties that I would be striking this part of the Applicant’s claim.

Finally, at the commencement of the hearing, the Applicant requested that she be permitted to amend (i.e., increase) her claim for the cost of prescription medication from $61.67 to $1,365.09. The Applicant provided no reasonable explanation for the lateness of this request to amend her claim. The Insurer objected to this amendment on the basis that no notice of an intention to seek to amend this claim had been provided to the Insurer prior to the hearing and on the basis that these additional expenses had not been mediated and, therefore, FSCO lacked jurisdiction to adjudicate these issues. I agreed with the Insurer’s submissions and ruled that I would not permit the requested amendment to the claim.

Result:

The Applicant is entitled to receive weekly income replacement benefits in the amount of $400.00 per week from November 24, 2010 onwards (less appropriate adjustments for CPP Disability payments received by the Applicant).
The Applicant’s claim for housekeeping and home maintenance services is denied.
The Applicant is entitled to receive $1,698.60 for the cost of psychotherapy provided by Dr. Li pursuant to a treatment plan from Dr. Leon Steiner dated July 12, 2010 and $61.67 for the cost of prescription medication. The Applicant’s other claims for medical/rehabilitation benefits are denied.
The Applicant is entitled to the cost of the following examinations: a. $2,000.00 towards the cost ($6,215.00) of a psycho-vocational assessment pursuant to a plan by Access Rehab dated January 6, 2012; b. $2,000.00 towards the cost ($4,294.00) of an orthopaedic assessment pursuant to a plan by Access Rehab dated November 16, 2011.
The Applicant is entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule.
The issue of expenses is deferred.

OVERVIEW

The central issue in this case is one of causation.

The Applicant was a seat-belted driver of a vehicle that was "rear-ended" by another vehicle at relatively low speed. The impact resulted in almost no visible damage to either vehicle. No police or other emergency services were called to the scene. The Applicant handled the situation calmly and efficiently and, after exchanging information with the other driver, proceeded to drive home. During her testimony, she did not describe herself as having been upset by the incident (except when the other driver attempted to withhold his insurance information) and she did not immediately notice or report any symptoms. This accident, however, should be considered within the context of what else was happening in the Applicant's life in the summer and fall of 2009.

Around that time, the Applicant was having both financial and marital difficulties. Her marriage was unhappy; the Applicant reported that her husband was verbally and emotionally abusive. The Applicant also apparently reported that her husband disliked her mother, who the Applicant supported financially. In June 2009, the Applicant and her husband had an argument concerning the Applicant's debts and the fact that she removed money from her husband’s bank account without his knowledge or consent. The Applicant told her husband that she wanted a divorce. Immediately following that argument, her husband left their home, drove to another city and unsuccessfully attempted to commit suicide. After a short period of observation in a hospital, he was permitted to return home but the marriage continued to be strained. The notes of the Applicant's family physician (Dr. Wong) from September 2009 indicate that the Applicant was "very depressed" over this stressful family situation.

The Applicant was also having issues with pain immediately before this accident. She had been off work since September 22, 2009 on a medical leave of absence due to a repetitive strain injury to her right arm. As a result of this condition, she was experiencing pain, primarily in her right elbow, but also in her neck and around her right shoulder blade. While off work, she had been receiving treatment for this condition about three times per week. By November 2009, her symptoms had diminished (by about 50%).

This is the context in which the accident of November 19, 2009 occurred. Within a few days of the accident (on November 23, 2009), the Applicant reported the accident to her family physician and complained to him of an exacerbation of her symptoms. Dr. Wong's records indicate that the Applicant advised him that she first noticed a change in her condition (i.e., a worsening of her pain) the day after the accident (on November 20, 2009) and she reported to him that, since the accident, the pain was focused primarily in her right shoulder and neck (and not her elbow).

In August 2010, at the insistence of her employer, the Applicant did return to work. Her employer terminated her employment about three months later (she believes as a result of her inability to perform her duties adequately and her request for workplace accommodations). She has not returned to any employment since being terminated on November 23, 2010.

Subsequent to the accident in November 2009, the Applicant was referred to a number of specialists and has been diagnosed with chronic pain disorder/fibromyalgia, adjustment disorder, depression and anxiety. Her predominant impairment has been the severe pain she has experienced in the area of her right shoulder (rotator cuff) and the extent to which this pain has limited her functional ability. She has been prescribed medication for pain, for depression and to assist her with sleep disturbance. Eventually, she underwent surgery on her right shoulder (in June 2011) and then, later, on her left shoulder (in October 2012).² The surgeries only provided her with partial relief from the pain (with little overall reduction in pain in the right rotator cuff) and only modest improvement in her range of motion. She has received extensive (OHIP-funded) physiotherapy and some psychiatric treatment. She applied for and has been receiving CPP Disability payments. At the time of the hearing, the Applicant was continuing to take anti-inflammatory medication, pain killers, anti-depressants and sleeping pills and was continuing to see a psychiatrist (Dr. Lo) for treatment every two weeks.

The Insurer does not deny that the Applicant suffers from chronic pain and other physical and psychological impairments. It takes the position, however, that the Applicant has failed to prove that the incident of November 19, 2009 directly caused any of these impairments. Furthermore, it argues that the Applicant cannot rely on medical opinions she has obtained that causally link her impairment(s) to this motor vehicle accident as she has failed to provide her medical experts with a complete and accurate history. On certain key points, the Insurer also questions the Applicant's credibility. For these reasons, the Insurer has denied many of the Applicant's claims.

Ultimately, for the reasons that follow, I conclude that the Applicant did sustain lasting, significant impairments as a result of the accident of November 19, 2009. While the collision itself left little damage to the vehicles, this incident was enough to: (1) exacerbate the Applicant’s pre-existing pain issues; (2) cause a new, significant impairment to her right shoulder (rotator cuff); and, (3) result in diagnosable psychological impairments (a pain disorder and an adjustment disorder, with depressed mood) that did not exist prior to the accident. These impairments have resulted in an inability on the part of the Applicant to perform the essential tasks of her pre-accident employment or engage in any occupation for which she is reasonably suited. I also find that the Applicant is entitled to some (but not all) of the expenses she has claimed related to the cost of assessments and treatment. Her claim for housekeeping and home maintenance benefits, however, is denied due to a lack of adequate, consistent and credible evidence as to the Applicant’s pre-accident housekeeping responsibilities, the amount of assistance she reasonably required after the accident, details of the services provided to her and the expenses she incurred related to such services.

EVIDENCE AND ANALYSIS

Credibility

As with most cases of this type (in which an applicant is alleging impairment due to some type of chronic pain that started with a soft tissue injury), the credibility of the applicant is a key element. Since a person's perception of pain and his or her ability to cope with that pain are entirely subjective, it is critical that the person accurately report his or her current symptoms as well as provide a complete and honest medical and social history to treating and assessing medical practitioners.

This Applicant has not always been entirely forthcoming or consistent with relevant information she has provided to treating and assessing medical practitioners; this is a factor that must be considered in weighing any medical opinions upon which the Applicant seeks to rely. Also, claims were submitted on behalf of the Applicant that were excessive in nature and/or were inaccurate (for example, claiming compensation for services that were not provided during the period for which the claim was made); the Applicant claims that she signed numerous forms in blank and that the information on those forms was later completed by others and submitted without her knowledge.

The manner in which the Applicant testified also did not leave the most favourable impression. I found the Applicant to be extremely guarded, hostile at times and less than forthcoming with the "whole truth". Some reticence and frustration on her part, however, may be understandable. Since the accident of November 2009, she has felt trapped in an unhappy marriage. She has developed significant chronic pain issues which she believes led to the loss of her employment and her inability to work at any job for which she is reasonably suited. She has found it necessary to undergo surgeries to both shoulders and to submit herself to numerous medical assessments, extensive treatment and ongoing medication. She has been involved in multiple legal proceedings (a tort action, a wrongful dismissal action, a CPP disability claim and appeal, a claim against her disability insurer as well as this arbitration proceeding for accident benefits) and has gone through numerous treatment facilities and family doctors as well as successive legal representatives. Although her claims were originally accepted by State Farm, since about the summer of 2010, most of her benefits were terminated. State Farm now takes the position that the Applicant's health issues have nothing to do with the accident and the Insurer is resisting all of her claims. It is apparent to me that she feels angry about all of this and is mistrustful of the system.

In general, I found the Applicant’s testimony to be believable and consistent with most of what she is reported to have told various medical professionals. She did not exaggerate the nature of the accident. She admitted having no immediate symptoms following the accident. She did not recall the names of every medical professional she has seen over the last six or seven years or the details of what she told each of them; I draw no negative inference from this. The Insurer tried to demonstrate that she provided false information to medical assessors but I am not convinced of this. To the extent that she either failed to advise an assessor of relevant facts or that assessor failed to consider such information, that will go to the weight that I can give to such an assessor’s opinion(s). On the evidence presented, I am not convinced that the Applicant deliberately attempted to mislead treating or assessing medical professionals.

The Insurer, however, was able to prove that false and/or erroneous information related to the Applicant’s claim for housekeeping and home maintenance benefits was submitted to the Insurer on the Applicant’s behalf. There were also significant inconsistencies, during the hearing, between the testimony of the Applicant and her other witnesses concerning details as to the Applicant’s pre-accident housekeeping responsibilities, the amount of assistance she reasonably required after the accident, the details of services provided to her and the expenses she incurred related to such services. Due to a lack of sufficient credible evidence, the Applicant’s claim for housekeeping and home maintenance benefits is denied.

Causation

As previously indicated, State Farm takes the position that the Applicant has failed to prove that the incident of November 19, 2009 directly caused any of her impairments. Furthermore, it argues that the Applicant cannot rely on medical opinions she has obtained that causally link her impairment(s) to this motor vehicle accident as she has failed to provide her medical experts with a complete and accurate history (i.e., she has sometimes failed to advise assessors of her pre-existing repetitive strain injury or the other problems in her life that may be the cause of her current psychological impairments).

Obviously, during an assessment, if the Applicant failed to disclose (or if the assessors misunderstood or failed to record) relevant information about her pre-accident medical condition or psycho-social factors that might have impacted upon her emotional state or psychological condition, this will affect the weight I can give to the conclusions of such assessors on the issue of causation. This case largely turns on whether I find that the Applicant, on a balance of probabilities, has established that her ongoing chronic pain problems, her depression and her inability to cope with her pain are directly caused by the accident of November 19, 2009.

The primary test for causation in an accident benefits case remains the "but for" test -- that is, to prove that a motor vehicle accident caused an impairment, an applicant must prove that his or her impairments would not have developed but for the accident having occurred. Where, however, there are multiple possible causes of a person's impairment(s) and it is not possible to tease out exactly which of those potential causes resulted in the impairment(s), an applicant need not prove that the motor vehicle accident was the sole, or even the main, cause of the impairment(s); rather, it is sufficient to prove that the motor vehicle accident materially contributed to the impairment(s).³ The Applicant submitted that it is appropriate to apply the "material contribution" test in this case. The Insurer did not challenge that submission. I agree with the Applicant's submission on this point.

On the issue of causation, I find that the evidence presented on behalf of the Applicant is persuasive and is sufficient, on a balance of probabilities, to prove that the accident of November 19, 2009 materially contributed to her developing many of the impairments I have previously described and which continue to the present. Thus, the accident is a direct cause of those impairments.

With respect to the cause of the Applicant's psychological impairments, the Insurer relies upon the opinions of three psychologists (who conducted examinations, through Riverfront Medical Services, at the request of State Farm): Dr. Wendy Campbell, Dr. Neil Weinberg and Dr. Ralph Lubbers.

On August 4, 2010, Dr. Wendy Campbell released her report following her assessment of the Applicant. Dr. Campbell concluded that the Applicant was experiencing symptoms consistent with a Pain Disorder and Adjustment Disorder (an inability to cope well with her pain). She concluded, however, that such disorders may have pre-dated the motor vehicle accident. In Dr. Campbell's opinion, while such conditions can result in increased vulnerability to an additional stressor (such as a motor vehicle accident), in this case, she did not believe that the Applicant’s current psychological difficulties were "significantly relatable" to the accident of November 19, 2009. About nine months later, Dr. Weinberg conducted a further psychological assessment on behalf of State Farm and essentially came to the same conclusions.

In March 2012, Dr. Lubbers was prepared to go a bit further. Dr. Lubbers found it difficult to make a definitive diagnosis given the Applicant's tendency to magnify (exaggerate) her symptoms and due to the paucity of pre-accident medical records provided to Dr. Lubbers. Dr. Lubbers provisionally opined that, if the Applicant had a pre-existing Pain Disorder and Adjustment Disorder, these conditions were likely exacerbated by the accident of November 19, 2009. Dr. Lubbers, however, felt that the Applicant's current psychological presentation was "for the most part" accounted for by non-collision factors (i.e., continuing unemployment, marital relationship tension, financial strain, unsettled insurance claim).

As for the Applicant's psychological assessors, Dr. Rick Lindal (with Liliya Erlikh) and Dr. Leon Steiner (with Paul Gardiner), I do not give much weight to their conclusions (with respect to the issue of causation) as the Applicant apparently failed to provide to them (or, alternatively, they failed to record and consider) important information that might have affected their conclusions. Dr. Lindal appears to be unaware of the Applicant's significant marital difficulties and the impact that may have had on her mood at the time of the accident. Dr. Steiner also appears to be unaware of both the psychological stress the Applicant was under due to her marital situation as well as her relevant pre-accident medical issues (i.e., pain issues) that were present at the time of the motor vehicle accident.

Nevertheless, the consensus amongst virtually all mental health professionals who have assessed the Applicant is that she suffers from a Pain Disorder and an Adjustment Disorder, with depressed mood. This does not seem to be in dispute. With respect to the opinion of the Insurer's psychologists that these conditions likely pre-dated the accident, however, I find this conclusion to be unsupported by the preponderance of the evidence before me and I reject it. The Applicant was off work due to a repetitive strain injury (primarily "tennis elbow" in her right arm) for only a couple of months prior to the motor vehicle accident. Her recovery was going well. There is no evidence that the Applicant suffered from a chronic pain disorder or any other pain-related psychological condition as of November 2009.⁴ Given the various stressors that existed for the Applicant at that time, she may well have been susceptible to developing such conditions, but there is no convincing evidence that such conditions had manifested prior to the accident.

With respect to her physical condition and the cause of her impairments, the Insurer relies upon the opinions of Dr. Fathi Abuzgaya and Dr. Lyndon Mascarenhas.

Dr. Abuzgaya conducted an orthopaedic examination of the Applicant on behalf of State Farm in July 2010 and issued a report on August 4, 2010. Dr. Abuzgaya concluded that, from an orthopaedic perspective, the Applicant did not suffer a substantial inability to perform the essential tasks of her pre-accident employment and her housekeeping and home maintenance activities, as a result of the subject motor vehicle accident. Dr. Abuzgaya, however, utterly fails to deal with the Applicant's complaints of chronic, significant pain that was intensified by certain types of activities (pushing, pulling, reaching, etc.).

In August 2011, State Farm had the Applicant undergo an examination by Dr. Lyndon Mascarenhas (general practitioner). Dr. Mascarenhas concluded that, as a result of the accident, the Applicant sustained sprains and strains to her neck, upper back, both shoulders and right elbow. The Applicant underwent surgery on her right shoulder a couple of months before this assessment. With respect to the cause of her right shoulder symptoms, Dr. Mascarenhas deferred to the Applicant's treating orthopaedic surgeon, Dr. Vaselios Manolopoulos.

Dr. Manolopoulos has about 13 years’ experience in orthopaedic surgery and is the chief of orthopaedic surgery at the Credit Valley Hospital. He specializes in shoulder problems and performs 250-300 shoulder surgeries each year. He was the Applicant's treating orthopaedic surgeon for her shoulder complaints from early 2011 through late 2013. He saw her on multiple occasions, performed surgeries on both of her shoulders,⁵ arranged for extensive physical therapy for her at the hospital and followed her post-surgery progress. Dr. Manolopoulos testified at this hearing. I found his evidence to be balanced, objective and very helpful on this issue of causation.

Following the accident, the pain in the Applicant's right shoulder (and the effect of that pain on her sleep, mood and ability to function) was, and continues to be, the Applicant's predominant impairment.

The original opinion of Dr. Manolopoulos concerning the cause of this right shoulder impairment was that it likely resulted from the motor vehicle accident of November 19, 2009. At the time Dr. Manolopoulos gave that opinion, however, he was unaware that she had any relevant pre-accident medical history; in particular, he was unaware that the Applicant had been off work with a repetitive strain injury to her right arm (extending to her shoulder). In the absence of information that suggested any other likely cause, Dr. Manolopoulos therefore assumed that the Applicant's right shoulder problems were caused by the accident of November 19, 2009.

The Applicant had been treated for her repetitive strain injury at Nahani Physiotherapy & Acupuncture ("Nahani") for about six weeks prior to the motor vehicle accident. On the day after the accident, she still went for treatment at Nahani. The note from November 20, 2009 makes no mention of the motor vehicle accident and suggests that there had been some improvement of the Applicant's condition (i.e., reduction in pain) since her previous visit. When Dr. Manolopoulos was confronted with this information and the records from Nahani during cross-examination, he reconsidered his position and indicated that he was no longer certain that the accident was the likely cause of the Applicant's shoulder problems. He qualified that statement, however, by indicating that he would want to see the family doctor's clinical notes and records because if the accident caused an impairment to her right shoulder or exacerbated a pre-existing condition, he would expect to see mention of it in the family doctor's records within a few weeks of the accident.

The clinical notes and records of the Applicant's family physician, Dr. Frank Wong, were then provided to Dr. Manolopoulos. Dr. Manolopoulos pointed out the note of Dr. Wong dated November 23, 2009, in which the Applicant reported to Dr. Wong that she had been involved in a collision on November 19, 2009 and that she began to feel worse (on right side of her neck and shoulder) the following day. When Dr. Manolopoulos saw the Applicant, her complaints were focused on the right rotator cuff area, which is different than the areas upon which the treatment at Nahani was focused (i.e., her right elbow and scapula). This is consistent with the Applicant's testimony that she had a gradual onset of symptoms following the accident and that the pain was in a different location and of a different nature (i.e., greater intensity and frequency) than before the accident. Dr. Manolopoulos testified that the note of Dr. Wong of November 23, 2009 is exactly what he would have expected to see if the accident played a role in the Applicant's impairments.

Dr. Manolopoulos also indicated that there is no direct correlation between the amount of force involved in an accident and the development of symptoms. Thus, in his opinion, the fact that this was a relatively minor collision was not a relevant consideration in determining whether the Applicant's shoulder problems likely resulted from this accident.

Based upon his experience, his personal knowledge of the Applicant and the documents that were presented to him during the hearing, Dr. Manolopoulos ultimately concluded that, with respect to the Applicant's right shoulder, it was more likely than not that the motor vehicle accident of November 19, 2009 exacerbated a pre-existing condition. During surgery, he found tremendous bursitis in her right shoulder and, while bursitis can be caused by many things (including a repetitive strain), Dr. Manolopoulos testified that it is his opinion that, in this case, it was caused by the trauma sustained in the motor vehicle accident of November 19, 2009. After the surgery on the right shoulder (June 24, 2011), and with extensive physiotherapy (over a period of about one year), there was mediocre improvement in the range of motion of that shoulder and a modest decrease in pain. By March 2013, however, much of that pain had returned. Dr. Manolopoulos concluded that by November 2013, the Applicant's right shoulder had reached maximum recovery and that her impairment with respect to that shoulder (limited range of motion and chronic, myofascial pain) was permanent. I accept the opinion of Dr. Manolopoulos concerning both the cause of the Applicant's impairments related to her right shoulder and his prognosis for this impairment.

With respect to her left shoulder (in which Dr. Manolopoulos found a partial tear), Dr. Manolopoulos was not prepared to causally link this impairment to the accident of November 2009. There were many possible causes for this impairment and, given the delay between the accident and the appearance of symptoms in the left shoulder (i.e., a delay of about two years), Dr. Manolopoulos was not prepared to say that the accident directly caused this impairment. He conceded that it is possible that, in protecting her right shoulder, the Applicant overused her left arm and thereby caused damage to her left shoulder but he was not prepared to conclude that this was more likely than any of the other possible causes.

In conclusion, based upon the evidence presented in this case, I find that the Applicant has proven on a balance of probabilities that the accident of November 19, 2009 directly caused impairments, including: sprains and strains to the soft tissues of her back, neck and shoulders; exacerbation of pre-existing pain problems in her right arm and her right shoulder; and the development of a chronic pain disorder and an adjustment disorder, with depressed mood. In simple terms, at the time of the accident in November 2009, the Applicant was both physically and psychologically vulnerable and it did not take much to aggravate her condition. The accident of November 19, 2009 may not be the sole cause or even the main cause of many of the Applicant's current impairments, but the Applicant has proven on a balance of probabilities that the accident was a material contributing factor in the development or the worsening of many of her impairments.

Income Replacement Benefits

The Applicant is claiming income replacement benefits in the amount of $400.00 per week from November 24, 2010 onwards (less appropriate adjustments for CPP Disability payments received by the Applicant). During this hearing, the parties were focused on the issue of entitlement to income replacement benefits, rather than quantum.

To succeed on this part of her claim, the Applicant must prove that, as a result of and within 104 weeks after the accident, she suffered a substantial inability to perform the essential tasks of her pre-accident employment. Even if she establishes that, the Insurer is not required to pay an income replacement benefit for any period longer than 104 weeks of disability, unless, as a result of the accident, the Applicant is suffering a complete inability to engage in any employment for which she is reasonably suited by education, training or experience.

The Applicant was born in Hong Kong and immigrated to Canada in 1990. Her native language is Cantonese but she has completed secondary and post-secondary education (a diploma in Business Management Studies from George Brown College) in Canada and, since graduation, has worked exclusively in English-speaking workplaces.⁶ According to what the Applicant reported to a psychovocational assessor,⁷ her work history can be summarized as follows:

In the summer of 2000, she worked full time in a summer contract position for Human Resources Development Canada as an inventory clerk, doing data entry related to employment files. From May 2001 to August 2003, she worked full time as a data entry clerk for Panasonic Canada Inc. doing data entry related to shipping and airmail orders. From August 2003 to October 2005, she worked full time for the same company as an accounts receivable clerk, preparing bank books and doing cash applications. From November 2005 to August 2006, she worked full time for Pivotal Solutions as a credit analyst, making collection calls. In September 2006, she began full-time employment with McKesson Canada Corp., a pharmaceutical distribution company, as a cashier and account reconciler, last earning $36,000 annually. The job involved data entry, collecting cheques from the mail, sorting and depositing them, preparing bank deposits, allotting cash to specific accounts, and making collection calls to pharmacies. She describes the work as 80% sedentary, with 20% moving about the workplace, going to the mail room or the reception desk, faxing, photocopying, and dropping off internal messages to various individuals. The work primarily involved doing data entry to keep track of accounts.

This work history is fairly consistent with the Applicant's testimony at the hearing. It is worth noting that the Applicant received excellent annual performance evaluations at McKesson in both 2007 and in 2008.

Starting on September 22, 2009, the Applicant took a leave of absence from work as a result of the repetitive strain injury to her right arm. By November 2009 she was benefitting from the treatment at Nahani and was hoping to return to work shortly (perhaps by the end of 2009 or early 2010). As I have previously determined, the accident of November 19, 2009 resulted in a deterioration of the Applicant's condition and also resulted in new impairments. This delayed the Applicant's return to work.

By August 2010, the Applicant was under increasing pressure from her employer ("McKesson") to return to work. On August 3, 2010, McKesson wrote to the Applicant and instructed her to return to work on August 9, 2010. Although the Applicant did not feel that she was ready to return to work, she felt that she had no choice but to comply and did return to work on August 9, 2010.

Also around that time (August 17, 2010), the Insurer advised the Applicant that it would not be paying any income replacement benefits to her because Dr. Abuzgaya could not find any "objective" evidence of accident-related impairments from an orthopaedic point of view and Dr. Campbell concluded that the Applicant's psychological impairments (the pain disorder and adjustment disorder) were not caused by the accident. The Insurer continues to rely upon these opinions in denying income replacement benefits (as well as other benefits) to the Applicant.

Upon her return to work, according to the Applicant,⁸ she had significant difficulties performing the essential tasks of her job. She required assistance from colleagues and worked more slowly. She was unable to keyboard for longer than 15 minutes before requiring a break. She took proof-of-delivery slips to reception, in large stacks. She was unable to handle two such stacks and relied on assistance from co-workers, who began to complain. She struggled with pain and fatigue and had difficulties with slowed information processing speed, concentration, organization, and multitasking. She states that she did not feel welcome when she returned. In her absence, someone else had taken over her duties. She found the environment stressful, notes that her boss "followed her around" to keep an eye on her. She took strong medication for pain, which made her dizzy and tired, and resulted in constipation. As a result of her digestive problems, she had to drink a lot of water and needed frequent washroom breaks. At the end of the day, her pain was greatly elevated, and she was exhausted.

Since she was struggling at work, in October 2010 the Applicant had her new family physician (Dr. Yu) complete a form for McKesson in which he recommended that the Applicant be put on modified duties. This request was denied by McKesson. Shortly thereafter (on November 23, 2010), the Applicant was terminated, allegedly due to "restructuring". The Applicant believes that the real reason that she was terminated was due to her inability to perform the essential tasks of her job and due to her request for accommodations. In light of the circumstances surrounding her termination, this does not seem to me to be an unreasonable inference for the Applicant to have drawn. She has not worked at any job since November 23, 2010. She is claiming income replacement benefits from November 24, 2010 onwards.

Dr. Ken Fern, orthopaedic surgeon, concludes that, as a result of the November 19, 2009 accident, the Applicant has developed a very serious and significant chronic pain problem. As of the time of his examination of the Applicant (February 2012), he found that the Applicant:

... would have significant difficulties with activities that require repetitive bending, lifting and twisting type maneuvers [sic] of her back and neck. She would have difficulties with activities that require her to maintain prolonged static postures. She would have difficulties maintaining prolonged seated, as well as weight-bearing positions. She would have difficulties with activities that require significant pushing, pulling or lifting type maneuvers [sic]. She would have difficulties especially with overhead activities due to her spinal problems, as well as her problems with both of her shoulders... Her ongoing problems will have a significant impact on her abilities ... to fulfill her vocational requirements to the fullest.⁹

Also in February 2012, the Applicant underwent a psychovocational assessment by Dr. Shawn Scherer. At page 7 of Dr. Scherer's report can be found a list of the Applicant's impairments -- primarily related to chronic pain (in her right shoulder, low back, neck and head), sleep disturbance, and associated difficulties with mood, stamina and cognitive function (i.e., diminished memory and concentration).

Unlike some of the Insurer's assessors, Dr. Scherer did not find evidence of symptom magnification. Based upon the observations and tests (including validity and reliability measures) administered by Dr. Scherer, he found the Applicant to be accurately reporting her level of ability and functional impairments. He noted that she approached the examinations in a diligent and seemingly effortful manner, that her verbal responses as to pain and functional limitation were consistent with the available medical records as well as with psychometric findings. There were no marked inconsistencies across correlated ability measures. Selective item analyses of psychometric testing showed no signs of random responding or deliberate response distortion. She obtained a valid protocol on an index of response distortion. He concluded that, "Examination findings are considered valid and reliable measures of her academic levels, learning abilities, psychological and psychosocial functioning, pain perception, and perceived functional restrictions."

By the time of his examination of the Applicant (February 2012), Dr. Scherer felt that the Applicant had likely reached maximal medical recovery and there was little prospect of substantial improvement in her overall functioning. As a result of her chronic pain condition, with the associated disturbance of sleep patterns and the negative impact that has on her endurance, mood and ability to cope with stress, Dr. Scherer concluded that the Applicant was unable to engage in any full-time employment.

In early 2014, Dr. Roland Wong was of the opinion that, given the Applicant's physical and psychological conditions, she would still have problems doing clerical work.

The Applicant's claim for CPP Disability Benefits was successful so it appears that, ultimately, the federal government was also satisfied that the Applicant is disabled from working. I was advised by the Applicant's representative that the CPP payments, when they were eventually received by the Applicant (in May 2015), were paid retroactively back to July 11, 2011.

The type of work the Applicant was doing prior to the accident was essentially the only type of work she had ever done since graduating from college: a mostly sedentary, office-type job involving extended periods of keyboarding (with some lifting and carrying of stacks of documents). There is no evidence of any other employment for which she is reasonably suited by education, training or experience. Thus, for this Applicant, the employment she had before the accident is the same as the employment for which he or she is reasonably suited by education, training or experience. To qualify for income replacement benefits, the Applicant must prove on a balance of probabilities that, as a result of and within 104 weeks of the accident, she sustained a substantial inability to perform the essential tasks of her job at McKesson. The Applicant is claiming such benefits from November 24, 2010. After two years of such disability, to continue to qualify for income replacement benefits, in this case, the Applicant must prove on a balance of probabilities that as a result of the accident, she sustained a complete inability to engage in any similar employment.

None of the Insurer's experts specifically address whether or not the Applicant is able to perform the essential tasks of her pre-accident job or any other employment for which she is reasonably suited. None of the Insurer's experts identify any other type of employment for which the Applicant is reasonably suited. The Insurer is really not arguing that the Applicant can work. Rather, it is arguing that the Applicant's inability to work is not related to the motor vehicle accident of November 19, 2009.

The Applicant’s experts conclude that she is disabled from employment. Dr. Wong concludes that given the Applicant's physical and psychological conditions, she cannot do clerical work. Dr. Fern and Dr. Scherer both suggest that the Applicant is really not able to engage in any meaningful employment. She suffers from a significant pain disorder and an adjustment disorder with depressed mood. The chronic pain syndrome has disrupted her sleep patterns, impaired her cognitive abilities, her mood and her ability to cope with the pain and other stressors she has in her life. It has left her chronically fatigued. There was also a period of time when she had very limited use of her right arm as she was recovering from shoulder surgery; the surgery itself provided limited benefit in terms of increased range of motion or pain reduction. She is taking medication for her pain, for inflammation, for depression and to assist her with sleep disturbance; these medications carry with them an additional risk of adverse effects on her functioning. She is seeing a psychiatrist regularly but has yet to see any real improvement in her condition.

I have found that, while the motor vehicle accident of November 19, 2009 is not the only cause of the Applicant's current impairments, the accident did materially contribute to many of her ongoing impairments. Given these facts, I find that the Applicant has met her onus of proving that, as a result of the accident, from November 24, 2010 through November 23, 2012 she was substantially disabled from performing the essential tasks of her job at McKesson and that from November 24, 2012 onwards, she has been completely unable to engage in any employment for which she is reasonable suited by education, training or experience.

In order to permit calculation of the exact amount of income replacement benefits payable to the Applicant, she will have to provide the Insurer with details of all CPP disability benefits she has received to date (including a breakdown of the weeks covered and the weekly amounts paid). The parties should then be able to calculate the amount of income replacement benefits (and interest thereon) owing to the Applicant by the Insurer. If the parties cannot agree (within the timeframe that I shall provide), this hearing may need to be reconvened for a determination of the quantum of the income replacement benefits to which the Applicant is entitled. It is my hope that this will not be necessary.

Housekeeping and Home Maintenance

State Farm paid for all housekeeping and home maintenance benefits claimed by the Applicant up to August 24, 2010 (approximately $4,000.00). The Applicant is claiming housekeeping and home maintenance benefits in the amount of $100.00 per week from August 25, 2010 through November 19, 2011.

Pursuant to section 22 of the Schedule, State Farm is liable to pay for reasonable and necessary additional expenses incurred by the Applicant as a result of the accident for housekeeping and home maintenance services if it is determined that, as a result of the accident, the Applicant sustained an impairment that resulted in a substantial inability to perform housekeeping and home maintenance services that she normally performed before the accident.

With respect to this issue, I heard testimony from the Applicant, her husband and the person who provided housekeeping services to the Appicant, Ms. W. The parties also filed various documents related to this issue, including the invoices that were submitted to the Insurer by or on behalf of the Applicant.

At all material times, the Applicant lived with her husband in a one-bedroom condominium unit in Mississauga (with an area of approximately 1,200 square feet, according to Ms. W.). The Applicant testified that, prior to the accident, she performed all housekeeping duties in this household. The Applicant stated that, after the accident, as a result of her impairments, she could perform no housekeeping chores so she hired an acquaintance, Ms. W., to provide her with housekeeping services. She claims that Ms. W. came to her home for 6 hours on Tuesdays and 6 hours on Thursdays (a total of 12 hours per week) from mid-December 2009 up to and including August 2011. She agreed to pay her $10.25 per hour, if and when she received money from her insurance company. Starting in September 2011, Ms. W. had to devote more time to caring for her own mother; therefore, from September 2011 onwards, Ms. W. reduced the time she provided services to the Applicant to 6 hours per week. Ms. W. allegedly continued to provide housekeeping services to the Applicant at the rate of 6 hours per week from September 2011 through August 2014.

The Applicant testified that the services provided by Ms. W. included: vacuuming, sweeping, mopping, dusting, throwing out garbage, cleaning (including the bathroom), laundry, making the bed, grocery shopping and meal preparation. She also testified that, for the period up to August 23, 2010, she paid Ms. W. cash out of the money she had received from State Farm for housekeeping and home maintenance (after deducting 25% for her then legal representatives). After August 2010, no payments were made by the Applicant to Ms. W. until the summer of 2014, when the Applicant paid Ms. W. $10,000 in cash out of the funds the Applicant received when her tort action was settled. This was meant to be a partial payment for all the services that had been provided by Ms. W. to the Applicant from August 24, 2010 through July 2013. No records were kept of the services provided or the amounts paid (or promised to be paid) by the Applicant to Ms. W.

Ms. W. testified that she provided housekeeping services to the Applicant from December 2009 through August 2011 at the rate of 12 hours per week (6 hours on Tuesdays and 6 hours on Thursdays) and from September 2011 to August 2014 at the reduced rate of 6 hours per week. She testified that she travelled by bus from her home in Toronto to the Applicant's condo in Mississauga and then back again. When attending twice weekly, she indicated that, usually, she performed exactly the same services on the Thursday as she had on the Tuesday of the same week. She testified that she received no payment whatsoever for these services until she received a cheque for $10,000 from Intact¹⁰ and has received nothing since.

The Applicant’s husband testified that, prior to the accident of November 2009, he and his wife shared all housekeeping duties. He did all of his own laundry and helped with grocery shopping, cleaning, loading the dishwasher and vacuuming. He testified that for three months or so prior to the accident, the Applicant was more restricted in what she could do (due to the pain in her right arm) and he had to help out even more than usual during that period. He states that, after the accident, he began doing all of the grocery shopping and the Applicant had difficulty reaching above her head or lifting objects such as a bag of rice or a rice cooker.

The termination of housekeeping and home maintenance benefits by State Farm was based upon the reports of Drs. Campbell and Abuzgaya. Dr. Abuzgaya indicated that there was no objective evidence of an orthopaedic impairment and Dr. Campbell did not feel that the accident was the cause of the Applicant's pain and adjustment disorders. I have previously explained why I reject their opinions (under my analysis of the causation issue). Given the evidence before me (much of which I have already discussed earlier in this decision), I believe that the Applicant probably did reasonably require some assistance with housekeeping beyond August 23, 2010, especially with heavier tasks, repetitive tasks and tasks involving reaching above shoulder height. It is also likely that her need for assistance in this regard was significantly less than she claimed and that her need for such assistance varied over time. It makes sense to me, for instance, that she might require more assistance during her attempt to return to work if being forced to prematurely return to work exacerbated her impairment; similarly, I would have expected to see an increase in her need for assistance immediately following the surgery on her right shoulder in June 2011. The Applicant, however, claimed the maximum amount possible¹¹ throughout the entire period of the claim.

The problem with respect to the Applicant's claim for housekeeping and home maintenance benefits is that the Applicant has failed to adduce sufficient, detailed, credible evidence as to exactly what services were reasonably required to assist her with the housekeeping activities she normally performed before the accident, details as to the housekeeping expenses that were actually incurred¹² by her as a result of the accident and details as to exactly what housekeeping tasks she was substantially disabled from performing (from time to time) and why.

I find that the Applicant has failed to prove the exact nature of the housekeeping and home maintenance services that she normally performed before the accident. She states that she did all the housekeeping. Her husband testified that they shared the housekeeping duties. The Applicant was unwilling to admit that she had any limitations with respect to housekeeping in the months before the accident (due to her repetitive strain injury). Her husband confirmed that there were housekeeping activities that the Applicant was not doing in the months prior to the motor vehicle accident as a result of her pre-existing medical problems. Also, one must keep in mind that this is a one-bedroom condominium unit and that it likely requires less time to keep clean than a larger home. Thus, I find that the Applicant exaggerated the extent of her pre-accident housekeeping activities.

There are also significant inconsistencies in the details of the financial arrangements between the Applicant and Ms. W. The Applicant claims that Ms. W. was paid about 75% of the housekeeping benefits she received up to August 2010 (i.e., about $3,000, in cash); Ms. W. denies receiving any such payments. The Applicant claims to have paid Ms. W. $10,000 in cash out of settlement funds she had received from Intact. Ms. W. claims to have received a cheque from Intact for $10,000. No records were produced by either the Applicant or Ms. W. with respect to the details of payments that were made or were promised to be made. Forms were submitted on behalf of the Applicant to State Farm that indicate that the Applicant was paying Ms. W. $100.00 per week in cash but the Applicant advises that this is not true and that she signed all the forms in blank and they were completed incorrectly by her legal representatives. Ms. W. continues to deny receiving any money other than the $10,000 referenced above.

Regardless of whether Ms. W. was actually paid for services she provided up to August 2010, there remain many unanswered questions. Why, for instance, would Ms. W. (who is supposedly not a good friend or relative of the Applicant), leave her disabled mother at home to travel by bus to Mississauga to provide housekeeping services to the Applicant and continue doing that for many years without any remuneration whatsoever? It makes one wonder what was the real arrangement between these two women. I do not believe I heard the truth (or the whole truth) about this from either of them.

Finally, the Applicant claimed more in expenses than she actually incurred. She claimed (and was paid) housekeeping and home maintenance benefits for the services of Ms. W. commencing November 20, 2009 but admitted at the hearing before me that she did not begin to actually receive any services from Ms. W. until mid-December 2009. She was paid for services allegedly provided on December 25, 2009 but both the Applicant and Ms. W. agree that no services were provided on that date (Christmas day). Both the Applicant and Ms. W. agree that the number of hours of services were reduced from 12 hours per week to 6 hours per week as of September 2011 but the Applicant and Ms. W. continued to submit invoices to the Insurer for September, October and November 2011 based on 12 hours per week of services.

There is simply too much conflicting evidence for me to be able to make a fair and accurate determination of this part of the Applicant's claim. I am not prepared to simply guess. It is the Applicant who bears the burden of proof. I find that she has failed to meet her onus to establish the reasonable and necessary additional expenses she incurred as a result of the accident to have someone else perform housekeeping and home maintenance services that she normally performed before the accident. The Applicant's claim for housekeeping and home maintenance benefits is therefore denied.

Medical/Rehabilitation Benefits

The Applicant claims the cost of physical therapy (chiropractic treatment, exercise, acupuncture, etc.) recommended in June and July 2011 by Dr. Bigness (chiropractor) of Prime Healthcare Inc. as follows:

$1,417.32 for treatment recommended in a plan dated June 15, 2011;
$1,563.72 for treatment recommended in a plan dated June 22, 2011; and
$1,532.22 for treatment recommended in a plan dated July 29, 2011.

I am not allowing these claims for the following reasons:

Based upon the Applicant's testimony, I conclude that, by June 2011, she was receiving very little benefit from the physical therapy she was receiving through Prime Healthcare Inc.;
The treatment plans in questions are not signed by either Dr. Bigness or the Applicant and the Applicant was not clear as to whether she met with Dr. Bigness or whether he or anyone else at Prime Healthcare Inc. reviewed the details of the proposed treatment before these plans were submitted;
At the time this therapy was being recommended, it was just before or after surgery on the Applicant’s right shoulder (which took place on June 24, 2011) and some or all of the recommended therapy was likely contra-indicated;
Some of the therapy recommended in these plans may have been duplicative of the therapy the Applicant received at Credit Valley Hospital following her shoulder surgery on June 24, 2011;
The Applicant has simply failed to adduce sufficient evidence to prove, on a balance of probabilities, the treatment recommended in these plans was reasonable and necessary at the time the plans were submitted.

Psychotherapy pursuant to a plan from Dr. Steiner dated July 12, 2010

The Applicant claims $1,698.60 for the cost of psychotherapy provided pursuant to a treatment plan from Dr. Leon Steiner dated July 12, 2010.

In a report dated June 29, 2010, Dr. Steiner, a psychologist with Fairview Assessment Centre ("Fairview"), recommended 10 psychotherapy sessions. He then submitted a formal plan for that treatment on July 12, 2010 (i.e., 10 sessions over 16 weeks, plus interpretation services, at a total cost of $2,822.66). It appears that this plan may have been deemed to have been approved as there is no evidence that the Insurer denied this plan. Dr. Steiner, however, did not provide the treatment recommended in this plan.

By December 2010, State Farm made it clear to the Applicant and her legal representative(s) that it would no longer approve or pay any plans from Fairview (because of litigation between State Farm and Fairview). On December 14, 2010, the Applicant's new counsel (Ms. Bolt) wrote to State Farm to advise that the psychotherapy that had been recommended in the plan of July 12, 2010 would actually be provided by Dr. Peter Waxer. There is no evidence that State Farm objected to this proposal.

Dr. Zhu Hui Li, who is associated with Dr. Peter Waxer, appears to have provided psychotherapy to the Applicant from January 2011 through June 2011. Dr. Li eventually submitted an invoice to State Farm in the amount of $1,698.60. On October 6, 2011 (and again on November 7, 2011), State Farm refused to pay this invoice on the basis that no treatment plan had ever been submitted by Dr. Li (or Dr. Waxer).

Regardless of what dispute may have existed between State Farm and Fairview, this particular treatment plan (for 10 sessions of psychotherapy) appears to me to have been reasonable at the time it was proposed and at the time the services were provided. The Applicant clearly suffered from a pain disorder and an adjustment disorder as well as from depression. I have previously found that those conditions directly resulted (at least in part) from the accident of November 2009. The change in service provider was likely precipitated by the State Farm's refusal to consider any further plans or invoices from Fairview. State Farm was advised of the Applicant's intention to have someone associated with Dr. Waxer provide the psychotherapy recommended in the plan of July 12, 2010. There is no evidence that State Farm ever objected to this proposal by the Applicant. I therefore find that the Insurer ought to pay for the cost ($1,698.60) of the treatment that was provided by Dr. Li pursuant to the plan of July 12, 2010.

Assistive Device

The Applicant claims $149.90 for the cost of an assistive device from Medical Mart submitted on October 19, 2011. No evidence was presented as to what exactly is the device in question or why it was reasonable and necessary. Therefore, this claim is denied.

Cost of Prescription Medication

The Applicant claims $61.67 for the cost of prescription medication from Wal-Mart Pharmacy, submitted on December 31, 2011 ($39.47) and January 3, 2012 ($22.20).

These claims were denied by the Insurer (by OCF-9 dated January 6, 2012) solely on the basis that (based on the opinions of Drs. Abuzgaya and Campbell), by August 2010 the Applicant no longer suffered from any physical or psychological impairments attributable to the accident of November 2009. Since I have found that the Insurer was wrong to have taken this position, I find that the Applicant is entitled to compensation in the amount of $61.67 for the cost of the medication in question. The Insurer shall be ordered to pay this amount.

Cost of Examinations

The Applicant claims $2,000.00 towards the cost ($6,215.00) of a psycho-vocational assessment by Dr. Shawn Scherer pursuant to a plan by Access Rehab dated January 6, 2012 and $2,000.00 towards the cost ($4,294.00) of an orthopaedic assessment by Dr. Ken Fern pursuant to a plan by Access Rehab dated November 16, 2011.

In March 2012, the Insurer denied the psycho-vocational assessment on the basis of Dr. Lubber's opinion that it was unclear from the record whether the accident of November 19, 2009 was the reason that the Applicant could not work (i.e., once again, the Insurer was relying upon the question of causation). Dr. Lubber's opinion, however, was equivocal. Even Dr. Lubber conceded that the accident of November 2009 may have exacerbated pre-existing psychological conditions. In any event, I have found that the Applicant did sustain psychological impairment as a result of the accident and that this, together with her other impairments, resulted in an inability to work. It was reasonable to have a psychovocational assessment done and I found the report of Dr. Scherer to have been helpful in this case. The Insurer shall be ordered to pay $2,000.00 towards the cost of Dr. Scherer's report.

In rejecting Dr. Fern's request to do an orthopaedic assessment (by way of OCF-9 dated January 12, 2012), the Insurer again relied upon the report of Dr. Abuzgaya to the effect that there was no objective evidence of any orthopaedic impairment by August 2010, that the soft-tissue injuries had healed and that the Applicant had returned to her pre-accident status by that time. I have previously indicated the flaws that I see in the report from Dr. Abuzgaya (in particular, his failure to address the Applicant's complaints of chronic pain and the role that the accident may have played in exacerbating conditions that pre-dated the accident). Furthermore, subsequent to the assessment by Dr. Abuzgaya, objective evidence of orthopaedic impairments was obtained through imaging. These impairments required surgical intervention in June 2011. It therefore seems appropriate to me to have suggested obtaining a new orthopaedic assessment in late 2011. I found the report of Dr. Fern to have been helpful in this case. The Insurer shall be ordered to pay $2,000.00 towards the cost of Dr. Fern's report.

Interest

The Applicant is entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule.

REMAINING ISSUES

There are a number of issues that I cannot properly adjudicate without further evidence and submissions. Such issues include (but are not necessarily limited to):

The quantum of the income replacement benefits to which the Applicant is entitled (after adjustment for CPP Disability payments received by the Applicant);
The amount of interest owing on accident benefits awarded in this order; and
Entitlement to and quantum of expenses related to this proceeding.

I am hopeful that the parties will be able to resolve any such outstanding issues on their own, without the need for further adjudication. If, however, after reasonable efforts, the parties are unable to resolve any remaining issues on their own, either party may deliver a written request that the hearing be resumed so long as that request is made to FSCO (on notice to the other party) within 90 days of the date that this order is issued.

March 22, 2016

Richard Feldman Date

Arbitrator

Financial Services Commission of Ontario