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

Neutral Citation: 2017 ONFSCDRS 106

FSCO A15-002293

BETWEEN:

JAYESHKUMAR PATEL

Applicant

and

TD GENERAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Arbitrator Louise Barrington

Heard:

In person at ADR Chambers on November 9 & 10, 2016 and by written submissions due January 27, 2017

Appearances:

Mr. Vikram Bhandari for Mr. Jayeshkumar Patel

Mr. Joseph Evans for TD General Insurance Company

Before:

Arbitrator Louise Barrington

Issues:

The Applicant, Mr. Jayeshkumar Patel, was injured on September 10, 2012, while operating his motor vehicle, and sought accident benefits from TD General Insurance Company (“TD”), payable under the SABS.¹ The parties were unable to resolve their disputes through mediation, and Mr. Patel, through his representative, applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c. I.8, as amended.

The issues in this Hearing as set out as agreed in the pre-hearing reports, dated December 3, 2015 and March 14, 2016, are as follows:

Did Mr. Patel sustain an impairment which is primarily a minor injury within the meaning of the Minor Injury Guideline (“MIG”) of the SABS as a result of the accident?
Is Mr. Patel entitled to receive an expense of $1,752.00 for the cost of a Functional Abilities Evaluation by Dr. Justin Guy on September 30, 2014?
Is Mr. Patel entitled to receive a medical benefit for services by Dr. Justin Guy as follows:

a) $2,214.40 for chiropractic treatment, pursuant to an OCF-18, submitted on June 2, 2015;

b) $1,075.75 for assistive devices, pursuant to an OCF-18, submitted on July 29, 2015; and

c) $1,819.30 for assistive devices submitted on January 5, 2016?

Is Mr. Patel entitled to payments for the cost of an examination in the amount of $2,000.00 for a Social-Emotional Assessment performed by Dr. Joshua Pugen?
Is Mr. Patel entitled to a special award?
Is Mr. Patel entitled to interest for the overdue payment of benefits?
Is TD General liable to pay Mr. Patel’s expenses in respect of the Arbitration?
Is Mr. Patel liable to pay TD’s expenses in respect of the Arbitration?

Result:

As a result of the accident, Mr. Patel sustained an impairment which is not primarily a minor injury within the meaning of the MIG of the SABS.
Mr. Patel is entitled to receive a benefit of $1,752.00 for the cost of a Functional Abilities Evaluation by Dr. Justin Guy on September 30, 2014.
Mr. Patel is entitled to medical benefits of:

(a) $2,214.40 for a treatment plan proposed by Dr. Justin Guy on June 2, 2015; and

(b) $1,075.75 for assistive devices recommended by Dr. Justin Guy on July 29, 2015.

(c) Mr. Patel is not entitled to $1,819.30 for a treatment plan for assistive devices proposed by Dr. Justin Guy on January 5, 2016.

Mr. Patel’s claim for $2,000.00 for the cost of a Social-Emotional Assessment proposed by Mr. Joshua Pugen is denied.
The application for a special award is denied.
Mr. Patel is entitled to interest on the amounts awarded, from the date each benefit amount fell due. The medical benefit of $1,752.00 for the cost of the Functional Abilities Evaluation shall bear interest at the rate of 1% per month, compounded monthly, from the date it became due until the date of this Decision. All other amounts awarded, having become due after December 31, 2014, shall bear interest at the rate of 1% per month, compounded monthly, from the date each became due until March 14, 2016, the date they were mediated. Thereafter, these overdue sums will bear interest at the Courts of Justice Act pre-judgment interest rate of 1.3% per annum until the date of this Decision.
As requested by the Parties, this decision is final save as to expenses. In the event that the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, pursuant to section 282(1) of the Insurance Act, the parties or one of them may request an appointment with me for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

PRELIMINARY ISSUES

At the start of the Hearing, a number of preliminary issues arose:

The Applicant brought a Motion seeking an Order not to include three addenda reports served by the Insurer one week before the date of the Hearing;
The Insurer in return sought a Motion that an orthopedic assessment report filed by the Applicant had been served late and should also be excluded;
The Insurer sought a ruling on the number of expert witnesses to be permitted in support of the Applicant’s case; and
The Applicant applied for an Order permitting Dr. Kanani, the Applicant’s family physician, to testify by videoconference.
Two specialists, Dr. Getahun and Mr. Pugen, who had filed reports in support of the Applicant, had not appeared to testify despite having received a summons to do so. Counsel for the Insurer asked me to disregard their reports, which had already been included in the joint brief submitted by the parties.

After hearing the parties on all preliminary issues, and considering the object of the SABS to encourage expeditious settlement, and that neither party would be unduly prejudiced by the late submissions, I ordered as follows:

The three Addenda reports filed by the Insurer were admissible;
The orthopedic assessment report served by the Applicant was admissible;
The Applicant having decided to call only his treating family physician to give evidence, there was no issue to resolve regarding the number of expert witnesses;
Dr. Kanani was examined from his medical office by both the Applicant’s and Insurer’s counsel using Skype; certain documents referenced by counsel were sent to him by fax or email in advance by counsel for both parties; and
The reports of Dr. Getahun and Mr. Pugen would be admitted into evidence, but in weighing their content, I would take into account the fact that the Insurer’s counsel had not had the opportunity to contest them.

EVIDENCE AND ANALYSIS

There is no argument as to the fact that the Applicant at the time of the accident was insured under a policy issued by the Insurer.

The Applicant, through Counsel, states that his injuries from the accident fall outside the MIG because they have persisted long after one would expect a soft tissue injury to last, and continue to cause him chronic pain and debilitation.

The Applicant relied on medical reports from Dr. Justin Guy, who did a Functional Abilities Evaluation; Dr. T. Getahun, orthopedic specialist; and Mr. Joshua Pugen, a social worker who had done a Social-Emotional Assessment. He gave notice that he intended to call Dr. Kanani, his family doctor, but specifically did not undertake to produce any witnesses. Neither Dr. Getahun nor Mr. Joshua Pugen responded to the Insurer’s summons to appear for cross-examination on their reports which had been filed by the Applicant.

The Insurer’s position is that Mr. Patel’s injuries fall within the definition of a minor injury, and thus his recovery for medical and rehabilitation benefits is limited to $3,500.00. Even if the injuries are outside the MIG, the Insurer submits that Mr. Patel has failed to show evidence to demonstrate on a balance of probabilities that he requires the benefits claimed, nor that the Insurer’s conduct has been such as to warrant a special award.

The Insurer relies on the evidence of Dr. Curt West, a psychologist, and Dr. Michael Lang, a physiatrist, who both testified at the Hearing of this matter, and of Dr. Maria Nesterenko, whose report was filed, but who did not attend the Hearing. The Insurer requests that all of Mr. Patel’s claims be dismissed.

THE APPLICANT’S EVIDENCE

Mr. Patel gave testimony through a Punjabi interpreter. He speaks limited “simple” English. He was born in 1971 in India where he completed Grade 10 before immigrating to Canada in 1997. He trained as a welder in Scarborough and then worked at welding jobs on a regular basis up until the time of the accident, and after the accident as well. He lives with his wife and two children. He was 41 years old at the time of the accident, and other than a loss of hearing in one ear, had no pre-existing physical complaints. His last job was as a welder with SpineSteel Co., which ended when he was laid off in October 2016. Welding is the only job he has held in his career. It is a very strenuous job, involving climbing inside machinery, overhead reaching, squatting, standing, and lifting up to 50 pounds at a time. Although he returned to work shortly after the accident, and has held several jobs since, at the time of the Hearing, he was not working.

He testified that he was operating his motor vehicle on September 10, 2012 and was stopped at a red traffic light when his car was suddenly struck from behind and pushed about 10 feet forward. It was a heavy impact with a loud noise. The impact thrust his head backward to hit the headrest part of his seat. The airbags did not deploy, but the car sustained extensive damage and was written off.

According to Mr. Patel’s testimony, his wife was taken to hospital, but he seemed fine at the time, and did not feel it was necessary to go to hospital immediately after the accident. The driver of the tow truck attending at the accident scene took him to the Collision Reporting Centre to report the accident. He worked for a day or two but his back started hurting and he decided to see his family doctor on September 12, 2012.

At the time of the accident, Mr. Patel was working with Caterpillar as a welder involved in making a large tunneling machine. He had to go inside the machine, assuming different positions to do the welding. He worked a 40-hour week prior to the accident.

His doctor, Dr. Kanani, gave him pain medication and prescribed physiotherapy and told him to relax for 2 to 4 weeks and see how he felt. The pain was in his back, shoulder and knee. On his next visit the doctor referred him for physiotherapy. On a subsequent visit on October 15, 2012, when he had returned to work at Caterpillar, Dr. Kanani gave Mr. Patel a note telling him to avoid excessive bending and regular duties where he was required to lift up to 50 pounds.

Following the accident Mr. Patel attended Spinex Rehab Centre, beginning on September 20, 2012 until February 6, 2013. He had about 40 treatments including heating pads, an electrical machine, and massage. He stated that he found the physiotherapy helpful and would like to resume it, and meanwhile has continued to do some exercises at home. Questioned by his counsel he testified that he is unable to afford physiotherapy, but his wife sometimes massages his back with oil to help with the pain.

Mr. Patel recalled that he returned to regular duties around mid-November as his pain was somewhat better. He worked at Caterpillar until it closed and he was laid off for some months. He found work at ABS Co., also a welding company, for three months. He worked at ABS Co. until he was laid off, and then started at CanAm where he worked for eight or 10 months. He quit when he had to go back to India for a period that exceeded his vacation time. He returned to Canada and got a job in late 2015 at SpineSteel Co., but stopped in June when he was again laid off. He testified that the work was hard, involving climbing and bending, and heavy at times, requiring him to lift as much as 50 pounds. He had been working again up until about one month before the Hearing.

On cross-examination Mr. Patel testified, “I can’t work eight hours now. If I work, the pain is constant; if I don’t work, it stops. But right now, it’s back.” His specific complaints at the time of the Hearing were of the lower back, and his knees, with new pains now in the cervical area and shoulder.

Mr. Patel in his testimony was often confused or vague about the dates of his various jobs, and about which medical practitioners he had visited, their specialisations, and what each recommended. I consider this not as an attempt at evasion or obfuscation, but as a natural reaction to numerous interviews, questionnaires and physical assessments over a four-year period, some through interpreters, others conducted in a language which he does not fully master. None of the practitioners examining him suggested that he was malingering or exaggerating his troubles. Considering his linguistic limitations and his lack of sophistication, I found him to be a credible witness, although somewhat fuzzy on details.

Dr. Subodth Kanani, the family physician who has treated the Applicant since before the accident, gave evidence from his medical office via videoconference. He stated that Mr. Patel has been under his care since January of 2010, with more frequent visits since the accident. During his testimony, he referred to his clinical notes taken at the time of each of Mr. Patel’s consultations with him.

On September 12, 2012, he saw Mr. Patel and diagnosed soft tissue injuries: lumbar - sacral sprain/strain injury, as well as strain to both knees, with pain in the lower back on bending, and inability to support weight on his knees or to lift, bend or twist. Mr. Patel complained of severe back pain, worse than the previous day, and spasms. His pain was aggravated by bending and moving and his motion was about 50% of normal. Dr. Kanani advised that lifting, bending and twisting should be restricted. He prescribed medications and rehabilitation at Spinex Rehab Centre. Dr. Kanani saw Mr. Patel several times in September and October 2012.

On October 15, 2012, Mr. Patel’s complaints remained similar. The doctor told him he could return to work with modified duties, avoiding any lifting. He did so on October 17, 2012. On October 22, 2012, Mr. Patel complained of back pain, which was worse at night, and problems with the right shoulder, especially at night. As he previously had good experience with physiotherapy, they discussed physiotherapy and massage treatments.

In December 2012, Mr. Patel returned to the doctor complaining of impairment in his knees, lower back, neck and shoulder. These complaints were repeated in visits in February and May 2013. On May 23, 2013, Mr. Patel complained to Dr. Kanani of left shoulder pain, diagnosed as rotation cuff tendonitis. The pain was aggravated by working with or above his shoulders. Dr. Kanani prescribed physiotherapy, ice and drug medication.

In two visits during October 2013, the Applicant reported increased shoulder pain and the doctor counselled ice, rest and physiotherapy. Dr. Kanani’s notes record that he diagnosed tendinopathy of the shoulder and that Mr. Patel told him he could not afford physiotherapy; he gave Mr. Patel some simple exercises that he could do on his own at home.

In December 2013, Mr. Patel again visited Dr. Kanani with similar complaints.

In April 2014, Mr. Patel was treated in hospital, and on the following day, Dr. Kanani again observed lower back pain, and anxiety.

In December 2014, he again complained of pain, extremely worried and frustrated because he was not getting better. In August 2015, the back pain and tendonitis persisted and Mr. Patel reported that he was trying homeopathy. He appeared frustrated at the lack of progress in decreasing his persistent back pain. His range of movement was normal.

In January 2016, and again in July 2016, the doctor diagnosed chronic pain in both shoulders and knees, with no arthritis to explain it. Mr. Patel’s range of motion was normal but back pain persisted with the lumbar sacral spine being very painful on bending or twisting. Dr. Kanani noted that the lumbar sacral pain was “related to work.” Again he prescribed rest, ice, exercise and pain medications, as well as a back brace for lumbar sacral support as needed at work. In his oral testimony, Dr. Kanani explained that the pain had become chronic as it had lasted so many months, and was aggravated by work movements such as bending, heavy lifting and working above shoulder level. He noted that Mr. Patel’s persistent physical complaints limit him and were causing anxiety.

Dr. Kanani’s post-accident notes record irregular but continuing visits, nearly all with similar complaints. After some initial improvement during the time he was receiving physiotherapy immediately after the accident, Dr. Kanani’s notes reveal a pattern of increasing symptoms including shoulder pain and, over a year from the accident, anxiety about the deterioration in his physical state. He diagnosed chronic pain. When shown the report of Dr. Maria Nesterenko, referred to below, Dr. Kanani said her observations were consistent with his own findings and treatments.

The Applicant presented in the joint bundle of evidence a report from Dr. Justin Guy, a chiropractor and certified functional capacity evaluator, who examined and treated him. Neither party required Dr. Guy’s presence at the oral Hearing. In his report of November 22, 2014, more than two years post-accident, he concluded that Mr. Patel’s accident injuries “have yet to resolve.” He noted some limitation in range of motion and reaching, significant impairment to mobility (kneeling, crouching and bending), and impaired lifting ability and handgrip strength. Dr. Guy recommended several courses of action including continued participation in a rehabilitation program, combined passive and active facility-based treatments to increase functionality, a chronic pain assessment and an orthopedic assessment, as well as psychological and driving anxiety assessments. Dr. Guy authored four of the five OCF-18s which are the subject of this Arbitration.

The remaining OCF-18 was authored by Mr. Joshua Pugen, a social worker who recommended cognitive behavioural psychotherapy to return Mr. Patel to his pre-accident level of social functioning, and reduce anxiety and depression. Mr. Pugen was subpoenaed to attend the Hearing but failed to appear. I find his report less than persuasive.

The Applicant also presented a report from Dr. Tajedin Getahun, an orthopedic surgeon, who, according to his report, on or about October 4, 2016, reviewed the medical history, physically examined Mr. Patel and concluded that he suffers from chronic myofascial strain of the lumbosacral spine. This was in line with Dr. Kanani’s diagnosis. Dr. Getahun also confirmed Dr. Guy’s conclusion that in view of the poor prognosis, Mr. Patel’s “permanent and serious impairment” took him outside the MIG.

When summoned for cross-examination by the Insurer, neither Mr. Pugen nor Dr. Getahun responded, and the Hearing proceeded without them. The Insurer’s counsel commented about their absence but did not request any action on the part of the Arbitrator save to request that I exclude their reports. I allowed the reports to remain in evidence, but take note of the fact that neither witness was available for cross-examination by the Insurer. I accord neither report any great weight, simply noting that both Dr. Getahun and Mr. Pugen tended to confirm Dr. Kanani’s and Dr. Guy’s diagnoses of chronic pain.

THE INSURER’S EVIDENCE

Counsel for the Insurer pointed out that Mr. Patel’s OCF-1, apparently prepared by his counsel’s office, listed Caterpillar as his employer. In Part 9 of the OCF-1, under collateral payments, is a single word, “sunlife” (sic). The coverage type and policy number columns were blank. The OCF-2 completed by Caterpillar listed Standard Life Policy with Supplementary Medical Rehabilitation or Attendant Care Benefits. No evidence has been led by either party as to any coverage which might have been available to Mr. Patel. In his oral testimony Mr. Patel said, “I don’t know. The benefits were “only for glasses and shoes.””

Counsel for TD presented medical reports from Dr. Maria Nesterenko, a general practitioner who conducted Insurer’s Examinations, but was not present at the Hearing. Dr. Michael Lang, physiatrist, and Dr. Curt West, psychologist, both submitted reports and attended to give oral evidence at the Hearing.

In November 2014, Dr. Nesterenko found residual pain in Mr. Patel’s lower back and knees. Two years after the accident she stated:

Mr. Patel’s injuries are soft tissue related which have an expected physiologic recovery time of 8 to 12 weeks… In the absence of any ongoing objective musculoskeletal impairment attributable to the accident related injuries there would be no clinical indication for the provision of any clinical assessments beyond that afforded by the minor injury guideline.

Dr. Nesterenko thus found that the treatment plan submitted by Dr. Justin Guy was not reasonable and necessary. It is interesting to note, however, that Dr. Nesterenko failed to comment on or explain the fact that injuries which, according to her, would normally recover in 8 to 12 weeks, were still unresolved more than two years after the accident.

Dr. Curt West examined Mr. Patel on two occasions - in November 2014 and again in 2016. Dr. West noted, in addition to the physical symptoms, moderately high symptoms of depression, average levels of anxiety, somatic pain complaints and functional complaints including low levels of pain complaints. Tests conducted in a subsequent examination by Dr. West on August 17, 2015 revealed moderately high depression [78th percentile], high anxiety [92nd percentile], average somatic and pain complaints [53rd and 40th percentiles respectively], and moderately high functional complaints [50th percentile]. Dr. West wrote:

[P]ersons with a profile such as this may be concerned about their pain and focused on seeking pain relief. They tend to see their ability to function as having been somewhat compromised with respect to work and managing their activities of daily living. They may also be trying to impress upon others the seriousness of their circumstances and they likely wish that someone would help them. …He is reporting levels of anxiety depression and pain/somatic complaints equal to that of the average pain patient, and as such it is possible that these factors could impact negatively upon his recovery and or rehabilitation.

Nevertheless, Dr. West did not diagnose clinically significant mental health symptoms, and in their absence, he found “…from a purely mental health perspective… nothing to suggest to me that Mr. Patel would fall outside of the Minor Injury Guideline.”

Dr. West’s report included a caveat that his tests are normed on persons from a North American culture with English as a first language. Thus caution must be exercised in interpreting the psychometric test data of Mr. Patel, who grew up in India and has a limited command of English.

Dr. Lang saw Mr. Patel for a physiatry assessment on September 1, 2016, when he was working full-time. A physiatrist specialises in physical and rehabilitative medicine. He spent about 40 minutes obtaining a history including both pre- and post-accident, symptoms, and treatment. He observed that Mr. Patel suffered low back pain, knee pain and neck pain. Noting that there were no x-rays or ultrasound examinations done and that Mr. Patel was not “manifesting as needing surgery or specialized treatment,” Dr. Lang’s opinion was that Mr. Patel showed no evidence of chronic pain syndrome. Given the comments of Mr. Justice Gonthier² cited below, I note that Dr. Lang’s criteria for a conclusion of chronic pain are quite different from those of the Supreme Court of Canada.

Dr. Lang noted that Mr. Patel’s job is physical, in that he needs to hold heavy tools and wear heavy headgear for lengthy periods of time, but he had been able to return to work in relatively short order. He stated:

the rock of long-term treatment is a regular exercise programme. Regular activity is critical. … Some impaired people are capable of some functional tasks – they can be functional despite injuries. … Some people don’t understand that you can keep moving despite pain to keep active.

Dr. Lang noted that Mr. Patel remains engaged in his pre-accident activity such as working in the house and engaging with his children. He noted no significant objective findings, constriction or spasm. There were no significant findings of trauma to generate pain, but he did note tenderness in the muscles supporting the spine. Dr. Lang concluded that Mr. Patel’s minor injuries had been fully resolved and that he should be discharged with an exercise program. The muscular pain Mr. Patel is currently experiencing is, according to Dr. Lang, due to his very physically demanding occupation.

Dr. Lang said that he never entertained a chronic pain syndrome diagnosis for Mr. Patel, given that Mr. Patel had not tried a variety of prescription medications available for pain, or antidepressants. To his mind, this showed that Mr. Patel’s pain was manageable at home. According to Dr. Lang, Mr. Patel’s injuries clearly fall within the MIG. He made no comment to explain the continuing discomfort, concluding that Mr. Patel’s current conditions are relatively minor and unrelated to the motor vehicle accident. At that time he wrote, “four years after the motor vehicle accident these injuries are fully resolved, with no indication for any further facility-based treatment.”

I note that Mr. Patel was laid off from his job soon after his meeting with Dr. Lang, and at the time of the Hearing, had not been working for approximately one month. In response to a question from counsel for the Insurer regarding his current experience while sitting for approximately one hour during his cross-examination, Mr. Patel replied, “I can only sit 15 minutes because of lower back pain. Standing is 20 minutes. Now I have pain. I’m moving a bit, but I have pain.”

The Insurer argues that Mr. Patel has failed to meet his burden of proof, stating that Mr. Patel had no documented pre-existing condition to remove him from the MIG, and that chronic pain would not necessarily remove him from the MIG limitations.

CLOSING OF THE ARBITRATION PROCEDURE

At the end of the testimony by the Insurer’s last witness, both counsel agreed that I should render a Decision save as to expenses, and that if necessary, they would address the issues of quantum and allocation of expenses by further submissions before me with respect to an Decision on Expenses.

Both counsel confirmed that they were content with the Arbitration procedure and had had the opportunity to present their cases. Subject to the submission of post-Hearing briefs (maximum 30 pages) on December 7, 2016, and Replies (maximum 8 pages) if any, on December 22, 2016, and any questions I might have arising out of those submissions, I declared these proceedings closed.

Subsequently I noticed that none of the OCF-18 forms filed at the Hearing in the joint bundle or in the Applicant’s written submissions was signed by the medical practitioners who had prepared them. Neither party had made any comment on the record – either on the face of the OCFs themselves when specifying the reason for each denial, nor at the Hearing when referring to the content of the OCFs. I wrote to the parties to ask if signed copies existed, and over the objections of the Insurer, after receiving written submissions from both parties, admitted the signed versions when they were provided by counsel for the Applicant. Other than the signatures, the signed and unsigned versions are identical in content. The Insurer argued that the lack of signature had been a factor in the Insurer’s denial of the benefits claimed in these five OCF-18 forms. However that position is not supported by the evidence. The Insurer proceeded to deal with the claims without at any time requesting that they be signed, including its approval of at least one OCF-18 without the recommending practitioner’s signature.³

Filing an unsigned insurance claim is certainly not best practice; however, especially when the Insurer has not raised it timely as a defence, is not fatal to the Applicant’s claims.

LEGAL ANALYSIS

Before addressing the substantive issues of this Arbitration, I must deal with two objections of the Insurer. The Insurer argues that Mr. Patel failed to provide any evidence on the medical benefits in dispute by not addressing personally any of the disputed treatment plans, and by failing to call any of the authors of the OCF-18 forms to give oral evidence that the treatment plans were reasonable and necessary.

The Insurer objects that Mr. Patel did not bring even one specialist to the Hearing and did not ensure the presence of Dr. Getahun and Mr. Pugen. At the Hearing, he relied solely on documents, his own testimony and on the oral testimony and clinical notes of his family doctor, who is admittedly not a chronic pain specialist. The Insurer argues that Mr. Patel has failed to provide evidence on the MIG issue or the medical benefits in dispute. According to the Insurer, Mr. Patel failed to discharge the burden of proving his entitlement to the benefits claimed.

With the greatest of respect, I disagree. The goal of FSCO’s dispute resolution system is to provide the public with efficient service, without overly long and expensive Hearings. Parties are encouraged by the Pre-Hearing Arbitrators to file reports instead of calling experts in person, and indeed (save in exceptional circumstances) are limited to two experts at the Hearing. In an Arbitration, parties are not constrained by the rigid evidentiary rules which apply to Court procedures. For example, the concept of hearsay is more relaxed, going to weight rather than admissibility. On that basis, a party is entitled to rely on reports filed by practitioners. An opposing party who wishes to contest a key finding or otherwise investigate a report is responsible for ensuring that its author attends for that purpose. In this case, the Insurer did not require the presence of any witnesses other than Dr. Getahun and Mr. Pugen, and when these two did not respond to the Insurer’s summons for cross-examination, the Insurer, rather than requesting an adjournment or enforcing execution of the summons, simply asked that their reports be excluded from evidence. I declined to do so, but in assessing the weight of the two reports, I take into consideration the fact that neither has had to defend his report under cross-examination.

FSCO practice encourages parties to rely on reports rather than viva voce evidence at the Hearing. Each OCF-18 is prepared by a practitioner whose qualifications and licence are set out in the document. Completing the OCF-18 requires the practitioner to provide accurate information; the form contains a statement by the practitioner that the goods and services are necessary for the treatment and rehabilitation of the Applicant. The OCF-18 also contains an acknowledgement by both the practitioner and the Applicant that it is an offence under the [Insurance Act]⁴ to make a false or misleading statement to an Insurer, and an offence under the [Criminal Code]⁵ to defraud or attempt to defraud an insurance company. On the assumption that no medical professional would risk these sanctions by providing untrue or misleading information, I am satisfied that the OCF-18 is admissible as evidence. Given Mr. Patel’s own testimony at the Hearing, corroborated by the testimony of Mr. Patel’s family doctor and treating chiropractor, I find it unnecessary to hear the author of the report, absent any allegation that it is deceptive. There was no such allegation in the present Arbitration.

The Insurer also argues that Mr. Patel’s failure to provide particulars of collateral benefits that may have been available to him, and his failure to fill pain prescriptions and to purchase a back brace recommended by his doctor (even though he had access to health plans which would have paid for them) are fatal to his claim. The Applicant contends that having unsuccessfully used his best efforts to obtain policy details from the insurance company, he has discharged his duty to provide details of possible coverage. The Applicant points out that in none of its denials of treatment did the Insurer mention the absence of collateral benefit details as a reason, nor did it request production formally or make any other attempt to obtain information regarding any existing applicable policies.

Furthermore, I note Mr. Patel’s patchy employment record, including over the past four years, four different employers, some months away in India, and several periods of unemployment. He was admittedly vague about his collateral benefit coverage at the time of the accident, but stated that he thought it was just for “glasses and shoes”. I find that it is unlikely that Mr. Patel had any access to collateral benefits. Without positive evidence that these existed and were not used, I do not see their possible existence as a bar to his recovery of reasonable and necessary benefits. This was not a case like Varatharajah and Economical Mutual Insurance Company, in which the Applicant testified that she knew she had coverage through her husband’s work and the policy was produced at the Hearing.⁶

I now turn to the substantive issues in this arbitration.

As a result of the accident, did Mr. Patel sustain an impairment which falls within the MIG of the SABS?

The MIG at section 3(1) of the SABS provides that a “minor injury” is a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation, including any clinically associated sequelae to such and injury. Section 18(1) provides that a person whose impairment is predominantly a minor injury is entitled to a maximum of $3,500.00 in medical and rehabilitation benefits. Section 3(2) excludes the application of 3(1) if the Insured’s health practitioner determines and provides compelling evidence that the Insured has a pre-existing medical condition documented before the accident that, if subjected to the $3,500.00 limit, will prevent the Insured from achieving maximal medical recovery from the minor injury.

Mr. Patel accepts that he bears the onus of proving on a balance of probabilities that his injuries are not predominantly minor in that a chronic pain condition exists, and argues that the pain he suffers is not included as sequelae under MIG,⁷ but is a separate impairment. Mr. Patel argues that the chronic pain he suffers today is a result of the accident, it is sufficient to discharge his burden of proving that his disability falls outside the MIG, and that he is entitled to the benefits he claims.⁸

Although there is no single definition of chronic pain, it has been called “pain without a biological value, lasting longer than the typical healing time, not responsive to treatments based on specific remedies, and of a duration greater than 6 months. Its consequences include psychological distress, job loss, social isolation, depression and anxiety.”⁹

Mr. Justice Gonthier of the Supreme Court of Canada defined chronic pain as pain that:

persists beyond the normal healing time for the underlying injury or is disproportionate to such injury, and whose existence is not supported by objective findings at the site of the injury using current techniques. Despite this lack of objective findings, there is no doubt that chronic pain patients are suffering and in distress, and that the disability they experience is real….pathological changes in the nervous system that result in pain that … may persist well beyond the normal recovery time for the precipitating event.¹⁰

Mr. Patel submits that he has provided compelling medical evidence of chronic pain in his lower back and of psychosocial impairments, which take him out of the MIG. At the time of the Hearing, four years had passed since the accident, and he has developed new and serious impairments in the form of chronic low back pain and anxiety. “Compelling” evidence is, according to the Oxford Dictionary, “evoking interest, attention, or admiration in a powerfully irresistible way”.

Mr. Patel’s counsel cites the FSCO decision of Arbitrator Shapiro in Arruda and Western Assurance Company in support of his position.¹¹ Mrs. Arruda’s injury presented as a common soft tissue injury during the first months after the accident. During those months, according to Arbitrator Shapiro, Mrs. Arruda originally did not appear to meet the burden of proof by showing that her injury was not “predominantly a minor injury”, or otherwise out of the MIG. However, the Arbitrator found that Mrs. Arruda’s injuries had not resolved 20 months post-accident, at which time she was diagnosed with chronic pain syndrome. Arbitrator Shapiro then referred to a comment of Arbitrator Feldman in the case of Basson and Royal & SunAlliance Insurance Company of Canada: “… it is arguable that certain types of chronic pain that develop from what originally appeared to be a minor injury might take a person out of the MIG.”¹²

Mr. Patel’s counsel also refers to the FSCO case of Ali and Ferozuddin and Certas Direct Insurance Company¹³ in support of his claim. In that case, Arbitrator Fadel found that the onset of the Applicant’s problems was temporally related to the accident, the Applicant was not magnifying the pain, and the Applicant was a credible witness. All three of these elements are present in the current Arbitration. In Ali and Ferozuddin and Certas Direct Insurance Company, the Arbitrator relied on evidence of Dr. Blitzer, a pain specialist who testified that in a minority of cases, soft-tissue injuries do not heal fully and lead to chronic pain which is a different situation from the original injury. Instead of the body’s pain receptors turning off, as is expected, they are turned on more, “a physiology gone wrong.” The receptors actually generate more pain in the area even though the original injury has subsided.

Arbitrator Fadel looked at the MIG’s stated objectives as set out in its introduction:

to speed access to rehabilitation for persons who sustain minor injuries in an auto accident, and
to be more inclusive in providing immediate access to treatment without Insurer approval for those persons with minor injuries as defined in the SABS and set out in part 2 of this Guideline.

Arbitrator Fadel observed that most treatment for minor injuries is envisioned to take place in the in the period until approximately six months after the accident, and as late as one year after the accident. It is therefore hard to see how the MIG was meant to deal with the treatment of chronic pain when it cannot even be identified until after the limits will in many cases have been exhausted. He therefore considered it incorrect to suggest that the MIG was meant to deal with chronic pain, and more likely that if chronic pain was intended to be dealt with under the MIG, it would be listed as a specific condition or injury in the SABS. Arbitrator Fadel found that the Applicants had chronic pain as a result of the accident and that the injuries sustained were thus not predominantly minor.

The testimony of Dr. Lang, who met the Applicant for an hour, I found dismissive. He did not consider chronic pain as a diagnosis because Mr. Patel and his treating physician had not followed the usual pattern of behaviour – that is consulting specialists, ordering tests, and taking prescription pain medicine. His conclusion seemed to be that Mr. Patel would just have to live with the pain, keeping active to stay mobile. He wrote his report without benefit of reviewing the patient’s full medical records, and when he did read a limited number for his Addendum Report, he did not have Dr. Guy’s report.

Dr. West saw Mr. Patel twice, but did not review his medical history. He administered an extensive questionnaire which required the Applicant to reply to nearly 200 questions. Dr. West considered this test objective, and found no mental health condition of any kind. Nevertheless, his report warned that it was normed on persons with English as their first language, so its objectivity is a relative concept when applied to a non-native speaker. While testifying, Dr. West spoke fluently about general concepts, but had to rely heavily on his notes to remember Mr. Patel.

In contrast, Dr. Kanani, who had known his patient for several months prior to the accident, came to the chronic pain diagnosis not through written test questions but through observing his patient over a span of four years – both before and post-accident. He explained his reluctance to prescribe various pain medicines because of their side effects. Although not a certified pain specialist, Dr. Kanani, as an experienced physician familiar with his patient’s complaints, was in a better position to assess Mr. Patel than Dr. West or Dr. Lang. I consequently accord more weight to his testimony. I also am persuaded by the report of Dr. Guy, who observed and treated Mr. Patel over at least two years, and who considered his accident impairment as “unresolved” and requiring further active treatment.

I am satisfied that the Applicant has provided compelling evidence that on a balance of probabilities, he has suffered an impairment which, due to its persistent recurrence in the four years since the accident, is not predominantly a minor injury, and which thus releases him from the constraints of the MIG. Consequently, his maximum entitlement for reasonable and necessary expenses is limited not to $3,500.00, but to $50,000.00.

I now turn to the Applicant’s specific claims for medical and rehabilitation benefits and the cost of examinations.

Is Mr. Patel entitled to receive the Cost of an Examination conducted on September 30, 2014 as detailed in the Report of Mediator issued on December 5, 2014?

Two years post-accident, Dr. Justin Guy, a chiropractor and certified functional capacity evaluator, conducted a Functional Abilities Evaluation at a cost of $1,752.00. The goals of that assessment were pain reduction and to determine the necessary intervention. This cost was denied by the Insurer.

Dr. Guy’s presence was not requested by either party at the Hearing. In his report, Dr. Guy stated that Mr. Patel’s accident injuries “have yet to resolve,” and made the specific recommendations referred to above. Like Dr. Kanani, Dr. Guy saw and treated Mr. Patel over many months. The Insurer had already approved similar therapy on at least two occasions, and there was no evidence to show a change in Mr. Patel’s condition; indeed the evidence shows his pain continuing, and Mr. Patel’s comment that physiotherapy did provide him some relief. The approvals ceased as the MIG limit was reached. Despite the contrary views expressed by Dr. West and Dr. Lang, neither of whom saw Mr. Patel on a consistent basis, I find that Mr. Patel has furnished sufficient evidence to discharge his burden of proving the reasonableness and necessity of the Functional Abilities Evaluation. This application is granted.

Is Mr. Patel entitled to a Medical Benefit for a Treatment Plan of June 2, 2015?

Dr. Guy in an OCF-18 identified goals of pain reduction, increase in strength, increased range of motion, and reduction in pain and bringing the Applicant’s strength and range of motion back to pre-accident norms. The cost of the proposed therapy was set out at $3,314.40. This expense was denied by the Insurer. The amount of $2,214.40 is claimed in this Arbitration. As this claim was fully denied, the discrepancy of $1,100.00 between the amount on the OCF-18 is unexplained, although the amount of $612.00 is attributable to travel time and costs of the service provider. I do not find this to be reasonable, in that Mr. Patel is able to travel to his therapist.

On the same basis as the previous claim, Dr. Guy was well placed to assess the need for therapy, and on the basis of his report, the OCF-18 and Dr. Kanani’s comments, I find that Mr. Patel has furnished sufficient evidence to discharge his burden of proving the reasonableness and necessity of the amount claimed in the Arbitration, that is $2,214.40. This application is granted.

Is Mr. Patel entitled to a Medical Benefit for a Treatment Plan of July 29, 2015?

Dr. Guy in an OCF-18 recommended that Mr. Patel be provided with assistive devices with a view to reduce the pain and increase the patient’s range of motion, stating that barriers to recovery were to be explored, and reiterating his earlier assessment that the impairment did not come under MIG. The proposed cost is $1,075.75. This expense was denied by the Insurer.

On the basis of Dr. Guy’s report, the OCF-18 and the fact that Mr. Patel was not receiving active facility-based therapy due to the Insurer’s denial of the claim of June 2, 2015, I find that Mr. Patel has furnished sufficient evidence to discharge his burden of proving the reasonableness and necessity of the assistive devices. This application is granted.

Is Mr. Patel entitled to receive the Cost of an Examination of December 7, 2015?

Mr. Joshua Pugen, a social worker with Pain Management and Mental Health Services, provided an OCF-18 for the cost of an assessment to identify how the accident had affected the Applicant socially and emotionally, at a cost of $2,000.00. Mr. Pugen noted emotional distress and recommended individual psychotherapy, assistive devices and additional assessments. The cost of this examination was denied by the Insurer. In contrast to the previous claims, supported by the evidence of two practitioners who treated Mr. Patel on a long-term basis, Mr. Pugen’s report appears to be a “one off” assessment. The fact that he failed to appear when summoned for cross-examination further weakens the force of his evidence. Although the attending practitioners both mentioned anxiety at various times, I find that there is insufficient evidence to support this claim, which is therefore denied.

Is Mr. Patel entitled to a Medical Benefit for a Treatment Plan of January 5, 2016?

In an OCF-18, dated January 5, 2016, Dr. Guy again identified goals of pain reduction, increased strength and increased range of motion. He recommended assistive devices costing a total of $1,819.30. This expense was denied by the Insurer.

The assistive devices listed appear to consist of exercise equipment for home use. Dr. Guy, in stating that they were reasonable and necessary, was operating on the basis that Mr. Patel was not receiving facility-based active therapy which had been denied by the Insurer. If that active therapy is now available, and helpful, the need for the assistive devices may disappear. I therefore find that despite the apparent need, the assistive devices risk duplicating the therapy already granted. The Applicant may of course submit a future claim for these or similar devices, if and when he and his treating medical professionals consider it necessary. This application is denied.

Is Mr. Patel entitled to interest on the amounts awarded?

The law entitles a successful Applicant to interest on amounts awarded.¹⁴ The date of Mr. Patel’s accident was September 10, 2012. For amounts becoming overdue after December 31, 2014, interest runs at 1% per month, compounded monthly, until the date the Mediation occurred. Thereafter, the interest rate is the pre-judgment interest rate in the [Courts of Justice Act]¹⁵ for past pecuniary loss, calculated from the date on which a Mediation proceeding is commenced and ending on the date of the decision. Interest under the SABS is recognized to be remedial, rather than punitive, and is intended to discourage Insurers from delaying payment. The medical benefit of $1,752.00 for the cost of the Functional Abilities Evaluation shall bear interest at the rate of 1% per month, compounded monthly, from the date it came due until the date of this Decision. All other amounts awarded, having become due after December 31, 2014, shall bear interest at the rate of 1% per month, compounded monthly, from the date each became due until March 14, 2016, the date they were mediated. Thereafter, these overdue sums will bear interest at the rate of 1.3% per annum until the date of this Decision.

Is Mr. Patel entitled to a special award?

The Applicant requested a special award on the basis that the Insurer did not evaluate and pay the amounts claimed by Mr. Patel in a timely manner, and that a key report had not been submitted to Dr. Lang when he was asked for his opinion. Dr. Lang has since seen the report in question and has stated in a supplementary report that it does not change his opinion. In this case, the Insurer made its decision based on its professional judgment of the information available to it. An Arbitrator has discretion to make a special award in cases where an Insurer has unreasonably withheld payment. Absent other exacerbating factors, an error of judgment and the ensuing delay in payment do not necessarily make the conduct of the Insurer so unreasonable so as to warrant a special award. The application is denied.

EXPENSES

The parties have jointly requested that I defer my decision on expenses until after the release of my decision on the merits of this dispute. The parties have not submitted any evidence or argument on their expenses. I invite the parties to agree on the allocation of expenses and on a reasonable amount for those expenses pursuant to section 282(1) of the Insurance Act, failing which either may apply to me for an assessment under Rule 79 of the Dispute Resolution Practice Code.

April 10, 2017

Louise Barrington Arbitrator

Date