Financial Services Commission des Commission services financiers of Ontario de l’Ontario
Neutral Citation: 2017 ONFSCDRS 108
FSCO A15-006441
BETWEEN:
DANIEL PEEL
Applicant
and
WAWANESA MUTUAL INSURANCE COMPANY
Insurer
REASONS FOR DECISION
Before: Arbitrator Deborah Anschell
Heard: In person at ADR Chambers on October 20, 2016 and December 15, 2016, and by written submissions due January 23, 2017
Appearances:
Mr. Daniel Peel participated Mr. Michael Hazan participated for Mr. Peel Ms. Kathleen F. O’Hara participated for Wawanesa Mutual Insurance Company
Issues:
The Applicant, Mr. Daniel Peel, was injured in a motor vehicle accident on March 15, 2013 and sought accident benefits from Wawanesa Mutual Insurance Company (“Wawanesa”), payable under the Schedule.1 The parties were unable to resolve their disputes through mediation, and the Applicant, through his representative, applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c. I.8, as amended.
The issues in this Hearing are:
Do Mr. Peel’s injuries come within the Minor Injury Guideline?
Is Mr. Peel entitled to receive medical benefits for the following:
a) $233.20 for chiropractic treatment provided by Dr. Ali Kheradmand, in accordance with a treatment and assessment plan, dated June 23, 2014?
b) $1,601.00 for chiropractic treatment provided by Dr. Ali Kheradmand, in accordance with a treatment and assessment plan, dated November 13, 2014?
Is Wawanesa liable to pay a special award because it unreasonably withheld or delayed payments to Mr. Peel?
Is Mr. Peel entitled to interest for the overdue payment of benefits?
Is either party entitled to reimbursement for their expenses in respect of the Arbitration?
Result:
Mr. Peel’s injuries do not come within the Minor Injury Guideline.
Mr. Peel is entitled to medical benefits for the following:
a) $233.20 for chiropractic treatment provided by Dr. Ali Kheradmand, in accordance with a treatment and assessment plan, dated June 23, 2014;
b) $1,601.00 for chiropractic treatment provided by Dr. Ali Kheradmand, in accordance with a treatment and assessment plan, dated November 13, 2014.
Wawanesa is not liable to pay a special award because it unreasonably withheld or delayed payments to Mr. Peel.
Mr. Peel is entitled to interest for the overdue payment of benefits.
Wawanesa is liable to pay Mr. Peel’s expenses in respect of the Arbitration. If the parties are unable to agree on the quantum of the expenses of this matter, the parties may request an appointment with me for determination of expenses in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.
EVIDENCE AND ANALYSIS:
APPLICANT’S EVIDENCE AND SUBMISSIONS
Witness Mr. Daniel Peel
The first witness was Mr. Peel. Mr. Peel was born March 12, 1966 in Cambridge, Ontario and is presently 50 years old. He was 47 at the time of the accident. He has been married to his spouse, Melanie Peel, for 17 years. He has one daughter, Emma Peel, age seven. At the time of the accident, Mr. Peel was building a business, involved with post-production for film and television.
Prior to the accident, the family resided in a townhouse, with five flights of stairs. After the accident, Mr. Peel and his family moved to a ground floor townhouse, with only one flight of stairs.
Mr. Peel described his career path prior to the accident. He studied advertising and marketing at Loyalist College. He ultimately established his own business, Theatre D Digital Corporation. In his role as the owner of this enterprise, he handled many responsibilities including supervising mixing sessions, administrative responsibilities, payroll, and human resources. He was often required to move equipment, and participated in client dinners. He occasionally worked seven days per week.
Prior to the accident, Mr. Peel had no pre-existing or previous back injuries.
Mr. Peel described the accident. He was travelling from the Royal Theatre in Toronto, Ontario to a Costco location, and he was travelling westbound on Lakeshore Blvd., in the middle lane stopped in traffic. He was hit from behind by a school bus. After the initial impact, Mr. Peel hit the car in front of him. Mr. Peel was driving a 2010 Dodge Caravan. He was wearing his seat belt, and he lost consciousness.
Mr. Peel referred to the Ambulance Call Report.2 He was taken to St. Joseph’s Health Centre by ambulance. He experienced immediate neck and chest pain. Mr. Peel spent the day at the hospital, and then returned home.
Three days after the accident, on March 18, 2013, Mr. Peel saw his family doctor, Dr. Shi. He has been a patient of Dr. Shi for a few years. He complained of muscle pain in his initial visit. A few weeks later, Mr. Peel attended at Dr. Shi’s office, but saw her colleague, Dr. Ng. Mr. Peel’s complaints were back and neck pain. Mr. Peel returned to see Dr. Shi a day later to obtain a disability form.
After a month, Mr. Peel’s complaints were headaches, ringing in his ear, and pain in his neck and back. Dr. Shi prescribed pain medication, and told him to take four weeks off work. Mr. Peel took prescription medication for a short time, and then switched to non-prescription pain medication.
The chart notes of Dr. Shi reflect a gap in Mr. Peel’s visits from June 14, 2013 through March 18, 2014. In her chart note of June 23, 2016, Mr. Peel complained of neck and back pain. He noted that his energy level and mood were both good.
Mr. Peel initially took four weeks off work. When he returned, his employees assisted with some of his duties, including audio, editing and sound. He was diagnosed as having tinnitus.
Mr. Peel testified that he has constant ringing in both ears. He finds it difficult to concentrate, and relies more on audio engineers in his work. The ringing in the ears has bothered him since the accident.
Mr. Peel testified that he noticed shortcomings upon his return to work. He wasn’t as focused on sales as he had been in the past. He had less client interaction, and was not as outgoing.
Ultimately, Mr. Peel sold his business to a competitor. His entitlement to collateral benefits through his business continued for a year after the accident. He currently has benefits through his subsequent employment with Urban Post Production Inc.
Shortly after the accident, Mr. Peel began seeing a chiropractor, Dr. Ali Kheradmand, twice per week. Mr. Peel also had massage therapy from Patricia McCutcheon at East Liberty Medical Centre.
Dr. Kheradmand provided the two treatment plans in issue at this Hearing. The first treatment plan is dated June 13, 2014.3 The second treatment plan is dated November 13, 2014.4 Dr. Kheradmand in this latter treatment plan noted that Mr. Peel experienced a concussion with loss of consciousness of unspecified duration.
Wawanesa sent Mr. Peel for examination by Dr. J. Castiglione, Family Physician, on January 22, 2015.5 At the time of his appointment with Dr. Castiglione, Mr. Peel was reporting headaches, ringing in his ears, neck pain, back pain, confusion, and stiffness.
Mr. Peel testified there is a constant, aching pain in his neck, which currently bothers him. His back has not improved since the accident. It continues to bother him when he sleeps. Mr. Peel continues to suffer from ringing in his ears. He is not presently taking any medication.
Dr. Shi referred Mr. Peel to Dr. Kenneth Sky, an ear, nose and throat specialist, whose report was introduced.6 Mr. Peel testified that he has constant ringing in both ears.
Mr. Peel also has an ongoing problem with headaches. He experiences a sharp, stabbing pain. He also has ongoing sleep problems since the accident. He finds that he can’t get comfortable, and only has two or three uninterrupted hours of sleep each night.
Finally, Mr. Peel has suffered from psychological issues since the accident. He has experienced depression and driving anxiety. He worries about the future, and has become distant from his wife.
Mr. Peel testified that he would like to participate in a pain program, with further physiotherapy and massage. He is hopeful that even with a 25% recovery he would feel much better. He has not experienced any improvement with respect to his neck or back pain since the accident.
In cross-examination, Mr. Peel acknowledged that Dr. Shi has not referred him to a rheumatologist, physiatrist or neurologist.
He was referred to the chart notes of Patricia McCutcheon, Registered Massage Therapist.7 Ms. McCutcheon noted that on several occasions in 2013, 2014 and 2015, Mr. Peel indicated that he had no complaints.
Dr. Ali Kheradmand
Dr. Ali Kheradmand was called as an expert for Mr. Peel. Dr. Kheradmand graduated from the chiropractic degree program at the Canadian Memorial Chiropractic College in 2009. He has practiced as a chiropractor in Toronto since then.
Dr. Kheradmand first saw Mr. Peel at East Liberty Medical Centre.8 The first entry in Dr. Kheradmand’s chart notes is from April 29, 2013. At that time, Mr. Peel complained of low back pain, headaches, tinnitus, and neck pain. Dr. Kheradmand diagnosed Mr. Peel with whiplash associated injuries. In sum, he saw Mr. Peel 30 or 40 times.
Dr. Kheradmand referenced the OCF-23 form that he completed.9 The form is dated May 9, 2013, and was approved by Wawanesa on May 17, 2013. In cross-examination, Dr. Kheradmand stated that he believed either form could be completed when seeking approval for a treatment plan, either OCF-18 or OCF-23.
Dr. Kheradmand also referred to the OCF-18 that he completed on June 13, 2014.10 This treatment plan was partially approved by Wawanesa on June 25, 2014. Dr. Kheradmand described Mr. Peel’s injuries as follows in this treatment plan:
Injury of muscle and tendon at neck level
Sprain and strain of thoracic spine
Sprain and strain of lumbar spine
Injury of tendon of the rotator cuff or shoulder.
Dr. Kheradmand’s evidence was that Mr. Peel’s complaints have remained consistent since May 2013.
In cross-examination, Dr. Kheradmand confirmed that he indicated in this treatment plan that Mr. Peel’s injuries came within the Minor Injury Guideline.
On November 13, 2014, Dr. Kheradmand completed the second of the two disputed treatment plans.11 In this treatment plan, Dr. Kheradmand noted that Mr. Peel suffered a concussion.
Dr. Kheradmand referred to his clinical note of May 19, 2015.12 In this note, he stated that Mr. Peel was still having neck and low back pain, but had no headaches. He recommended massage therapy. Mr. Peel also reported tinnitus to him.
In cross-examination, Dr. Kheradmand stated that his reference to “no headache” in the clinical note meant that Mr. Peel was not suffering from a headache on that day.
Dr. Brian Alpert (Orthopaedic Surgeon) - Report dated December 16, 2015
Dr. Alpert did not testify at the Hearing, but his report was introduced.13 Dr. Alpert’s report was based on his examination of Mr. Peel on November 25, 2015. Dr. Alpert is a Fellow of the Royal College of Surgeons of Canada, board-certified as a specialist in Orthopaedic Surgery. He has extensive experience in conducting medical-legal evaluations of patients injured in motor vehicle accidents or other types of trauma.
Dr. Alpert in his report considered the report of Dr. Castiglione, dated February 4, 2015. Dr. Castiglione in his report (and in his oral evidence referenced below) thought that Mr. Peel’s injuries were uncomplicated soft tissue injuries and that these injuries fell within the Minor Injury Guideline. Dr. Alpert noted as follows at page 6 of his report:
Dr. Castiglione assessed Mr. Peel one year and ten months after the motor vehicle accident of March 15, 2013 and does not appear to have considered in his report that Mr. Peel went on to develop significant chronic musculoskeletal pain in his lumbar spine and cervical spine due to this accident injury.
Dr. Alpert noted at page 6 of his report that Mr. Peel reported only limited musculoskeletal improvement since sustaining the motor vehicle accident injury of March 15, 2013, and continues to have moderate to severe chronic pain in his lower back, mid-back, shoulder blades, and neck.
Dr. Alpert noted at page 9 of his report that Mr. Peel’s range of motion of the cervical spine was decreased and painful, including flexion demonstrated to 50% of normal, extension 40%, lateral bending 40% to the right and 50% to the left, and rotation 70% to the right and 60% to the left.
With respect to the lumbar spine, Mr. Peel was noted to be moderately tender on palpation of the lumbar paravertebral muscles over the facets from L1-S1 bilaterally, associated with increased muscle tone. Range of motion of his lumbar spine and thoracolumbar spine was decreased and painful.
Dr. Alpert concluded at page 15 of his report as follows:
I have noted that Mr. Peel suffers from moderate to severe chronic musculoskeletal pain in his lumbar spine, thoracolumbar spine, trapezii, and cervical spine due to the motor vehicle accident injury of March 15, 2013, associated with acute on chronic flare- ups of pain and gradual deterioration in future years….
He should be given further courses of physical therapy, massage therapy, chiropractic
Submissions of Mr. Hazan, Counsel for the Applicant
Mr. Hazan, in his submissions, argued that the x-ray taken on the date of the accident, demonstrating Mr. Peel’s degenerative condition and the straightening of the lordosis of the cervical spine, was compelling evidence to remove Mr. Peel from the Minor Injury Guideline. Further, Mr. Hazan argued that Wawanesa failed to consider all the medical documentation in his file. When viewed as a whole, he argued it is evident that Mr. Peel should have been removed from the Minor Injury Guideline for any one of the following reasons: a) his pre-existing cervical issue; b) the concussion he sustained; c) his chronic pain; and d) his psychological impairments.
In his submissions, Mr. Hazan noted that when the ambulance attended at the accident scene, Mr. Peel reported a loss of consciousness and complained of neck and back pain.
Dr. Shi’s clinical notes and records reflect that on March 18, 2013, Mr. Peel was suffering from headaches and muscle pain. Less than a month later, Mr. Peel told Dr. Ng, Dr. Shi’s associate, that he was experiencing ringing in his ears, and that he continued to have neck and upper back pain.
On June 14, 2013, Dr. Shi noted chronic tinnitus.
Mr. Peel was diagnosed with tinnitus in July 2013. In November 2014, Dr. Kheradmand noted that Mr. Peel suffered a concussion as a result of the accident.
Mr. Hazan also referenced the expert report of Dr. Alpert. In his report, Dr. Alpert noted restrictions within Mr. Peel’s cervical spine, pulling pain in the trapezius muscles, and moderate tenderness on palpation of the lumbar paravertebral muscles, with decreased range of motion.
Mr. Hazan quoted from Dr. Alpert’s report as follows:
[T]he above residual musculoskeletal impairments are associated with moderate to severe chronic pain, permanent physical restrictions, and related long-term disability.
Dr. Alpert concluded as follows at page 15 of this report:
It is my orthopaedic opinion that Mr. Peel will likely continue to suffer from moderate to severe chronic musculoskeletal pain in his lumbar spine, thoracolumbar spine, trapezii, and cervical spine due to the motor vehicle accident injury of March 15, 2013, associated with acute on chronic flare-ups of pain and gradual deterioration in future years, placing him at increased risk and medical probability for being forced to take earlier retirement from the workforce than the standard age of 65 years.
Dr. Alpert recommended that Mr. Peel be provided with multi-disciplinary chronic pain management treatment intervention.
Mr. Hazan also argued that Mr. Peel has been dealing with depression since the accident, due to constant pain and interrupted sleep. This is referenced in Dr. Monteiro’s report, dated January 21, 2016.14 Dr. Monteiro noted that Mr. Peel scored at the severe level for depression, the moderate level for anxiety and the normal level for stress.
Mr. Peel attended with Dr. K. McCutcheon, Psychologist, for an Insurer’s Examination on March 16, 2016. Dr. McCutcheon noted that Mr. Peel was experiencing some mild depressive and anxious symptomatology in the context of his ongoing pain and physical concerns.
Dr. Richard Harris, Clinical Psychologist, in his report of July 20, 2016, also diagnosed Mr. Peel with severe anxiety, mild depression and pain symptoms.
Mr. Hazan argued that Mr. Peel demonstrated on a balance of probabilities that he suffered significant injuries as a result of the accident, including a concussion, neck and back injuries that are chronic in nature, as well as psychological symptoms. These injuries can only be treated appropriately outside of the Minor Injury Guideline. Mr. Hazan relied on Arruda and Western Assurance Company.15 In that case, a diagnosis of chronic pain was sufficient to remove the applicant from the Minor Injury Guideline.
Mr. Hazan’s position is that the expert opinion of Dr. Alpert and the medical documents regarding his injuries, pain and impairments were extensive.
With respect to the two disputed treatment plans, Mr. Hazan submitted that these are reasonable and necessary. Both treatment plans would provide Mr. Peel with some relief from the pain he experienced.
With respect to a special award, Mr. Hazan argued that Wawanesa pre-determined what Mr. Peel’s medical needs and limits were. He argued that prior to reviewing any of Mr. Peel’s documents, Wawanesa determined that Mr. Peel’s injuries would require no more than $3,500.00 in treatment and placed him in the Minor Injury Guideline. Mr. Hazan’s position was that Wawanesa breached its obligations to Mr. Peel in that it unreasonably withheld treatment and funding that would have assisted him in his recovery.
INSURER’S EVIDENCE AND SUBMISSIONS
Dr. John Castiglione
Dr. Castiglione testified for the Insurer. He received his Doctor of Medicine from McMaster University Medical School in 1973. He has practiced as a family physician since 1975.
Dr. Castiglione examined Mr. Peel on January 22, 2015 for a section 44 Insurer Examination. Mr. Peel’s complaints at that time were the following: neck pain, back pain, ringing in the ears, headaches, and facial twitching and drooping.
Dr. Castiglione noted that his assessment was largely unremarkable. He noted some pain at the end range of neck flexion and some stiffness throughout the lumbar spine, with shoulder abduction and external rotation.
Dr. Castiglione’s opinion was that Mr. Peel’s initial injuries were consistent with the definition of a minor injury. Further, his treatment could have been adequately provided within the Minor Injury Guideline. In his view, the proposed treatment plans were not reasonable and necessary. Dr. Castiglione concluded that Mr. Peel sustained uncomplicated soft tissue injuries as a result of his accident.
Dr. Castiglione noted that Mr. Peel demonstrated no loss of range of motion of his cervical spine. Further, Mr. Peel had no significant symptoms to suggest that he suffered a concussion.
Submissions of Ms. O’Hara, Counsel for the Insurer
Ms. O’Hara argued that Mr. Peel has the onus of proving on a balance of probabilities that the injuries he sustained were not predominantly minor injuries as defined in the Schedule. Post-accident, Mr. Peel was diagnosed with soft tissue sprain and strain type injuries, which fall squarely within the definition of a “minor injury”. When undergoing treatment after the accident, Mr. Peel reported substantial improvement. He was not prescribed medication beyond one month after the accident. He was not referred to any specialists for his ongoing complaints. Thus, Mr. Peel has failed to prove on a balance of probabilities that his injuries are not predominantly minor injuries as defined in the Schedule.
Ms. O’Hara argued that Mr. Peel only saw his family physician on eight occasions after the accident. These were: March 18, 2013; April 10, 2013; April 11, 2013; June 14, 2013; March 18, 2014; July 21, 2014; June 6, 2016; and June 23, 2016. His family physician, Dr. Shi, indicated that Mr. Peel suffered mild soft tissue strain-type injuries. Dr. Shi did not prescribe any pain medication beyond April 2013. Further, Mr. Peel advised his chiropractor and massage therapist that he had improved since the accident.
On May 9, 2013, Dr. Kheradmand, the Applicant’s treating chiropractor, submitted a Treatment Confirmation Form, used when a treatment provider chooses to submit a plan for treatment under the Minor Injury Guideline. He described these injuries, all of which fall within the definition of a minor injury:
Injury of muscle and tendon at neck level
Injury of tendon of the rotator cuff of shoulder
Sprain and strain of lumbar spine
Sprain and strain of thoracic spine
Tension-type headache.
As noted, Dr. Kheradmand identified that the Minor Injury Guideline was the applicable guideline. This treatment plan was approved as submitted.
A year later, on June 13, 2014, Dr. Kheradmand submitted a Treatment and Assessment Plan, totalling $2,687.40. Again, Dr. Kheradmand indicated that Mr. Peel’s impairment was predominantly a minor injury. This Treatment Plan was partially approved up to the Minor Injury Guideline limits of $3,500.00. The remaining balance of $233.20 is in dispute.
On November 13, 2014, Dr. Kheradmand submitted the second of the two treatment plans in dispute totalling $1,601.00. This time, he indicated that Mr. Peel’s injuries were not predominantly a minor injury. This treatment plan was denied.
At this point, Mr. Peel was sent to a section 44 Insurer Examination with Dr. Castiglione. Dr. Castiglione concluded that Mr. Peel had suffered a minor injury.
Minor Injury is defined in the Schedule as follows in Section 3:
“minor injury” means one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.
Ms. O’Hara relies on Scarlett and Belair Insurance Company Inc.16 to argue that the relevant test to determine if any injury is a minor one is whether the impairment is predominantly a minor injury, not simply whether any particular injury is a minor injury.
Ms. O’Hara argued that Mr. Peel did not provide any medical evidence identifying a pre-existing medical condition that would impede his recovery. Although Mr. Peel had pre-existing mild degenerative changes of the cervical spine, there was no evidence to suggest that these mild degenerative changes would prevent Mr. Peel from achieving maximal recovery from a minor injury.
With respect to the issue of concussion, Ms. O’Hara argued that Mr. Peel was never diagnosed with a concussion post-accident. None of Dr. Shi, Dr. Sky, or Dr. Alpert diagnosed Mr. Peel with a concussion.
Ms. O’Hara further argued that Mr. Peel failed to establish that he suffers from a psychological impairment that would remove him from the Minor Injury Guideline. She argued that even if it were accepted that Mr. Peel sufferers from a psychological impairment as a result of the accident, he would also need to prove that this is the predominant impairment in order to access medical and rehabilitation benefits over and above the Minor Injury Guideline limits. Wawanesa submitted that Mr. Peel has failed to prove that he suffers from a diagnosable psychological impairment arising from the accident, and further, failed to demonstrate that any diagnosable impairment is his predominant impairment.
With respect to the chronic pain diagnosis, Wawanesa submitted that Dr. Alpert’s report should be given little weight. Ms. O’Hara argued that Dr. Alpert’s report contains inconsistencies when compared to the other medical evidence on file. Further, Dr. Alpert’s report was prepared for use in a tort proceeding and does not comment on the issues to be determined in the Arbitration. Dr. Alpert does not comment upon the Minor Injury Guideline. Ms. O’Hara argued that Dr. Alpert diagnosed Mr. Peel with moderate to severe chronic pain, but did not comment on whether this could fall into the minor injury category. Ms. O’Hara submitted that Mr. Peel failed to demonstrate that he suffers from “chronic pain” which could remove him from the Minor Injury Guideline.
With respect to the two treatment plans at issue, Ms. O’Hara submitted that they were not reasonable or necessary given that the Minor Injury Guideline applied.
With respect to a special award, Ms. O’Hara argued that at the time the OCF-18, dated November 13, 2014, was submitted, Wawanesa had not received any additional evidence or information that suggested that Mr. Peel should be removed from the Minor Injury Guideline. Wawanesa sent Mr. Peel to a section 44 Insurer Examination to determine whether the proposed treatment was reasonable and necessary, and whether Mr. Peel’s injuries were within the Minor Injury Guideline. Dr. Castiglione concluded that Mr. Peel’s injuries were consistent with the definition of a minor injury, and the proposed treatment was neither reasonable nor necessary.
ANALYSIS
The primary issue to be determined in this Hearing is whether or not Mr. Peel’s injuries sustained in the accident come within the Minor Injury Guideline.
Mr. Peel has submitted that he suffered a concussion, neck and back injuries that have become chronic in nature as well as having psychological concerns. His position is that these impairments, either individually or collectively, take him outside of the Minor Injury Guideline.
Firstly, with respect to the concussion, I do not find that Mr. Peel has demonstrated on a balance of probabilities that he suffered a concussion. As noted by Wawanesa, Dr. Shi’s records do not make any mention of a concussion. Dr. Kheradmand mentioned a concussion in his treatment plan, dated November 13, 2014, but this entry was made after a five-and-a-half-month gap in treatment. Neither Dr. Sky nor Dr. Castiglione provided evidence of a concussion. Based on the medical evidence, I find that Mr. Peel failed to satisfy the allegation that he suffered a concussion.
Similarly, I am not satisfied that Mr. Peel has met the onus of proof placed upon him with respect to psychological issues. In this sense, I agree with Wawanesa’s position that none of Mr. Peel’s treating professionals have indicated that he has suffered from any psychological issues. Mr. Peel has not demonstrated that any psychological impairment is his predominant impairment.
With respect to the issue of pre-existing condition, I am not satisfied that Mr. Peel has met the burden of proof as prescribed by the Schedule. I agree with Wawanesa that the only evidence of a pre-existing condition was of mild degenerative disc disease. As noted by Wawanesa, there was no evidence to suggest that this mild degenerative disc disease would prevent Mr. Peel from achieving maximal recovery from his injury.
This leaves for consideration the issue of chronic pain. With respect to chronic pain, I am guided by Arruda and Western Assurance Company.17 In that case, Arbitrator Shapiro found that a diagnosis of chronic pain was sufficient to take an Applicant outside of the Minor Injury Guideline. Where chronic pain is established, that may in fact be good evidence that there is pain which it would be reasonable to treat.
With respect to a determination of chronic pain, I accept Dr. Alpert’s diagnosis that Mr. Peel suffers from chronic pain. Wawanesa did not have an expert report from an orthopaedic surgeon to counter Dr. Alpert’s opinion. I prefer the evidence of Dr. Alpert, Orthopaedic Surgeon, to that of Dr. Castiglione, Family Physician, on the issue of chronic pain. Dr. Alpert’s examination and report were very thorough. Further, Dr. Alpert is eminently qualified to proffer an opinion with respect to chronic pain as it relates to orthopaedic complaints. I do not ascribe any less weight to Dr. Alpert’s opinion on the basis that it was prepared for use in a tort proceeding. His opinion is no less compelling, and I afford it significant weight. I do not agree with Wawanesa that it provides no useful comment regarding the issues in dispute. In fact, I conclude the opposite. I find that Dr. Alpert’s diagnosis of chronic pain is sufficient to take Mr. Peel outside of the Minor Injury Guideline.
Based upon this finding, I conclude that the two treatment plans in dispute should be considered reasonable and necessary. Dr. Alpert noted that Mr. Peel would benefit from ongoing treatment, including chiropractic treatment. Further, Dr. Kheradmand felt that further chiropractic treatments would be beneficial for Mr. Peel. On the basis of this evidence, I find that the two treatment plans in dispute for $233.20 (June 23, 2014) and $1,601.00 (November 13, 2014) should have been considered reasonable and necessary.
SPECIAL AWARD
According to the provisions of subsection 282(10) of the Insurance Act, an Arbitrator shall award a lump sum special award to an Applicant where the Arbitrator finds that “an Insurer has unreasonably withheld or delayed payments.” In this case, Wawanesa relied on the OCF forms submitted by Dr. Kheradmand, which referenced the Minor Injury Guideline as the appropriate path for treatment. Upon receiving the November 13, 2014 OCF-18, Wawanesa referred Mr. Peel to a section 44 Insurer Examination to determine whether the proposed treatment was reasonable and necessary, and whether Mr. Peel’s injuries were within the Minor Injury Guideline. Dr. Castiglione concluded that Mr. Peel’s injuries were minor in nature, and thus the proposed treatment was neither reasonable nor necessary. Although I have reached a different conclusion based upon Dr. Alpert’s report, I do not find that Wawanesa’s adjustment of Mr. Peel’s claim fell below the reasonable standards of an accident benefits Insurer in Ontario. I am therefore not awarding a special award.
INTEREST
Mr. Peel is entitled to interest on the amounts of the two treatment plans from June 23, 2014 and November 13, 2014, respectively.
EXPENSES:
Mr. Peel is entitled to his reasonable expenses of this Arbitration. If the parties are unable to agree on the quantum of expenses in this matter, the parties may request an appointment with me for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.
April 10, 2017
Deborah Anschell Arbitrator
Date
Financial Services Commission des Commission services financiers of Ontario de l’Ontario
Neutral Citation: 2017 ONFSCDRS 108
FSCO A15-006441
BETWEEN:
DANIEL PEEL
Applicant
and
WAWANESA MUTUAL INSURANCE COMPANY
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c. I.8, as it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, and Ontario Regulation 664, as amended, it is ordered that:
Mr. Peel’s injuries do not come within the Minor Injury Guideline.
Mr. Peel is entitled to medical benefits for the following:
a) $233.20 for chiropractic treatment provided by Dr. Ali Kheradmand, in accordance with a treatment and assessment plan, dated June 23, 2014;
b) $1,601.00 for chiropractic treatment provided by Dr. Ali Kheradmand, in accordance with a treatment and assessment plan, dated November 13, 2014.
Wawanesa is not liable to pay a special award because it unreasonably withheld or delayed payments to Mr. Peel.
Mr. Peel is entitled to interest for the overdue payment of benefits.
Wawanesa is liable to pay Mr. Peel’s expenses in respect of the Arbitration. If the parties are unable to agree on the quantum of the expenses of this matter, the parties may request an appointment with me for determination of expenses in accordance with Rules 75 to 79 of the Dispute Resolution Code.
April 10, 2017
Deborah Anschell Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule - Effective September 1, 2010, Ontario Regulation 34/10, as amended.
- Tab 33, Exhibit 1, Joint Document Brief.
- Tab 19, Exhibit 1, Joint Document Brief.
- Tab 20, Exhibit 1, Joint Document Brief.
- Dr. Castiglione’s chart notes were introduced as Exhibit 4.
- Tab 34, Exhibit 1, Joint Document Brief.
- Tab 35, Exhibit 1.
- Dr. Kheradmand’s chart notes were introduced as Exhibit 3.
- Tab 17, Exhibit 1.
- Tab 19, Exhibit 1.
- Tab 20, Exhibit 1.
- Tab 36, Exhibit 1.
- Exhibit 5, Dr. Brian Alpert’s Report, dated December 16, 2015.
- Exhibit 1, Tab 34.
- [2015] O.F.S.C.D. No. 177.
- 2015 ONSC 3635.
- Supra, page 11.```