Neutral Citation: 2017 ONFSCDRS 135 FSCO A15-002540

BETWEEN:

BALWINDER GREWAL Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Insurer

Minor errors in "Result" and Order corrected on May 24, 2017 in accordance with the Dispute Resolution Practice Code and section 21.1 of the Statutory Powers Procedure Act.

Before: Arbitrator Louise Barrington

Heard: In person at ADR Chambers on October 31, 2016, November 1, 2, 3 & 25, 2016 and by Written Submissions completed on January 30, 2017

Appearances: Mr. Stephen C. Nadler, Lawyer, and Mr. Francesco Blasi, Paralegal, participated for Mrs. Balwinder Grewal Mr. Darrell P. March, Lawyer, participated for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Mrs. Balwinder Grewal, was injured in a motor vehicle accident ("MVA") on June 22, 2013 and sought accident benefits from State Farm Mutual Automobile Insurance Company ("State Farm"), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mrs. Grewal, through her 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, as set out in the Report of Mediator, dated February 23, 2015, and confirmed in the Pre-Hearing Letter of October 14, 2015, are as follows:

Is Mrs. Grewal entitled to an Income Replacement Benefit ("IRB") from November 20, 2013 to date, and ongoing?
Is Mrs. Grewal entitled to the following Medical Benefits:

(a) $2,919.48 for physiotherapy treatment according to a Treatment Plan, dated June 27, 2013 from Complete Physiotherapy; and

(b) $1,287.50 for physiotherapy treatment according to a Treatment Plan, dated September 19, 2013, from Complete Physiotherapy?

Is Mrs. Grewal entitled to payment for the Cost of Examinations,² namely:

(a) $1,359.32 for an in-home attendant care assessment by Ms. Lyudmyla Listar, R.N., dated August 28, 2013;

(b) $2,486.00 for an orthopedic assessment by Dr. Fred Langer, dated April 17, 2014; and

Do Mrs. Grewal's injuries fall within the Minor Injury Guideline ("MIG")?
Is State Farm liable to pay a Special Award because it unreasonably withheld or delayed payments to Mrs. Grewal?
Is Mrs. Grewal entitled to interest for the overdue payment of benefits?
Is either party entitled to have its expenses in respect of this arbitration paid by the other?

At the beginning of the Hearing, the Applicant's Counsel produced a List of Issues in Dispute for Arbitration, marked as Exhibit 1 in these proceedings. In addition to the above issues, the following issue was included:

Chronic Pain Treatment Programme proposed by All Health Medical Care on May 2, 2015, in the amount of $15,273.54, mediated unsuccessfully on January 5, 2016.

Result:

Mrs. Grewal is entitled to an IRB of $293.00 weekly from June 29, 2013 to date and ongoing, less any amounts already paid and less 70% of her post-accident employment income in accordance with the Schedule.
Mrs. Grewal is entitled to the following Medical Benefits:

(a) $2,919.48 for physiotherapy treatment according to a Treatment Plan, dated June 27, 2013, from Complete Physiotherapy; and

(b) $1,287.50 for physiotherapy treatment according to a Treatment Plan, dated September 19, 2013, from Complete Physiotherapy.

(a) Mrs. Grewal is entitled to a payment of $1,359.32 for an attendant care assessment report by Ms. Listar, dated August 28, 2013;

(b) Mrs. Grewal is entitled to a payment of $2,486.00 for an orthopedic assessment by Dr. Langer, dated April 17, 2014; and

(c) Mrs. Grewal is entitled to a payment of $2,404.24 for a psychological assessment report by Dr. Pilowsky, dated August 26, 2014.

The Insurer having conceded prior to the hearing of this matter that Mrs. Grewal's injuries do not fall within the MIG, the parties jointly announced that this issue was withdrawn from the Arbitration.
The application for a Chronic Pain Treatment Programme by All Health Medical Care on May 2, 2015, in the amount of $15,273.54, is granted.
State Farm is liable to pay a Special Award of $25,000.00 to the Applicant.
Interest on the outstanding IRB is to be calculated as prescribed by statute beginning on November 20, 2013. Interest on Medical Benefits and the Cost of Examinations to which the Applicant is entitled shall be calculated from the time each became due, either 30 days after the date when the relevant claim was submitted, or the date on which it was denied, whichever is earlier. Because of the complexity of calculating the interest, including compounded interest, I leave it to the parties to agree on the appropriate amount of interest payable. I remain seized of this matter with respect to the amounts of interest payable. In the event the parties cannot agree to the amounts owing pursuant to the directions in this Decision, either party may deliver to me, through ADR Chambers, Written Submissions on interest of no more than three pages each per numbered issue in this decision. The Applicant's submissions must be delivered within 21 days of the date of this Decision and the Insurer's submissions within 15 days of receiving the Applicant's submissions. A Reply by the Applicant, if any, shall be limited to five pages in total and delivered within 10 days of the Insurer's submissions.
The Applicant is entitled to her expenses of the Arbitration. Neither party has addressed me on the quantum of an eventual award of expenses. If the parties are unable to agree on the quantum of the expenses of this matter, either may request an appointment with me for determination of same in accordance with the Rules 75 to 79 of the Dispute Resolution Practice Code.

PRELIMINARY COMMENT

At the start of the Arbitration, Counsel discussed a further claim for the cost of two examinations, which were mediated on May 17, 2016.³ The Applicant had requested the consent of the Insurer to add this further claim to this Arbitration. At the Hearing, both Counsel agreed that this claim could not be an issue in this Arbitration, and if unresolved, must be submitted through the new License Appeal Tribunal process for accident benefits,⁴ which entered into force on April 1, 2016.

In the same document, filed as Exhibit 1 in these proceedings, Applicant's Counsel listed as Claim #7, a Treatment and Assessment Plan for Chronic Pain in the amount of $15,273.54 from All Health Medical Centre, dated May 2, 2015. This claim was mediated unsuccessfully on January 5, 2016, and the Applicant's Counsel wrote to the Insurer's Counsel on January 17, 2016, requesting consent to add this issue to the present Arbitration. There is no record of a response to that letter, but at the Hearing, Counsel confirmed that it could be added. Given that the chronic pain issue is intimately tied to the other claims and evidence, and necessarily arose from the issues already in dispute, this issue was addressed at the Hearing.

EVIDENCE AND ANALYSIS:

Background

The Applicant testified through an interpreter of the Punjabi language. She was born in 1976 in Punjab, India, where she completed high school, and came to Canada in 2003 to follow her first husband, whom she had married in 2000 and with whom she had a daughter. The arranged marriage did not survive, and instead of making a home in Canada with the husband, she lived with relatives. She took some English lessons for five or six months, became a Canadian citizen, and in 2006, began working as a machine operator. She and her first husband divorced in 2007. She remarried in 2009 and now lives with her second husband, Mr. Rajit Singh Grewal, and her daughter, who was about 14 years of age at the time of the Hearing. The Applicant and her husband have a son together, aged six at the time of the Hearing, currently living in India with his paternal grandmother.

The Applicant testified that after coming to Canada her only job prior to the MVA was at Dundas Jaffine Inc., where she worked a 40-hour week at various times. She testified that from May 21, 2013 until the MVA, she was working at Dundas Jaffine Inc., paid at the rate of $10.77 per hour for a 40-hour week.

The Applicant was driving her daughter to a dental appointment on Cottrell Blvd. in Brampton on Saturday, June 22, 2013. A vehicle travelling on Airport Road ran a red light and collided with the front driver's side of the Applicant's vehicle. The airbags deployed. According to the MVA report and the Insurer's assessment, damage to the Applicant's vehicle was between $10,000.00 and $12,000.00.⁵

Immediately after the MVA, the Applicant did not go to hospital but was driven home by her brother. However, shortly before midnight, her husband took her to hospital, where she also complained of a severe headache, neck, chest and back pain. The doctor there gave her pain medication.⁶ She did not go to work on Monday, and visited her family doctor, Dr. Shiv Singh, four days later, on June 26, 2013. Dr. Singh diagnosed whiplash, referred the Applicant for physiotherapy and gave her a sick note to be off work for four weeks.⁷ Her pain continued, and she was unable to do any heavy physical labour. The Applicant received physiotherapy treatments at Complete Physiotherapy for about five months. She testified that the therapy helped to relieve pain, at least on a temporary basis, but she stopped when the Insurer stopped paying for it. In 2016, she attended at the same clinic for nine or 10 weeks for physiotherapy treatments, covered by her husband's health insurance, exhausting the $500.00 limit of those benefits in 2016.

The Applicant testified that she had suffered a prior work-related injury in 2007. There was some confusion as to the actual injury date, as some reports indicated that this injury happened in 2010. The actual date is immaterial, since the injury was minor, and was completely resolved within a few weeks, long before the MVA. She had no relevant medical problems immediately preceding the MVA and had been working for a month, after returning from a trip to India.

At the Hearing, the Applicant testified that since the MVA she has continued to suffer pain daily in her neck, shoulders, back and right leg, as well as in her right arm. She suffers from headaches two or three times per week and the pain is worse if she tries lifting or bending. Her sleep is disturbed frequently by pain and she needs to get up and walk around before she is able to get back to sleep. She usually feels very tired, and feels tension because of her inability to work. She and her husband had intended to buy a home but without her income this is impossible and they continue to live in a basement apartment. Their financial situation is stressful without her income. She is nervous about driving, and although able to drive short distances, such as to her daughter's school or swimming lessons or to temple, she cannot drive longer distances. The Applicant testified that she is depressed about not being able to have her son return to Canada to live with the family. She said that she and her husband had originally planned to leave their infant son in India with his paternal grandmother for a few months in 2013, but her injuries in the MVA made it impossible to bring him back to Canada, as she could not physically care for him. The Applicant stated that she and her husband visit frequently with their son via Skype, but neither has been able to travel to India to get him. She also feels very worried about bringing him back to Canada to a home atmosphere of pain, tension and anxiety. She frequently feels irritable and worries that her relationship with her daughter has suffered.

The Applicant continues to take pain medication, to use a back brace recommended by one of her health care practitioners, and recently has started taking daily prescription medication for depression.

The Insurer paid the Applicant an IRB of $293.00 per week until November 20, 2013. Until sometime in May of 2016, about six months before the Hearing of this matter, the Insurer maintained that the Applicant's injuries fell within the MIG. As will be explained below, the MIG issue is no longer before me.

The Insurer correctly points out that the Applicant has the burden of proving that she is entitled to the benefits claimed.⁸ In addition to the testimony of the Applicant and her husband, a plethora of medical and psychological tests ordered by both the Applicant and the Insurer present varying positions with regard to her impairments, their extent, and the effects of them. In support of its case, the Insurer points out several factual discrepancies in the evidence and argues that these diminish the credibility of the Applicant's testimony and that of some witnesses. The Insurer asks that the Applicant's entire claim be dismissed with an Order that the Insurer be entitled to its expenses.

It is the Arbitrator's task to consider these elements of evidence, to assess their weight, and to decide whether, on a balance of probabilities, the Applicant has met the burden of proving her eligibility for the benefits claimed. I now address the individual benefit claims.

1. IRBs

The Applicant's claim for IRBs must be considered in two periods. The first runs from June 29, 2013 until June 21, 2015, when 104 weeks had elapsed post-MVA. The second period begins on June 22, 2015, running until the date of the Hearing and, if successful, is ongoing. In the case of Cowans and Motors Insurance Corporation⁹ Arbitrator John Wilson notes that, "...disability in accident benefit matters is a legal test, albeit one which usually requires medical input."

With regard to the first period, section 5(1) of the Schedule provides a two-pronged test:

The insurer shall pay an income replacement benefit to an insured person who sustains an impairment as a result of an accident if the insured person satisfies one or both of the following conditions:

The insured person,

i. was employed at the time of the accident and, as a result of it within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment

The Applicant testified that she was working full-time at the time of the MVA, which occurred on a Saturday, which was not a working day for her. The last day she worked was Friday June 21, 2013. The first working day after the MVA would have been Monday, but she felt unable to go to work. A note from her employer stated that she had worked from May 21, 2013 until June 20, 2013.¹⁰ This note appears to indicate that the Applicant's employment with Dundas Jaffine Inc. had already ended when the MVA occurred. The Insurer argues that the Applicant was not employed on June 22, 2013 and thus did not fulfil the first requirement of section 5(1).

Counsel for the Applicant points to other documents which tend to demonstrate that the June 20, 2013 date was erroneous. The Applicant sent the sick note to Dundas Jaffine Inc. on June 26.¹¹ Dundas Jaffine Inc.'s Record of Employment ("ROE"), dated the same day, noted her last day worked as June 20, 2013, but in the Comments section is the notation: "Car Accident Sat June 22. Required 3 days off. No Dr. note supplied. Called on June 26.13 regarding return. Now asks for 3-4 weeks". In Box 14 of the ROE, the expected date of recall was "Unknown". Box 18 of the same document contains the notation, "Car Accident require 3 to 4 weeks off". These notations would make no sense if the Applicant had already been laid off before she reported the MVA to her employer. In addition, Part 5 of the OCF-1 initiating her Application for Accident Benefits showed the Applicant's status at the time of the MVA as "Employed and working". The Insurer adjuster's log notes were produced over the objection of the Insurer, and identified in oral testimony by the Insurer's adjuster, Ms. Melissa Basilio. They contain a reference to a telephone conversation on September 6, 2013 between Ms. Maureen Thomson, a previous State Farm adjuster, and Ms. Gayle Browne of Dundas Jaffine Inc., noting that Ms. Browne advised Ms. Thomson that the Applicant was "laid off because she was unable to work as a result of the MVA."¹² In her oral testimony, Ms. Basilio confirmed that where there are inconsistencies in documents received by the Insurer, it is up to the Insurer to clarify.

In cross-examining the Applicant at the Hearing, the Insurer's Counsel questioned her extensively about the circumstances in which her job at Dundas Jaffine Inc. ended, and suggested that she was not entitled to benefits because her employment had ended when she was laid off – two days prior to the MVA. The Insurer did nevertheless pay IRBs for five months, stopping benefits on November 20, 2013, on the basis that the Applicant was then able to return to work.

I find that the combination of documents, circumstances and the conduct of the Insurer lead to the conclusion that the June 20, 2013 date was indeed a clerical error. I find that the Insurer proceeded on the basis that the Applicant was employed at the time of the MVA, and was laid off on June 26, 2013, when she said she needed three to four weeks off work to recuperate from the MVA. In any case, the ROE provided by her employer also showed her as employed from May 22, 2012 to January 22, 2013, totalling over 26 weeks of employment in the year immediately preceding the MVA,¹³ thus bringing the Applicant under section 5(1)(1)(ii) of the Schedule. I find that the first element of section 5(1), the employment requirement, is present.

The Insurer paid Mrs. Grewal an IRB from the date of the MVA until November 20, 2013. In an OCF-9, dated November 8, 2013, the Insurer explained, "Based on the findings of the Section 44 Functional Abilities Evaluation dated October 25, 2013, the Section 44 Psychiatry Report dated October 28, 2013, you do not suffer a substantial inability to perform the essential tasks of your employment."¹⁴ For the period between November 21, 2013 and June 21, 2014, the second question to be decided is whether, as a result of the accident, Mrs. Grewal suffered a "substantial inability to perform the essential tasks of that employment".

The Applicant in her testimony described the machine operator's job which was the only job she had held in Canada prior to the MVA. The machine she operated produced aluminum pipes for kitchen and laundry exhaust. She worked with others but operated the machine alone. She lifted rolls of aluminum each weighing 25 or 30 pounds, carried them (one at a time) about 30 feet and inserted approximately two rolls every hour into the machine, and set up the glue. The pipes exited the machine in lengths of between 20 and 25 feet long, and she had to cut them into three eight-foot pieces using metal pliers and a knife. Inserting the rolls, checking the glue and removing the finished pipes required frequent bending. The job was fast-paced and she was on her feet all day, producing approximately 1,300 eight-foot lengths of pipe daily. She spoke Punjabi on the job, as her supervisor was also from Punjab. It was a hard job, but she testified that she was happy working at Dundas Jaffine Inc.; she considered it a good job and felt that her supervisor appreciated her performance.

Prior to the MVA, the Applicant did suffer from a back problem in 2007, when she bent to pick up an aluminum roll at work. She took a couple of days off work then, and did three or four weeks of physiotherapy. The problem resolved and did not recur in the years prior to the MVA. Aside from a thyroid imbalance controlled by medication, and mild back pain associated with childbirth in 2010, she was in good health prior to the MVA.

The Applicant underwent a number of examinations following the MVA. Dr. Singh had diagnosed whiplash a few days after the MVA and said she should not work for three or four weeks. Dr. Singh continued to treat her up until the Hearing date. At the Hearing, Counsel for the Insurer emphasised Dr. Singh's testimony in which he referred to medical records revealing that the Applicant had visited him on several occasions post-MVA about unrelated ailments, without mentioning the pains in her back, shoulders or knees. Counsel for the Insurer invited the doctor to infer from the absence of complaints relating to the MVA on these occasions, that the pain was not bothering her. However, given the large number of patients seen by family doctors every day, in the brief time available for each visit, both patient and doctor must focus on the complaint for that visit, even if there are other underlying conditions present. The absence of a recorded complaint during a visit for some other reason is not in itself sufficient to infer the non-existence of that complaint. Over three years later, on September 9, 2016, Dr. Singh completed an OCF-3, noting lumbar-sacral, cervical and thoracic spine sprains, and stating that the Applicant could not return to work on modified hours or duties.¹⁵

An in-home attendant care assessment report by Ms. Listar, dated August 28, 2013,¹⁶ stated that the Applicant required attendant care assistance of $1,015.47 monthly as well as assistive devices to help with her housekeeping. Attendant care is not an issue in this Arbitration, but I mention the report as an indication that the Applicant was suffering from a disability at that time.

The Functional Abilities Evaluation written for the Insurer by John Haratsis on October 25, 2013 states, "Ms. Grewal completed the assessment. The participation was classified to be a conditionally valid representation of her current functional abilities. This qualifies the examinee's results as submaximal, but not intentionally skewed. Ms. Grewal was found to be able to function presently at light physical demands level at a full-time basis."

Dr. Jason Wong provided Insurer's Examination reports to the Insurer. He is a family practitioner who since 2011 has done approximately 300 Insurers' Examinations for MVA-related pain and impairment. He assessed the Applicant for three hours on September 18, 2013. He stated that he did not get the impression the Applicant was exaggerating her pain. He found her to have tenderness in the neck, trapezius, upper back and lumbar regions, but did not note muscle wasting or any of the spasms which often accompany back pain. In his assessment of October 23, 2013, addressed to Ms. Maureen Thomson of State Farm, he produced a chart on page 11, identifying the characteristics of different levels of physical work. On page 3 of his report, he had stated that, "Ms. Grewal was found to be able to function presently at light physical demands levels at a full-time basis…" Dr. Wong at page 29 concluded that Mrs. Grewal had "reached pre-injury status…" but at page 33 said, "…Ms. Grewal has not sustained a substantial inability to perform the essential tasks of her employment as a machine operator.… Based on today's evaluation and available documents, she can return to light physical demands activities…"¹⁷

During cross-examination, Dr. Wong acknowledged that, according to the chart in his own report, the Applicant's pre-MVA machine operator job as she had described it to him would be classed as Medium to Very Heavy and could not be considered a "light" physical activity. He agreed that in October 2013, the Applicant would not have the capacity to do a job involving Medium to Very Heavy physical effort. He agreed that light physical activity does not include frequent lifting of 25 to 30 pounds.

At the Hearing, Dr. Wong acknowledged the inconsistency in his report. The inconsistency on the face of Dr. Wong's report should have alerted the Insurer to the obvious error in his conclusion. The fact that a Psychiatry Report done at the time found that "from a psychiatric perspective, she is able to return to pre-loss levels without restriction," is immaterial. I find that the Applicant was not in a physical condition to perform the heavy labour of her pre-MVA work at the time the decision was made to stop the IRB. An attentive examination of Dr. Wong's report would have revealed it at the time. Instead of noting and investigating the anomaly, the Insurer relied on the report. I find that reliance on Dr. Wong's report in making the decision to cut off the IRB on November 20, 2013 was unreasonable, since the Applicant had not in fact "reached pre-injury status" and was incapable of performing the essential tasks of her pre-MVA job at that time.

For what period of time is the Applicant entitled to an IRB? Dr. Singh, the family doctor, had been treating the Applicant for an unspecified time prior to the MVA. He testified that she was on synthroid, but before the MVA, he had no recollection of her reporting body pain. He saw the Applicant on June 26, 2013, four days after the MVA. She came to him with a complaint of primarily lower back pain. At that time, he gave her a referral note for physiotherapy, and a sick note for her employer saying that she had whiplash injuries and needed to be off work for four weeks. He knew about her factory job and advised her that she would not be able to do any heavy lifting.

According to Dr. Singh's clinical notes and oral testimony, the Applicant visited him again in July 2013, still presenting whiplash symptoms and a decreased range of motion, and complaining of weakness, and neck and low back pain. He advised that she continue the physiotherapy.

The Applicant returned again to Dr. Singh in January 2014, and he diagnosed lumbar strain, lumbago, coccydnia and sciatica. Her condition had worsened by March 2014, with increased symptoms, including tension headaches, anorexia and enuresis, with symptoms worse in the morning. Suspecting fibromyalgia, he ordered x-rays and ultrasound in April 2014. In May, Dr. Singh's notes record that the Applicant "look[ed] happy", despite her complaint that she was still having difficulties falling asleep. He noted the Applicant's weight as 41 kilos and height as 151 cm. Dr. Singh referred the Applicant to Dr. Michael Pinto, a rheumatologist, as he wanted a second opinion. Dr. Pinto noted tenderness in the shoulders and pain in the lumbar region and leg and knee. He prescribed a cervical collar.

Counsel for the Insurer questioned Dr. Singh about a clinical note of 2016 which indicated degenerative disc disease in the lumbar sacral region. Dr. Singh agreed that it was possible that this was arthritis, and might have been caused by strenuous lifting at work. Given the fact that the onset of the Applicant's complaints coincided temporally with her injuries in the MVA, I find it more probable that the injuries from the MVA were the cause of the degeneration.

Dr. Langer, the Orthopedist who examined the Applicant and signed her OCF-18 submitted in March of 2013 and prepared an assessment on April 17, 2014, wrote, "Following the MVA she has had spinal impairment with mechanical spine pain affecting the neck and back and cervical genic headaches. She also has bilateral rotator cuff tendinitis with pain in the shoulders with activities with the upper limbs. In my opinion she has a substantial inability to manage her vocation. In my opinion she has a substantial inability to manage her pre-accident housekeeping chores."¹⁸ Dr. Langer reported, "She continues to be symptomatic… She has headaches daily, last for a few hours and are usually relieved with anti-inflammatory such as Advil….spinal impairment with mechanical spine pain affecting the neck and back and cervical genic headaches.… bilateral rotator cuff tendinitis with pain in the shoulders."¹⁹ Dr. Langer mentioned pain prior to the MVA, "usually precipitated by work demands although the limitations were described as minor." Dr. Langer attributed the Applicant's "vulnerability to the effects of the accident" to mechanical back pain usually precipitated by work demands, although the limitation was described as minor. When Dr. Langer saw her, the Applicant had not been at work for several months. Prior to the MVA, her only work-related complaint was the slight injury in 2010 which had resolved with a few days of rest. This was not a case where a patient had been complaining of work-related pain and then found it exacerbated by an MVA. The Applicant had not reported any pain to her family doctor for some years before the MVA.

In June of 2014, Dr. Wong reviewed additional clinical notes and records from Dr. Singh, the family doctor, and wrote, "Based on a review of available documents and the Insurer's Examinations performed by the undersigned on September 18, 2013 and October 23, 2013, the opinions and conclusions within those Insurer's Examinations remain unchanged." Clearly, Dr. Wong's June review of his October 23, 2013 report failed to alert him to the inconsistencies on the face of that report.

Meanwhile, the Applicant attended for a number of specialist examinations including an in-home assessment report and attendant care assessment in August 2013, orthopedic assessments in February 2014 and April 2014, a psychological Treatment and Assessment Plan in April 2014, and again in August 2014. In her report annexed to the Treatment Plan²⁰ in late August 2014, Dr. Pilowsky, a psychologist, observed, "Mrs. Grewal experiences frequent pain in her back, neck, shoulders, right leg and right arm.… While lifting and carrying objects, and while engaging in activities that require her to bend and twist her body. On a 10 point self-report scale, where 10 represents severe pain, Mrs. Grewal rates her overall pain at between 7 and 8."

The Functional Abilities Evaluation written for the Insurer by Mr. John Haratsis on October 25, 2013 states, "Ms. Grewal completed the assessment. The participation was classified to be a conditionally valid representation of her current functional abilities. This qualifies the examinees results as submaximal, but not intentionally skewed. Ms. Grewal was found to be able to function presently at light physical demands level at a full-time basis."

By May 2015, chronic pain had become an issue and reports and Treatment Plans were issued by Dr. Nasim Husnani and Dr. Ray Zatzman. Many of the practitioners who assessed the Applicant were not called for the Hearing, but their reports are in evidence. It is clear that substantial expertise and resources have been expended over the three years between the MVA and the Hearing in trying to assess and resolve the Applicant's continuing pain.

I find that due to the MVA, the Applicant did sustain a substantial inability to perform the essential tasks of her employment as a machine operator, and that the ability persisted and indeed increased over time. The Applicant was thus entitled to an IRB from the date of the MVA until 104 weeks post-MVA, that is until June 22, 2015.

The next question concerning IRBs relates to the period beginning 104 weeks post-MVA. According to the statute, the test for eligibility changes at this point. To succeed in her claim for post-104 week benefits, the Applicant has the burden of proving on a preponderance of evidence that as a result of the MVA, [she] is suffering a complete inability to engage in any employment for which she is reasonably suited by education, training or experience (emphasis added).²¹ The complete inability test is more stringent than the substantial inability test, but not as stringent as the catastrophic impairment test.²² The question is, given the finding that she cannot do her pre-MVA job, whether other reasonable employment is available for which the Applicant is qualified, or that she could perform without substantial upgrading.

The Insurer points to the decision of H.K. and Canadian Surety Company,²³ which provides helpful assistance in assessing the evidence regarding the post-104 week test:

"In my view, the arbitration decisions on which Canadian Surety relies simply reflect the long-standing recognition that sincere but unsuccessful rehabilitation efforts go a long way towards proving disability. Conversely, failure to take such steps is likely to work against the claimant unless there is some explanation as evidence of total disability. I do not view the decisions as establishing a rigid proposition that insureds must provide evidence of suitable employment to prove their claim. The appropriate approach is a flexible, fact-based one, in which, while the legal onus always remains on the insured, the sufficiency of the proof depends on what is reasonable in the circumstances. This involves consideration of the evidence presented by both parties, including the nature of the individual's condition and the extent of the disability, the efforts the insured has made to position herself to return to the workforce, the vocational assistance made available by the insurer and the options for alternative work that have been put forward."

Despite assessments and advice from a dozen medical professionals, the Applicant is not capable of performing her pre-MVA job. What kind of job could she do in her current state? Suitable alternative employment is not limited to work the Applicant was doing prior to the MVA. The Applicant described her attempts to find lighter work in 2014. The Applicant testified that she had applied to several companies in the summer of 2014. She did get a job for a week at an auto parts company, but had difficulty and was laid off. She then worked for three weeks packing toys, but had to stop due to back and leg pain. She has not been employed since that time. She testified that she would like to work again, but realizes she cannot do the lifting, bending and manual labour that her former job required. The Applicant testified that she had thought of trying to get lighter work as a counter assistant, for example at Tim Horton's. She had applied at Tim Horton's around 2006, but did not get the job then, and since the MVA, has not applied for this kind of work.

According to Dr. Singh's notes of October 5, 2015, the Applicant's nervous symptoms persisted, and on October 29, 2015, Dr. Singh noted "history of low back pain, but the symptoms are increasing and she is going to physiotherapy, not really helping. She is also complaining of right leg pain but denies any tingling numbness or any weakness. Assessment: low back pain with the right sciatica [P]lan continue pain control and physical therapy MRI follow up in two weeks when necessary."²⁴

Atila Balaban, MSc., an Exercise Physiologist, reported on March 17, 2016 on the Applicant's capacities at that time:

"…Ms. Grewal's current functional capacities are not consistent with …the essential physical demands of Light Work or of Medium Work….Since Ms. Grewal's current functional capacities are consistent with meeting some physical demands of sedentary work with difficulty, and… it is evident that Mrs. Grewal's functional capacities are not consistent with meeting the physical demands of a majority of her housekeeping and house/yard maintenance tasks." (emphasis added)²⁵

Atila Balaban quoted Dr. Zatzman, a chronic pain specialist, "Ms. Grewal has had disabling pain for 23 months (original emphasis) such that she has shifted from an acute pain state to a chronic pain state. In view of the nature and extent of her chronic pain symptoms, Mrs. Grewal's prognosis with respect to her global improvement is guarded to poor (original emphasis)."²⁶

Dr. Jonathan K. Mills, a clinical Psychologist and Psychoanalyst, saw the Applicant in April and September of 2016 for a vocational assessment and a psycho-vocational assessment, respectively.²⁷ Dr. Mills reported on the vocational tests he supervised in April 2016. As well as his own tests, Dr. Mills relied on reports from Atila Balaban, Dr. Langer, Dr. Pilowsky, as well as Drs. Zatzman and Husnani, who had assessed the Applicant in May 2015.

Simran Narula is a registered Psychotherapist and Vocational Evaluator who has worked with Dr. Mills for 10 years and speaks fluent Punjabi. She conducted the Applicant's tests speaking in Punjabi. They found that the Applicant's vocational interests seem to centre on the social and the conventional. Social personalities like to be around other people, are interested in how people get along, and lead to help other people with their problems. They typically like to help, teach, and counsel people more than engage in mechanical or technical activities. Conventional personalities usually have clerical and math abilities and the like to work indoors and organize things. They typically like to follow orderly routines and meet clear standards, avoiding work that does not have clear directions.

On the WRAT-4 test, to assess academic ability, Mrs. Grewal scored at an average Grade 4 level, with an even lower score in reading comprehension.²⁸

Her Work Readiness Profile disclosed a list of impairments including physical and social limitations and memory problems.²⁹ Her chief barriers to rehabilitation are pain, insomnia, poor English skills, irritability/anger control and difficulty finding well-paying jobs that she could do. Dr. Mills' diagnosis was somatic symptom disorder with predominant pain, moderate, persistent. Dr. Mills stated in his report that he was aware of the differences of opinion between the doctors for the Applicant and the Insurer. He stated however, "[c]hronic pain continues to interfere with Ms. Grewal's ability to return to work and the symptoms do not appear likely to resolve. … Ms. Grewal's pain as well as physical limitations, will negatively affect her ability to perform any job and meet any employment expectations…. I conclude that Ms. Grewal currently suffers a complete inability to perform any employment for which she was suited by reason of education, training or experience.… She has not been able to resume her previous occupation and is not capable of returning to such occupations in any shape or form…. Ms. Grewal has lost income and time off from her productive working life with a very high probability of future losses and of never finding suitable work again."³⁰

The Insurer contends that Dr. Mills' report is "questionable" and "useless", in that he had not met the Applicant, there was no interpreter present at the examination, and that as a psychotherapist, he is not qualified to comment on an alleged physical impairment. The testing, supervised by Dr. Mills as the responsible medical practitioner, was performed by an experienced vocational evaluator who speaks fluent Punjabi. Thus, no interpreter was necessary, as they spoke together in Punjabi. Dr. Mills' task was to evaluate the Applicant's aptitudes and fitness for work and to indicate types of work which might be suitable for her in her present condition. In his report, Dr. Mills used the patient's own reports of pain in his diagnosis of somatic symptoms in order to reach his conclusion that the Applicant was unable to work at her previous job and was unlikely to be able to "perform any job and meet any employment expectations." I do not accept Dr. Mills' conclusion at face value, but rather as one element of evidence in favour of such a conclusion. I have considered his report as a vocational specialist, along with the medical opinions of Dr. Singh and Dr. Langer, Dr. Pinto's clinical notes, Dr. Pilowsky's psychological assessment and testimony and the report of the physiologist, Mr. Balaban. These different perspectives together present compelling evidence that up until the date of the Hearing the Applicant was suffering chronic pain and was thus most probably not in a condition to be working at a job involving bending, heavy lifting or being on her feet all day. To date, no one has suggested a sedentary job suitable for the Applicant.

Dr. Singh testified that in February 2015, he referred Mrs. Grewal to rheumatologist, Dr. Pinto, who treated her over a period of several months on 12 different occasions between April 2015 and June 2016.³¹ The Physiatry Assessment report to the Insurer by Dr. Joshua Muhlstock in July 2015 was the outlier, finding that all the Applicant's injuries had healed and resolved. In August 2015, Dr. Singh prescribed Elavil, used as a treatment for both chronic pain and depression. Dr. Singh also referred the Applicant to a physiatrist, as her symptoms were not improving. In September 2016, Dr. Singh diagnosed chronic pain, depression and insomnia, and prescribed Cymbalta.

The Insurer ordered psychiatric assessment reports in October 2013 and January 2014, a physiatry assessment in 2015, another psychiatric assessment in July 2015, a psycho-vocational assessment in 2016, as well as GP assessments by Dr. Wong and Dr. Dharamashi in 2014 and 2016, respectively. Insurer's Examination examiner Dr. Sivasubramanian found no psychiatric inability in October 2013, and Dr. Haratsis assessed the Applicant as able to function on a light physical demands level. Neither changed his opinion when provided with further medical records. I note that in 2014, the issue of chronic pain had not yet arisen, as Dr. Singh mentioned this diagnosis for the first time in August 2015, two years after the usual eight- to 12-week recovery period for soft tissue injuries.

The Applicant's husband testified that prior to the MVA, his wife was in good shape, going to her job and doing all the work around the house, including some outdoor work. Since the MVA, testimony of both the Applicant and her husband indicated that she has not been able to complete all of her usual household chores. Mr. Grewal observed that since the MVA his wife has suffered pain and has been tearful and anxious. He has taken over some of her housework and has had to quit the second part-time cleaning job he had been doing up until the MVA.

The Insurer argues that even the Applicant herself believes she can return to work, a view shared by Insurer's Examination examiner Dr. Zakzanis, who found that she could be suitable for work as a cashier, automotive service station attendant or retail salesperson.³² The Insurer pointed to the case of Burtch v. Aviva Insurance Co. of Canada,³³ where Justice Juriansz of the Court of Appeal noted with respect to post-104 week IRB eligibility, that a job for which the Insured is not already qualified may be a suitable alternative if substantial upgrading or retraining is not required. In that case, the Applicant took the position that no reasonably suitable employment alternative existed. The Court of Appeal referred to ss. 55 and 56 of the Schedule which place an obligation on an Insured to "participate in such rehabilitation as is reasonable," available "to make reasonable efforts to…obtain employment for which he or she is reasonably suited."³⁴

The Applicant has admittedly made no efforts to obtain alternative employment since 2014, and there is no evidence of her participating in any rehabilitation activities prior to the Hearing date.

Does this bar her from eligibility under the analysis of Justice Juriansz in Burtch?

At the Hearing, we heard testimony from the Applicant, her husband, and medical practitioners that more than three years post-MVA, she suffers from chronic pain, and in addition, has developed nervous and psychological symptoms. She is also hindered by important educational lacunae which will seriously impair her search for employment. In her present condition, is there a job available for which she is reasonably fitted by what she has done before? It need not be the same job, provided that it is not unrelated to her previous experience. If the job is substantially different in nature, status, or remuneration, it may not be an appropriate alternative. In deciding what is suitable, one must consider factors such as the conditions of her prior work, her experience and length of service, her age, and her qualifications, training and know-how.³⁵

Having considered carefully the positions of both parties and the evidence for each, I conclude that the preponderance of evidence – from the Applicant, her husband, Dr. Mills, Dr. Pilowsky and Drs. Wong and Langer – favours the position of the Applicant. Despite her willingness to work, the medical and psychological information available indicates that she is at this time, not fit for any job for which she is qualified by her education, training and experience. Dr. Mills concluded in his report, "Unless the Applicant overcomes her chronic pain, which she has not to date, it will be extremely difficult for her to present herself as competent and reliable to an employer, even on a part-time basis."³⁶

The final question with respect to this issue is the amount of the IRB to which the Applicant is entitled. The Applicant is claiming the maximum amount of $400.00 weekly. No evidence was produced in support of this figure. Based on her pre-MVA wage of $10.77 per hour and the 40-hour week she worked, her gross weekly income would be $430.80. Using the statutory 70% calculation,³⁷ the Applicant would have been entitled to a weekly IRB of $301.56. The Insurer paid the IRB at the rate of $293.00 per week; this figure was not contested by the Applicant. In cross-examination by Counsel for the Insurer, the Applicant agreed that she had received $6,071.98 before the benefit was cut off on November 20, 2013. The Insurer can deduct 70% of any amounts she earned while entitled to the IRB. Her tax return shows that she earned $1,393.00 in 2014.³⁸ I find that the Applicant is entitled to receive an IRB of $293.00 weekly, from June 29, 2013, one week post-MVA, until the date of this Decision and ongoing, less deductions for the amount she received from the Insurer, and for 70% of her employment income ($1,393.00 less $418.00), that is, $6,071.98 and $975.00 respectively.

2. Medical Benefits

The Applicant claims Medical Benefits of: (a) $2,919.48 for physiotherapy treatment according to a Treatment Plan, dated June 27, 2013, from Complete Physiotherapy and (b) $1,287.50 for physiotherapy treatment according to a Treatment Plan, dated September 19, 2013, from Complete Physiotherapy.

Both Medical Benefit claims were denied by the Insurer.³⁹ The reason for the denial of the June 27, 2013 expenses was that the Treatment Plan was "partially reasonable and appropriate, however it indicates that [her] injuries are minor in nature and services should be submitted under an OCF-23. The proposed treatment is therefore not payable. An OCF-23 has already been approved per our correspondence dated September 25, 2013." There is no evidence as to how much, if any, of the expenses included in this claim were actually paid pursuant to that OCF-23. I find that the total amount is still outstanding, having been refused on the basis that the Applicant was not entitled to it because her disability was deemed under the MIG.

The second claim for physiotherapy was denied in a letter from the Insurer, dated October 10, 2013, which explained that based on the section 44 General Practitioner report, dated September 20 2013,⁴⁰ the injuries were treatable within the MIG.

From the Applicant, her husband, and medical practitioners, there was evidence that the Applicant obtained pain relief through physiotherapy and wanted to continue it as recommended by Dr. Patel, her treating physiotherapist at Complete Physiotherapy Centre. Both claims were denied by the Insurer on the basis of reports from Dr. Wong, plus an in-home assessment, an orthopedic assessment and a psychiatric assessment, without apparent regard for parallel assessments done by Cambridge Medical Assessments, all of which indicated limitations in her work or professional activities, as well as persistent pain.

In May 2016, the Insurer agreed that the Applicant's injuries were not within the MIG. There is no evidence that any payment was made with respect to this claim, so I find that the amount is still outstanding. I also note that the Insurer had not exhausted the MIG limits when it denied these benefits. Even after agreeing in May 2016 that the Applicant was not limited by the MIG, Ms. Basilio said she was unaware of any review of the file to revisit these denials. I find that the Applicant is entitled to payment for both claims.

3. Cost of Examinations

The Applicant claims the cost of three examinations, namely:

(a) $1,359.32 for an in-home attendant care assessment, dated August 28, 2013;

(b) $2,486.00 for an orthopedic assessment, dated April 17, 2014; and

The Insurer denied the claim for $1,359.32 under section 25(1)4 of the Schedule for an in-home attendant care assessment by Ms. Listar, a registered nurse who reported on August 28, 2013 with a recommendation for attendant care pursuant to section 42. At that time, the Insurer had classed the Applicant's impairment as within the MIG. In May 2016, the Insurer issued an Explanation of Benefits approving the Attendant Care Benefits as recommended by Ms. Listar at a rate of $1,015.47 per month for two years following the accident.⁴¹ Given that Ms. Listar's assessment did eventually lead to the attendant care payment being made, albeit nearly three years later, I find that it was reasonable and necessary, and grant this claim.

The Insurer denied the claims of $2,486.00 for an orthopedic assessment by Dr. Langer, dated April 17, 2014, and $2,402.24 for a psychological assessment by Dr. Pilowsky, dated August 26, 2014. The Applicant claims both under section 25(1)4 of the Schedule for reviewing and approving a Treatment and Assessment Plan under section 38 of the Schedule. The Applicant contends that these two reports were both necessary to support her claims for IRBs and Medical and Rehabilitation Benefits. None of the benefits recommended in these assessments was approved by the Insurer, on the basis that her injuries were within the MIG. However, both were of interest in the consideration of the persistent pain and its evolution into chronic pain which was diagnosed in 2015, and proving that the Applicant's impairment was beyond the scope of the MIG. I find that both the medical and psychological assessments were reasonable and necessary in the Applicant's circumstances and I grant these claims.

4. MIG

The MIG issue was included in Arbitrator Diamond's Pre-Hearing Letter of October 14, 2015. From the outset, the Applicant maintained that her injuries -- soft tissue injuries which normally could be expected to heal in eight to 12 weeks -- had not resolved. For the more than three years between the MVA and the Hearing, the Insurer maintained that the Applicant's impairment fell within the MIG, and that her recovery was limited by the MIG. At the beginning of the Hearing, the parties' Counsel informed me that they had agreed in May of 2016 that the Applicant's injuries did not fall within the MIG. They withdrew this issue from the Arbitration. Although the Application of the MIG was thus not specifically explored at the Hearing, and I need not make any finding on the issue itself, the circumstances of the MIG issue remain relevant to the questions below of 'Chronic Pain' and of a 'Special Award'.

5. Chronic Pain

The Applicant's added claim was for a Treatment and Assessment Plan in the amount of $15,273.54 for chronic pain treatment by All Health Medical Centre. The initial chronic pain diagnosis, by Dr. Singh, dated from August/September 2015, as noted above at pages 18-20. In support of this claim, the Applicant relies on the evaluations of Dr. R. Zatzman, physiatrist, and Dr. N. Husnani, chiropractor, who found that Mrs. Grewal had tenderness and a limited range of motion in her lumbar spine and both local and referred pain.⁴² In the conclusions to his report, dated May 2, 2015, Dr. Husnani stated, "…I believe that Mrs. Grewal's present physical condition and clinical status does fit the classical picture of a Chronic Pain Syndrome secondary to unresolved residual pain…" These two doctors anticipated that Mrs. Grewal would require ongoing treatment, counselling, massage, chiropractic care, physiotherapy and the intervention of a social worker.

The Insurer's Counsel did not call any witness to refute this claim, and in fact called no oral evidence at all, relying on the Applicant's failure to call the assessors to testify at the Hearing, and thus to discharge the burden of proving her claim. The Insurer's position is that, "[A]t this stage, it has now been three years since the accident and the Claimant only had some minor soft tissue complaints. It seems questionable that there would be any legitimate need for a chronic pain program at this stage. … in the reports of Dr. Sivasubramanian and Dr. Joshua Muhlstock … it was found that there was no need for any formal treatment…"⁴³

I note that Dr. Muhlstock's report also stated that all Mrs. Grewal's injuries were resolved, and that they fell within the MIG. Dr. Sivasubramanian shared the opinion that Mrs. Grewal's injuries fell within the MIG, but stated, "I suspect that Mrs. Grewal's ongoing perception of physical pain and impairment are prolonging her psychiatric recovery. …. There is no formal treatment protocol for [a] psychiatric condition under Minor Injury Guideline, but …her anxieties are very mild and without significant avoidance or impairment [and] …could be treated within the Minor Injury Guideline."

A medical assessment, dated April 5, 215, ordered by the Insurer from Dr. S. Dharamshi, also found that Mrs. Grewal's injuries fell within the MIG, but also stated, "The insured's prognosis is good for functional recovery but uncertain for pain reduction."⁴⁴

After careful consideration of the oral evidence of the Applicant, her husband, Dr. Singh, and of the written reports from the other specialists who reported on both sides of this case, I find that Mrs. Grewal has proven on a balance of probabilities that she has been suffering from chronic pain up to and including the date of the Hearing, and I therefore grant the relief she claims.

6. Special Award

Is the Insurer liable to pay a Special Award because it unreasonably withheld or delayed payments to the Applicant? Section 282(10) of the Insurance Act provides for a Special Award in cases where an Insurer has unreasonably withheld or delayed payments to which an insured person is entitled.⁴⁵

The case of Beltrame and Dominion of Canada General Insurance Company provides a non-binding but persuasive comment on the duty of the first party Insurer: "The case law establishes that as part of its duty of good faith, an Insurer has an obligation to carry out a proper investigation of a claim and to carefully consider all of the available information, giving appropriate weight to that information in a fair and even-handed manner…[A] first party insurer is obliged to prefer the claimant's interests at least as much as its own."⁴⁶

The Applicant cites the Insurer's conduct in cutting off IRB payments on November 20, 2013, and in failing to recognise that the Applicant's impairment fell outside the MIG until shortly before the Hearing of this matter, as well as its denial of funding for physical and psychological treatments and examinations. The Applicant argues that this conduct constitutes an unreasonable delay, the Insurer having failed in its duty to administer the file in a fair and even-handed manner, thus fulfilling the requirements for granting a Special Award.

The Insurer's position is simply that the Applicant's claims should all be dismissed entirely as without merit, there is no money owing, thus no unreasonable delay in payment and so nothing on which to base a Special Award.

During the Hearing of this matter, I noted several remarkable factors. In the first place, the ROE from Dundas Jaffine Inc. showed the Applicant's last day of work as June 20, 2013.⁴⁷ This was a Thursday, two days before the MVA. Ms. Basilio noted from her file that one of the other adjusters on the file, Ms. Maureen Thomson, had spoken to the author of the ROE about the circumstances of the Applicant's departure from Dundas Jaffine Inc. There was no conclusion in the adjuster's notes as to the reason for the anomaly, but the Insurer continued paying IRBs for another six weeks until it cut off benefits on November 20, 2013 on the basis that the Applicant could return to work. It would not be unreasonable for the Applicant to assume that the Insurer had accepted that she was indeed employed until the MVA, and that her injuries in that MVA were what prevented her from doing her job and eventually led to her dismissal. Yet Counsel for the Insurer belaboured the point in his cross-examination, seeking to show even in the Post-Hearing Brief that the Applicant had not fulfilled the necessary work requirements for entitlement to accident benefits.

Second, given the glaring inconsistency on the face of Dr. Jason Wong's reports (in updating his first report, he reiterated his earlier conclusions), it is difficult to see how any reasonable medical practitioner or Insurer would feel confident relying on them, especially when there was credible contrary medical evidence available to the Insurer. This it apparently chose to ignore. The Insurer had a duty to read the reports critically, not to simply accept a favourable opinion when it was patently flawed. But the Insurer did rely on them. As a result, the Applicant was treated as a MIG case until May 2016, with treatment systematically denied right up to the eve of the Hearing.

In Cowans⁴⁸ Arbitrator John Wilson notes that,

"Since it is the Insurer who makes the decision [to approve or deny the claim], it is incumbent upon an Insurer to critically review the available evidence and to apply it to the test for entitlement contained in section 5(2) of the Schedule. … [T]he Insurer may not treat the insured as an adversary whose interests may be disregarded. This encompasses a duty to settle claims without litigation in appropriate cases…This implies a reasonable and competent investigation to determine whether a claim will be honoured."

In the present case, it is indeed difficult to see how the Insurer in this case could have carried out a "proper investigation" by critically reviewing the reports of Dr. Wong, or given them their appropriate weight. Instead of ignoring the waving red flag of inconsistency, the Insurer had a duty to look closely at the other available information. In the words of Arbitrator Wilson,⁴⁹ "[s]imply "papering" a termination by obtaining a compliant report…is not necessarily a protection against a special award if an insurer closes its mind to other information …that might have cast its decision or actions in doubt." This appears never to have occurred until six months prior to the Hearing. Given that Dr. Wong's first report informed other practitioners who provided assessments of Mrs. Grewal, its inconsistencies also weaken their conclusions about the extent of her impairment and her ability to work. The concept of "wilful blindness" comes to mind, as set out by Justice Sopinka: "…deliberately choosing not to know something when given reason to believe that further inquiry is necessary."⁵⁰

Third, the insistence that the Applicant's impairments were limited by the MIG, in the face of credible reports indicating otherwise, including the September 2015 diagnosis of chronic pain, demonstrates an unreasonable refusal to give available evidence its proper weight. This led to a substantial delay in payments. Ms. Basilio testified at the Hearing that she did not know how many adjusters had worked on the Applicant's file, but it was at least four, with another six or seven others who may have worked on it. She was the Insurer's adjuster on the file from November 2013 to mid-2014. She was asked about Dr. Wong's report of September 20, 2013, including the information that the Applicant was still undergoing therapy three times a week, and that this was providing temporary pain relief for up to four or five hours. In response to cross-examination, when asked if she had reviewed the Applicant's file upon taking over responsibility for its administration, she answered, "I hope I would have reviewed [the file] fairly, yes." Yet, she did not appear to have any recollection of finding the inconsistency in Dr. Wong's report. When asked if it had occurred to her that based on the Applicant's description of her pre-MVA job, she could not do that job, Ms. Basilio answered in the negative. In fact, she could not remember ever looking at Dr. Wong's report, despite having reviewed the file a few days previously in preparation for testifying. She had no information as to whether anyone else had contacted Dr. Wong to discuss his report. She could not recall seeing any other different information regarding the Applicant's job duties.

Yet Medical Benefits for rehabilitation treatments were denied. As of July 4, 2016, a few months before the Hearing, the Insurer had spent over $18,000.00 on Insurer's Examination assessments it had ordered, but paid only $2,200.00 for the Applicant's Medical and Rehabilitation Benefits,⁵¹ well below the $3,500.00 ceiling of the MIG limit. At the Hearing, Ms. Basilio testified that she thought the maximum payment allowed under the MIG was $2,200.00.

Fourth, Counsel for the Insurer, after the completion of the Applicant's case, announced that he had decided to call no witnesses, apparently relying on the alleged lack of credibility of the evidence presented by the Applicant and her medical practitioners. It is true that there were a number of errors or inconsistences in the histories taken by various interviewers. These, however, were mainly concerned with the living arrangements for the Applicant's son, the aforementioned error in the date of her last work day, and impugning the methods by which tests were conducted. None of these factors weighed heavily enough to change the balance of the evidence, which weighed heavily in favour of the Applicant.

Fifth and finally, the conduct of the Insurer must be seen in light of the circumstances of the person claiming the benefits. In Fidler v. Sun Life Assurance Co. of Canada, Chief Justice McLachlan and Justice Abella of the Supreme Court considered the unique relationship between an Insurer and its Insured:

"The bargain was that in return for the payment of premiums, the insurer would pay the plaintiff benefits in case of disability. This is not a mere commercial contract. It is rather a contract for benefits that are both tangible, such as payments, and intangible, such as the knowledge of income security in the event of disability. If disability occurs and the insurer does not pay when it ought to have done so…the insurer has breached this reasonable expectation of security."⁵²

The Applicant, because of the educational, intellectual, linguistic and economic limitations described by herself, her husband and her medical examiners, is in an extremely vulnerable situation. It is difficult to imagine anyone more in need of the "expectation of security" than the Applicant after the MVA. In her circumstances, the Insurer's duty of good faith is of paramount importance. Any breach of the Insurer's obligations as set out earlier risks causing substantial harm to a person in Mrs. Grewal's position. She is in no position to mitigate the effects of delayed or denied payment for treatment; she has simply had to do without. Instead of recognising the Applicant's vulnerability, the Insurer continued, up until and including the Hearing, to impugn her credibility and ignore the evidence supporting her claims. In managing this file, the Insurer failed in its duty to address the Applicant's claims efficiently and fairly. On the contrary, the Insurer unreasonably delayed or denied treatments which might have prevented the Applicant's current chronic pain. As a result, without the treatment recommended by her medical advisors, her pain not only did not resolve as anticipated; it worsened to the point where she now suffers from chronic pain and psychological difficulties.

In deciding whether a Special Award is warranted, I must consider whether the Insurer's delay was unreasonable. The Oxford Dictionary defines unreasonable as "beyond the limits of what is reasonable or equitable… not guided by or listening to reason." FSCO includes as unreasonable, conduct which is egregious or in bad faith.⁵³ In this particular case, I find that the Insurer's reliance on an obviously flawed report despite the existence of contrary opinions was unreasonable. Its persistent denial of reasonable and necessary treatments, even before the MIG limits were reached, contributed to the unfortunate circumstances in which the Applicant finds herself today. This is precisely the kind of situation that the Schedule was designed to prevent. The Insurer has failed in its duty of good faith. Rather than responding to the Applicant's "expectation of security", the Insurer has stubbornly resisted it, even continuing to impugn the Applicant's credibility throughout the Hearing after conceding – three years post-MVA – that the Applicant's injuries were not within the MIG. In reviewing the administration of this file, I found no indication that the Insurer fulfilled its obligation to "prefer the Applicant's interests at least as much as its own". In view of the Insurer's unreasonable delay in making payments, even amounts within the MIG maximum, I hold that a Special Award is appropriate.

Section 282 of the Schedule provides that the Special Award shall be up to a maximum 50% of the amounts found owing plus interest. Neither Counsel in the present case has addressed the quantum of a Special Award, but Special Awards in some of the cases to which Counsel referred in argument provide some guidance in terms of the level of the Special Award.

In considering this issue, I take guidance from the Appeal Decision of Director Draper in the Liberty Mutual Insurance Company and Persofsky case,⁵⁴ in which he set out the proper approach for analyzing a claim for a Special Award. The Director's decision set out the following steps to be taken by an Arbitrator:

Determine the benefits owing to the insured person, including interest calculated under the applicable version of the SABS.
Decide whether the insurer unreasonably withheld or delayed the payment of these benefits. If so, the insurer will be ordered to pay a lump sum amount in addition to the benefits and interest calculated under #1.
[…]
Determine the maximum special award that can be awarded under section 282(10), or at least a reasonable approximation…. To be clear, this calculation includes interest on the unpaid SABS interest…. Expressed as a formula, the calculation is as follows:

Maximum special award = 50% x (benefits unreasonably withheld or delayed + interest on these benefits calculated under the SABS + compound interest calculated according to s. 282(10)).

Consider all relevant factors to determine an appropriate lump-sum special award, not a percentage, which responds to the facts of the case and bears a reasonable relationship to other special awards, and does not exceed the maximum.

In Cowans,⁵⁵ the Arbitrator reviewed cases on Special Awards in arriving at guidelines as to the proportionality of a Special Award to:

the blameworthiness of the Insurer's conduct
the vulnerability of the insured person
the harm or potential harm directed at the insured person
the need for deterrence
the advantage wrongfully gained by the Insurer by the misconduct
other sanctions that [may] be imposed on the Insurer due to its misconduct, and
the effect of unreasonably withholding or delaying payments on the Applicant.

In Cowans, the Arbitrator began at the maximum of 50% as requested by the Applicant. Just prior to the Hearing, the parties had settled the entire case save as to the Special Award. The Insurer countered that it "took its responsibilities seriously… [retaining] qualified professionals in who it was entitled to trust". The failure of the Applicant in that case to provide timely documents merited a reduction. The fact that the Insurer revisited the case and reinstated benefits prior to the Hearing was a factor, as was the settlement which, while late, did save considerable effort and legal costs for both parties. In Erickson and The Guarantee Company of North America, conceding of benefits, even after the Hearing commenced, was considered as mitigating the original unreasonableness.⁵⁶ In the present case, even the MIG limit had not been exhausted when payment was stopped, and no IRB payments were made following the removal of the Applicant from the MIG six months before the Hearing. The only payment made by the Insurer at that time was the retroactive approval of Attendant Care Benefits of $1,015.47 monthly for the two years immediately following the MVA.⁵⁷

Using a rough calculation of the outstanding IRB, Medical Benefits and Costs of Examinations, I reach a total of approximately $70,000.00. After applying the applicable statutory rate of 2% per month compounded monthly, that figure is approximately $100,000.00. On that basis, a maximum Special Award would be $50,000.00. A maximum Special Award should in my view, be reserved for only the most egregious of cases, involving conduct which is totally unjustifiable, unfair and lacking good faith. In this particular case, the Insurer did not act without any information; there were varying opinions regarding the extent and causes of the Applicant's impairment. Yet the kind of neglect which seems to have occurred in the administration of this file, particularly in the vulnerable circumstances of this particular Applicant, does cry out for deterrence. In view of the factors described above, I grant a Special Award of $25,000.00.

6. Interest

Interest on the IRB payments is to be calculated as prescribed by statute from November 20, 2013 to the date of this Decision. Interest on Medical Benefits and the Cost of Examinations is to be calculated from the time each became due, either 30 days after the date when the relevant claim was submitted, or the date on which it was denied, whichever is shorter. Because of the complexity of calculating the interest, including compounded interest, I leave it to the parties to agree on the appropriate amount of statutory interest payable. In accordance with the accompanying Arbitration Decision, I will remain seized with respect to the amount of interest payable.

EXPENSES:

The Applicant is entitled to her expenses of the Arbitration. Neither party has addressed me on the quantum of an eventual award of expenses. If the parties are unable to agree on the quantum of the expenses of this matter, either may request an appointment with me for determination of same in accordance with the Rules 75 to 79 of the Dispute Resolution Practice Code.

May 8, 2017

Louise Barrington Arbitrator

Date

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:

Mrs. Grewal is entitled to an Income Replacement Benefit of $293.00 weekly from June 29, 2013 to date and ongoing, less any amounts already paid and less 70% of her post-accident employment income in accordance with the Schedule.
Mrs. Grewal is entitled to the following Medical Benefits: