Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2017 ONFSCDRS 142

FSCO A13-007892

BETWEEN:

EVE NIFOROS

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before: James Robinson

Heard: November 22-25, 2016, in Windsor, Ontario

Appearances: Colleen Caza for Ms. Niforos

Monique Rae Bennett for Allstate Insurance Company of Canada

Issues:

The Applicant, Eve Niforos, was injured in a motor vehicle accident on March 1, 2010. She applied for and received statutory accident benefits from Allstate Insurance Company of Canada (“Allstate”), payable under the Schedule.¹ Allstate terminated weekly income replacement benefits on February 10, 2011. The parties were unable to resolve their disputes through mediation, and Ms. Niforos applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is Ms. Niforos entitled to receive a non-earner benefit, from 26 weeks post-accident to present and ongoing?

2. Is Ms. Niforos entitled to receive the following medical benefits?

Date of OCF

Provider

Amount

October 7, 2010

Dr. Brad Walls

$1,500.00

August 23, 2011

Dr. Joelle Saad

1,551.80

March 20, 2012

Dr. Joelle Saad

1,191.10

April 8, 2011

Hongjian Sun

1,375.00

August 2, 2011

E. Hedges

1,051.58

September 8, 2011

E. Hedges

491.72

February 8, 2012

E. Hedges

1,153.50

April 3, 2012

E. Hedges

1,153.50

January 9, 2013

Jennifer Rouffer

1,103.14

March 19, 2013

Jennifer Rouffer

1,225.41

June 13, 2013

DMA Rehability

5,678.02

September 4, 2013

DMA Rehability

10,503.55

3. Is Allstate liable to pay Ms. Niforos’s expenses in respect of the arbitration?

4. Is Ms. Niforos liable to pay Allstate’s expenses in respect of the arbitration?

5. Is Ms. Niforos entitled to interest for the overdue payment of benefits?

Result:

1. The applicant’s claim for a non-earner benefit, from 26 week post-accident to present and ongoing, is dismissed.

2. The applicant shall be paid the following amounts for medical benefits:

(a) $2,742.90 for two treatment plans submitted by Dr. Joelle Saad, dated August 23, 2011 and March 20, 2012, respectively;

(b) $1,375.00 for a treatment plan submitted by Hongjian Sun, dated April 8, 2011;

(c) $3,850.30 for four treatment plans submitted by E. Hedges, dated August 2, 2011, September 8, 2011, February 8, 2012 and April 3, 2012, respectively;

(d) $1,225.41 representing the balance of a treatment plan submitted by Jennifer Rouffer, dated March 19, 2013;

(e) $10,503.55 for a treatment plan submitted by DMA Rehability dated September 4, 2013.

3. The applicant shall be paid the sum of $1,103.14 for the costs of examination for services provided by Jennifer Rouffer pursuant to a proposal dated January 9, 2013.

4. The applicant shall have her expenses in this matter in the all-inclusive amount of $30,000.00

5. The applicant shall be paid interest for the overdue payment of benefits.

6. The balance of the applicant’s claims be and they are hereby dismissed.

PRELIMINARY MATTERS:

At the commencement of the hearing Applicant’s counsel advised that the following issues had been withdrawn with the consent of the Insurer: (a) a treatment plan in the amount of $1,297.47 dated May 31, 2011 with respect to chiropractic services to be provided by Dr. Joelle Saad; (b) a treatment plan in the amount of $178.17 dated May 31, 2011 with respect to chiropractic services to be provided by Dr. Joelle Saad; and (c) the cost of an examination or assessment in the amount of $95.40 with respect to a psychological evaluation by Dr. Jennifer Out dated January 9, 2012. I agreed to the withdrawal of those issues and proceeded to hear the remainder of the outstanding claims.

As a matter of file management in this matter, it should be noted that in July, 2015 a variation application was prepared by the applicant with respect to Arbitrator Alves’ Order of June 23, 2015. That application was held in abeyance, at the request of the parties, pending a potential resolution of the applicant’s claim. By letter dated May 16, 2016 applicant’s counsel advised the Commission that the matter could not be resolved and that the parties requested the matter proceed to a hearing. No subsequent mention was made of the proposed variation application either before or during the hearing. In the circumstances, the applicant’s variation application must be deemed abandoned, and I so order.

EVIDENCE AND ANALYSIS:

Background

The present application arises out of a motor vehicle accident which occurred on March 1, 2010 in which the applicant suffered injuries. The applicant had previously been injured in three prior motor vehicle accidents in 1992, 1993 and 1999. She testified that she had suffered from fibromyalgia since, and as a result of, the 1992 accident.

The applicant’s family physician, Dr. Oozeer, submitted a Certificate of Total Disability to the Canada Pension Plan on her behalf on December 21, 1994 on the basis of his diagnosis of fibromyalgia, noting subjective symptoms of “Diffuse pain, fatigue and loss of concentration.” In support, Dr. Oozeer’s certificate was supplemented by the report of Dr. Harth, a rheumatologist, dated October 18, 1994. Dr. Harth noted the following symptoms: “widespread musculoskeletal pain involving her left leg, left shoulder, left arm, neck, low back, left shin, and right knee.” Upon an examination on April 26, 1993 Dr. Harth “…found her to have 15 tender points of fibromyalgia as specified by the American College of Rheumatology (Arthritis and Rheumatism February, 1990).” Dr. Harth concluded that the likely cause of the applicant’s fibromyalgia was a motor vehicle accident which occurred on February 28, 1992. In his opinion “The reasons for inability to work are that she has diffuse pain, fatigue, a non-refreshing sleep, and loss of concentration.”

The applicant’s evidence was that she had been receiving a disability benefit since March 1994 from the Canada Pension Plan and that she had never subsequently worked outside the home.

Is Ms. Niforos entitled to receive a non-earner benefit, from 26 weeks post-accident to present and ongoing?

Because the applicant’s injuries arose from an accident that occurred in March, 2010 the applicable legal test for the payment of a Non-Earner Benefit is that set forth in Section 12(1) of the 1996 Schedule (which continues in force by virtue of the transition provisions set forth in the subsequent Regulation 34/10:)

12.(1) The insurer shall pay an insured person who sustains an impairment as a result of an accident a non-earner benefit if the insured person meets any of the following qualifications:

1. The insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident and does not qualify for an income replacement benefit…

12.(6) Subject to subsection (7), the non-earner benefit is payable during the period that the insured person suffers a complete inability to carry on a normal life…

12.(7) The insurer,

(a) is not required to pay a non-earner benefit for the first 26 weeks after the onset of the complete inability to carry on a normal life…

Subsection 2(1) of the applicable Schedule states that ‘“impairment” means a loss or abnormality of a psychological, physiological or anatomical structure or function.’

Subsection 2(4) of the applicable Schedule provides as follows:

(4) For the purpose of this Regulation, a person suffers a complete inability to carry on a normal life as a result of an accident if, and only if, as a result of the accident, the person sustains an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident. [our emphasis]

The “if and only if” test set forth in subsection 2(4) is a very stringent one. It is self-evident that if the applicant could not satisfy the test set forth in subsection 2(4), then her claim would necessarily fail.

In its decision in the case of Heath v. Economical Mutual Insurance Company² the Ontario Court of Appeal has provided extensive direction with respect to the appropriate tests to apply in determining whether or not an applicant should receive a non-earner benefit. It is incumbent upon the tribunal to compare his or her activities of daily living prior to the accident with those subsequent to it with the proviso that the tribunal must choose a reasonable time-frame during which to examine the applicant’s pre-accident function.

In view of the long-term and cyclical nature of this chronic ailment, I may not limit my assessment of her condition to the period immediately prior to the accident. The possibility that the Applicant was going through a relatively short period immediately prior to the accident in which her condition was more bearable or better-managed is not, on the authority of the Heath decision, determinative of her overall level of pre-accident function.

Dr. Oozeer has been the applicant’s family physician since 1994. All of his clinical notes and records have been produced in evidence in this proceeding. I am satisfied that, taken in their entirety, they constitute a record of adequate duration to satisfy the requirements in Heath.

In the present case witnesses for both parties confirmed that the applicant’s fibromyalgia is a chronic condition. A person suffering from fibromyalgia will have periods of improved functioning and periods of relapse or reversal in a repeated or cyclical fashion, over periods of years. Dr. Oozeer testified that this is a condition that “waxes and wanes” but never goes away. The underlying condition, characterized by soft tissue pain and chronic fatigue, is incurable and, except for attention to correct lifestyle, largely untreatable. Medications can be prescribed but only as symptom relievers and patients can be expected to differ in terms of the effectiveness of specific medications and in terms of their individual tolerance of them.

The applicant’s evidence was that, in spite of her fibromyalgia, she was high-functioning prior to the accident. She described her average day in the period two months before the accident in the following terms. She did all her own personal care, was exercising, had lost weight, was cooking for herself and was eating healthily. Her evidence was that she was taking no medications but some supplements. She had joined a gym, was attending two to three times a week, was walking, cycling, and using her basement treadmill. She testified that she was shopping for food and cleaning her house although she paced this activity over a day or week. She did the family laundry herself. She helped her husband with outdoor chores. All this was done without assistance. In addition she socialized with a close friend, played cards, shopped at the mall, went to the movies with her husband “every week” and went out to dinner “every week.” She visited her daughter in Toronto for visits of three, four, five or perhaps seven days’ duration. If she went alone, she would drive. Her other activities included bingo, casino, jewellery-making, knitting and sewing.

This is not to say that she did not have continuing symptoms of her condition. In the fall and winter she felt tired and “achy all over.” She had sensitivity to medications which included constipation and diarrhea. Her fibromyalgia bothered her in the hips, which in turn bothered her back. It varied in intensity depending upon stress and “overdoing it.”

Still she was clear in her testimony that before the accident she “was happier.” She testified “I had real energy, less anxiety.” Her evidence was that she had no mental health concerns and was taking no medications.

She testified that all of this changed for the worse after the accident. It cannot be doubted that the accident had a significant impact upon the applicant’s life at the time, but I see significant problems with the applicant’s optimistic characterization of her pre-accident condition.

First, the notes and evidence of her family physician, Dr. Oozeer, contradict the applicant. The following is a brief but useful summary of her medical history in the three years prior to the accident. On August 24, 2007 she met with Dr. Oozeer complaining of lower back pain. His notes disclose that applicant’s flexion at that time was 75% and her extension was 0%. An Obus Forme back brace and heating pad were recommended and, on the applicant’s evidence, procured. On September 27, 2007 the applicant complained of left knee pain and swelling and of a bout of fever, diarrhea, and nausea five days previously.

On October 28, 2007, following a bone scan, Dr. Oozeer diagnosed osteo-arthritis and prescribed Celebrex. Dr. Oozeer’s notes and testimony show that the applicant renewed that prescription and that as late as August, 2009 was reporting that it caused cramps and diarrhea. Dr. Oozeer conceded in cross-examination that the applicant’s claim that she was doing better prior to the accident was contradicted by the Celebrex prescription.

There were other serious complaints. On July 3, 2008 the applicant reported left lower leg pain and swelling at the joint. On January 22, 2009 she reported that her “entire body” hurt from fibromyalgia. On May 27, 2009 she described “severe pain “everywhere.” Dr. Oozeer acknowledged, in cross-examination, that these were typical pre-accident complaints. This evidence is completely at odds with the applicant’s positive characterization of her pre-accident condition.

Second, I am not satisfied that the areas of complaint noted by the applicant after the accident (with the exception of her post-accident mandibular complaint) were substantially different from those of which she had complained over a period of many years. These included her neck, shoulders, left hip and back. The applicant sought to distinguish the nature of the injuries by suggesting that her neck was injured anew as a result of a side impact whereas her previous injury, had been a whiplash. She insisted that the injury to her hip was different because the impact from this accident was a side blow, rather than a back blow which she had experienced in her previous motor vehicle accident.

The applicant also firmly testified that she had suffered a herniated disk as a result of the accident. Dr. Oozeer confirmed that she had not. The applicant insisted that she had suffered peripheral neuropathy as a result of the accident. She conceded in cross-examination that there was no official diagnosis of this condition. Dr. Oozeer confirmed in this testimony that she did not have that condition. I am not satisfied that the applicant’s uncorroborated testimony with respect to the nature of her injuries after the accident can be relied upon.

Third, Dr. Oozeer prepared a Disability Tax Credit Certificate for submission by the applicant to the Canada Revenue Agency in support of her claim for a Disability Tax Credit for the 2012 tax year. In that certificate Dr. Oozeer confirmed that the applicant had been markedly restricted “all or substantially all of the time”, since the year 2000. The applicant conceded that she would have discussed the contents of the Certificate with Dr. Oozeer at the time it was prepared. The contents of the Certificate tend to cast doubt upon the submission of applicant’s counsel that the applicant’s injuries were necessarily caused by the accident.

Fourth, Dr. Oozeer stated in cross-examination that the applicant’s function was significantly limited prior to the accident of 2010. He agreed that nothing from her motor vehicle accident changed her chronic condition. He agreed that she had been in to see him in the three months before the accident (and earlier) with chronic pain. He conceded that by August 2, 2011 the symptoms reported by the applicant in her visits to him represented a return to pre-accident-type complaints.

When I turn to other evidence on the issue of non-earner benefits, I see further problems.

Applicant’s counsel asked Dr. Oozeer whether, in his opinion, the applicant had ever “returned to base line after the accident.” Dr. Oozeer’s answer was “no.” This is the most problematic kind of testimony, insofar as counsel cross-examined her own witness on a critical point at issue in this arbitration. Dr. Oozeer’s answer was inconsistent with his other testimony, taken in its entirety. I can afford it little weight. It is more prudent to rely upon the documentary record and the entirety of the testimony of Dr. Oozeer and of the various witnesses.

The applicant was referred by Dr. Oozeer to Dr. Charron, a physiatrist, with reference to her pain. She visited him on October 26, 2011. This first consultation was slightly more than a year-a-half post-accident. Subsequently he saw her on January 31, 2012, May 3, 2012 and August 9, 2012. Although she had originally been seen for left hip pain, her complaints of left shoulder pain became the focus of his treatment. An MRI eventually disclosed a small tear and he noted that the prognosis for a complete resolution was guarded. He administered cortisone on three occasions, the last in November 2012, and subsequently noted, in March 2013 that these had been helpful.

Unfortunately, Dr. Charron’s report is completely unhelpful on the subject of causation. He appears to have assumed that the origin of the injury was the accident, and it is likely that he assumed this because the applicant told him so. There is no objective warrant for this conclusion. First, it is contradicted by the evidence of Dr. Oozeer on cross-examination who indicated that the applicant’s shoulder pain was not a new complaint. Secondly, it is contradicted by the evidence of the report of Dr. Abdelgader, a rheumatologist to whom Dr. Oozeer referred the applicant. In Dr. Abdelgader’s report dated June 10, 2010 - little more than two months after the accident – there is no mention of a shoulder complaint nor is there much else that would help the applicant.

In his report Dr. Abdelgader noted the following:

She had four car accidents in the past. She saw Dr. Harth in London and he diagnosed her with fibromyalgia in 1992. Her last accident was in the [sic] March 1st of this year where she was T-boned and ever since she has been having many bruises on her left hip. She was in a lot of pain. She could not move or function for two weeks and she could not sleep for two months. Now she is improving, she can sleep at night, and now she can function to some extent…³

It is difficult to square these observations with the applicant’s claim for a non-earner benefit in the present case.

Applicant’s counsel submitted that the fact that the insurer continued to pay a non-earner benefit to the applicant for some months after the two-year anniversary of the accident could be taken as either an admission or a waiver on the part of the insurer. I disagree. First, and most importantly, the applicant is never relieved from the obligation to prove her case. Secondly, the fact that the insurer has not sought recovery of an overpayment in the present proceeding is not tantamount to an admission that none was available. The insurer acted quite properly and in compliance with the law in continuing to adjust the claim past the two-year anniversary of the accident.

I would conclude this portion of my reasons with the following observations. The applicant was very ill for many years prior to the accident. The accident was undoubtedly a painful setback. But I am unable to find, on the balance of probabilities and on the entirety of the evidence, that the applicant has met the statutory tests set forth in section 2 of the Schedule. Her application for non-earner benefit fails the test of causation and must be dismissed.

What, if any, medical benefits is Ms. Niforos entitled to receive as a result of the accident?

The issue of entitlement to medical benefits is governed by the provisions of Section 16 of the Schedule which reads, in part, as follows:

16(1) Subject to section 18, rehabilitation benefits shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person in undertaking activities and measures described in subsection (3) that are reasonable and necessary for the purpose of reducing or eliminating the effects of any disability resulting from the impairment or to facilitation the person’s reintegration into his or her family, the rest of society and the labour market.

16(4) Despite subsection (1), the insurer is not liable to pay rehabilitation benefits,

(b) for expenses incurred to renovate the insured person’s home if the renovations are only for the purpose of giving the insured person access to areas of the home that are not needed for ordinary living;…

An “impairment” is defined in Subsection 3(1) of the Schedule as “a loss or abnormality of a psychological, physiological or anatomical structure or function.” It is important to note that the statutory standard here is a different one from that which applies to a non-earner benefit.

The treatment plans at issue in this arbitration fall, broadly speaking, into two different categories. The first category encompasses what might be termed palliative treatments. These include chiropractic sessions provided or to be provided by Dr. Joelle Saad, massage therapy provided by E. Hedges and acupuncture treatments provided by Hongjian Sun, particularized earlier in these reasons. The second category encompasses treatment plans for assistive devices, provided or to be provided by Jennifer Rouffer and DMA Rehability, also particularized earlier in these reasons. I will deal with each of these categories of treatment plan separately, as follows.

Palliative Treatments

The testimony of the applicant, abundantly corroborated by the testimony and clinical notes and records of Dr. Oozeer, was that her body does not tolerate pain-relieving medications. She typically suffers severe physical upset from prescription drugs, including severe constipation or, alternatively, violent diarrhea.

In the present case the evidence establishes that the applicant suffered a serious set-back to her health as a direct result of the accident. It was reasonable and necessary that she receive relief from her ongoing pain during her recovery. While I have found that the accident resulted in a re-injury of substantially the same areas of her body which had troubled her in the pre-accident period, it was nonetheless a genuine re-injury resulting in suffering that was directly caused by the accident.

The applicant credibly testified, and I accept, that the palliative treatments (as I have termed them) were of special benefit to her, given that pain-relieving medications disagreed with her. The evidence was that she paid out-of-pocket for various treatments that were denied by the insurer.

The last of the treatment plans denied by the insurer was submitted on April 3, 2012. This was just over two years subsequent to the date of the accident.

The insurer’s counsel submitted that the insurer could not be expected to pay indefinitely for treatments which, in their very nature, would alleviate pain rather than restoring function. On that basis, it was submitted, they were neither reasonable nor necessary. This is, in essence, a “where-do-you-draw –the-line” argument. The answer, as always, is that a line can always be drawn and that a court or arbitrator will be the very person to do it. It is obvious that the insurer must take this applicant as they found her. Her intolerance to medications long pre-dated the accident. She was entitled to relief from her pain during a reasonable recovery period. The reasoning in Amoa-Williams v. Allstate Insurance Co. of Canada⁴ is relevant and cogent. These various therapies had medical validity. I find that the denied treatment plans were reasonable in the circumstances of this case.

Applicant’s counsel did not argue and could not be taken to have argued that the applicant would be entitled to palliative treatment in perpetuity. The question remaining for decision is whether or not it was reasonable to continue such treatments over a period of slightly more than two years post-accident. It appears from the testimony and clinical notes and records of Dr. Oozeer make it evident that he was of the view that the pain experienced by the applicant during the two-year period subsequent to the accident was causally connected to it. He continued to refer the applicant to specialists throughout that interval and after, motivated by that opinion. The reports of Dr. P. Vagner and Dr. P. Charron are corroborative upon this specific issue. I can see no cogent or compelling rebuttal evidence to contradict the applicant or Dr. Oozeer on this specific issue.

I find, on the balance of probabilities and on the basis of the available evidence, that the applicant has met her burden of proof that the palliative treatment plans above-noted were reasonable and necessary.

Cost of Examination

An OCF-18 was submitted by Jennifer Rouffer, O.T. on January 9, 2013 in the amount of $1,103.14 and was denied by the insurer. The assessment was subsequently performed on January 17, 2013 at the request of applicant’s counsel, and a report dated February 8, 2013 was subsequently delivered by Ms. Rouffer, and relied upon at the hearing. I note that it seems inconsistent that the insurer would deny this cost of examination and then, two months later, partially approve a subsequent OCF-18 0for assistive devices submitted by Ms. Rouffer. Be that as it may, I am satisfied that the cost of examination in the amount of $1,103.14 was reasonable and necessary and I so find.

Assistive Devices

(a) Vibration machine

A treatment plan in the amount of $1,500.00 submitted October 7, 2010, for an assistive device, submitted by the applicant’s former chiropractor, Dr. Brad Walls, was denied by the insurer. Dr. Walls was not called to give evidence. There was some speculation by various witnesses as to what he might have meant by the term “vibration machine” although the most plausible explanation was offered by the defence physiatrist, Dr. Burke.

The applicant’s evidence was that the machine “seemed to do something.” The submission was never put any higher than that. The applicant conceded that she had never purchased the machine. It was never suggested that as an assistive device it was normally or commonly prescribed for symptoms such as those experienced by the applicant. I am not satisfied that the vibration machine was reasonable or necessary. I find that the insurer was right in denying this treatment plan.

(b) Household appliances and aids

A treatment plan in the amount of $2,210.92 submitted March 19, 2013, for assistive devices, was submitted by Ms. Rouffer, O.T. and was partially approved by the insurer on May 1, 2013 in the amount of $985.51. The unapproved devices included: heating pad, bath tub seat, long-handled toilet brush, long-handled dust pan, lightweight mops, and lightweight vacuum.

The evidence disclosed that the insurer, in refusing to approve the remainder of the items in this treatment plan, was under some misapprehension of fact. The applicant did not in fact already own a lightweight vacuum. The heating pad the applicant already owned was of the microwaveable variety that loses its efficacy over time. In view of the credible and corroborated physical complaints registered by the applicant, I am of the view that the unapproved assistive devices in this treatment plan were in fact reasonable and necessary and I so find.

(c) Assistive bed

A treatment plan in the amount of $5,678.02 submitted June 13, 2013, for a new bed, was submitted by Ms. Rouffer, O.T. of DMA Rehability and was denied by the insurer on June 24, 2013.

The bed proposed by the occupational therapist included a split mattress and adjustable features. It was intended to address the applicant’s sleeping difficulties and, in particular, to allow her to sleep with her husband rather than in another room, as she testified she had found necessary after the accident. The features of the bed were intended to permit independent adjustment of the mattress so that husband and wife could sleep without disturbing one another.

After the denial, the applicant proceeded to purchase the bed on her own account. However, the testimony of the applicant was that she still found it necessary to sleep in a separate room because of her restlessness, sleeplessness, and the trouble she has lying flat. The bed is used companionably by the applicant and her husband in the evening, but when it is time for sleep, the applicant still retires alone to their spare bedroom.

On the applicant’s own evidence, it cannot be granted that this assistive device is reasonable and necessary. As an assistive device, the bed does not fulfil the specific purpose for which it was proposed. I accordingly find that the denial of this treatment plan by the insurer was correct.

(d) Stair lift

A treatment plan in the amount of $10,503.55 submitted September 4, 2013, for a stair lift, was submitted by Ms. Rouffer, O.T. of DMA Rehability and was denied by the insurer on September 10, 2013.

Applicant’s counsel argued that this proposed home modification was a rehabilitation benefit that was reasonable and necessary to facilitate the applicant’s reintegration into her family.

Subsection 16(4) of the Schedule provides, in part, as follows:

16(4) …the insurer is not liable to pay rehabilitation benefits,

(b) for expenses incurred to renovate the insured person’s home if the renovations are only for the purpose of giving the insured person access to areas of the home that are not needed for ordinary living…

The evidence of the applicant was that the basement of the family home had been renovated and that prior to the accident the applicant and her husband spent a great deal of family time downstairs. There are sewing, hobby and television areas which the applicant and her husband used in the evenings, as well as an exercise treadmill which the applicant was accustomed to use. On the basis of the applicant’s uncontradicted evidence, I find that the pre-condition established in subsection 16(4) of the Schedule has been met insofar as I am satisfied that the basement area was required for ordinary living.

Although the treatment plan for the stair-lift was submitted some three-and-a-half years after the accident, the insurer did not argue causation. The defence physiatrist, Dr. Burke and the defence occupational therapist, Ms. Rouffer, instead made a therapeutic argument to suggest that this assistive device was not reasonable or necessary. In separate testimony, both stated that a stair-lift would be essentially counter-productive because the applicant needed to challenge her fibromyalgia. On that theory, the installation and use of a stair-lift would encourage the applicant to spare herself the effort of climbing stairs when that very effort would ultimately be of assistance to her strength and general conditioning.

The problem with that argument is that strength tests performed by the applicant consistently showed her to have good strength for a fibromyalgia-sufferer. The applicant’s testimony was clear and consistent on the point that she has always challenged her condition, through walking, cycling and her general approach to life.

One medical specialist referred to the applicant as “symptom expressive” which I took to mean that she was perceived as a complainer. Dr. Burke gave much the same testimony in that he felt that the applicant’s verbal complaints were disproportionate to her actual physical performance. I can see how that argument could be made, but the fact remains that the applicant is not an idler. On the contrary, I am abundantly satisfied on the basis of the applicant’s testimony and medical history that she has continuously and consistently – although not uncomplainingly – treated her condition and pushed forward with it. I find no merit in the argument that the applicant should be denied a stair-lift because it would be good for her.

I accept the applicant’s evidence that she finds it difficult to ascend the basement stairs at the end of an evening because she has trouble lifting her legs and holding the handrail to get upstairs.

I am satisfied that the subject treatment plan, stipulating for the installation of a stair-lift in the applicant’s home, is reasonable and necessary and I so find.

EXPENSES:

At my request, counsel made submissions with respect to expenses at the conclusion of the hearing. The applicant was substantially successful and, in accordance with the normal rule, she shall have her expenses. Applicant’s and Insurer’s counsel were in general agreement with respect to the issue of quantum. I have reviewed the list of disbursements filed by applicant’s counsel and I find that they are reasonable and otherwise in conformity with the requirements of the Expense Regulation.

I order that the applicant shall have her expenses of this matter fixed in the amount of $30,000.00 all inclusive.

May 17, 2017

James Robinson Arbitrator

Date

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2017 ONFSCDRS 142

FSCO A13-007892

BETWEEN:

EVE NIFOROS

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, and Regulation 664, as amended, it is ordered that:

1. The applicant’s claim for a non-earner benefit, from 26 week post-accident to present and ongoing, is dismissed.

2. The applicant shall be paid the following amounts for medical benefits:

(a) $2,742.90 for two treatment plans submitted by Dr. Joelle Saad, dated August 23, 2011 and March 20, 2012, respectively;

(b) $1,375.00 for a treatment plan submitted by Hongjian Sun, dated April 8, 2011;

(c) $3,850.30 for four treatment plans submitted by E. Hedges, dated August 2, 2011, September 8, 2011, February 8, 2012 and April 3, 2012, respectively;

(d) $1,225.41 representing the balance of a treatment plan submitted by Jennifer Rouffer, dated March 19, 2013;

(e) $10,503.55 for a treatment plan submitted by DMA Rehability dated September 4, 2013.

3. The applicant shall be paid the sum of $1,103.14 for the costs of examination for services provided by Jennifer Rouffer pursuant to a proposal dated January 9, 2013.

4. The applicant shall have her expenses in this matter in the all-inclusive amount of $30,000.00.

5. The applicant shall be paid interest for the overdue payment of benefits.

6. The remainder of the applicant’s claims are hereby dismissed.

May 17, 2017

James Robinson Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Effective September 1, 1996, Ontario Regulation 403/96, as amended.
2. 22009 ONCA 391, 95 O.R. (3d) 785
3. 3Applicant’s Arbitration Brief, Tab D24
4. 4(FSCO A97-001864, June 5, 2000)