Neutral Citation: 2017 ONFSCDRS 157

FSCO A09-001753

BETWEEN:

JOHN BIRO

Applicant

and

UNICA INSURANCE INC.

Insurer

REASONS FOR DECISION

Before: Rosemary Muzzi

Heard: October 15, 27, 28, 29, 30, December 22, 23, 2014 February 2, 3, 4, 5, 6, March 31, 31, May 11, 12, 25, 26, 29, June 2, 3, 5, 22, 23, 24, 25, September 23, 24, 25, October 2, 5, 2015 Written Submissions delivered September 9 and 13, 2016

Appearances: Gary Mazin for Mr. Biro Kerri P. Knudsen for Unica Insurance Inc.

Issues and overview:

The Applicant, John Biro, was injured in a motor vehicle accident on March 11, 2007 when he was rear-ended. He applied for and received statutory accident benefits from Unica Insurance Inc. (“Unica”), payable under the Schedule.¹ Unica paid some benefits and denied others. The parties were unable to resolve their disputes through mediation, and Mr. Biro applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Mr. Biro has a pre-existing medical condition that complicated Unica’s consideration of his accident benefits claims. Mr. Biro suffers from ankylosing spondylitis or psoriatic spondyloarthropathy², AS for ease of reference. Mr. Biro was diagnosed with this condition in 1998. The main visible symptoms of the condition are limited mobility, kyphosis, a bent-forward posture as a result of a fused lower back and neck with marked restrictions in neck movement, and pain.

The parties disagree about the state of Mr. Biro’s condition pre-accident and its effects and impact on Mr. Biro’s function pre-accident. As a result the parties disagree about the need for many of the benefits claimed.

In addition, Mr. Biro has been using marijuana to treat his AS and to treat the pain caused by the accident injuries. He produces the marijuana himself and has accrued expenses that he expects Unica to reimburse as medical benefits.

The issues in this hearing are:

Is Mr. Biro entitled to a non earner benefit?
Is Mr. Biro entitled to an attendant care benefit and what is the amount and duration of that benefit?
Is Mr. Biro entitled to a medical benefit for medical marijuana in the amount of $18,700 for the period of March 12, 2007 to December 11, 2008, $240 per week from December 12, 2008 and ongoing, $74,594.57 for marijuana, and a security system and associated transportation as per letter dated July 28, 2011?
Is Mr. Biro entitled to a medical benefit for a psychological treatment plan dated August 17, 2011 in the amount of $6270.70 for his therapy with Barry Falls?
Is Mr. Biro entitled to a medical benefit for physical therapy and a mobility scooter in the amount of $2637.64, pursuant to a treatment plan dated May 26, 2011?
Is Mr. Biro entitled to a medical benefit for transportation services from the Red Cross in the amount of $699.65, pursuant to a treatment plan dated June 30, 2011?
Is Mr. Biro entitled to a medical benefit for massage therapy, pursuant to a treatment plan dated January 27, 2012, in the amount of $1456.32?
Is Mr. Biro entitled to $8853.28 for Case Manager Services, as indicated in a treatment plan dated November 23, 2010?
Is Mr. Biro entitled to the following costs of examinations:

(a) In-home occupational therapy assessment by Claudia Maurice in the amount of $1491.78 (December 13, 2010)

(b) In-home occupational therapy assessment by Christine Farrell in the amount of $2041.89 (May 16, 2013)

Does Mr. Biro have a catastrophic impairment as defined in section 2(1.2)(g) of the Schedule?
Does Mr. Biro have a catastrophic impairment as defined in section 2(1.2)(f) of the Schedule?
Is Mr. Biro entitled to interest on any amounts owing?
Is Mr. Biro entitled to a special award?
Are the parties entitled to their expenses of the hearing?

Result:

Mr. Biro is not entitled to a non-earner benefit.
Mr. Biro is entitled to a monthly attendant care benefit in the amount of $523.42 for the 104 weeks after the accident.
Mr. Biro is entitled to a medical benefit of $30 per day for medical marijuana only from February 11, 2011 and ongoing.
Mr. Biro is entitled to a medical benefit for psychological treatment in the amount of $6270.70.
Mr. Biro is not entitled to any other medical benefits claimed.
Mr. Biro is not entitled to the costs of examinations claimed.
Mr. Biro is entitled to interest on the amounts outstanding in accordance with the Schedule.
Mr. Biro is entitled to a special award on the amounts outstanding with respect to the medical marijuana and the psychological treatment plan.
The parties shall bear their own expenses.

EVIDENCE AND ANALYSIS:

Unica’s Credibility Concerns

The passage of time between the date of accident and application for arbitration and the actual arbitration hearing date impacted on the number of issues to be decided, and the nature and quality of the evidence tendered.

The credibility of Mr. Biro’s evidence was a central issue for Unica and it urged me to disregard all of Mr. Biro’s testimony, arguing that it was untruthful. Unica emphasized Mr. Biro’s lack of credibility in his evidence about his pre-accident health and function, and his lack of candour in his reports to assessors who opined on his case after the accident.

Despite examples of conflicting testimony, exaggeration, forgetfulness and some general confusion in relation to his accounts to the assessors, I am not satisfied that the entirety of Mr. Biro’s testimony should be disregarded and I have considered it in the context of the other evidence before me.

I find that some of the details Mr. Biro remembered about his function, employment, and health history are generally in accord with and confirmed by the other evidence before me. However, Mr. Biro also admitted during his testimony that he was not going to remember well what his actions and function were before the accident and that the documents in evidence would be the best source for that information.

In light of this admission and Mr. Biro’s ability to recollect, I rely on the documents in evidence to paint the best picture of Mr. Biro’s health and function during the period before the accident.

In particular, the records of Dr. MacDougall, his family doctor from August 1992 to February 2004, and those of Drs. Amba and Lee, the rheumatologists to whom he was referred and which span the years 1998 to 2008 prove significant to my analysis. Also significant are the records from Mr. Biro’s ODSP file³ (1999-2002) and the documents he filed in relation to a CPP disability benefit (1998 to December 2001).⁴

While there are also circumstances where Mr. Biro’s recollections were proved to be wrong, I find that many of those recollections relate to matters that are peripheral to the issues before me and I disregard them. In this category I include the evidence around the particulars of his criminal record, the actual existence of which is a fact that cannot be denied,⁵ and the evidence about his relationship with a Detective Constable Lloyd, who was called as a witness by Unica. The evidence of Mr. Biro’s criminal record was not relevant to the question of his function and his abilities and, in my view, bore little weight on the main questions I had to consider.

With respect to his lack of candour in his reports to the assessors, I find that Mr. Biro was a poor historian in that he had a general tendency to tell only part of the story. Usually, he emphasized the facts that favoured him and omitted other important details that were less helpful to his case. On the other hand, in some cases he failed to tell the entire truth to his detriment. For example, when Mr. Biro was assessed by Unica’s occupational therapist, Thomas Ho, on December 6, 2007, he told Mr. Ho that he had not had any recent treatment but other records show that Mr. Biro had engaged in treatment three times between November and December 2007. Mr. Biro also claimed that Dr. Rubin, Unica’s final assessor for the non-earner benefit and the issue of causation, chased him to the parking lot to continue the assessment that Mr. Biro had terminated. These claims are not borne out by other evidence and, in any event, do not help his cause.

In general, I have considered Mr. Biro’s evidence in the context of all of the other evidence and given it the weight I deemed appropriate in the circumstances.

Causation

In order to be entitled to any of the benefits claimed, Mr. Biro must show that the impairment that gives rise to the claim is caused by the accident. Unica raised causation as an issue in Mr. Biro’s claims to a non-earner benefit a year after the accident. While Unica initially paid the non-earner benefit (and other benefits) to Mr. Biro, it took the position that he was no longer entitled to the non-earner benefit because any continuing impairment was as a result of the normal progress of his AS and not as a result of the 2007 accident.

I find that the accident of March 2007 materially contributed to an aggravation of Mr. Biro’s AS, his pain, and his impairments for the reasons that follow.

Initially, Unica’s medical assessors did not raise causation as a medical issue. Because the assessors themselves agreed that the accident aggravated Mr. Biro’s pre-existing condition, Unica approved medical treatment and the weekly non-earner benefit as well.

To found its argument related to causation, Unica relied on the expert opinion of Dr. Rubin, who provided a report and also testified at the arbitration hearing. Dr. Rubin’s opinion was that directly after the accident, Mr. Biro’s condition had been aggravated but then he returned to his pre-accident levels of function in mid-2008, around the time that Dr. Lee, the treating rheumatologist, also noted an improvement. Dr. Rubin attributed any further worsening of Mr. Biro’s pain and function to the AS’s natural progression. Dr. Rubin’s theory of the progression of Mr. Biro’s condition is that he had significantly restricted movements as far as back as 1998 and a temporary change in status as a consequence of the accident in March 2007. Then there was a significant improvement by 2008, back to the pre-accident baseline, which would be consistent with the nature of improvement following the types of injuries Mr. Biro sustained in the accident.

I prefer the opinions of Drs. Digby, Lee, Holloway and Korkola to that of Dr. Rubin for several reasons and conclude that the accident caused Mr. Biro’s injuries and continued disability as anticipated by the Schedule.

Unica relied on Dr. Rubin’s opinion rather than the opinion of Dr. Digby, their first assessor who opined on Mr. Biro’s entitlement to benefits, asserting that Dr. Digby was not expert enough given the nature of Mr. Biro’s particular AS condition. I disagree that Dr. Rubin’s opinion should hold more weight than the other medical opinions respecting causation.

First, I find that Dr. Rubin was in no better position to assess the impact of the accident on Mr. Biro’s condition and function than any of the other assessors and practitioners who opined on the case. Dr. Rubin consulted only once with Mr. Biro, in 2011, four years after the accident. Dr. Digby, on the other hand, assessed Mr. Biro’s case for Unica soon after the accident and over the course of a year. Dr. Digby provided several reports which were the basis for Unica’s payment of the non-earner benefit. Drs. Holloway and Lee, family doctor and treating rheumatologist respectively, whose opinions aligned with that of Dr. Digby, also had a continuing relationship with Mr. Biro, and tracked his progress or decline over several years.

Second, Dr. Rubin’s opinion rests predominantly on measurements of Mr. Biro’s range of motion (ROM) in his neck and lower back, taken irregularly over the course of time by different practitioners under varying conditions. The chart Dr. Rubin created to demonstrate the change in measurements, while well-organized, is not reliable as a tracking tool because of the very changeable conditions under which the measurements were taken. It is disingenuous to suggest that it provides a clear and reliable picture of the change in Mr. Biro’s ROM. Besides, other assessors found Mr. Biro’s change in ROM after the accident to suggest an adverse impact from the accident.

For example, Dr. Korkola,⁶ orthopedic surgeon, examined Mr. Biro less than a year after the accident and found Mr. Biro’s cervical range of motion was diminished prior to the accident, however his range of motion deficit had increased since the accident based on the examination. Mr. Biro admitted to Dr. Korkola that he had pre-existing stiffness but only after the accident he could not manage his at-home indoor and outdoor maintenance activities. It was this doctor’s opinion the accident adversely affected his pre-existing condition.

Dr. Lee⁷, rheumatologist, treated Mr. Biro from June 2007 to June 2008 and then delivered a report in mid-2009 opining on the effects of the accident. While it is true that Dr. Lee noted Mr. Biro’s improvement in his report of May 7, 2008⁸ he concluded in 2009 that the severity of Mr. Biro’s pain and stiffness had not returned to the baseline pre-accident level. This conclusion is in stark contrast to Dr. Rubin’s view.

Dr. Mathoo found a 5% impairment because of increased neck and back problems because of the accident in March 2009, which is also contrary to Dr. Rubin’s opinion that all effects from the accident ceased in May 2008.

Furthermore, the ROM chart does not directly or helpfully address the question of the change in Mr. Biro’s function at all. The information Dr. Rubin did have about Mr. Biro’s function was similar, and as limited, to that relied on by other assessors so he was in no better position on that score either. The other assessors however compared function over time.

For example, Dr. Holloway, Mr. Biro’s family doctor, submitted four disability certificates to Unica. While the first three⁹ in 2007 do not support Mr. Biro’s claim for the non-earner benefit,¹⁰ Dr. Holloway’s November 30, 2007 disability certificate notes:

a significant decrease in the range of motion in the cervical spine
increased pain
has lost his driver’s licence
has lost mobility and quality of life.

Dr. Holloway’s notes show that Mr. Biro is declining in a number of respects.

Dr. Digby, Unica’s first assessor for the non-earner benefit, specifically addressed the issue of causation in his report of September 3, 2008¹¹ opining: “this client had a firmly established AS, psoriasis and Hepatitis C prior to the motor vehicle accident. There has been a definite acceleration of his pain, and decrease in his mobility that has been a direct result of the motor vehicle accident.” Dr. Digby also noted that Mr. Biro’s pain and loss of activity seemed to be related to his neck and he lost his licence because he couldn’t see the road well enough. As well, he noted that Mr. Biro’s grip strength reduced from January 11, 2008.

On January 26, 2009,¹² Dr. Digby again specifically addressed the question of whether the accident or the AS caused Mr. Biro’s symptoms by assessing his function: “I believe that this MVA has caused Mr. Biro’s condition to rapidly deteriorate from a state of limited compensation to almost total dependency. He is able to do some activities around his home and self-care. Compared to the activities that he reported he was doing prior to the accident, the pain and discomfort have caused severe restriction of his activity from the moment of the accident forward.”

Moreover, at the hearing, Dr. Digby testified that he now believes that the jolt from the accident caused a visible injury that would have significantly aggravated and worsened Mr. Biro’s AS. In re-examining the CT scan of May 3, 2007, he found the statement that “there was extensive calcification in the soft tissue surrounding the odontoid process” was critical and suggested a physical injury. To explain further, Dr. Digby had delivered an opinion to Unica in January 2008¹³ projecting a further deterioration in Mr. Biro in 5 years because of the AS. At the hearing he testified he now believes that the evidence to support the presence of inflammation from the AS at the time of the accident was actually reduced, that he made a mistake with his prediction and that his earlier opinion in this regard was incorrect.

Dr. Lee’s comparison of Mr. Biro’s function and impairment over time is thorough and informed by other evidence on Mr. Biro’s file. In 2008, Dr. Lee saw an increase in spinal mobility and noted Mr. Biro coping nicely although with pain waking him 2-3 times per night, morning stiffness lasting 2 hours, and continued difficulty with dressing particularly pulling clothes over his head and tying up shoelaces. Mr. Biro reported discontinuing medications such as prednisone and NSAIDS. By mid-2009, however, Dr. Lee found the injury to his neck and low back had become permanent. Dr. Lee considered a significant amount of the medical evidence including the records of both Drs. MacDougall and Amba in coming to his conclusions.

He had developed a stooped posture and progressive loss of movement of his neck during the course of his AS. However, after the motor vehicle accident, his neck became much more painful, stiffer and bent in a flexed position. Very quickly his neck became completely rigid so that he could no longer look up to see where he was going when walking and was no longer able to drive safely. When we first examined him in June 2007, he still had some residual movement of his cervical spine. His neck is now rigid and has obviously progressed since.

It is my opinion that Mr. Biro also suffered an acute low back strain as a result of the motor vehicle accident. He had pre-existing low back pain and stiffness from his AS and this had been considerably worse (with more severe pain and limitation of movement) since the accident. … As with his neck pain and stiffness, despite the passage of time and appropriate treatment, his low back symptoms have not improved. It appears that the trauma to his low back from the accident has become chronic.

Because of the injuries to his neck and low back and aggravation of his pre-existing AS from the motor vehicle accident, Mr. Biro continues to experience constant severe pain in his neck and low back, associated with severe impairment of physical function. ¹⁴

A comparison of all the causation opinions rendered on this case leads me to find that the accident of March 2007 materially contributed to an aggravation of Mr. Biro’s AS leading to an impairment that entitles him to certain benefits under the Schedule.

Mr. Biro’s Pre-Accident History

Mr. Biro’s pre-existing health and function is significant to the analysis of his entitlement to the non-earner benefit and a catastrophic impairment designation. Therefore, it is important to set out his circumstances with some clarity.

Upon a referral from his family doctor, Dr. MacDougall, after complaints of stiffness, pain, and swelling in his right hand and left shoulder while he was working as a roofer, Dr. Amba treated Mr. Biro for AS from 1998¹⁵ to 2005.

Dr. Amba’s treatment included prescribed anti-inflammatory and pain medication, physiotherapy, and regular exercise. It is clear from Dr. Amba’s reports¹⁶ to Dr. MacDougall that Mr. Biro was able to successfully treat some of the physical effects of his condition¹⁷ while other physical limitations remained consistent over the course of time. Mr. Biro’s kyphosis, the bent-forward posture, did not change throughout the entire seven year period and Dr. Amba saw marked restriction of the neck and back with no noticeable signs of improvement except temporarily in April 2001 when it appeared that Mr. Biro was able to touch his toes. The left shoulder improved by April 2001 but deteriorated again by May 2004 to the point where Dr. Amba recommended injections.

Dr. Holloway, Mr. Biro’s family doctor after Dr. MacDougall, consulted with Mr. Biro only twice before the March 2007 accident for complaints of neck pain and stiffness. Dr. Holloway¹⁸ noted that Mr. Biro had very little mobility in his neck before the accident in December 2006 and in January 2007 and referred Mr. Biro to another rheumatologist, Dr. Lee, because Mr. Biro’s pain was worsening and his range of motion was deteriorating which had an impact on his activities.

With respect to work history, we know that contemporaneous with the diagnosis and treatment of his AS in the late 1990s, Mr. Biro was advised to stop performing heavy labour and was therefore unable to continue in his work as a roofer. Mr. Biro applied for disability benefits both through the CPP Income Security Program¹⁹ and the Ontario Disability Support Program with the support of Drs. MacDougall and Amba.

Mr. Biro testified that his only real limitation was that he was unable to do heavy construction work. Mr. Biro’s physical limitations did not prevent him having some success with retraining. In 2003-2004, he obtained his high school diploma. Then, while it appears that Mr. Biro did not work a lot, Mr. Biro retrained and attained his AZ licence to drive a truck with the approval of ODSP. In August 2004, the biggest identified barrier to employment appeared to be his criminal record and not his physical issues.²⁰ Still in August 2005, in consultation with ODSP staff, it was noted that his “criminal record and stiff neck syndrome are serious barriers, but not impossible”.²¹

Mr. Biro testified that the last time he was employed was within a year of the accident for at least 6 months. He drove a tractor trailer hauling loads for Honda to the border and back. He also did some driving for Barrie Metals and TST Transport. Mr. Biro testified that he had been offered work driving a truck by a Mr. Hyland and there was a letter of support in evidence.²² The documentary evidence supports that Mr. Biro worked only sporadically in 2005 and 2006 and he earned very little money. Mr. Biro also admitted that he had trouble with some of the driving: he could not reverse and he had trouble lifting and moving the loads.

Mr. Biro also purchased a tow truck in an attempt to operate a tow truck business. He testified that the period of time he spent trying to repair the tow truck, purchasing the necessary parts and making it operational, he considered work. Detective Sergeant Lloyd testified that Mr. Biro would be seen driving the truck around town.

There is little evidence that Mr. Biro could not accomplish his daily activities except when initially diagnosed with AS and he testified that his daily activities were more easily accomplished after he began his treatment.

Mr. Biro testified that he was 100% independent before the accident and able to care for himself, clean the house, do the cooking, and drive. His housekeeping tasks included laundry, vacuuming, sweeping, mopping, cutting the grass, shovelling the driveway, shovelling snow off the roof in wintertime, cleaning eaves troughs, keeping the flowerbeds neat, general house maintenance, grocery shopping, maintaining vehicles, and splitting firewood in the winter season.

There is some support for Mr. Biro’s evidence about his activities of daily living. Ms. Borthwick, a friend, testified that she and her two children stayed with him once for 6 weeks in the summer of 1999 and that Mr. Biro was quite capable of taking care of all household chores. He seemed a normal, happy person. He worked on his tow truck and he did jobs with the truck. He visited friends and they would go out weekends. He complained about pain but it was not intolerable. Ms. Borthwick believes that he split wood in the year before the accident because he did it every winter and he never told her that anyone else was doing it for him. She does not recall his having a bent-forward posture from 1999 to the accident and she did not believe that he had difficulty turning his head side to side before the accident.

Mr. Biro also testified that he used to golf, mountain bike, canoe, and ski but most of these activities seemed to have ceased with the death one of his close friends, sometime around the time Mr. Biro obtained his truck driver’s licence in 2003 or 2004, and well before the accident. Mr. Biro also testified that he would visit his father and help him split wood and make wine but his father passed away in 2006.

Mr. Rapien, a friend who has known Mr. Biro for more than 20 years, testified that they would ride bikes, canoe and socialize together, but probably had not gone anywhere with him after three to four years before the accident. He knew that Mr. Biro split wood but could not remember the last time he saw him do it. He recalled that Mr. Biro might have been a little hunched over before the accident but not near what he is now.

I find that there is sufficient evidence about Mr. Biro’s activities pre-accident to show that he engaged in work and social activities to a limited degree but was able to take of himself and his home despite the AS.

NON EARNER BENEFIT

An insurer shall pay a non-earner benefit to an insured who sustains an impairment as a result of an accident if the insured suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident.²³

Unica paid Mr. Biro a non-earner benefit²⁴ up to December 20, 2011 on the basis of Dr. Digby’s opinion. Unica suspended the non-earner benefit from December 21, 2010 in accordance with section 37(7) of the Schedule when Mr. Biro, on the advice of his then counsel, refused to attend the insurer’s examination under section 44(1) on December 16, 2010²⁵ because it was to be conducted by Dr. Rubin rather than Dr. Digby.²⁶ Mr. Biro eventually agreed to attend the examination but Unica did not reinstate benefits determining that he did not qualify based on the opinion of Dr. Rubin.

The question of whether Mr. Biro suffers a complete inability to carry on a normal life as a result of the accident requires an examination of change in function that amounts to his being continuously prevented from engaging in substantially all of the activities in which he ordinarily engaged before the accident²⁷ with continuously meaning “uninterrupted”.

While it is true that Mr. Biro’s activities of daily living have changed to a notable degree after the accident, the preponderance of the evidence shows that his function has not been so limited as to amount to a complete inability to carry on a normal life. Mr. Biro, while unable to do some of the things he did before the accident, such as drive and work as a truck driver, has developed and maintained a thriving small enterprise that demonstrates his ability to accomplish many things and to function.

Activities After the Accident

The preponderance of the evidence is that post-accident Mr. Biro could not engage in certain of his pre-accident activities.

Mr. Biro stopped driving altogether soon after the accident, losing his licence in mid-2007.

Mr. Biro could not do many of his housekeeping tasks and hired someone to help him. Ms. Borthwick testified that she did housework for him within the first year to year and a half after the accident and she was fully compensated for that work, getting paid through the insurance. For a while after the accident, Ms. Borthwick also picked him up in a cab to do groceries because he could not do it anymore on his own. Mr. Biro testified, and Mr. Rapien confirmed, that someone still comes in once a week to help him out. Mr. Rapien also testified that he continues to help Mr. Biro with some of the heavier home maintenance tasks like splitting the firewood, cutting grass and shovelling snow.

But there was also evidence that Mr. Biro is still able to engage in some of these heavier activities. For example, Mr. Hollingshead testified that Mr. Biro told Mr. Hollingshead that he tuned up a snow blower recently and got it all ready for winter. And Mr. Rapien testified he did see Mr. Biro cutting the grass on occasion.

The evidence about Mr. Biro’s social activities in a reasonable period pre-accident was quite thin and suggested that many of his outdoor activities ceased well before the accident. Therefore, there was virtually no evidence about social or outdoor activities post-accident to compare.

Mr. Biro also had no employment post-accident of the type he had pre-accident because he was unable to drive due to his aggravated disability. However, the activity in which Mr. Biro has been participating post-accident and that appears to consume a lot of thought and whatever amount of energy he has is a medical marijuana growing enterprise.

The comparison of “engagement in” pre-accident activities with that of post-accident activities requires a consideration of quality and all activities are to be considered but “important” activities are to be given greater weight in the analysis. Also, where pain is the primary factor, the question is whether the degree of pain practically prevents the applicant from engaging in the activities.

In Mr. Biro’s case, he is engaging in his enterprise quite enthusiastically and has successfully produced medical marijuana in various forms allegedly at least for his own consumption. He spoke with great authority on the topic during the course of the arbitration hearing and Mr. Rapien testified that despite Mr. Biro’s feeling depressed, unhappy, angry and not physically as capable after the accident, marijuana growing is probably the only thing Mr. Biro gets excited about.

Mr. Biro testified that he purchased street marijuana for recreational use before the accident, and from the accident date to 2010 to treat the pain after his accident. He acquired a prescription in early 2011, then, from Health Canada, an authorization to possess in 2012 and a personal use production licence in 2013. Mr. Biro testified that knowing marijuana had medical values, he started researching medical marijuana and attended his first medical marijuana expo in 2010 where he met a doctor who referred him to a medical marijuana consultant in BC. The licences followed.

Mr. Biro admitted that he had a few plants before the accident, maybe 2 or 3, and Mr. Rapien confirmed this information. While his licence allows him to have up to 146 plants, Mr. Biro testified that he has approximately 30-40 currently.

The enterprise is almost too complex to be called a hobby and has many of the hallmarks of a small business though Mr. Biro testified that he does not sell his product. Mr. Biro has spent the years since 2010 experimenting with different strains, with varying degrees of success, and learning how to make edible product as well. For example, Mr. Biro testified that he uses ProMix and sheep manure for growing material because high nitrogen is required to enhance the CBD, i.e., the medicinal component, in the product. A failure to use sheep manure increases the THC component which does not really work well for medicine. Mr. Biro stated that “you have got to be like a chemist to do it”.

Mr. Biro successfully set up an entire marijuana growing enterprise after the accident and he testified that he continues to supervise and manage its operation. For example, Mr. Biro had to purchase the equipment and prepare the grow room. He testified that he knows enough to take care for his plants. He can do it sometimes and otherwise he has help. In fact, over the years he has had the assistance of 15-20 people, who he has promised to pay for their work, and a few of whom testified at the hearing. These assistants have performed various tasks under his supervision, or with him, including:

obtaining dirt at greenhouses, mixing it and carrying it to the room
moving plants
watering plants
purchasing grow lights and hanging them
transplanting plants to pots
boiling, straining, and other tasks to make oil and butter edibles
cloning the plants

Mr. Biro specified that he is able to do watering sometimes (he switched from using hoses to using wands for ease and efficiency) and has tried to do the cloning but someone else does it consistently for him. He transplants when he can and he also has others do it. He still does about 20% of the cutting and harvesting himself.

While Mr. Biro testified that he has helpers to accomplish the heavier tasks, both Mr. Rapien and Mr. Hollingshead testified that they have seen him water the plants, cut and trim plants and move plants (by using his feet, kicking them or sliding them along the floor).

Mr. Hollingshead, who worked for Mr. Biro from fall 2013 to summer 2014, testified that most of the stuff that there is to do, Mr. Biro does it sometimes himself but when he has other people to do it, he will have them do it. He never saw Mr. Biro doing the hardest part of the work though, i.e., mixing dirt outside and bringing it downstairs to the grow room.

Mr. Biro testified about his ability to educate himself in growing marijuana after the accident. Mr. Biro testified he has been to 5 cannabis conferences in downtown Toronto and Mr. Rapien has driven Mr. Biro to cannabis conferences in the past. Mr. Biro testified he cannot afford to go to conferences anymore so he educates himself, discussing laws, new strains, and new techniques for growing – to get more yield in particular. He now understands that success is dependent on temperature and humidity. He understands how much light the plants require and for how long in order to produce buds. In last two years he learned how to make oil from the plants and use it and started to learn how to bake with it. He knows how to store the product properly. He knows to start all the plants from seed to avoid pests.

Mr. Hollingshead also testified that Mr. Biro taught him and others a lot about growing marijuana. Mr. Biro showed them a YouTube video to teach them how to make the oil.

The degree to which Mr. Biro has grown his enterprise and the mental and physical effort he has mustered to create a success of it speaks to his abilities to engage in meaningful activities that are at least equal to those he engaged in before the accident. He can accomplish his personal care and some of his home maintenance activities, he can care for his plants, he can direct, supervise and work with others in his marijuana growing enterprise. He can do at least as much as he was doing before the accident. On the balance of the evidence I find that he does not have a complete inability to carry on a normal life and therefore is not entitled to a non-earner benefit.

Attendant Care Benefit

Mr. Biro claimed attendant care benefits as follows:

(a) $523.42 monthly from March 11, 2007 to December 31, 2007

(b) $5875.81 monthly from January 1, 2008 to September 20, 2014

The insurer shall pay an insured person who sustains an impairment as a result of an accident an attendant care benefit that shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for services provided by an aide or attendant.²⁸ The amount payable in attendant care is prescribed in the Schedule with up to $3000 monthly available for a non-catastrophically impaired insured and $6000 monthly available for a catastrophically impaired insured.

The post-accident records in the early stages of this case in particular indicate that Mr. Biro told assessors that he did not require attendant care. He testified that he remembered that he did not want it because he did not want to admit that he was permanently disabled. He also testified that he knows that after the accident he underreported his symptoms though he was less likely to do so before the accident. On the other hand, he also testified that he had assistance from some friends and from Ms. Borthwick, who he paid to do his housekeeping just after the accident.

Whatever the explanation might be for the delay, Mr. Biro did not submit a report²⁹ and two Forms 1³⁰ outlining his attendant care needs until January 2009 and by necessity the report included a retrospective assessment of his needs from the time of the accident.

The first Form 1 outlines a need for 11.8 hours weekly of attendant care, divided amongst the various levels of attendant care that are provided for within the Form 1. The second Form 1 shows an exponential increase in the weekly hours to 168 because the assessor concluded that Mr. Biro required 24 hour supervisory care (level 3 attendant care) because he lacked the ability to respond to an emergency or needed custodial care due to changes in his behaviour. The assessor found that Mr. Biro’s reports of extreme levels of distress and talk of ending his life required some support to ensure stability until such time as he could regain control and optimism in his life.

While there was evidence that Mr. Biro has felt desperate, distressed and angry at what he perceived to be Unica’s capricious approach to his claims and his needs³¹, there was only one incident of distress so extreme that he required emergency medical attention and that situation resolved relatively quickly.³² There is very little evidence that Mr. Biro required the degree of recommended supervision in his own home either on a long term or even short term basis. However, the preponderance of the evidence supports a need for the kind of attendant care recommended in the first Form 1.

Minus the supervisory care aspect, the attendant care needs report read together with both Forms 1 show that Mr. Biro’s attendant care needs relate to his inability to stand, stretch, bend over, and accomplish the heavier personal tasks. Mr. Biro’s inability to accomplish these personal tasks was noted by numerous of the occupational therapists who assessed him (and Unica paid benefits, such as housekeeping, based on these reports). The ability to accomplish these personal tasks is properly considered in the context of an attendant care needs assessment report at all levels. Mr. Ho assessed Mr. Biro several times for assistance with housekeeping and other tasks as did the occupational therapist Mr. Gradziel.³³ Neither of them found Mr. Biro to be completely independent despite his assurances to them. In particular, they found that he required assistance with transportation, because he lost his licence in June 2007, assistance with heavy indoor tasks, and with lifting above his shoulders and down low. Mr. Biro was not fully independent despite what Mr. Biro himself reported to assessors.

Mr. Turgeon, occupational therapist, also made similar recommendations³⁴ for Mr. Biro in mid-2009. He saw a neglected home. He observed Mr. Biro’s pain and he felt that unsafe conditions existed in the house. He recommended bilateral railings to facilitate going down to the basement. He noted the need for a usable entrance. Mr. Biro had problems with transportation. He also believed that from a functional perspective, Mr. Biro would have benefitted from some assistive devices.

Furthermore, there is the evidence of Mr. Biro and his witnesses and medical evidence that confirms that he continues to be unable to reach, stretch, bend over and accomplish some personal tasks within and outside the home environment.

The preponderance of the evidence supports Mr. Biro’s needs for attendant care and I am satisfied that the initial Form 1 recommends sufficient and appropriate time for the identified personal tasks with which he would have required assistance.

Therefore Mr. Biro is entitled to attendant care at the rate of $523.42 per month from the date of accident for 104 weeks.³⁵

MEDICAL BENEFITS

The medical benefit shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of the accident for various goods and services of a medical nature required by an insured.³⁶

Unica has paid Mr. Biro $95,255.46 in medical benefits up to the date of arbitration. Section 19(1) of the Schedule prescribes that the sum of the medical and rehabilitation benefits paid in respect of an insured person shall not exceed, for any one accident, $100,000, unless the insured person sustained a catastrophic impairment which I find he did not. While his medical benefits claims far exceed the remainder of $4744.54 available to him, I will examine each in turn applying the test whether they were reasonable and necessary expenses incurred by him as a result of the accident.

1. Marijuana

(a) $18,700 for the period March 12, 2007 to December 11, 2008

(b) $240 per week from December 12, 2008 and ongoing

Mr. Biro seeks medical benefits for marijuana he has used to treat the pain resulting from the accident. He seeks payment for the marijuana he purchased on the street before he obtained a licence to possess and grow it legally. He also seeks payment for the plants and all materials he acquired to set up his own growing operation to process medical marijuana allegedly for his own use.

(a) $18,700 for the period March 12, 2007 to December 11, 2008 and

(b) $240 per week from December 12, 2008 and ongoing

I see no justification in the Schedule for lump sum payments in medical benefits for illegal drugs and I decline to award any amounts related to those claimed expenses.

Mr. Biro’s legal and medically sanctioned consumption of marijuana did not begin until February 2011 when Dr. Holloway prescribed the drug for pain relief and submitted a treatment plan to Unica.³⁷ Dr. Holloway prescribed the drug based on Mr. Biro’s reports that it was the only drug that eased his pain without causing problematic side effects. Several of his other medical practitioners opined that the use of marijuana for pain relief seemed effective and he could continue with it. Those doctors include Dr. Lee, Dr. Mamalek, Dr. Digby³⁸ and Dr. Kammermans.

Dr. Holloway testified that he had never prescribed medical marijuana before he did for Mr. Biro. He based his recommendation on Mr. Biro’s insistence that it was the only medication that relieved his pain. Because he had no independent knowledge of the appropriate daily amount, he prescribed the maximum allowable to possess pursuant to the applicable Health Canada regulations at the time, i.e., 3g per day. There is no evidence before me of the medical or rehabilitation factors that influenced Dr. Mamelak’s prescription. Mr. Biro has only ever had a prescription/recommendation from a medical doctor for 3g per day.

Over the years, Mr. Biro has increased his intake based on his own needs and desires without any medical recommendation. Mr. Biro testified that he now takes up to 30g of marijuana per day, however provided very little justification for his increased intake. There was no medical evidence that such an amount was appropriate for pain control or for any other medical purpose. In fact, Mr. Biro now consults with a marijuana consultant in British Columbia about his plants and intake but provided little information about this person’s credentials or any advice he has provided regarding intake.

The preponderance of the evidence indicates that 3g per day of marijuana has been prescribed and the doctors indicated it was helpful to Mr. Biro to control the pain associated with the injuries he suffered in the accident. There was not any clear evidence around the cost of the medical marijuana. Mr. Biro testified that he and a previous counsel had estimated the cost to be approximately $1000 month. There was also some evidence that 30g would cost $300. These two amounts being similar and close to the $240 weekly amount claimed, I find that the daily 3g of marijuana would cost $30. Therefore, Mr. Biro is entitled to $30 per day in a medical benefit for medical marijuana but only from February 11, 2011 and ongoing.

I also find that Mr. Biro is entitled to a special award in relation to this claim because I find that Unica has unreasonably withheld these payments.

Unica asserted that its denials of Mr. Biro’s claims for medical marijuana were because his applications for the benefit were insufficient. However, Unica failed to request the missing information or clearly state what deficiencies existed in Mr. Biro’s application for the benefit. Instead, Unica consistently used the same reason for denial in consecutive letters – because Mr. Biro had used marijuana before the accident, his post-accident use was not related to the accident.

Unica’s denial as framed did not show an effort to consider the real merits of Mr. Biro’s claim and resulted in a gross unfairness to him. In testimony for Unica, Mr. Baker stated that initially he concluded that there was no reason for which the insurer should have paid for marijuana but, on reflection, seeing the various medical reports tendered at the hearing he agreed that the insurer could have paid for the marijuana. He testified that the insurer never properly responded to Mr. Biro’s request. Mr. Baker also testified that it might have been better for Unica to have had an assessor deliver an opinion on Mr. Biro’s entitlement to medical marijuana, as provided for in the Schedule. In this context, I find that Unica unreasonably withheld payments to Mr. Biro for these medical benefits.

Therefore I find that Mr. Biro is entitled to a special award in respect of my order that Unica is liable to pay him $30 per day in medical benefits for medical marijuana only from February 11, 2011. The special award shall be 50 percent of the amount of which Mr. Biro is entitled together with interest on all amounts owing to him, including unpaid interest, to be calculated in accordance with section 282(10) of the Insurance Act.

Mr. Biro testified that he installed a security and surveillance system around 2009 with money he obtained in his tort settlement to protect himself and his residence after he was robbed. Apparently, the robbers were after Mr. Biro’s prescription opiates or perhaps the few marijuana plants he had at the time.

I see no way that the costs of this type of security system can be classified as either a medical or rehabilitation benefit in accordance with the Schedule especially where the system was installed even before Mr. Biro was legally allowed to possess marijuana as a medicine.

Moreover, the need for the system currently has much to do with his personal decision to grow marijuana in great amounts on his residential premises. There is no need for him to do this in order to have the amount of marijuana prescribed to him by his doctors, i.e., 3g per day. He claims to have increased his intake tenfold, without providing any clear medical justification.

With respect to his claims for the marijuana plants and seeds, Mr. Biro also claims that he needs to produce his own medicine in order to be able to afford it but it is obvious that the result of his decision to grow the marijuana has not been an affordable or inexpensive alternative. Instead, the operation has caused him to accrue exorbitant costs, not just for the security system and the plants but also for all of the other necessary supplies and the labour he has employed to assist him in this endeavour. I am not satisfied on the evidence that Mr. Biro needs to produce his own medication to treat the injuries he suffered as a result of the accident.

Therefore, I find that the costs associated with his marijuana grow enterprise such as the security system, plants and seeds and related transportation costs, are not reasonable and necessary expenses incurred for medication.

2. Psychological treatment plan ($6270.70 – August 17, 2011) for his therapy with Barry Falls

Mr. Biro testified that his mood was worsening by 2010-2011 and this assertion is supported by the findings of Unica’s assessor, Dr. Nashef, who supported this treatment plan indicating that Mr. Biro still needed some psychological and emotional support and was suffering from severe major depressive disorder.

Unica refused payment of the plan relying instead on Mr. Biro’s views that he did not want or need it and that it was not helping him. Mr. Biro admitted in testimony that he could have made these statements because he was not making good decisions at that point in his life. Mr. Falls, a social worker who had been treating Mr. Biro since March 2011, noted³⁹ however that the sessions improved Mr. Biro’s mood allowing him to purge some of the negative emotions.

In these circumstances, I find the treatment plan reasonable and necessary for psychological services required by Mr. Biro to treat the injuries and resulting psychological stress caused by the accident. Therefore, Mr. Biro is entitled to $6270.70 in medical benefits for a psychological treatment plan dated August 17, 2011 for his therapy with Barry Falls.

I also find that Mr. Biro is entitled to a special award in relation to this claim.

Unica should not have denied payment of the plan by relying on Mr. Biro’s statements especially in light of the examination conducted by their own assessor who confirmed a treatable mental illness. Unica’s approach showed a haphazard approach to the adjustment of his claim and a disregard for consequences to his mental health. I find that Unica unreasonably withheld these payments by relying on the statements of their insured that he did not need the treatment even though their own assessor diagnosed a mental illness and recommended funding the treatment plan.

The special award shall be 50 percent of the amount of which Mr. Biro is entitled together with interest on all amounts owing to him, including unpaid interest, to be calculated in accordance with section 282(10) of the Insurance Act.

3. Physical therapy and mobility scooter treatment plan ($2637.64 – May 26, 2011)

4. Transportation services from the Red Cross treatment plan ($699.65 – June 30, 2011)

5. Massage treatment plan ($1456.32 – January 27, 2012)

There is insufficient evidence on which I can conclude that Mr. Biro is entitled to these expenses.

Mr. Biro testified that he wanted physiotherapy and that his functional abilities improved with treatment generally. He felt that he would have benefited from treatment in May 2011. There is also evidence generally that Mr. Biro could not drive and required transportation services as a result. On the other hand, there was almost no specific evidence led in respect of any of these treatment plans. As such there is insufficient evidence that these are reasonable and necessary expenses.

Case Manager Services

The insurer shall pay all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of the accident for services provided by a qualified case manager in accordance with a treatment plan if certain conditions exist.⁴⁰

Mr. Biro seeks $8853.28 in such services as indicated in a treatment plan dated November 23, 2010. Yet, there was insufficient evidence about either the reasonableness or the necessity for these particular services. As such I find that Mr. Biro has failed to show that he is entitled to these expenses.

Cost of Examinations

(a) In-home occupational therapy assessment by Claudia Maurice ($1491.78 – December 13, 2010)

(b) In-home occupational therapy assessment by Christine Farrell ($2041.89 – May 16, 2013)

An insurer shall pay expenses incurred for reasonable fees charged by a health practitioner to prepare various certificates, forms, treatment plans, assessments and the like for the purposes of various sections of the Schedule.⁴¹

In relation to the two claimed in-home occupational therapy assessments, there was insufficient, if any, evidence about the reasonableness of the fees charged or the specific purposes for which these assessments were conducted. In the circumstances then, there is no evidence presented by Mr. Biro to show that Unica should pay for these assessments.

Therefore, Mr. Biro is not entitled to these expenses.

Catastrophic Impairment

Mr. Biro claims that he has sustained a catastrophic impairment as defined in the Schedule under sections 2(1.2)(f) and (g). I find that Mr. Biro has not sustained a catastrophic impairment as defined in the Schedule. I begin with a consideration of Mr. Biro’s claim under section 2(1.2)(g).

Does Mr. Biro have a catastrophic impairment as defined in section 2(1.2)(g) of the Schedule?

In order to meet the definition under section 2(1.2)(g), Mr. Biro must show that he has, as a result of the accident, an impairment that results in a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to mental or behavioural disorder. Mr. Biro relies on the psychiatric assessment⁴² of Dr. Rosenblat while Unica relies on Dr. Shapiro’s conclusions. Both psychiatrists identified a mental or behavioural disorder present with Mr. Biro but differ on its impact on Mr. Biro’s function.

Dr. Shapiro⁴³ found adjustment disorder with depressed mood and concluded that his adjustment difficulties were affecting his functioning in the four areas to a mild/moderate degree. Dr. Shapiro found at most a moderate impact.

Dr. Rosenblat, on the other hand, diagnosed Mr. Biro with major depressive episode, anxiety disorder and a pain disorder associated with both psychological factors and a general medical condition. He found moderate impairments in three categories of function and a marked impairment in the area of work adaptation.

Dr. Rosenblat relied on Mr. Biro’s accounts regarding his work, and his social and recreational activities. Like some of the other assessors on the case, therefore, Dr. Rosenblat did not have a complete picture of Mr. Biro’s function. In particular, there are a number of significant issues with Dr. Rosenblat’s conclusions because:

he did not consider the contents of either Dr. MacDougall’s and Dr. Amba’s records
he did not know that Mr. Biro was on ODSP and did not see the contents of that extensive file
he did not know about Mr. Biro’s marijuana growing enterprise and the responsibilities and duties that Mr. Biro performed in that regard.

The result was that when confronted at the hearing with all of the available information he did not know at the time of his assessment, Dr. Rosenblat questioned whether he could be confident in his opinion and admitted during his testimony that he could not be certain that Mr. Biro had a marked impairment.

Chapter 14 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment⁴⁴ requires a comparison of the subjective account with the objective evidence to determine the true nature of the impairments. So while Dr. Rosenblat had some important information about Mr. Biro’s condition just prior to the accident, such as the observed depression and irritability, some very limited evidence of suicidal ideation⁴⁵ and that that Dr. Mamelak found Mr. Biro markedly impaired regarding his employment abilities, Dr. Rosenblat had little other objective evidence available to him to provide a more complete context.

Moreover because Mr. Biro was no longer doing any work after the accident, Dr. Rosenblat had to look to other indices in order to assess Mr. Biro’s function in the area of “adaptation”. Dr. Rosenbat testified that he would have examined Mr. Biro’s participation in hobbies, projects, conferences, self-study and assessed his success in these endeavours: was he able to cope with the demands of these activities? What is the quality of his participation? In this regard, Dr. Rosenblat testified that knowing about Mr. Biro’s marijuana growing enterprise would have been enlightening in terms of assessing his “adaptation”.

Dr. Harold Becker, who summarised Dr. Rosenblat’s findings and made the conclusions for the final report of this catastrophic assessment team focused on the medical records, especially Dr. Holloway’s records and the rheumatology records. No significant persons other than Mr. Biro were interviewed for the team’s report. The result was that like Dr. Rosenblat, Dr. Becker did not have a complete picture of Mr. Biro’s function before or after the accident. Dr. Becker testified, however, that the catastrophic impairment assessment provides a present day snapshot of a person’s function, rather than one of past function, and therefore believed that the snapshot the team took of Mr. Biro’s function on the day he was examined was correct.

However, Dr. Harold Becker also testified that an assessor needs to understand what a person had been capable of doing from the standpoint of personal and instrumental daily activities. Dr. Becker testified that the evidence of back pain before the accident, and the evidence about the true nature and quality of Mr. Biro’s work and its duration would have impacted on his catastrophic impairment assessment. Dr. Becker was of the view that the marijuana growing enterprise spoke more to Mr. Biro’s function in the area of concentration, persistence and pace rather than adaptation. While Dr. Becker was confident that the assessment had provided a clear picture of Mr. Biro’s function on the day he was examined, Dr. Becker agreed that the comparison and analysis of Mr. Biro’s function before and after the accident would have been compromised.

The result is that the opinion that Mr. Biro has a marked impairment is so compromised that I cannot relied upon it. There is no other medical opinion that endorses a marked impairment as Dr. Shapiro found at most a moderate impairment. Therefore, I rely on the opinion of Dr. Shapiro that Mr. Biro has no more than a moderate impairment.

Consequently I find that Mr. Biro has failed to show that he has a marked impairment due to a mental or behavioural disorder and therefore he is not catastrophically impaired as contemplated under section 2(1.2)(g) of the Schedule.

Does Mr. Biro have a catastrophic impairment as defined in section 2(1.2)(f) of the Schedule?

In order to meet the definition of catastrophic impairment according to section 2(1.2)(f), Mr. Biro must show that he has a 55 per cent or more WPI.⁴⁶ The WPI rating takes into account both physical as well as psychological limitations.

In general, assessors have been assigning a WPI rating to a psychological condition using the Guides or other tools based on their professional preference. In Mr. Biro’s case, Dr. Harold Becker assigned a WPI rating of 34-38% to Mr. Biro’s psychological impairment on the basis that Mr. Biro had a marked impairment in one area of function and moderate impairments in all other areas of function. Having found that Mr. Biro is at most moderately impaired, I would rate Mr. Biro’s psychological impairment well below 34% and much closer to the rating assigned by Dr. Shapiro who, based on his conclusion that Mr. Biro had at most a moderate impairment, found a WPI rating of 16%.

With respect to Mr. Biro’s physical limitations, Dr. Lisa Becker concluded that he had a 27% WPI for strictly physical impairments associated with injuries sustained in the accident. This overall rating includes a finding of a 19% impairment for Mr. Biro’s bilateral ulnar nerves.

The only significant disagreement between the two assessment teams opining on the physical limitations, was the WPI rating to be assigned to Mr. Biro’s ulnar nerve impairment.

While Dr. Lisa Becker found no injury to the ulnar nerves as a result of the accident, she concluded that Mr. Biro had a 19% rating for a bilateral ulnar nerve impairment because he had ulnar nerve neuropathy which had resulted in wasting of the muscles on both sides of his hands and decreased strength in the digits attached to the ulnar nerve. She attributed these deficits to the accident because the loss of mobility with his neck and back caused him to spend more time on his chair and couch, leaning on his elbows. Dr. Lisa Becker testified that it was this pressure on the nerves that caused compression that could be inflammation or irritation. It could also be that the bony structure in Mr. Biro’s elbows was such that he could be prone to this problem.

I find the comments of Dr. Mathoo important in helping to assess the degree of impairment to Mr. Biro’s ulnar nerves especially in light of the 19% rating Dr. Lisa Becker ascribed to that impairment. A 19% impairment for bilateral ulnar nerves is a significant limitation. Within the context of a WPI rating it is close to one fifth impaired. Yet Mr. Biro has never been treated for this problem, did not testify at any significant length about this problem, and there have been no investigations of the problem beyond the nerve conduction studies done in 2008.

Dr. Mathoo also did not see a direct injury to the ulnar nerve nor was he convinced of an actual impairment of the ulnar nerve or any other nerves going to the hand. Nerve conduction studies had been done earlier⁴⁷ and Dr. Mathoo noted that those studies did not identify an impairment or show any lesion of any aspect of the ulnar nerve. Dr. Mathoo also noted there was no motor impairment ever identified within the first 2 years after the accident. As a result, Dr. Mathoo⁴⁸ found only a 5% WPI impairment because of Mr. Biro’s increased neck and back problems as a result of the accident.

Given the preponderance of the evidence on this point, I find that the ulnar nerve impairment is likely well below 19%.

With an accepted WPI rating of 16% for the psychological impairment and a rating well below 20% for the physical impairments, I find that the combination of physical and psychological limitations sustained by Mr. Biro as a result of the accident do not amount to a 55% or more WPI and therefore he does not have a catastrophic impairment as defined in section 2(1.2) (f) of the Schedule.

EXPENSES:

In awarding expenses, an arbitrator shall consider the criteria listed in rule 75 of the Dispute Resolution Practice Code.

I have considered the relevant criteria below in the parties’ claims for expenses:

(a) Each party’s degree of success in the outcome of the proceeding

Each party had some success in the proceeding. Mr. Biro succeeded in his claims for attendant care benefits, some medical benefits and a special award. He did not succeed in his non-earner benefits claim or his claim to a catastrophic impairment designation.

(d) The conduct of a party or a party’s representative that tended to prolong, obstruct or hinder the proceeding, including a failure to comply with undertakings and orders

Each party and each party’s representative engaged in conduct that tended to prolong, obstruct or hinder the proceeding.

Mr. Biro did not come prepared to proceed on the first day scheduled for this hearing despite the case having been adjourned three times already. He hired counsel at the last minute resulting in a delay in the commencement of the hearing and prolonging the hearing.

Counsel for Unica failed to provide a complete copy of the accident benefits file to Mr. Biro’s counsel until February 2015, several months after the commencement of the arbitration hearing and despite having been requested to do so by the arbitrator, resulting in delays in counsel’s ability to deal with the relevant evidence. Counsel for Unica also delivered other evidence without sufficient notice during the course of the hearing.

Counsel bickered with each other throughout the course of the hearing despite the arbitrator’s directions to cease with such time consuming and unhelpful behaviour resulting in frequent daily breaks which prolonged the hearing.

I did not consider criterion (b) as there were no written offers to settle that were made in accordance with Rule 76.

For these reasons and balancing all factors, I order the parties to bear their own expenses except as it relates to the expenses for Unica’s motions of August 7 and 9, 2013 at the Commission.

In respect of Unica’s motions of August 7 and 9, 2013, referred to in paragraph 33 of Unica’s Expenses Submissions, Unica is required to give notice to former counsel following which the Commission may allow submissions from the parties and decide the issue.

June 8, 2017

Rosemary Muzzi Arbitrator

Date

Financial Services Commission of Ontario