Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2017 ONFSCDRS 225
FSCO A15-008136
BETWEEN:
ALIREZA GHASEMI HOJATMANDI
Applicant
and
TD GENERAL INSURANCE COMPANY
Insurer
REASONS FOR DECISION
Before:
Arbitrator Paulina Gueller
Heard:
In person at ADR Chambers on May 3, 4 and 5, 2017 with written submissions completed on June 9, 2017
Appearances:
Mr. Alireza Ghasemi Hojatmandi participated
Mr. Robert N. Franklin, Lawyer, represented Mr. Alireza Ghasemi Hojatmandi
Mr. Dragan Acimovic participated on behalf of TD General Insurance Company
Ms. Sarah Kim, Lawyer, and Ms. Jennifer Sweitzer, Lawyer, represented TD General Insurance Company
Issues:
The Applicant, Mr. Alireza Ghasemi Hojatmandi, was injured in a motor vehicle accident (“MVA”) on June 19, 2014 and sought accident benefits from TD General Insurance Company (“TD General”), payable under the Schedule.1 The parties were unable to resolve their disputes through mediation and Mr. Ghasemi Hojatmandi, through his representative, applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c. I.8, as amended.
The issues in this Hearing are:
Is Mr. Ghasemi Hojatmandi entitled to receive a non-earner benefit in the amount of $185.00 per week for the period spanning May 27, 2015 to the date of this decision?
Is Mr. Ghasemi Hojatmandi entitled to receive medical benefits for services proposed by Medic8 Clinic as follows:
a) $1,582.00 for orthotics, per an OCF-18 dated March 31, 2015;
b) $3,184.17 for chiropractic and massage treatment, per an OCF-18 dated March 31, 2015;
c) $2,765.50 for chiropractic and massage treatment, per an OCF-18 dated February 26, 2016?
- Is Mr. Ghasemi Hojatmandi entitled to payments for the Cost of Examinations (“COEs”) by Medic8 Clinic as follows:
a) $1,995.00 related to a chronic pain assessment, per an OCF-18 dated April 15, 2016;
b) $1,438.35 related to a Functional Abilities Evaluation (“FAE”), per an OCF-18 dated October 14, 2014?
Is Mr. Ghasemi Hojatmandi entitled to interest for the overdue payment of benefits?
Is TD General liable to pay Mr. Ghasemi Hojatmandi’s expenses in respect of the arbitration?
Is Mr. Ghasemi Hojatmandi liable to pay TD General’s expenses in respect of the arbitration?
Result:
Mr. Ghasemi Hojatmandi is not entitled to non-earner benefits from May 27, 2015 to the date of this decision.
Mr. Ghasemi Hojatmandi is not entitled to receive medical benefits for services proposed by Medic8 Clinic as follows:
a) $1,582.00 for orthotics, per on OCF-18 dated March 31, 2015;
b) $3,184.17 for chiropractic and massage treatment, per an OCF-18 dated March 31, 2015;
c) $2,765.50 for chiropractic and massage treatment, per an OCF-18 dated February 26, 2016.
- Mr. Ghasemi Hojatmandi is not entitled to payments for the COEs by Medic8 Clinic as follows:
a) $1,995.00 related to a chronic pain assessment, per an OCF-18 dated April 15, 2016;
b) $1,438.35 related to a FAE per an OCF-18 dated October 14, 2014.
Mr. Ghasemi Hojatmandi is not entitled to interest for the overdue payment of benefits.
If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may request an appointment with me for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.
EVIDENCE AND ANALYSIS:
1. Is Mr. Ghasemi Hojatmandi entitled to receive a non-earner benefit in the amount of $185.00 per week for the period spanning May 27, 2015 to the date of this decision
Applicant’s Position and Testimony
The Applicant stated that he had owned a Double Double Pizza franchise since 1997. He worked between 14 to 16 hours per day until 2011, when his eldest daughter moved out of the house and his wife sustained serious injuries in a 2012 MVA. Following his wife’s accident, he became the primary person responsible for the family’s laundry, vacuuming, cooking, cleaning, lawn maintenance and snow removal, as well as providing personal care to his wife, including taking her to medical appointments. He received a little help from his youngest daughter and his sister in law. However, the Applicant testified that after his wife’s accident, he never fully returned to his duties at the Double Double Pizza franchise and he no longer operates it. He also testified that he has not prepared financial statements or tax returns since abandoning the business.
The Applicant testified that he has been on social assistance since the beginning of 2016, initially Ontario Works, and then Ontario Disability Support Program (“ODSP”) since August 2016.
The Applicant testified that he used to play soccer and go to the gym, and that he was generally in good health but for high blood pressure and high cholesterol controlled by medication, as well as some bowel issues and carpal tunnel syndrome.
The Applicant testified that immediately after the 2014 MVA, he felt pain in his right knee, neck, back and shoulder. His neck and back have improved, but he still has severe right knee pain most of the time, for which he used to wear a brace. Up until June 2016, he continued to have daily shoulder pain exacerbated by standing 15 to 20 minutes, and knee pain most days. He attended Medic8 Clinic twice a week, and took Baclofen, muscle relaxants and over-the-counter pain relief medication on a regular basis. He could not do the housework or care for his wife, but was able to do light vacuuming and cook light meals.
He testified that Dr. Paula Gretsinger, his family doctor at the time of the MVA, prescribed him medication and referred him to Medic8 Clinic for physical therapy.
The Applicant testified that right after the MVA, he could not carry out all the activities he used to undertake at home and that he has slowly resumed his activities and continues doing them in some capacity.
Dr. Koskie, Chiropractor, testified that he prepared two Disability Certificate (“OCF-3”) forms. His OCF-3, dated May 12, 2015, indicated that the Applicant suffered a complete inability to carry on a normal life, and that the anticipated duration would be nine to twelve weeks. However, his previous OCF-3, dated February 24, 2015, indicated that the Applicant “did not” suffer a complete inability to carry on a normal life, but Dr. Koskie still expected that the Applicant’s disability would have an anticipated duration of nine to twelve weeks.
Dr. Koskie testified that he assumed that he had conversations with the Applicant about his activities of normal life, but did not recall what the activities were. Despite Dr. Koskie’s comment on both OCF-3s that the Applicant had “non-organic sleep disorders or “unspecified mood”, Dr. Koskie stated that he had no psychological training to assess those types of disorders, and that he had not received any medical documentation from the Applicant to support this assessment.
Dr. Koskie also indicated in both OCF-3s that the Applicant could return to work on modified hours and duties.
Insurer’s Position
The Insurer submitted that pursuant to section 12 of the Schedule, the Applicant must prove on a balance of probabilities that as a result of the MVA, he suffered a complete inability to carry on a normal life, that there were changes in his post-MVA life, and that he is continuously prevented from engaging in substantially all pre-MVA activities.
The Insurer submitted that the Ontario Court of Appeal set out generic principles for the non-earner benefit test:
It is not sufficient for a claimant to demonstrate that there were changes in his or her post-accident life. Rather it is incumbent on a claimant to establish that those changes amounted to him or her being continuously prevented from engaging in substantially all his pre-accident activities…
The phrase “engaging in” should be interpreted from a qualitative perspective…
In cases where pain is primary factor that allegedly prevents the insured from engaging in his or her former activities, the question is not whether the insured can physically do these activities, but whether the degree of pain experienced, either at the time or subsequent to the activity, is such that the individual is practically prevented from engaging in those activities.2
The Insurer presented surveillance evidence taken on June 1, 2 and 3, 2016, showing the Applicant fixing cables under a boat, where he was bending, stooping and squatting for several minutes at a time, during a period of two hours.
The Insurer also submitted that there were inconsistencies in the Applicant’s testimony. On the stand, the Applicant testified that he never returned to work following the MVA. However, the Insurer submitted that the Applicant told Dr. Levy, MD, expert witness for the Insurer, and three other assessors that he worked ten to fifteen hours per week after the MVA on modified duties, or that he carried out administrative duties for his business.
The Insurer also submitted that the Applicant failed to prove business closure and to adduce evidence to prove that he was receiving ODSP or social assistance from Ontario Works.
Dr. Silverman, Psychologist, conducted a section 44 psychological report3 that states: “Mr. Ghasemi Hojatmandi indicated that he did not return to work for about “three to four months” after the accident, but with graduated hours that he has continued to maintain.” He stated that he is currently working about “10 to 20 hours per week”. This information is consistent with the reports of Dr. Hummel,4 Orthopedic Surgeon and expert witness for the Insurer, Dr. Levy5 and the Applicant’s testimony.
Dr. Silverman also concluded that from a psychological perspective, the Applicant did not suffer a complete inability to carry on a normal life.
Conclusion
The test for a non-earner benefit is that a person must suffer a complete inability to carry on a normal life. On a balance of probabilities, the Applicant must prove that as a result of the accident, he is continuously prevented from engaging in substantially all pre-accident activities.6 The Applicant’s inability to perform only a few activities would not amount to “substantially all” of a person’s pre-accident activities, no matter how significant those activities may be to the Applicant.7
I am persuaded by the Insurer’s submissions that Dr. Koskie’s OCF-3s were inconsistent and as the Doctor stated, he has had no training as a psychologist to assess sleep disorders or unspecified mood as the reason for his determination that the Applicant suffered a complete inability to carry on a normal life as indicated on the OCF-3s, dated February 24, 2015 and May 12, 2015.
I find that Mr. Ghasemi Hojatmandi does not meet the test for non-earner benefits, and he has no entitlement to it.
2. Is Mr. Ghasemi Hojatmandi entitled to receive medical benefits for services proposed by Medic8 Clinic as follows:
a) $1,582.00 for orthotics, per an OCF-18 dated March 31, 2015;
The Applicant testified that the orthotics were required due to the knee injury diagnosed by Orthopaedic Surgeon, Dr. Guerra.
The Insurer submitted that the OCF-18, dated March 31, 2015, was not signed by the Applicant, as required by section 38(3) of the Schedule.
Dr. Koskie stated that he recommended the orthotics to the Applicant based on his examination and recommendations in Dr. Guerra’s report. However, on cross-examination, Dr. Koskie admitted that there was no mention of orthotics in Dr. Guerra’s report, and that he wasn’t sure why he could have recommended the orthotics. Further, the Applicant on cross-examination testified that he never met with Dr. Guerra.
Law
Section 38(3) of the Schedule states, in relevant part:
A treatment and assessment plan must,
(a) be signed by the insured person unless the insurer waives that requirement;
Conclusion
I accept the Insurer’s position that the Applicant did not prove the authenticity of Dr. Guerra’s recommendation, failed to comply with the law by not signing the report, and failed to prove that the treatment plan was reasonable and necessary.
Therefore, the Applicant is not entitled to a medical benefit for services proposed by Medic8 Clinic for $1,582.00 for orthotics as per the OCF-18, dated March 31, 2015.
b) $3,184.17 for chiropractic and massage treatment, per an OCF-18 dated March 31, 2015;
c) $2,765.50 for chiropractic and massage treatment, per an OCF-18 dated February 26, 2016?
Applicant’s Position
The Applicant submitted that the Insurer did not provide evidence by way of Insurer’s Examinations relating to the OCF-18s; that the proposed plans are reasonable and necessary; and that Dr. Hummel, Orthopedic Surgeon, the Insurer’s expert witness, conducted a “paper review” and the Insurer never requested a supplemental review or addendum.
Insurer’s Position
The Insurer submitted that the OCF-18s were denied based on Dr. Hummel’s section 44 report, and based on previous section 44 examinations by Dr. Levy and Dr. Hummel, who opined that no further passive treatment was required. Dr. Koskie’s testimony also did not establish that the OCF-18s were reasonable and necessary.
Law
Section 44 of the Schedule states, in part:
- For the purposes of assisting an insurer to determine if an insured person is or continues to be entitled to a benefit under this Regulation for which an application is made, but not more often than is reasonably necessary, an insurer may require an insured person to be examined under this section by one or more persons chosen by the insurer who are regulated health professionals or who have expertise in vocational rehabilitation. O. Reg. 34/10, s. 44 (1).
(4) Subject to subsection (7), an examination under this section may be limited by the insurer to an examination of material provided under subsection (9) in respect of the insured person without requiring the attendance of the insured person. O. Reg. 34/10, s. 44 (4).
(9) The following rules apply in respect of the examination:1. If the attendance of the insured person is not required, the insured person and the insurer shall, within five business days after the day the notice under subsection (5) is received by the insured person, provide to the person or persons conducting the examination such information and documents as are relevant or necessary for the review of the insured person’s medical condition.
Conclusion
I do not accept the Applicant’s submissions that the Insurer based its decision only on a “paper review”. The Insurer requested a report by a way of paper review from Dr. Hummel within 45 days of conducting his prior “in person” section 44 assessment.
The law sets out that examinations should not be made more often than reasonably necessary. Also, section 44(9) of the Schedule provides that when the attendance of the insured person is not required, the person or persons conducting the examination must be provided with the information and documents relevant or necessary for the review of the insured person’s medical condition.
I find that Dr. Hummel conducted the non-earner benefit section 44 assessment “in person” on March 5, 2015.8 Dr. Hummel produced his “paper review” report regarding these two OCF-18s on April 20, 2015.9 I also find that Dr. Hummel’s paper review report lists all the documents used in his report, at page 2. He referred to the Applicant’s assessment done on March 5, 2015, 45 days prior to the completion of the report.
The Applicant has the onus to prove his entitlement to the benefits claimed. Dr. Koskie’s testimony was inconsistent and is consequently unreliable.
I am persuaded by the Insurer that the OCF-18s were not reasonable and necessary based on the reports produced by Dr. Hummel.
Therefore, I find the Applicant is not entitled to receive medical benefits for chiropractic and massage treatment in the amount of $3,184.17, per an OCF-18 dated March 31, 2015, and $2,765.50, per an OCF-18 dated February 26, 2016.
3. Is Mr. Ghasemi Hojatmandi entitled to payments for the COEs by Medic8 Clinic as follows:
a) $1,995.00 related to a chronic pain assessment, per an OCF-18 dated April 15, 2016;
Applicant’s Position
The Applicant submitted that Dr. Levy conducted a “paper review” four and a half months prior to Dr. Jacobs, the Physician, who co-signed the OCF-18, dated April 15, 2015, with Dr. Koskie, proposing a chronic pain assessment, and that Dr. Levy recommended an orthopaedic assessment that was done by Dr. Guerra. The Applicant also submitted that Dr. Levy did not ask for Dr. Guerra’s report, and the Insurer did not ask for Dr. Levy’s supplemental addendum.
The Applicant submitted that Dr. Levy stated in his report that there was no need for a chronic pain assessment report, as the Applicant did not suffer from a chronic pain disorder and recommended the Applicant see an Orthopaedic Surgeon.
Insurer’s Position
The Insurer submitted that the OCF-18, dated April 15, 2015 was completed and signed by two health professionals, Dr. Howard Jacobs, Physician, and Dr. Adam Koskie, Chiropractor.
The Insurer also submitted that the chronic pain assessment was denied following Dr. Levy’s paper review report completed on April 29, 2015,10 where he concluded that the Applicant did not suffer a chronic pain disorder and there was no need for a chronic pain assessment. The Insurer also submitted that the Applicant did not produce Dr. Jacobs’ testimony regarding the OCF-18, dated April 15, 2015, and that Dr. Koskie admitted he could not attest to whether the OCF-18 was reasonable and necessary, and had no specific training that would allow him to determine whether a chronic pain assessment was necessary.
Conclusion
I do not accept the Applicant’s submissions. I find that the OCF-18, dated April 15, 2015, proposing a chronic pain assessment by Dr. Jacobs11 was subsequent to the report done by Dr. Guerra, dated March 30, 2015.
I find Dr. Levy assessed the Applicant in person on December 9, 2015 and completed a posterior “paper review” on April 29, 2015, four months after his first assessment. I find this is a reasonable time for not conducting another “in person” assessment.
I did not find any recommendation in Dr. Guerra’s report for a chronic pain assessment12 and Dr. Koskie also acknowledged that he has no training or education to diagnose chronic pain.
I find the Applicant failed to prove that a chronic pain assessment was reasonable and necessary.
Therefore, I find the Applicant is not entitled to payment for the COEs in the amount of $1,995.00 related to a chronic pain assessment, as per an OCF-18, dated April 15, 2016.
b) $1,438.35 related to a FAE, per an OCF-18 dated October 14, 2014?
Applicant’s Position
The Applicant submitted that Dr. Koskie indicated that the FAE was required to identify the Applicant’s work tolerance and that the Insurer has not produced evidence that the assessment was not reasonable and necessary.
Insurer’s Position
The Insurer submitted that the FAE was originally denied on October 29, 2014, on the basis that the income replacement benefit was not in dispute, and the Insurer requested from Dr. Darrin T. Milne, Chiropractor, a section 44 paper review to determine whether it was reasonable and necessary. The Insurer also submitted that Dr. Milne concluded that a “FAE is an objective assessment that is used to determine a patient’s functional abilities with respect to the physical demands of his or her occupation in preparation for return to work”.13
Conclusion
I accept the Insurer’s submissions that Dr. Koskie admitted a FAE is typically completed when an income replacement benefit is in dispute, and he agreed that he would have not requested a FAE for a non-earner benefit claim.
Therefore, as the Applicant failed to prove that a FAE was reasonable and necessary, I find that the Applicant is not entitled to the COE in the amount of $1,438.35 related to an FAE, as per an OCF-18, dated October 14, 2014.
4. Interest
There is no entitlement to interest.
EXPENSES:
If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may request an appointment with me for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.
August 21, 2017
Paulina Gueller
Arbitrator
Date
Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2017 ONFSCDRS 225
FSCO A15-008136
BETWEEN:
ALIREZA GHASEMI HOJATMANDI
Applicant
and
TD GENERAL INSURANCE COMPANY
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c. I.8, as it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, and Ontario Regulation 664, as amended, it is ordered that:
Mr. Ghasemi Hojatmandi is not entitled to non-earner benefits from May 27, 2015 to the date of this decision.
Mr. Ghasemi Hojatmandi is not entitled to receive medical benefits for services proposed by Medi8 Clinic as follows:
a) $1,582.00 for orthotics, per an OCF-18 dated March 31, 2015;
b) $3,184.17 for chiropractic and massage treatment, per an OCF-18 dated March 31, 2015;
c) $2,765.50 for chiropractic and massage treatment, per an OCF-18 dated February 26, 2016.
- Mr. Ghasemi Hojatmandi is not entitled to payments for the Cost of Examinations by Medi8 Clinic as follows:
a) $1,995.00 related to a chronic pain assessment, per an OCF-18 dated April 15, 2016;
b) $1,438.35 related to a Functional Abilities Evaluation per an OCF-18 dated October 14, 2014.
Mr. Ghasemi Hojatmandi is not entitled to interest for the overdue payment of benefits.
If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may request an appointment with me for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.
August 21, 2017
Paulina Gueller
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule - Effective September 1, 2010, Ontario Regulation 34/10, as amended.
- Insurer’s Book of Authorities, Tab 5: Heath v. Economical Mutual Insurance Company, 2009 ONCA 391, para. 50, 249 OAC 164.
- Insurer’s Exhibit P.
- Insurer’s Exhibit O.
- Applicant’s Brief, Tab 24.
- Insurer’s Book of Authorities, Tab 5: Heath v. Economical Mutual Insurance Company, 2009 ONCA 391, para. 37, 249 OAC 164.
- Insurer’s Book of Authorities, TAB 7: Buccellato, the Estate of, and Allstate Insurance of Canada, [2004], OFSCD No. 50, para. 19.
- Insurer’s Exhibit O.
- Insurer’s Exhibit MM.
- Insurer’s Exhibit OO.
- Applicant’s Exhibit EE.
- Insurer’s Exhibit W.
- Insurer’s Exhibit HH, page 4 of the Report.