Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2017 ONFSCDRS 263

FSCO A16-004413

BETWEEN:

OSCAR ALVAREZ

Applicant

and

UNICA INSURANCE INC.

Insurer

REASONS FOR DECISION

Before: Lynda Tanaka, Arbitrator

Heard: In person at ADR Chambers on August 2, 3 and 4, 2017

Appearances: Mr. Oscar Alvarez participated Mr. Maurice Benzaquen, Counsel, and Mr. Carlos Ortiz, Licensed Paralegal, for the Applicant Oscar Alvarez Ms. Angela Comella, Counsel for Unica Insurance Inc.

Issues:

The Applicant, Oscar Alvarez,¹ (“Applicant”), was injured in a motor vehicle accident on November 19, 2014 and sought accident benefits from Unica Insurance Inc. (“Unica”), payable under the Schedule.² The parties were unable to resolve their disputes through mediation, and the Applicant, through his representative, applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c. I.8, as 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 (“Act”).

The issues in this Hearing are:

1. Is the Applicant entitled to receive a medical benefit in the outstanding amount of $848.72 for chiropractic treatment, massage and physiotherapy provided by Humber River Physio & Rehab (“Humber River”) per an OCF-18 dated December 8, 2014?

2. Is the Applicant entitled to attendant care benefits at the rate of $397.02 per month from November 20, 2014 to November 19, 2016, based on a Form 1 dated March 4, 2015 prepared by Inna Dainov?

3. Is the Applicant entitled to payments for the cost of examinations:

I) for services by Humber River:

a) $2,109.36 – OCF-18 dated February 9, 2015 for psychological assessment;

b) $2,130.00 – OCF-18 dated January 13, 2015 for neurological assessment;

c) $2,104.00 – OCF-18 dated December 12, 2014 for in-home attendant care assessment; and

d) $2,130.00 – OCF-18 dated December 12, 2014 for physiatry assessment; and

II) $2,000.00 for services by Marigold Medical Assessment Centre – OCF-18 dated January 19, 2015 for psychological assessment?

4. Is Unica liable to pay a special award because it unreasonably withheld or delayed payments to the Applicant?

5. Is either party liable to pay the expenses of the other party in respect of the arbitration?

6. Is the Applicant entitled to interest for the overdue payment of benefits?

Result:

1. The Applicant is entitled to receive a medical benefit in the amount of $848.72 for chiropractic treatment, massage and physiotherapy provided by Humber River Physio & Rehab per an OCF-18 dated December 8, 2014.

2. The Applicant is not entitled to attendant care benefits at the rate of $397.02 per month from November 20, 2014 to November 19, 2016.

3. The Applicant is entitled to payments for the cost of examinations claimed and described below:

I) for services by Humber River:

a) $2,109.36 – OCF-18 dated February 9, 2015 for psychological assessment;

b) $2,130.00 – OCF-18 dated January 13, 2015 for neurological assessment;

c) $2,104.00 – OCF-18 dated December 12, 2014 for in-home attendant care assessment; and

d) $2,130.00 – OCF-18 dated December 12, 2014 for physiatry assessment; and

II) $2,000.00 for services by Marigold Medical Assessment Centre – OCF-18 dated January 19, 2015 for psychological assessment.

4. The Applicant is entitled to a special award in the amount of $5,000.00.

5. If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the party requesting expenses shall serve and file its request including full support for their claim within 20 days of the issuance of this decision. The responding party shall provide its response within 15 days of receipt of the expense claim. Reply materials may be filed within 5 days of receipt of the response. I will determine the expense claim on the basis of the written materials filed in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

6. The Applicant is entitled to interest on any outstanding amounts.

EVIDENCE AND ANALYSIS:

For all benefits, the onus of proof is with the Applicant to establish that the injury falls within the scope of coverage and he is entitled to the benefits claimed.³

The Applicant was injured in an accident on Highway 400 near the Finch Avenue interchange early in the morning of November 19, 2014. He was travelling southbound at a speed in excess of the speed limit (100 kph) when a cube van in front of him came to an abrupt stop. When he put on the brakes, the front of his vehicle turned into the passing lane to his left, which was the one closest to the guardrail. A vehicle in that lane, also travelling in excess of the speed limit, hit his vehicle on the driver’s side, sending his vehicle into a spin across the six lanes of traffic to his right. He finally stopped in a ditch, with damage to the passenger side of the vehicle.⁴ The other vehicle spun left into the divided median.⁵ The Applicant testified that the driver’s side air bag deployed with a huge noise, hitting the Applicant’s head on the left side and particularly his left ear. When he reported the accident to Unica, he complained of neck pain and an earache.⁶

The Applicant did not and does not currently have a family doctor, because he is unable to find a family practice with a doctor who is fluent in Spanish and accepting new patients. He did not go to the hospital after the accident, and says he has not seen a treating physician since the accident other than at a walk-in clinic or hospital for colds and similar illnesses. At the time of the accident, he was the sole income earner for his pregnant wife and toddler, living in a basement apartment. He worked freelance as a grip or electrician, hired on an as-needed basis in the film industry for an hourly rate, and he continues to do so. He usually works 20 days per month, and his shifts are 12 to 16 hours, depending on the filming schedule. He is required to set up lighting for film shoots, which involves bending and lifting. Due to the injuries he suffered in the accident, he is still not able to consistently do all the work required in his job, and he gets help from his co-workers, albeit with some hesitation. The Applicant testified that if he does not work a certain number of hours, he will lose his job. Until mid-2015, he did not have any workplace health benefits.

The Applicant was able to find a legal representative who speaks Spanish and who submitted his OCF-1 Application for Accident Benefits dated November 24, 2014. In the OCF-1, the Applicant listed the injuries to his body and psychological injuries as follows: headache, dizziness, tinnitus, neck pain, TMJ pain/locking/clicking, weakness, fatigue, stress, anxiety, flashbacks, panic attacks, depressed mood, coping difficulties, driving/passenger phobia, anger, frustration, poor sleep, nightmares.⁷ He took one week off work following the accident.

The Applicant was assessed and treated at Humber River, and Dr. Sasha Kobrossi, D.C., completed the OCF-3 (Certificate of Disability) on December 8, 2014. The OCF-3 listed the injury and sequelae information as follows: headache, noise effects on inner ear, sprain and strain of joints and ligaments of other unspecified parts of neck, cervicalgia, contusion of shoulder and upper arm (right), disorders of initiating and maintaining sleep (insomnias), phobic anxiety disorders and nervousness. Dr. Kobrossi submitted an OCF-18 treatment and assessment plan on December 8, 2014 indicating that the injury was not predominantly a minor injury.⁸ The proposed treatment had the goals of pain reduction, increased range of motion, and increase in strength to allow a return to activities of normal living and pre-accident work activities. It identified no pre-existing disease, condition or injury that could affect the Applicant’s response to treatment, and indicated that the injuries were affecting the Applicant’s ability to carry on his employment and normal life—specifically, the Applicant “gets affected by any type of noise (from quiet to very loud). Head/neck rotation.” Dr. Kobrossi also noted that a psychological referral was appropriate.

Unica approved $2,200.00 in treatment, and obtained an independent assessment in response to this OCF-18 by Dr. Vincent Galati, D.C. Dr. Galati’s assessment was conducted on January 27, 2015, a little over two months after the accident. In Dr. Galati’s report,⁹ he noted that the Applicant suffered immediate left-sided neck pain and hearing loss with ringing in his left ear at the time of the accident, consistent with the records generated at the time of the accident. At the assessment, the Applicant reported to Dr. Galati sub-occipital headaches exacerbated by movements and phonosensitivity, as well as beeping and muffled hearing in his left ear from the impact of the airbag. He reported suffering neck pain for three weeks after the accident, and by January 27 he had stiffness but no pain, though prolonged static postures aggravated his neck stiffness. He complained of constant lower back pain aggravated by prolonged static postures, bending forward and lifting from floor to waist level. During the physical examination, the Applicant complained of beeping or “foggy” hearing in the left ear.

Dr. Galati concluded as follows:

Mr. Garcia reported phonosensitivity, as well as tinnitus and hearing loss in his left ear, which he attributes to the airbag that deployed during the accident. However, from a musculoskeletal perspective, it is my overall clinical impression that Mr. Garcia sustained uncomplicated soft tissue strain injuries as a result of his motor vehicle accident.¹⁰ (Emphasis added)

Dr. Galati concluded that from a musculoskeletal perspective¹¹ the injuries fell within the Minor Injury Guideline, and that Dr. Kobrossi’s OCF-18 was neither reasonable nor necessary.¹²

Dr. Galati testified that, as a chiropractor, he is qualified to diagnose tinnitus, but there was nothing in his report analyzing or making recommendations concerning the Applicant’s complaints concerning his hearing and the impact of the side air bag hitting his head. Dr. Galati also testified that chiropractors treat tinnitus with acupuncture from time to time, but there was no recommendation in his report that this be done to relieve the Applicant’s symptoms. Indeed he indicated that his clinical evaluation was of the cervical, thoracic and lumbar spine and shoulders. Despite confining his examination to the spine and shoulders, he broadly concluded that the “injuries are predominantly of soft tissue nature” and the Applicant could achieve recovery within the Minor Injury Guideline limit of $3,500.00.¹³

No independent assessment was obtained with respect to the impairments of the Applicant’s hearing, nor did Unica request that Dr. Galati provide his recommendations concerning the hearing impairment.

On December 14, 2014, a further OCF-18 was submitted for approval for completion of a Form 1, (attendant care assessment) in the amount of $2,014.40.¹⁴ Another OCF-18 was submitted on December 12, 2014 requesting a physiatry assessment to determine the extent of any measurable impairment, residual dysfunction and disability, while providing recommendation for a safe and cost-effective return to pre-accident level of function.¹⁵ On January 13, 2015, an OCF-18 was submitted requesting a neurological assessment, to evaluate neurologic injuries regarding headaches, persistent headaches, dizziness, nausea, memory loss, cognitive difficulty associated with head injuries, and numbness.¹⁶ Unica did not refer these OCF-18s to independent assessors, but denied them.

Dr. Kenneth Keeling, Ph.D., C. Psych., submitted an OCF-18 on January 19, 2015 for a mental health assessment for an adjustment disorder. Dr. Keeling undertook a clinical screening examination, and he set out the results in extensive “Additional notes” to the OCF-18. Dr. Keeling concluded a provisional diagnosis of adjustment disorder with anxiety and depression, and a specific phobia of automobile anxiety.¹⁷ A longer document entitled “Psychological Assessment” dated January 26, 2014 by Dr. Keeling and Dr. Owen Giddens, Ph.D., R.S.W. was included in the joint document brief.¹⁸ A further OCF-18 was submitted by Dr. Keeling on February 9, 2015 for a full psychological assessment, based on the previous screening and information.¹⁹

Unica obtained an assessment by psychologist Mr. Fabio Salerno, M. A., C. Psych., in response to the OCF-18 dated January 19, 2015 by Dr. Keeling. The assessment was conducted one year later, on February 19, 2016, and Mr. Salerno provided a report dated February 22, 2016.²⁰ Mr. Salerno was provided with both of Dr. Keeling’s OCF-18s referred to above, as well as the Psychological Assessment. During Mr. Salerno’s assessment, the Applicant revealed that in April 2015 he had attempted suicide, less than three months after Dr. Galati’s report and after Unica had refused to approve the examinations proposed in three OCF-18s.

Mr. Salerno conducted testing to identify both malingering and acute clinical syndromes. The tests revealed results on the Anxiety scale that “just reached the clinical threshold”.²¹ Despite this, Mr. Salerno concluded that the Applicant exhibited “mild accident related psychological symptoms…below the threshold required for a DSM-5 psychological diagnosis or removal from the Minor Injury Guideline”.²² Mr. Salerno concluded that the psychological assessment proposed in the OCF-18 was not reasonable and necessary, and that the Applicant met the criteria for a “minor injury” from a psychological perspective, because he could access the supplementary goods and services for psychosocial issues under the MIG. Mr. Salerno concluded that the psychological symptoms suffered by the Applicant were caused by the accident. He concluded that, since the Applicant had not attended any form of psychological intervention since the accident, it was not possible to comment on whether further treatment was reasonable or necessary, but he opined the psychologist treatment was not reasonable or necessary at this juncture.²³

No explanation was given for Unica’s one year delay in obtaining the independent assessment with respect to the psychological assessment. Unica did not arrange for any assessment by a physiatrist or other medical doctor.

Relying on the independent assessments of Dr. Galati and Mr. Salerno, Unica did not approve any of the OCF-18s referred to above. The Applicant did not find the physical treatment he received at Humber River very helpful. He attended about five times (essentially, once a month after the accident) and then stopped. He still has approved funds available to him for treatment under the MIG, since Unica approved $2,200.00 in January, 2015.²⁴

In February 2017, the Applicant was assessed by neurologist Dr. A. Mossanen, M.D., Ch.B, FRCPC, who provided a Neurology and Chronic Pain Report dated February 1, 2017,²⁵ and by a physiatrist, Dr. S. W. Wong, M.D., F.R.C.R.C, F.A.B. (P.M. &R.), F.A.B. (I.M.), who provided a Physiatry Report dated February 2, 2017.²⁶ Neither doctor testified, nor were responding reports or assessments by any medical doctor provided by Unica. Therefore, their conclusions were unchallenged by evidence.

In 2017 the Applicant reported to Dr. Mossanen that, since the accident, he has complained of mid-back pain, headache and being angry.²⁷ The headaches brought on by a cough or sneezing were described “as if his head is exploding”, with the sensation lasting a few seconds. Dr. Mossanen wrote:

Majority of these headaches, specifically the cough headache, related to the accident go undiagnosed. However, on occasion, organic lesion such as chronic subdural hematoma might be present to account for cough headaches.²⁸

Dr. Mossanen diagnosed the Applicant with post-traumatic headache associated with Cough Headache, and recommended an MRI and a nerve block, or alternatively medication, to ease the headache pain.²⁹

Dr. Wong diagnosed myofascial injuries of the middle back paraspinal muscles and cervical spine paraspinal muscles, cervicogenic headache, post-traumatic insomnia, psychological problems (anxiety) and chronic pain syndrome. Dr. Wong reported that, as is frequently seen in chronic pain patients, the pain is complicated by the insomnia and stress problems, which are barriers to recovery. Dr. Wong made a number of recommendations, including:

• The Applicant should have assistance with heavier housekeeping activities, particularly those that require too much bending or lifting.

• The Applicant should participate in a chronic pain program and see a psychologist regarding his stress concerns.

• He should also use a sleeping pill and anti-anxiety medication, together with an analgesic for his pain.

• He should join a swimming program, and consider nerve blocks to help control the muscle spasms in the middle back.³⁰

The Applicant incurred the cost of an Occupational Therapy In-Home Assessment and Form 1, despite Unica’s refusal to fund it. The assessment was done by Inna Dainov, MBA, BSc (OT), OT reg. (ON), and the report was dated March 4, 2015, almost four months after the accident.

At the time of this assessment, the Applicant complained of headaches increased by lifting/carrying, mid-back pain increased by lifting and sitting, ringing in his left ear on an intermittent basis about once a week for 15 minutes, and poor sleep with nightmares. He reported being angry at his inability to maintain his lifestyle, and anxiety being a passenger in a vehicle or driving his vehicle. At the time of the assessment, the Applicant resided in a basement apartment with his wife, toddler and 2-week-old baby. Family members had arrived for a visit for two months and were assisting with household tasks such as meal preparation. He had adjusted his methods of doing other household tasks to accommodate his back pain.

Ms. Dainov concluded that the Applicant should be provided with attendant care in the amount of $397.02 monthly. She reported that he did not have the funds to pay the provider and she recommended that the services of a Personal Support Worker be provided by the Insurer immediately. She was of the opinion that his physical impairments would be exacerbated and his recovery time prolonged should he not receive the reasonable and necessary attendant care services outlined. She also noted that he would benefit from a psychological evaluation to address his concerns with memory, anxiety and low mood. Since sitting caused pain, she recommended a back support cushion.³¹

Unica refused to provide attendant care because the Applicant was deemed to fall within the MIG. No in-home assessment was done by anyone retained by Unica to rebut Ms. Dainov’s conclusions.

Issue 1 Is the Applicant entitled to receive a medical benefit in the amount of $848.72 for chiropractic treatment, massage and physiotherapy provided by Humber River per OCF-18 dated December 8, 2014 (original TP was for $3,048.72 of which $2,200.00 was approved on January 8, 2015)?

Unica resisted approving the remainder of this treatment plan because the Applicant had not used all the approved treatment. Unica had no family doctor’s records to corroborate the ongoing nature of the impairments, nor an OHIP summary. The submission was that if the Applicant was well enough to go back to work and to function without the need of a family doctor, then clearly he was recovering from his injuries and the treatment plan was not reasonable or necessary.

I accept the Applicant’s evidence of his injuries and ongoing impairments, despite the lack of corroboration in a family doctor’s records or OHIP summary. There is sufficient consistent reporting of the injuries in the evidence, including the log notes of the adjusters working for Unica, in the forms filed from time to time for benefit claims, and in the reporting of the assessors from the date of the accident to February 2017 to provide that corroboration.

I note that this is the first treatment plan submitted, and the total amount was less than the MIG cap. The treatment plan was submitted within three weeks of the accident. At the time of the refusal to approve, Unica had no way of knowing how much treatment would be used. The justification is after-the-fact, and I am satisfied that the Applicant has given a credible explanation for why he did not go for more treatment, given his job and family responsibilities at the time. He has now returned to treatment. If Dr. Galati is correct that a chiropractor can treat tinnitus, then the chiropractic care contemplated in the treatment plan might well have addressed more than the musculoskeletal injuries suffered. The treatment that was given was effective in managing the neck pain, until it was reduced to a stiffness by the time Dr. Galati examined the Applicant. I find, therefore, this treatment plan was reasonable and necessary and that Unica should have approved it in its entirety.

Issue 2 Is The Applicant entitled to attendant care benefits at the rate of $397.02 per month from November 20, 2014 to November 19, 2016 based on a Form 1 dated March 4, 2015 prepared by Inna Dainov?

This claim is for a modest amount and reflects meal preparation assistance. Before the accident, the Applicant was healthy and working very long shifts 20 days a month, and his wife was not. She made most meals, but he made some too (as is the usual case in a family with a toddler, and mother expecting another child), and shared responsibilities for the home. In March 2015, when the Form 1 was done, the new baby had arrived and, with the Applicant’s injuries, the Form 1 analysis of his function indicated that he was challenged to provide support to his wife in the way that he would have been able to without the accident. His back and neck hurt, his head hurt and he couldn’t hear properly as a result of the accident. He was sensitive to noise (in a household with a baby and toddler) and he angered easily. Even if he was able to sleep when the children slept, he awoke because of the pain. He was nervous in a car, and he had to keep working to support his family. His wife’s parents came to visit and share some of the workload. They and his wife provided the attendant care. Sometime in the month following this assessment, he suffered a mental health crisis.

Unica relies on what it says are inconsistencies in the Applicant’s evidence as to the amount of meal preparation provided in the Form 1, compared to what meal preparation the Applicant in fact did before the accident. There is no responding assessment of the Applicant’s attendant care needs provided by Unica. I accept the analysis of the occupational therapist as to the Applicant’s needs. I am not persuaded that the discrepancies as to meal preparation before and after the accident matter, since they could easily be reflective of changing circumstances, materially impacted by the Applicant’s injuries.

Unica’s position is that, since the Applicant’s injuries fall within the MIG, there is no attendant care benefit. Unica says that there is no medical diagnosis of a condition that would bring him out of the MIG, so there is no compelling medical evidence to support taking the Applicant out of the MIG. Unica’s position is that since the Applicant did not seek a family doctor’s help, there is nothing it could do; an applicant is entitled to determine his own health care needs. But Unica is the more experienced and knowledgeable party of the two; consumer protection is the underlying principle for interpretation of entitlement to accident benefits. Unica had notice of the head injury from the side air bag. On receipt of the Form 1 and the notification there were ongoing complaints, Unica had an obligation to review Dr. Galati’s report with a view to re-assessing whether or not, in the context of all the information it had, the injuries had been properly assessed and fell within the MIG.

With respect to the psychological impairments, on the basis of the Applicant’s evidence, the statements recorded in Mr. Salerno’s report on his anxiety, and the analysis in the Keeling Report, I find that the Applicant’s psychological impairments continue to take him out of the MIG. I reject the conclusions of Mr. Salerno. I find that Mr. Salerno should have given weight to the Applicant’s complaints of nervousness in a motor vehicle, such as his pressing his foot on an imaginary brake pedal, holding onto the seat belt, and “back-seat driving” as indices of ongoing adjustment issues that were still bothering him over one year after the accident. Unica also cannot rely on Mr. Salerno’s report when it withheld important information from him about the Applicant’s injuries, including the head injury due to the side air bag.

Further, I accept the undisputed opinions of Dr. Wong and Dr. Mossanen that the Applicant suffers from chronic pain, a condition which also takes the Applicant out of the MIG.³²

I reject Unica’s arguments and find that the Applicant’s injuries fall outside the MIG, and he is eligible for attendant care benefits. His injuries are outside the MIG on the basis of his head injury that interfered in his hearing, his chronic pain and his psychological impairments which, even on Mr. Salerno’s very conservative approach, meet the threshold of an anxiety disorder. I believe his injuries have been outside the MIG since the accident.

Even if the Applicant is entitled to attendant care, Unica’s position is that it was not incurred within the meaning of the Schedule, and the amount could not be determined in accordance with the provisions of section 19(3)4. The Applicant relies on section 3(8) of the Schedule, which provides that if an arbitrator finds that an expense was not incurred because the insurer unreasonably withheld or delayed payment of a benefit, the arbitrator may, for the purpose of determining an insured person’s entitlement to the benefit, deem the expense to have been incurred. On receipt of the attendant care Form 1, Unica did not send its own assessor to determine if attendant care was required. Unica simply refused to contemplate any benefits because of its position on the MIG. I find that Unica did not follow a reasonable course of action in that it ignored the failure by Dr. Galati to address the hearing impairment in any substantive way. Unica was unreasonable in not securing its own assessment of the attendant care needs.

Unica also relied on section 19(3)4, which provides that where the attendant care is provided by someone other than a person who does so in the course of employment, occupation or profession, the amount of the attendant care shall not exceed the amount of the economic loss sustained by the attendant care provider during the period while, and as a direct result of, providing the attendant care. In this case, the attendant care was provided by the Applicant’s wife and in-laws. However, there is no evidence to support a quantification in accordance with section 19(3)4. I find that the Applicant cannot receive the attendant care benefits, because even though he established entitlement to them and they were incurred within the meaning of the Schedule, they were not quantifiable.

Issue 3 Is the Applicant entitled to payments for the cost of examinations claimed and described below:

I) for services by Humber River:

a) $2,109.36 – OCF-18 dated February 9, 2015 for psychological assessment;

b) $2,130.00 – OCF-18 dated January 13, 2015 for neurological assessment;

c) $2,104.00 – OCF-18 dated December 12, 2014 for in-home attendant care assessment; and

d) $2,130.00 – OCF-18 dated December 12, 2014 for physiatry assessment; and

II) $2,000.00 for services by Marigold Medical Assessment Centre – OCF-18 dated January 19, 2015 for psychological assessment?

These costs of examinations were all dated within three months of the accident, and represented areas of concern as to the injuries and sequelae following the accident. While Unica may have been concerned as to the extent of the investigation proposed, I find that its adjusters failed to give adequate weight to the severity of the accident, in particular that it occurred at high speeds and that it involved a head injury, with the resulting impairment of hearing lasting a considerable period of time, and the nature of the injuries listed in the OCF-3 and OCF-1. Unica’s defence is that the Applicant did not go to his family doctor with his complaints—in other words, Unica is relying on the public health care system to undertake the assessments. But an Applicant is entitled to Schedule benefits and is not obliged to use the public health care system. The assessments claimed represented prudent steps to diagnose the injuries and recommend proper courses of treatment. The assessments would have involved the Applicant being assessed by medical doctors—something that Unica did not itself arrange.

I find that the neurological assessment was reasonable and necessary when the Applicant suffered from hearing impairment for an extended period. I find that the physiatry assessment was reasonable and necessary for the musculoskeletal injuries which now cause the Applicant chronic pain. I find that the attendant care assessment was also reasonable and necessary in all the circumstances.

With respect to the psychological assessment, Unica relies on the approval of supplementary services provided under the MIG as follows:

Additional funds are available to provide supplementary goods and additional services to support restoration of functioning and address barriers to recovery. The supplementary goods and services may include but are not limited to…

• Supportive interventions such as advice/education to deal with accident-related psycho-social issues, such as but not limited to: distress; difficulties coping with the effects of his/her injury; driving problem /stress.³³

The cap on such services is $400 and Mr. Salerno, under cross-examination, confirmed the limited extent of services that could be provided within this cap. There is no evidence that such services would be appropriate for someone who meets the threshold under testing by two different psychologists for an adjustment disorder of anxiety and someone who, five or six months after an accident, suffers a mental health crisis as described by the Applicant in testimony and to Mr. Salerno at the assessment. Ms. Alysia Fox, one of the Unica adjusters on the file, characterized her knowledge of mental health issues as similar to that of the general public and I note that Mr. Salerno’s independent assessment was conducted a year after the OCF-18 was submitted. I do not accept that Ms. Fox’s level of knowledge is sufficient to make the determination that $400 in treatment would provide the supportive interventions necessary to restore pre-accident functioning and address the Applicant’s barriers to recovery. I do not accept the evidence of Mr. Salerno that his analysis fairly addresses the Applicant’s impairments. There are clear indications in the Applicant’s complaints recorded in Mr. Salerno’s report that supported the conclusions in Dr. Keeling’s Psychological Assessment. Mr. Salerno gave little weight to (or totally ignored) the complaints, and I therefore reject his opinion. Nor am I persuaded by the fact that the Applicant has not sought psychological treatment. It was apparent in his testimony that he personally feels the weight of his obligations to support his family, that his job and family commitments have constituted a barrier to his investing time in his own treatment, and that his family’s needs transcend his own. Therefore, I find that the OCF-18 submitted by Dr. Keeling is also reasonable and necessary.

The Applicant is entitled to the costs of examinations as claimed.

Issue 4 Is Unica liable to pay a special award because it unreasonably withheld or delayed payments to the Applicant?

Unica submitted that, while it may have been wrong, it had not unreasonably withheld benefits or payment of benefits. It said it was not imprudent or inflexible in adjusting the claim. It also relied on the Applicant’s failure to provide particulars of any special award claim except for the attendant care benefit, and the Applicant’s failure to go to a family doctor or seek psychological treatment for his injuries.

The Applicant was clear in his testimony that he had to work as the sole support for his wife and children, that his work involves very long shifts, and that if he does not work a certain number of hours, he will lose his job. He said he would have gone for more treatment except for the demands of his work. I also note that his family was at a stage when the physical and time demands on the parents are very high. The Applicant is part of a demographic that Unica’s expert agreed might not, because of its youth, seek treatment.

I found that the attendant care claim only fails because of the lack of evidence respecting quantum. I find that, even with the failure to identify particulars of the special award claim related to the other benefit claims, I have jurisdiction to make a special award on all the evidence I have and on my findings.

Unica was not only wrong about the analysis of the injuries in relation to the MIG, but its persistent “no” to requests for funding for assessments resulted (as it was warned) in exacerbating the Applicant’s injuries to the point where he now suffers from chronic pain. The Form 1 for attendant care was submitted after Dr. Galati’s report. That assessment clearly identified ongoing musculoskeletal impairments, as evidenced in the Applicant’s adjustments to daily living such as having to go onto his knees to make his bed. A reasonable insurer would have considered the additional information and sent it on to Dr. Galati for an addendum report. A reasonable insurer would have noted the ongoing problems with hearing, even four months after the accident, and would have reconsidered its refusal of the neurologist’s assessment.

Unica failed to respond promptly to reasonable requests for approval of examinations, and waited an unreasonable period to arrange its own assessment with respect to the psychological assessment. It failed to arrange an assessment (or even an addendum) based on new information provided in the Form 1 and in the 2017 reports concerning chronic pain.

Unica has the institutional knowledge developed in the senior levels of its adjusters to flag the potential that untreated or poorly treated injuries can lead to chronic pain. There is little evidence that Unica’s adjusters grappled in any way with their Insured’s complaints and injuries and the potential long term effects which are now clearly outlined. I do not accept that the laissez-faire approach Unica followed constitutes adjusting the file in good faith or constitutes acting reasonably. The result was an unreasonable delay in assessing and treating the Applicant’s injuries because the benefits claimed were denied.

I find that Unica has unreasonably delayed payment of benefits, and that a special award is appropriate. The Applicant calculated the total monetary amount of the claim at $20,760.56, including the attendant care claim and interest. Unica calculated the claim based solely on attendant care at $6,022.85—$397 per month for one year plus interest. The special award is to be no more than 50% of the amount to which the person was entitled at the time of the award, together with interest on all amounts then owing including unpaid interest.³⁴ Since the attendant care claim was not approved but the remaining claims have been, I calculate the special award on the net amount of $20,760.56 less $6,022.85. Unica’s failings are not the most egregious, but an award is appropriate to inspire more careful attention on its part to claims like this one. The special award is fixed at $5,000.00.

EXPENSES:

I did not hear submissions with respect to expenses, and it was agreed that I would issue this award and that expenses submissions would be received thereafter. If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the party requesting expenses shall serve and file its request including full support for its claim within 30 days of the issuance of this decision. The responding party shall provide its response within 15 days of receipt of the expense claim. Reply materials may be filed within 5 days of receipt of the response. I will determine the expense claim on the basis of the written materials filed in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

October 12, 2017

Lynda Tanaka Arbitrator

Date

Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2017 ONFSCDRS 263

FSCO A16-004413

BETWEEN:

OSCAR ALVAREZ

Applicant

and

UNICA INSURANCE INC.

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:

1. The Applicant is entitled to receive a medical benefit in the amount of $848.72 for chiropractic treatment, massage and physiotherapy provided by Humber River Physio & Rehab per OCF-18 dated December 8, 2014.

2. The Applicant is not entitled to attendant care benefits at the rate of $397.02 per month from November 20, 2014 to November 19, 2016.

3. The Applicant is entitled to payments for the cost of examinations claimed and described below:

I) for services by Humber River:

a) $2,109.36 – OCF-18 dated February 9, 2015 for psychological assessment;

b) $2,130.00 – OCF-18 dated January 13, 2015 for neurological assessment;

c) $2,104.00 – OCF-18 dated December 12, 2014 for in-home attendant care assessment; and

d) $2,130.00 – OCF-18 dated December 12, 2014 for physiatry assessment; and

II) $2,000.00 for services by Marigold Medical Assessment Centre – OCF-18 dated January 19, 2015 for psychological assessment.

4. The Applicant is entitled to a special award in the amount of $5,000.

5. If the parties are unable to agree on the entitlement to, or quantum of the expenses of this matter, the party requesting expenses shall serve and file its request including full support for their claim within 30 days of the issuance of this decision. The responding party shall provide its response within 15 days of receipt of the expense claim. Reply materials may be filed within 5 days of receipt of the response. I will determine the expense claim on the basis of the written materials filed in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

6. The Applicant is entitled to interest on any outstanding amounts.

October 12, 2017

Lynda Tanaka Arbitrator

Date

Footnotes

1. 1The proceedings were commenced in this name, but the Applicant’s full name is Oscar Ivan Garcia Alvarez; in the exhibits he is sometimes referred to as “Oscar Garcia” or as “Oscar Garcia-Alvarez”. In testimony, the Applicant confirmed that he was the person referred to by these names.
2. 2The Statutory Accident Benefits Schedule - Effective September 1, 2010, Ontario Regulation 34/10, as amended.
3. 3Lo-Papa and Certas Direct Insurance Company, FSCO A12-005538, May 14, 2014, Arbitrator Arbus at p. 3, citing Scarlett v. Belair Insurance, 2015 ONSC 3635.
4. 4Exhibit 1, Tab 2, Adjuster’s notes, page 48 of 49.
5. 5Exhibit 1, Tab 1, Motor Vehicle Collision Report.
6. 6Exhibit 1, Tab 2 Adjuster’s notes, page 48 of 49.
7. 7Exhibit 1, Tab 3, OCF-1 November 24, 2014.
8. 8Exhibit 1, Tab 9.
9. 9Exhibit 1, Tab 22, dated February 6, 2015.
10. 10Ibid. at p. 7 of 10.
11. 11Emphasis added.
12. 12Ibid. at p. 8 of 10.
13. 13Ibid. at p. 9 of 10, Minor Injury Guideline, Superintendent’s Guideline No. 01/14 (“MIG”).
14. 14Exhibit 1, Tab 10.
15. 15Exhibit 1, Tab 11.
16. 16Exhibit 1, Tab 12.
17. 17Exhibit 1, Tab 13.
18. 18Exhibit 1, Tab 14.
19. 19Exhibit 1, Tab 15.
20. 20Exhibit 1, Tab 21.
21. 21Ibid. at p. 10.
22. 22Ibid. at p. 12.
23. 23Ibid. at p. 14 of 15.
24. 24Exhibit 2, Arbitration Brief Volume II, Tab 27, Letter from Unica to the Applicant January 2, 2015.
25. 25Exhibit 1, Tab 18 “Mossanen Report”.
26. 26Exhibit 1, Tab 19 “Wong Report”.
27. 27Exhibit 1, Mossanen Report p. 2.
28. 28Ibid. p. 5.
29. 29Ibid. p. 6.
30. 30Wong Report pp. 7-8.
31. 31Dainov Report, pp. 25 to 26.
32. 32Arruda and Western Assurance Company, FSCO A13-003926, July 5, 2015, Arbitrator Shapiro at pp. 19-20.
33. 33MIG, p. 10, section 8 d).
34. 34Section 282(10) of the Act.