Faria v. Wawanesa Mutual Insurance Company, 2017 ONFSCDRS 266

Financial Services Commission of Ontario

Neutral Citation: 2017 ONFSCDRS 266

FSCO A14-002521

BETWEEN:

RAQUEL FARIA

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

AND

FSCO A14-002522

BETWEEN:

ESTATE OF MARIA MEDEIROS

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

AND

FSCO A14-002523

BETWEEN:

MARIA FARIA

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Marcel D. Mongeon, Arbitrator

Heard: In person at ADR Chambers on July 10-13 and 17-20, 2017

Appearances: Mr. Joseph Filice, for Applicants Mr. Darrell P. March, for Insurer

Issues:

The Applicants were injured in a motor vehicle accident on June 13, 2013, and sought accident benefits from Wawanesa Mutual Insurance Company (“Wawanesa”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and the Applicants, through their representative,² applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c. I.8, as amended.

In the case of Raquel Faria, the following are the issues in dispute in this Hearing:

1. Is Raquel Faria entitled to receive a non-earner benefit at a rate of $185 per week for the period from December 13, 2013 to date and ongoing?

2. Is Raquel Faria entitled to receive medical benefits in the following amounts for the following described treatment plans from Revive Health Centres:

• OCF-18 dated October 7, 2013 - $42.05 net
• OCF-18 dated November 18, 2014 - $1,282.71
• OCF-18 dated February 17, 2015 - $1,169.90
• OCF-18 dated April 28, 2015 - $1,057.09
• OCF-18 dated July 21, 2015 - $944.28
• OCF-18 dated September 10, 2015 - $831.47?

3. Is Raquel Faria entitled to receive a cost of examination in the amount of $2,120.00 for a Capacity Assessment to have a litigation guardian appointed?

4. Is Raquel Faria entitled to receive a benefit in the amount of $489.25 for physiotherapy³ provided by Revive Health Centres?

In the case of Maria Medeiros, the following are the issues in dispute in this Hearing:

5. Is Maria Medeiros entitled to receive an attendant care benefit at a rate of $1,788.98 per month from June 14, 2013 until July 15, 2015 (being her date of death)?

6. Is the Estate of Ms. Medeiros entitled to a payment in the amount of $3,510.00 pertaining to an OCF-18 dated April 11, 2016, recommending an Application for Certificate of Appointment?⁴

In the case of Maria Faria, the following are the issues in dispute in this Hearing:

7. Is Maria Faria entitled to receive a non-earner benefit at a rate of $185 per week for the period from December 13, 2013 to date and ongoing?

8. Is Maria Faria entitled to receive an attendant care benefit at a rate of $376.97 per month from June 14, 2013 and ongoing?

9. Is Maria Faria entitled to receive medical benefits in the following amounts for the following eight described treatment plans from Revive Health Centres:

• Unspecified OCF-18s - $3,694.11;⁵
• OCF-18 dated January 7, 2014 - $1,579.30;
• OCF-18 dated July 4, 2014 - $1,411.60;
• OCF-18 dated September 18, 2014 - $1,738.19;
• OCF-18 dated January 21, 2015 - $1,644.28;
• OCF-18 dated April 17, 2015 - $1,529.69;
• OCF-18 dated August 20, 2015 - $1,415.10;
• OCF-18 dated May 24, 2016 - $1,300.51?

10. Is Maria Faria entitled to receive $943.73 for the cost of preparing a Form 1 (Assessment of Attendant Care Needs)?

In the case of all applications, the following issue is in dispute in this Hearing:

11. Is either party entitled to its expenses of the Hearing?

Result:

1. All claims by all three Applicants for all benefits are denied.

2. 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:

Overview

The three related Applicants were involved in a common motor vehicle accident on June 13, 2013. Their files were related for this Hearing.

All three Applicants have pre-existing conditions that are relevant to their claims for accident benefits.

Maria Faria had previously been diagnosed with fibromyalgia. Maria Medeiros, born in 1931, had been diagnosed with congestive heart failure, hypertension, renal insufficiency, and Type 2 diabetes, among other conditions. Raquel Faria is a non-verbal low-functioning autistic person.

At the outset of the Hearing in this matter, I was asked to rule on the presentation of a document brief on the part of the Applicants. For reasons provided below, I excluded the Applicants’ document brief.

I have also, for reasons provided below, excluded consideration of a special award in all three Applications.

Only Maria Faria provided evidence among the three Applicants. Ms. Medeiros passed away in 2015, and Raquel is incapable of communicating verbally.

Additional evidence was provided by health professionals for the Applicants as well through cross-examination of one of the Insurer’s expert witnesses. After hearing the viva voce evidence of the health professionals, I have decided to give no weight to that evidence in two cases, for reasons found below.

The Insurer chose not to present any evidence beyond that presented in its document brief.⁶

However, both representatives made oral arguments prior to me considering my decision.

Procedural Issue – Applicants Document Brief

At the outset of the Hearing, the Insurer’s representative applied to have me exclude the Applicants’ Document Brief. The following facts were relevant to that consideration:

• The Arbitration Hearing for all three Applicants was scheduled to commence on July 10, 2017;
• On June 16, 2017 (24 days prior to the Hearing’s commencement), the Insurer’s representative received an Index to the Applicants’ proposed Arbitration Brief;
• On June 28, 2017 (12 days prior to the Hearing’s commencement), the Insurer’s representative received the documents comprising the Applicant’s proposed Arbitration Brief.

The Insurer’s representative objected to the filing of the Applicants’ proposed Arbitration Brief on the basis of non-compliance with Rule 39.1 of the Dispute Resolution Practice Code (“DRPC”). Specifically, Rule 39.1 requires all documents that will be introduced at a hearing by either party to have been served on the other party at least 30 days before the first day of the hearing.

The Applicants submitted that the Index was sufficient, that 24 days instead of 30 days caused no prejudice to the Insurer, and that the Insurer likely had all of the documents in the Applicants’ proposed Arbitration Brief. The Applicants also argued that the standard wording in the Pre-Hearing Letters relating to the preparation of a joint brief of documents at least 30 days prior to the commencement of the hearing could be interpreted as giving the Applicants leeway in terms of the preparation of their brief.

The Insurer submitted Arbitral authority upholding its position. It argued that Rule 39.2 was clear that any reduction of the 30-day rule can only occur when “extraordinary circumstances” are shown. The Insurer further submitted that there were no extraordinary circumstances in this case.

I orally ruled on this issue that the Pre-Hearing language relating to a joint brief clearly contemplates the parties completing production exchange within 60 days of the Pre-Hearing. As there was no evidence that the document exchange had taken place within that time frame, the Applicants could not subsequently rely on the language of the Pre-Hearing Letter relating to the preparation of a document index. Only Rule 39 of the DRPC could be relied on.

Rule 39.2 requires the demonstration of “exceptional circumstances” in order to reduce the 30-day requirement. The Applicants provided no such evidence.

The circumstances in this case are similar to those in Olivares and ING Insurance.⁷ In that case, a document brief was excluded in the absence of exceptional circumstances. Another situation was found in Singh and Aviva Canada⁸ where, even where the insurer would likely already have the documents concerned, failure to comply with Rule 39 was found to prejudice the insurer, and documents were excluded.

I held that the Applicant’s proposed Arbitration Brief be excluded.

Procedural Issue – Exclusion of Expert Witnesses

On the basis of my exclusion of the Applicants’ Document Brief, the Insurer’s representative also asked me to exclude the Applicants’ expert witnesses, on the basis of non-compliance with Rule 42.2 – specifically, that the Applicants had not provided information to the Insurer as it related to those witnesses.

I was provided a letter dated June 8, 2017⁹ from the Applicants’ representative to the Insurer’s representative, which showed the transmission of three reports. Additional information showed that this letter was received by the Insurer’s representative on or about June 12, 2017. Although copies of the reports were not provided, I was advised that they outlined the testimonies that would be provided by the Applicants’ expert witnesses, and CVs of the experts concerned.

I considered that if the reports were received on June 12, that would be 27 days before the hearing. Although the 30-day period for the provision of a witness list (Rule 41) had not been complied with, I was prepared to make “such other order as the arbitrator considers just”, as allowed by Rule 42.3 of the DRPC.

Specifically, I ordered that I would hear the viva voce testimony of the expert witnesses. However, I made it clear that I would reserve my secondary gatekeeper function with respect to their testimony. This meant that after hearing the testimony, I would make determinations whether a) the evidence was necessary to assist me in coming to a decision on the issues in dispute, and b) the evidence was relevant.¹⁰ I would then accord the evidence what I considered to be the proper weights.

Procedural Issue – Issues in Dispute in this Hearing

At the beginning and conclusion of this Hearing, the Applicants’ representative asked me to confirm the issues in dispute. Two issues in particular were disputed between the parties—the considerations of special awards in the case of all three Applicants, and the exact treatment amounts for Maria Faria.

With respect to a special award in each of the three Applications, the Applicants’ representative argued it had been clear that there was an intention to seek a special award, in addition to other benefits, ever since the Applications for Arbitration were filed, with the relevant box on the Form C checked off. I note that despite the boxes being checked off in all three Form Cs, no particulars of claims for special awards were given.

None of the original or revised Pre-Hearing Letters in the three matters refer to the issue of a special award.

Because consideration of special awards were not endorsed in the Pre-Hearing Letters, the Applicants were now, at the outset of the Hearing, asking me to add the issue to all three Applications.

On June 9, 2017, a law clerk from the Applicants’ representatives to Insurer’s representative requested a resumption of the Pre-Hearing to deal with production of the Insurer’s log notes. I take arbitral notice that the production of log notes would normally be part of a special award claim. Correspondence took place over a period of days, concluding with a June 27, 2017 letter of the Insurer’s representative declining to provide the log notes.

I note that the Applicants’ representative had previously corresponded with the Insurer’s representative and ADR Chambers in order to correct perceived errors or misstatements in the Pre-hearing Letters. However, in such correspondence, no request was made to add the issue of a special award to the Applications. My finding is that from December 2016 until May 2017 no mention was made by the Applicants’ representative of the need to add a special award to the Hearing.

No other facts were offered establishing how it would be obvious that a special award would be in dispute throughout the period, even though it was not mentioned in the Pre-Hearing Letters.

My decision on adding the issue of a special award was based on Rule 33 of the DRPC. Specifically, I noted that Rule 33.1(a) suggests that the pre-hearing arbitrator would obtain the agreement of the parties as to the issues in dispute. It is clear that in all three Applications, the Pre-Hearing Letters did not touch on a special award being a live issue. Although approximately two months prior to the Hearing the Applicants’ representative sought to make it a live issue, there was no agreement to such on either the Insurer’s part or the Pre-Hearing Arbitrator’s part.

It is also clear that procedural fairness dictates that a party need not prepare for an issue that it does not believe is in dispute.

I did not make a special award a live issue at the outset of the Hearing although it was within my power to do so. I chose not to make a special award an issue because it would have put the Insurer at a tactical disadvantage. Parties are entitled to know the issues that they will have to deal with as early as possible. Accordingly, it was unnecessary to consider the Applicants’ request to have the log notes produced.

I move now to the remaining issue in dispute to be clarified.

In Maria Faria’s Application, there was a dispute about a proposed medical treatment plan; the revised Pre-Hearing Letter of October 11, 2016 endorsed a claim for medical benefits from Revive Health Centres in the amount of $4,602.61 for various dates. This was also the amount that appeared in the original Application for Arbitration dated March 12, 2014.

The Application for Arbitration was, in turn, based on a mediation report dated March 5, 2014,¹¹ which noted a claim for physiotherapy described as “$4,602.61 for physiotherapy provided by Revive Health Centres up to March 4, 2013, and not as stated in the Application for Mediation.” The Application for Mediation¹² dated December 24, 2013, in turn, was for two amounts totalling $3,694.11.

It was not clear to me how the amount increased from $3,694.11 to $4,602.61. The Applicants’ representative was unable to direct me to the underlying OCF-18s or Explanation of Benefits forms (OCF-9s) that would further underlie the mediation and arbitration processes.

It is trite to note that it is incumbent upon the Applicant to show her entitlement to any benefit being sought. It is insufficient to show a mediation report that suggests what a monetary benefit is; the Applicant must be able to draw any benefit sought back to the Explanation of Benefits denying the same and, as appropriate, the original proposal for the treatment. As a result, I held that despite the mediator’s and pre-hearing reports suggesting that a benefit of $4,602.61 was in dispute, the actual amount in dispute for Revive Health Centres was $3,694.11.

The rest of the issues in dispute are as noted on pages 2 and 3 of this decision. Differences between that list and those in the Pre-Hearing Letters are results of agreements between the representatives.

Facts

The subject motor vehicle accident (the “accident”) took place on June 13, 2013. The vehicle driven and owned by Maria Faria was driving westbound on Dundas Street in Mississauga approaching Hurontario. Ms. Medeiros was in the front passenger seat; Raquel was in the rear left-side passenger seat.

At the intersection of Jaguar Valley Dr., the Applicants’ vehicle collided with a vehicle that had been travelling in an eastbound direction and was turning northbound onto Jaguar Valley Dr. The two cars ended up on the north-west corner of the intersection.

An ambulance arrived on the scene. The ambulance records are clear: even though Maria Faria and Raquel were also transported to Trillium Health Partners – Mississauga Hospital in the ambulance, the patient for the ambulance’s purposes was Ms. Medeiros alone. Although normally an ambulance will only transport a patient, I find that Maria Faria and Raquel were also transported because Ms. Medeiros only spoke Portuguese; Maria Faria had to go along to translate for her. Maria Faria was accompanied by her daughter, Raquel, who could not be left alone.

At Trillium Health Partners, only Maria Medeiros received treatment. According to the ambulance records,¹³ her chief complaint was “chest/rib pain”. Those records also noted a significant previous medical history consistent with the description above.¹⁴

Maria Faria and Raquel did not receive treatment at Trillium Health Partners – Mississauga Hospital. During her oral evidence, Maria Faria suggested that she was refused treatment due to the hospital’s staff not wanting to deal with the challenges of an autistic person (her daughter). Raquel was apparently screaming and shouting. The only relevant fact that I take from this is that Maria Faria did not believe there were injuries to either Raquel or herself after the accident that warranted immediate medical attention.

Ms. Medeiros was discharged on the same night as her admission, into the care of Nelia Rocha (another of her daughters), with whom she lived in Mississauga.

The day after the accident, Maria Faria drove her daughter Raquel to seek medical attention at Mount Sinai Hospital. No records of any attention received by either Raquel or Maria Faria were available.¹⁵ After being treated at Mount Sinai, Maria Faria drove herself and her daughter to their family physician, Dr. Paul Duchastel.¹⁶ Finally, in the evening, Maria Faria met with a law firm to seek advice relating to the accident. Maria Faria continued to act as both a driver and a passenger in motor vehicles after the accident.

Based on submission of appropriate forms, the Insurer paid benefits to the three Applicants; however, after various Insurer’s Examinations (“IEs”), benefits were terminated.

Three lay witnesses testified: Maria Faria, her husband Carlos, and her sister Nelia. Their evidence, which supplements the foregoing summary, follows.

Evidence of Maria Faria

Maria Faria’s testimony was taken over the course of four days. I found her evidence generally credible; she was a well-spoken person whom I believe acts in a thoughtful and deliberate fashion.

On some issues, I found her evidence to be exaggerated or argumentative. She was clearly protective when questions were asked relating to the care of her daughter. Maria Faria gave answers that dealt with what her daughter, Raquel, felt, wanted or thought. On top of the normal concern about the hearsay nature of such evidence, I was concerned with the validity of non-verbal or written communications between mother and daughter.

Maria Faria testified that she used a PECS¹⁷ system to communicate with her daughter. As previously described, Raquel Faria is a non-verbal low-functioning autistic person. No evidence was presented to establish the validity of communications using the PECS system. As a result, I have been careful to ensure that I am only relying on evidence relating to Raquel that was from Maria Faria’s personal observations of her, as opposed to any interpretation of wishes or thoughts.

Maria Faria also was asked questions relating to her mother, Ms. Medeiros. The Insurer’s representative validly objected to such questions if they were to elicit an opinion or evidence from which to suggest a medical conclusion. I have been careful to ensure that I am only relying on evidence relating to Ms. Medeiros that were from Maria Faria’s personal observations of her.

Maria Faria is a high school graduate and had a semester at Humber College. She was not working at the time of the accident, although she was employed prior to 2010.

At the time of the accident, Maria Faria had pre-existing medical conditions.¹⁸ These included hypertension and periods of depression. She had also been diagnosed with fibromyalgia around 2000. She had been controlling her conditions with diet and changes to her lifestyle. She would also cope at times with the pain from her fibromyalgia by “knocking off her shift early” and letting other family members deal with her tasks.

Maria Faria was first told that her youngest daughter, Raquel, was autistic in about the spring of 1988. She acknowledged being under a lot of stress at that time. Eventually, she learned to cope with the situation.

Prior to the accident, Maria Faria engaged in a number of activities. She crocheted, and enjoyed reading and playing the guitar. She also was active in her own garden and would regularly do house painting to redecorate her home. As a result of Raquel’s situation, Maria Faria was also active in parent groups for autism. She was a volunteer in helping other parents cope with their autistic children.

The accident took place on June 13, 2013. Maria Faria recalled being the driver. She was returning her mother, Ms. Medeiros, to her older sister’s home, after having taken her to a medical appointment. The car was struck by another vehicle making an unsafe turn. Maria Faria testified to losing consciousness, although there is no report which confirms this.

Immediately following the accident, Maria Faria complained of chest pain and nausea, but she did not seek treatment until the next day, when she and Raquel went to Mount Sinai in downtown Toronto.¹⁹ Ms. Faria recalled continuing to have chest pain and general soreness. She was prescribed painkillers and advised to see her family physician.

Following the accident, she also sought physical and chiropractic therapy and other treatments at Revive Health Centres. Although she had such treatment 2-3 times per week initially after the accident, she currently only received this treatment about once per month. She recalls chiropractic, laser, ultrasound and stretching treatments. She found the treatment helpful, although pain is still present. Maria Faria testified that she continues to experience a stiff neck and pain in her ankles and feet.

Maria Faria has also had psychological treatment since the accident. She has had panic attacks while driving. In those cases, she has had to pull over and get another family member to drive for her, or otherwise wait for the feeling to pass. She continues to drive. She indicated that she probably has a worse time being a passenger rather than a driver, and stated that it is likely because she feels more out of control as a passenger.

Maria Faria has been prescribed different mediations to assist her with her psychological challenges.

Since the accident, Maria Faria has been unable to do many things she used to do before the accident. She finds her sleep is significantly disrupted and she has had a decrease in fine motor skills. Her fibromyalgia is no longer under control like prior to the accident. She no longer assists other parents of autistic children, and no longer enjoys a number of activities, including cooking, swimming, crocheting and yoga. With respect to cooking, she testified that her husband brings in a lot of take-out food to feed the family.

In April 2014, following the accident, Maria Faria’s husband lost his long-standing employment.

Turning to the situation of Ms. Medeiros, Maria Faria provided the following testimony.²⁰ Prior to the accident, Ms. Medeiros had been diagnosed with congestive heart failure, a thyroid condition, rheumatism and diabetes. She also had a pacemaker, and would regularly have swollen legs. Ms. Medeiros was in her 80s.

Immediately following the accident, Ms. Medeiros was given oxygen for shortness of breath.

Ms. Medeiros passed away on July 15, 2015. The cause of death was reported as congestive heart failure and kidney failure. Although towards the end of her life Ms. Medeiros was diagnosed as requiring dialysis, she declined this type of treatment.

Maria Faria’s testimony then moved to the situation of Raquel Faria.²¹

Raquel was born in the Azores in 1985. Raquel was diagnosed as a non-verbal autistic in 1988. She regularly engages in self-injurious behaviours. She regularly rocks back and forth, and will be particularly self-injurious to her head. Raquel seeks out situations where there is pressure on her body. Maria Faria uses the PECS²² system to communicate with her daughter. Raquel is not capable of preparing food for herself, although she could warm something in a microwave. She is obsessively clean. Before the accident, Raquel was receiving a number of hours of support workers per day. Otherwise, care and supervision of Raquel fell to the family, which was principally Maria Faria.

Prior to the accident, Raquel enjoyed listening to music, going to movies, and walking and playing outdoors. She really enjoyed nature. Raquel enjoyed swimming, and particularly liked the pressure the water would put on her body, which had to be explained to lifeguards and supervisors when Raquel would stay under water for longer than would seem normal.

Immediately following the accident, Maria Faria reported that Raquel was yelling and was very agitated. This caused problems at the Trillium Health Centre where they were first transported. Maria Faria noted that Trillium Heath Centre was very inexperienced in dealing with autistic patients.

The day after the accident, Maria Faria took Raquel to Mount Sinai in downtown Toronto, who Maria Faria indicated coped with autistic people in a better fashion.

On examination of Raquel at Mount Sinai, there were no cuts. There were bruises on her abdomen, which were explained as likely caused by the seat belt. They were counseled to see the family physician.

Raquel received chiropractic and other treatment from Dr. Sugar at Revive following the accident.²³

Since the accident, Raquel still goes to movies, but she is no longer interested in listening to music. In addition, because her mother no longer swims, neither does Raquel. Generally, Raquel is more difficult to manage since the accident. More assistance is required. Maria Faria believed that Raquel was close to being able to be part of an independent living situation before the accident, but this is no longer possible now.

On cross-examination, Maria Faria testified that she had coordinated a move of the family’s residence on June 1, 2017. The house that the family had occupied at the time of the accident was rented, and the landlord required them to vacate. They moved into the basement of a home owned by one of her sons.

The move included moving or disposing of all of the furniture from the old home. Maria Faria delegated all aspects of the furniture, as well as the move of all clothing and other personal goods. She was present at the old house until the removal of all possessions. As part of the move she did some light duties, including packing and unpacking dresses and other clothing.

Maria Faria continues to be a fully licensed driver. No doctor that has assessed her ever suggested that she should not be driving. Her licence was last renewed on her birthday in April 2017. She attended Service Ontario for both the renewal and the change of address.

Maria Faria does not regularly attend church, but she attended a religious retreat a few months prior to her testimony; she was able to drive herself there and attend at least one day of it.

Maria Faria managed Raquel’s care both before and after the accident, including being responsible to the Government of Ontario for money received for her care and ensuring the proper scheduling of different agencies and personnel who come to assist her.

Maria Faria acknowledged that her husband losing his employment in April 2014 was a significant source of stress. They had to use food banks. Eventually her husband found a new position, although it was more precarious than the previous employment.

Since the accident, Maria Faria has taken trips to visit family in the Azores. She visited in August 2013 (for 2 weeks) and again in June 2016 (for a family wedding). She has had shorter trips in Ontario to Sault-Ste Marie (with her sister), Alliston, Tobermory and the Bruce Peninsula, and Niagara Falls. Maria Faria acknowledged driving to Alliston on her own many times, which is where another son lives since he moved there in December 2013. She has also taken Raquel on trips to Alliston, and recalled joining her son for a camping trip to Sibbald Point. While there she tried to go swimming, but could not because she did not feel capable. When she drives, she takes a lot of breaks.

Maria Faria acknowledged receiving correspondence respecting her claim for accident benefits. However, she said she did not review any of it but relied on her lawyer. She acknowledged that more than $6,000 was paid on her accident benefits claim to date.

Immediately after the accident, Maria Faria acknowledged not seeking medical treatment for either herself or Raquel until the day following the accident when they attended at Mount Sinai and their family physician. She acknowledged the conduct and reports of the Insurer’s assessments. She did not point out any errors in those reports, as she said she did not read them.

With respect to Raquel’s situation, Maria Faria pointed out that after the accident Raquel required more assistance. Although Maria Faria said that they were having trouble maintaining workers prior to the accident, since the accident, the problem is becoming worse because they are requiring closer to ‘2 to 1’ staffing for Raquel. ‘2 to 1’ staffing means that they need two support people for Raquel, whereas previously one was sufficient. However, Maria Faria was unable to substantiate the ‘2 to 1’ with staffing records.

With respect to Ms. Medeiros, Maria Faria acknowledged that since her mother lived with her sister, her sister was more knowledgeable about her situation. Maria Faria acknowledged that towards the end of her life, her mother had a “do not resuscitate” order in effect. Maria Faria acknowledged that her mother’s situation was a source of stress after the accident.

Evidence of Carlos Faria

Carlos Faria (“Mr. Faria”) is Maria Faria’s husband and Raquel’s father. He testified in his native Portuguese language through an interpreter. I found him a credible and forthright witness.

Mr. Faria is a butcher. He was born in the Azores, and is currently employed on a part-time basis. He had previously been employed for 24 years, in excess of 40 hours per week at Quality Meats.

Since the accident, Mr. Faria testified to a significant increase in stress in the family. He also testified to significant changes in what his wife was able to do. After the accident, she no longer gardens or cooks the same types of meals that she did before the accident. He regularly brings home take-out food in order to ensure there is food for the family.

He noted that his wife no longer dresses in the same fashion now, preferring clothing that is less elaborate and easier to put on.

Mr. Faria tends to drive more often, as his wife is less willing. However, she is a very nervous passenger, frequently telling him where to go and what to watch out for.

Mr. Faria testified that his wife regularly complains of pain, and although they have travelled in Ontario and to the Azores, these are stressful periods. Mr. Faria stated that generally, since the accident, his wife has little interest in things.

On cross-examination, Mr. Faria acknowledged that his wife continued to drive. She would drive herself to appointments as required.

Evidence of Nelia Rocha

Nelia Rocha (“Ms. Rocha”) is the sister of Maria Faria, and another daughter of Ms. Medeiros. Ms. Medeiros lived with her for about 24 years. Before the accident, she said Ms. Medeiros was relatively self-sufficient, but she had access to some government-funded personal support workers.²⁴ However, after the accident, she needed more assistance.

On cross-examination, Ms. Rocha answered that her mother was self-sufficient for her financial affairs even after the accident. Accordingly, Ms. Rocha was unable to acknowledge what support the Insurer had provided.²⁵

Health Evidence

Sandeep Kaur testified as a treating psychotherapist for Maria Faria. Although she did not have access to any written records,²⁶ she recalled Maria Faria’s situation as it was unique with the autistic daughter. She recalled that Maria Faria had a decline in functionality as a result of the accident. On cross-examination, she acknowledged that she worked under a psychologist’s supervision and subject to the psychologist’s diagnoses.

I have accorded no weight to Ms. Kaur’s testimony. As previously mentioned, an expert’s testimony must be necessary to assist me in coming to my determination. Ms. Kaur did not testify to anything that I find ‘necessary’ in order to allow me to come to my decision.

Gordon D. Ko, MD testified as an expert in physiatry. Dr. Ko testified to a generalized diagnosis of Maria Faria, specifically to the effect that Maria Faria has certain pain syndromes.

I also accord Dr. Ko’s testimony no weight. His testimony was not ‘necessary’ in assisting me to decide the issues in dispute; specifically, his opinions were not framed in terms that assist my consideration of the issues in dispute in this Hearing. For example, no opinions were directed to Maria Faria’s ability to carry on a normal life, or whether any of the proposed treatment plans were reasonable and necessary. In addition, in cross-examination, the Insurer’s representative made it clear that the report Dr. Ko may have relied on to refresh his memory, may have been authored by a number of persons other than himself.

Brad Sugar, Chiropractor, testified as the treating chiropractor of both Maria Faria and Raquel. He testified without the benefit of his clinical notes and records. His testimony was that Maria Faria was generally enjoying some benefit from the chiropractic treatments being provided. Most of these were established to be administered by other staff members. He personally recalled Raquel, and remembered ‘fist bumping’ with her. I did not qualify Dr. Sugar as an expert, and accordingly no opinion could be provided whether further treatment was warranted in either Maria Faria’s or Raquel’s case.

Dr. Hannah Leah Rockman, Psychologist, testified under similar circumstances to Dr. Gordon Ko. I have decided to accept Dr. Rockman’s opinion that Maria Faria had a major depressive disorder. However, I note that in cross-examination the Insurer’s representative elicited acknowledgments that the daughter’s autism and husband’s unemployment could have also contributed to Maria Faria’s “low mood”. In addition, her hysterectomy and her mother’s death could have also contributed to Maria Faria’s low mood.

Dr. Moez Rajwani was qualified as an expert in chiropractic. His reports were put into evidence.²⁷ His testimony was that it was very difficult to treat an autistic person. Dr. Rajwani’s opinion with respect to Raquel was that she had no condition that a chiropractic treatment plan could assist with. However, given that Raquel had enjoyed a water treatment plan pre-accident, he was of the view that this could be of continued benefit. Dr. Rajwani also reported that his communications with Raquel were mediated by the mother, Maria Faria.

Dr. Rajwani noted that on his second observation, Raquel presented in a deteriorated fashion. Specifically, on the second occasion he was unable to even touch Raquel to examine her, and there were obvious signs of self-harming behaviour.

In cross-examination, it was established that Dr. Sugar, Raquel’s treating chiropractor, had been able to develop a rapport with Raquel, and can touch her in providing chiropractic treatments. However, Dr. Rajwani’s opinion was clear that the relationship alone was not sufficient to make the proposed treatments reasonable and necessary.

Additional Evidence

During submissions, I agreed that the parties’ representatives could provide me with a list of documents that were filed in the briefs to be considered as exhibits. Such a list for all three Applicants was presented by the Insurer, which I filed as Exhibit 34. I refer to further documentary evidence in my analysis of each benefit below.

Analysis

Non-Earner Benefits

The two surviving Applicants, Raquel and Maria Faria, have sought non-earner benefits.

Section 12(2) of the Schedule makes it clear that the criterion to qualify for a non-earner benefit is “a complete inability to carry on a normal life”.

Section 3(7)(a) further provides:

a person suffers a complete inability to carry on a normal life as a result of an accident if, as a result of the accident, the person sustains an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident;

Per the Ontario Court of Appeal’s decision in Heath v. Economical Mutual Insurance Company,²⁸ an actual step-by-step analysis must be conducted, both before and after the accident.²⁹

Applying this analysis to Raquel’s application, I have the evidence of her mother that she was now requiring ‘2 to 1’ staffing. I also have Dr. Radjwani’s evidence that Raquel deteriorated between his two visits with her. However, neither of these provide significant insight into the questions that Heath requires I ask.

I have the following evidence advanced by the Insurer:

• An IE report of Dr. Bentley of February 24, 2014,³⁰ which noted that “observation of the patient did not demonstrate any obvious neuromusculoskeletal dysfunction”. It further noted “it is this assessor’s medical opinion that the claimant does not suffer a complete inability to carry on a normal life as a result of the subject motor vehicle accident. I would anticipate that she is operating toward her pre-accident physical baseline, given her history of Autism.”

• Observations noted in a January 27, 2014 IE report by Sharon Mills, OT,³¹ that “Raquel required care throughout the day and night prior to the accident”, and opined that the claimant did not suffer a complete inability to carry on a normal life as a result of the subject motor vehicle accident.

• Observations in an IE report of Dr. Castiglione dated June 16, 2016 noted that “From a physical perspective, [Raquel] was diagnosed with uncomplicated soft tissue sprain/strain type injuries and as per the multitude of independent assessments already on file, despite the limitations of any physical examination, there was no convincing evidence of any neuromusculoskeletal impairment that would be attributable to the accident.”

Given all the foregoing, in Raquel’s case there is not a complete inability to carry on a normal life. There is also no suggestion that there was any additional impairment caused by the accident that might have affected Raquel’s life.

For Maria Faria, I have the following evidence advanced by the Insurer, and her testimony and that of her family members:

• Conclusion of IE of Dr. Bentley, February 7, 2014,³² that “it is the opinion of this assessor that Ms. Faria does not suffer a complete inability to carry on a normal life as a result of the subject motor vehicle accident.”

• Conclusion of IE of Dr. Finkel, February 4, 2014,³³ that “Ms. Faria does not suffer a complete inability to carry on a normal life as a result of the subject motor vehicle accident from a psychiatric perspective.”

• Conclusion of IE of Sarah Rood, OT of January 28, 2014,³⁴ that “… the applicant does not suffer a complete inability to carry on a normal life as a result of the subject motor vehicle accident.”

Their conclusions are consistent with my perceptions of Maria Faria’s pre- and post-accident lives. Although I accept that Maria Faria has increased pain and has had a number of detrimental reductions in her life (such as no longer cooking, or volunteering to teach parents of other autistic children), these reductions are not such that she has a “complete inability” to carry on her normal life.

Maria Faria continues to be able to take trips to the Azores, and other shorter automobile trips within the province. She organized her home move. Most importantly, she continues to be primarily responsible for the care and management of her daughter. I do not reasonably conclude that she has a complete inability to carry on a normal life.

Attendant Care

Two of the Applicants, Maria Faria and Ms. Medeiros, claimed for attendant care. A Form 1 is an integral aspect of proving the claim for attendant care. Since the Applicants’ document briefs were disallowed from presentation, there was no Form 1 filed by the Applicants that I can rely on to consider these claims.

The following evidence filed by the Insurer also supports its decision to disallow the attendant care claim for Ms. Medeiros:

• Form 1 completed by Andrew Philips, September 27, 2013,³⁵ showing $0.

• Form 1 completed by Andrew Philips, July 14, 2014,³⁶ showing $0.

• IE report of Dr. M. Angel, neurologist, December 30, 2013,³⁷ opining: “It is my opinion that at this time her on-going stated symptomatology is unrelated to any musculoskeletal pathology arising from the accident in question.”

• Addendum IE report of Dr. M. Angel, neurologist, April 30, 2014,³⁸ opining: “This woman's immobility is due primarily to her advanced cardiopulmonary disease and not due 'to any specific primary neurological' injury sustained in the index motor vehicle accident.”

It is clear to me that Ms. Medeiros was suffering from the advancing vagaries of old age and a complicated pre-accident medical history. There was no medical evidence advanced that her cardiopulmonary deterioration was caused by the accident. I conclude that Ms. Medeiros’ claim for attendant care benefits cannot be sustained.

Moving to the situation of Maria Faria, there was some testimony of Maria Faria’s possible need for attendant care services. For example, the husband’s testimony was to the effect that Maria Faria was choosing easier clothing to wear because of some inability to dress herself. She was also less attentive to housekeeping, and was less likely to cook meals. However, no Form 1 was presented on her behalf.

The Insurer has presented the following documents on the issue:

• IE report of Dr. Castiglione, July 25, 2013:³⁹ “[Maria Faria] reports independence in her personal care and light housekeeping tasks; although she reports she cannot vacuum, do laundry, dishes, or gardening. She reports difficulty with childcare as she has difficulty dealing with her autistic daughter. She reports that she is not employed as she manages her daughter’s care.”

• IE report of Sarah Rood, OT, September 9, 2013:⁴⁰ “… the applicant has not sustained an impairment as a result of the subject motor vehicle accident that necessitates the services of an aide or attendant care to assist with personal care activities.”

• IE report of Sarah Rood, OT, September 20, 2013⁴¹ including:

  o “The insured stated that she is currently independent with all of her pre-accident personal care activities. She stated that her husband helps her clasp her bra, and she has her hair done at a salon occasionally. Her husband also cuts her toenails or she has a pedicure.”

  o “Ms. Faria noted that she is able to cook simple meals, but relies on her husband for lifting heavy pots and pans. The insured reported independence with all aspects of feeding. She stated that she is able to carry plates and cut food independently.”

  o “The insured noted that she is independent with bathing. The insured demonstrated the ability to reach all segments of her body with both hands, reaching behind her head and back and to both feet.”

• Form 1 prepared by Sarah Rood, OT showing $0 dated September 9, 2013;⁴²

• IE report of Sarah Rood, OT, dated January 28, 2014:⁴³ “The insured noted that she is currently independent with the majority of her personal care tasks. She demonstrated the functional ability to complete all aspects of her personal care independently. She noted that as she is focusing on her healing, she does not participate in heavier household chores, as they aggravate her pain levels.”

The clear conclusion from the foregoing is that Maria Faria does not need attendant care. Accordingly, the benefit is denied.

Balance of Benefits – Raquel

The remaining claimed benefits for Raquel fall into three categories—medical rehabilitation expenses, the costs of an examination to have a litigation guardian appointed, and physiotherapy expenses.

The testimony of Drs. Sugar and Radjwani relating to Raquel did not provide me any information relating to the reasonableness or necessity of any treatments. Although Dr. Sugar was able to actually touch Raquel, this alone does not give me information on the conditions for the payment of the benefit.

The Insurer directed me to the following documents on the issues of medical rehabilitation expenses and the physiotherapy:

• IE of Dr. Castiglione, MD, August 9, 2013:⁴⁴ “As a result of Raquel’s June 13, 2013 motor vehicle accident, she has suffered the following injuries: I. Cervical Sprain/Strain with headaches. No other injuries or impairments were apparent although as noted it was nearly impossible to physically examine or obtain meaningful findings.”

• IE of Dr. Rajwani, DC, dated July 5, 2016:⁴⁵ “As a result of the subject motor vehicle accident, the claimant suffered soft tissue injuries. The recovery rate for these was likely longer because of the inability to properly treat the claimant because of her limitations physically as well as her severe autism, which may have resulted in worsening of the condition from time to time. At this stage, in my opinion, the accident-related impairments would have resolved. She may have persistent musculoskeletal complaints; however, this, in my opinion, would be related to the physical reactions to her severe autism and cannot be directly attributed to the accident.”

• IE of Dr. Castiglione, MD dated July 19, 2016:⁴⁶ “From a physical perspective, [Raquel] was diagnosed with uncomplicated soft tissue sprain/strain type injuries and as per the multitude of independent assessments already on file, despite the limitations of any physical examination, there was no convincing evidence of any neuromusculoskeletal impairment that would be attributable to the accident. She has had multiple assessments with various specialists, and additional MD assessment at this time would be redundant and unlikely to provide any additional benefit to Raquel or to the claim.”

Based on the foregoing, I conclude that further medical, rehabilitation or physiotherapy treatment for Raquel is neither reasonable nor necessary. Accordingly, these benefits are denied.

The remaining benefit sought is the cost of the examination that was required for the appointment of a litigation guardian. The operative section of the Schedule is section 25. On a review of section 25 of the Schedule, there is no provision in that section that suggests the appointment of a litigation guardian is a proper circumstance for the payment of an examination.

I do not have any documents relating to the need for an examination prior to the appointment of a litigation guardian for Raquel, nor do I have any evidence of the expense being incurred.

Based on the foregoing, I disallow the costs of the examination for the appointment of a litigation guardian.

Balance of Benefits – Maria Medeiros

A remaining claim was for a fee of $3,510 dealing with the appointment of the estate trustee. I do not have any documents relating to the incurring of this expense. In addition, my review of the Schedule does not suggest that it is in fact a benefit. My understanding is that the appointment of an estate trustee is something that must be accomplished in order for the administration of a deceased’s estate.

I disallow the costs of the appointment of the estate trustee.

Balance of Benefits – Maria Faria

Maria Faria’s Application sought two remaining types of benefits. The first was the costs of the examination to prepare a Form 1 relating to attendant care expenses. Given that I have disallowed the claim for the attendant care expenses as not being warranted, the cost of the examination for the Form 1 is also denied.

The remaining issue is the medical rehabilitation expense of various treatment plans, all to Revive Health Centres. I note that the treatment plans were not available to me, and Dr. Sugar was unable to provide any detail about the reasonableness or necessity of any of them. Dr. Sugar provided information as to the overall balance that had been incurred with the clinic.

The Insurer has provided the following documents as evidence on this issue:

• IE of Dr. Castiglione, July 25, 2013:⁴⁷ Based on MIG, the treatment is denied.

• IE of Dr. Castiglione, May 21, 2015,⁴⁸ relating to OCF-18s of April 15 and 16, 2015: “It is my opinion that the ongoing complaints are related to the pre-existing Fibromyalgia and are not directly related to the subject MVA.”

• IE of Dr. Castiglione, July 14, 2016,⁴⁹ relating to OCF-18 of May 24, 2016: “This is my third assessment with Ms. Faria and my opinion remains that her accident-related injuries met the SABS definition of a Minor Injury and at this point have resolved.”

• IE of Dr. Castiglione, July 14, 2016:⁵⁰ “[Maria Faria] does not have any accident-related impairments. Her current presentation appears consistent with her known pre-existing conditions.”

• IE of Dr. Castiglione, October 24, 2016:⁵¹ “I have assessed Ms. Faria in person on three occasions. In each of those reports I concluded from a medical perspective with a focus on her physical injuries and impairments, that as a result of the June 13, 2013 motor vehicle accident Ms. Faria would have initially sustained uncomplicated soft tissue strains to the paravertebral muscles of her cervical and lumbar spine which have resolved without any valid or objective evidence of ongoing accident related physical injury or impairment.

There have also been numerous other independent assessments that have supported that she had no impairments from a physical perspective. As well, there have been at least three prior occupational therapy assessments/opinions that I identified in the file. These reports largely suggest that Ms. Faria does not require support for her personal care, housekeeping/home maintenance, and/or child care activities.”

All of the foregoing leads me to the conclusion that the proposed treatment plans are neither reasonable nor necessary.

The benefit is denied.

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.

October 18, 2017

Marcel D. Mongeon Arbitrator

Date

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

Neutral Citation: 2017 ONFSCDRS 266

FSCO A14-002521

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

RAQUEL FARIA

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

And

FSCO A14-002522

BETWEEN:

ESTATE OF MARIA MEDEIROS

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

And

FSCO A14-002523

BETWEEN:

MARIA FARIA

Applicant

and

WAWANESA MUTUAL 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:

1. All claims by all three Applicants for all benefits are denied.

2. 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.

October 18, 2017

Marcel D. Mongeon Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule - Effective September 1, 2010, Ontario Regulation 34/10, as amended.
2. 2Raquel Faria has had Maria Faria appointed as a litigation guardian. Maria Medeiros has been replaced by her estate due to her passing in 2015 and Maria Faria acts as Estate Trustee.
3. 3Dated ‘various’ in the Form C.
4. 4Added by Additional Pre-Hearing Letter dated June 29, 2016.
5. 5As explained below, initially, this amount was $4,602.61 in the Pre-Hearing Letter. However, no explanation could be found and it has been returned to $3,694.11 being the amount listed in the original application for mediation.
6. 6The Applicants chose to cross-examine one of the report writers of the Insurer, Dr. Radjwani, DC.
7. 7FSCO A04-B001427, Arb. Feldman, January 25, 2006.
8. 8FSCO A04-B002734, Arb. Rogers, March 9, 2006.
9. 9Document L. Documents before me were either labelled as Exhibits or as page numbers in lettered document briefs.
10. 10Although not argued at the time, these considerations are generally part of the test for the admission of expert evidence before a tribunal.
11. 11Document J, Page 8.
12. 12Document J, page 4.
13. 13Exhibit 27.
14. 14At page 4 of this decision.
15. 15The decoded OHIP summary for Raquel shows one entry for Mount Sinai Hospital for June 14, 2013 indicating “Abrasions, bruises, contusions and other superficial injury”: Document A, page 251.
16. 16The decoded OHIP summary for Raquel shows an entry for June 15, 2013 for Dr. Duchastel for “Intervertebral Disc Disorders”, ibid.
17. 17Picture Exchange Communication System.
18. 18Maria Faria’s description of her prior medical history is consistent with the Insurer’s documented history. See, Document J, page 178 and Document J, page 222.
19. 19The decoded OHIP summary for Maria Faria for June 14, 2013 shows an entry for Mount Sinai for “Abrasions, bruises, contusions and other superficial injury.” Document J, page 288. There is also another entry on June 15, 2013 for Dr. Duchastel for “intervertebral disk disorders”.
20. 20As noted above, these are all subject to the Insurer’s representative’s objection about hearsay evidence. I only identify objective facts relating to Maria Medeiros that were part of Maria Faria’s testimony.
21. 21Again, I have tried to identify only objective facts that were part of Maria Faria’s testimony.
22. 22As already reported above, no evidence was presented about the validity of this system.
23. 23Although Maria Faria testified to how effective she believed the treatment Raquel was receiving, I choose not to report this as being beyond the scope of ‘objective facts’.
24. 24Twice per week at one half hour each time.
25. 25The Insurer’s documents note the payment of attendant care services at $1,246.54 per month from October 17, 2013 to July 30, 2014. Document B, pages 67 through 100
26. 26It will be recalled that all documents tendered by the Applicants were excluded for reasons given above.
27. 27Exhibits 28, 29 and 30.
28. 282009 ONCA 391, 95 OR(3rd) 785.
29. 29The subsequent case of Galdamez v. Allstate Insurance 111 OR (3rd) 321, 2012 ONCA 508 further identifies these steps at paragraph 41.
30. 30Document A, page 188 and 189, made an exhibit by Exhibit 34.
31. 31Document A, page 194.
32. 32Document J, page 218.
33. 33Document J, page 227.
34. 34Document J, page 230.
35. 35Document B, page 312.
36. 36Document I, Tab 3.
37. 37Document B, page 226.
38. 38Document B, page 250.
39. 39Document J, page 178.
40. 40Document J, page 186.
41. 41Document J, page 193 et seq.
42. 42Document J, page 202.
43. 43Document J, page 230.
44. 44Document A, page 174.
45. 45Document A, page 220.
46. 46Document A, page 217.
47. 47Document J, page 175.
48. 48Document J, page 252.
49. 49Document J, page 259.
50. 50Document J, page 268.
51. 51Document J, page 275.