Financial Services Commission of Ontario

Neutral Citation: 2017 ONFSCDRS 281

FSCO A15-005769

BETWEEN:

MIHAELA CARIATI Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: Alan G. Smith

Heard: In person at ADR Chambers on June 21, 22, 23, and July 10, 11, 13, and 14, 2017, and by written submissions completed August 28, 2017

Appearances: Mr. Stanley Razenberg for Mihaela Cariati Mr. Seth Kornblum and Ms. Tricia McAvoy for Wawanesa Mutual Insurance Company

Issues:

The Applicant, Mrs. Mihaela Cariati, was injured in a motor vehicle accident on March 5, 2014, (the “accident”), 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 Mrs. Cariati, through her representative, applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c. I.8, as amended.

The issues in this Hearing are:

1. Is Mrs. Cariati entitled to receive a weekly income replacement benefit of $400 from one week post-accident to date and ongoing?

2. Is Mrs. Cariati entitled to receive attendant care benefits in the amount of $3,000.00 per month from March 5, 2014, to March 5, 2016?

3. Is Mrs. Cariati entitled to receive medical benefits as follows:

   a) $5,980.75 for rehabilitative coaching, service provided by Tru-Path Occupational Therapy Services?

   b) $1,129.30 for assistive devices, service provided by Tru-Path Occupational Therapy Services?

   c) $3,961.66 for occupational therapy treatment, service provided by Tru-Path Occupational Therapy Services?

   d) $703.41 for assistive devices, service provided by Ms. Sophie Bielawski, Occupational Therapist?

   e) $1,197.12 for physiotherapy (mobilization), service provided by Harbourfront Medicine Cabinet?

4. Is Mrs. Cariati entitled to receive the costs of examinations as follows:

   a) $1,510.61 for an attendant care assessment service provided by Ms. Sophie Bielawski, Occupational Therapist?

   b) $1,522.63 for a follow up attendant care assessment service provided by Ms. Sophie Bielawski, Occupational Therapist?

   c) $1,615.00 for a nutritional assessment service provided by Tru-Path Occupational Therapy Services?

   d) $2,000.00 for a speech language assessment, service provided by Michelle Cohen & Associates?

5. Is Mrs. Cariati entitled to interest for the overdue payment of benefits?

6. Is Wawanesa liable to pay a special award because it unreasonably withheld or delayed payments to Mrs. Cariati?

7. Is Wawanesa liable to pay Mrs. Cariati’s expenses in respect of the arbitration?

8. Is Mrs. Cariati liable to pay Wawanesa’s expenses in respect of the arbitration?

Result:

1. Mrs. Cariati is not entitled to receive a weekly income replacement benefit from one week post-accident to date and ongoing.

2. Mrs. Cariati is not entitled to receive attendant care benefits from March 5, 2014, to March 5, 2016.

3. Mrs. Cariati is entitled to medical benefits set out below:

   a) $5,980.75 for rehabilitative coaching, service provided by Tru-Path Occupational Therapy Services.

   b) $3,961.66 for occupational therapy treatment, service provided by Tru-Path Occupational Therapy Services.

   c) $1,197.12 for physiotherapy (mobilization), service provided by Harbourfront Medicine Cabinet.

4. Mrs. Cariati is not entitled to medical benefits set out below:

   a) $1,129.30 for assistive devices, service provided by Tru-Path Occupational Therapy Services.

   b) $703.41 for assistive devices, service provided by Ms. Sophie Bielawski, Occupational Therapist.

5. Mrs. Cariati is entitled to the cost of an examination as follows:

   a) $1,615.00 for a nutritional assessment, service provided by Tru-Path Occupational Therapy Services.

6. Mrs. Cariati is not entitled to the cost of examinations as follows:

   a) $1,510.61 for an attendant care assessment, service provided by Ms. Sophie Bielawski, Occupational Therapist.

   b) $1,522.63 for a follow up attendant care assessment, service provided by Ms. Sophie Bielawski, Occupational Therapist.

   c) $2,000.00 for a speech language assessment, service provided by Michelle Cohen & Associates.

7. Mrs. Cariati is entitled to interest for the overdue payment of benefits. If the parties cannot come to an agreement on the quantum of the amount owing pursuant to the directions in my decision, they may deliver written submissions to ADR Chambers of no more than 5 pages each, the Applicant’s submissions to be delivered within 30 days of the date of this decision and the respondent’s submissions to be delivered within 14 days thereafter.

8. Expenses shall be payable. If the parties cannot come to an agreement on the matter of expenses, either party may request in writing an appointment before an ADR Chambers arbitrator to determine expenses, provided the request is made within 30 days from the date of this decision.

EVIDENCE AND ANALYSIS

BACKGROUND AND AGREED FACTS

During the course of the arbitration Hearing, and in their respective written submissions post-Hearing, both counsel for the Applicant and counsel for the Insurer advised that a number of facts were mutually agreed on and not in dispute in the arbitration proceeding.

The fact of the accident having occurred on March 5, 2014, is not in dispute. The parties agreed that at the time of the accident the Applicant was 38 years old and lived with her husband, Tony Cariati, and five-year-old son.

Both parties agree that at the time of the accident Mrs. Cariati was employed 20 to 25 hours a week by a numbered company incorporated under the laws of Ontario (“the company”) doing residential demolition and construction. The Applicant’s pre-accident employment duties included attending at the bank, performing errands to pick up odds and ends that her husband required, and on occasion, on her husband’s behalf she would stop by some of the job sites unannounced to make sure the company’s employees were properly dressed and looked professional in representing the company. It is agreed that pre-accident Mrs. Cariati received $3,500.00 per month in salary from the company. In its written submissions Wawanesa agrees with Mrs. Cariati that, “…it is likely that the Applicant was an employee at the time of the accident; she received a T4, received regular pay with payroll deductions and declared her income as employment income....”. In other words, Wawanesa agrees that pre-accident Mrs. Cariati was not self-employed. It is also common ground that although the Applicant was the titular President of the company her husband ran and controlled the business. Wawanesa is not disputing the fact that post-accident Mrs. Cariati was incapable of performing her pre-accident employment duties. Both parties are also not disputing that the Applicant remains an employee of the company.

It is agreed by both parties that post-accident the Applicant and her husband employed a woman (“Maria” or the “service provider”) to perform housekeeping and attendant care tasks. Pre-accident Maria had worked for Mr. and Mrs. Cariati a few hours a week as a housekeeper. Both parties agree that Maria was not trained as, or ever worked as, a healthcare professional, such as a nurse, personal support worker or healthcare aid. It is agreed that Maria suffered no economic loss in providing the post-accident services to the Cariatis. In fact, since she worked significantly more hours post-accident, she enjoyed a significant increase in income.

It is also not disputed that security guards employed by the Applicant’s residential condominium corporation also periodically assisted Mrs. Cariati. It is agreed that there was no evidence presented at the arbitration Hearing that the security personnel suffered any economic loss in providing those services or that they were trained as health care professionals.

Both the Applicant and Insurer agree that notwithstanding that the Applicant was not “actively” employed post-accident, the company provided funding of approximately $2,200 per month, the entirety of which was used to pay Maria’s wages. This funding is ongoing.

Not in dispute is the fact that at the end of 2014, the company issued Mrs. Cariati a Canada Revenue Agency T4 document indicating that she had received $7,000 in wages from the company that year. This represented Mrs. Cariati’s pre-accident employment income in 2014. The 2014 T4 did not reflect the monies paid out by the company which were used to pay Maria’s wages. Both parties agree that the T4 issued by the company to Mrs. Cariati at the end of 2015 indicated employment income of $25,000 i.e., the $2,200 per month funding to Maria. The Applicant does not dispute the fact that it is the intention of the company to provide a T4 in 2016 also reflecting that the Applicant received employment income of $25,000 over that year.

Both Wawanesa and Mrs. Cariati agree that in a report dated June 2016 (and proffered as documentary evidence at the arbitration Hearing) Dr. Zielinsky, the psychiatric expert retained by Wawanesa, after examining the Applicant opined that, as a result of the accident, Mrs. Cariati exhibited a moderate impairment in her ability to perform her activities of daily living.

WITNESS TESTIMONY

Mrs. Mihaela Cariati – Applicant

Almost the entirety of the testimony-in-chief and cross-examination of the Applicant was regarding the reasonableness and necessity of her receiving attendant care benefits. Since, as is explained below, I find that the Applicant does not meet the threshold requirements of the Schedule to qualify for attendant care, it is unnecessary for me to review her testimony in that regard.

What is germane to this decision is Mrs. Cariati’s testimony with regard to the reasonableness and necessity of medical benefits and examinations. Mrs. Cariati testified that her physiotherapy sessions helped to relieve the symptoms she suffered post-accident including headaches, numbness in her pelvic area and legs, vertigo, depression, sleeplessness and panic attacks. She also testified that since the accident she had experienced a weight loss of 25 or 30 pounds due to nausea and lack of appetite. She testified that she had found that working with a rehabilitative coach was helpful. However, in cross-examination the Applicant admitted that she did not wish to use assistive devices, as recommend by her occupational therapist, because she believed the use of such devices would make her “look old”.

Mr. Tony Cariati – Applicant’s Spouse

Again, almost the entirety of the testimony-in-chief and cross-examination of Mr. Cariati was regarding the reasonableness and necessity of the Applicant receiving attendant care benefits. Since, as is explained below, I find that the Applicant does not meet the threshold requirements of the Schedule to qualify for attendant care, it is unnecessary for me to review his testimony in that regard.

Again, what is germane to this decision is Mr. Cariati’s testimony with regard to the reasonableness and necessity of medical benefits and examinations. Mr. Cariati testified that rehabilitative coaching was of great assistance to his wife post-accident. He also stated that Mrs. Cariati had some difficulties with her speech after the accident i.e., that she often speaks “gibberish”.

A significant portion of Mr. Cariati’s testimony only served to reiterate the agreed upon facts of the case as noted above, e.g., that although his wife was the legal President of the company she had nothing to do with its day-to-day operation. He was in charge of the company’s processes.

Mr. Ian Wallach, C.A. – Accountant

The Applicant called an accountant, Mr. Ian Wallach, C.A., with expert knowledge of the Schedule. Again, much of his testimony only served to reiterate the agreed upon facts of the case as noted above, e.g., that pre-accident the Applicant was an employee of the corporation. However, with relevance to the issues before me, Mr. Wallach clearly testified that if the post-accident funds provided to the service provider were indeed deductible, pursuant to the Schedule s. 7(3)(a), as explained below, the Applicant would not be entitled to income replacement benefits as claimed.

Dr. Lavan Chandran – Applicant’s General Practitioner Physician

Once again, almost the entirety of the testimony-in-chief and cross-examination of Dr. Chandran was regarding the reasonableness and necessity of the Applicant receiving attendant care benefits. Since, as is explained below, I find that the Applicant does not meet the threshold requirements of the Schedule to qualify for attendant care, it is unnecessary for me to review his testimony in that regard.

Again, what is germane to this decision is Dr. Chandran’s testimony with regard to the reasonableness and necessity of medical benefits and examinations. The witness testified that rehabilitative coaching would benefit Mrs. Cariati. Similarly, Dr. Chandran stated that he believed continued occupational therapy would be of assistance to Mrs. Cariati. He also testified that Mrs. Cariati had lost significant body mass post-accident and was now at an unhealthy weight.

Ms. Sophie Bielawski – Occupational Therapist

Finally, almost the entirety of the testimony-in-chief and cross-examination of Ms. Bielawski was regarding the reasonableness and necessity of the Applicant receiving attendant care benefits. Since, as is explained below, I find that the Applicant does not meet the threshold requirements of the Schedule to qualify for attendant care, it is unnecessary for me to review her testimony in that regard.

Once again, what is germane to this decision is Ms. Bielawski’s testimony with regard to the reasonableness and necessity of medical benefits and examinations. In that respect, the witness testified that rehabilitative coaching would benefit Mrs. Cariati.

INCOME REPLACEMENT BENEFITS

The Law

Section 4 of the Schedule provides as follows:

Interpretation

4. (1) In this Part,

“gross employment income” means salary, wages and other remuneration from employment, including fees and other remuneration for holding office…

Section 7 of the Schedule provides as follows:

Amount of weekly income replacement benefit

7. (1) The weekly amount of an income replacement benefit payable to an insured person who becomes entitled to the benefit before his or her 65th birthday is the lesser of “A” and “B” where,

“A” is the weekly base amount determined under subsection (2) less the total of all other income replacement assistance, if any, for the particular week the benefit is payable, and

“B” is $400 or, if an optional income replacement benefit referred to in section 28 has been purchased and applies to the person, the amount fixed by the optional benefit. O. Reg. 34/10, s. 7 (1).

(2) For the purposes of subsection (1), the weekly base amount in respect of an insured person is determined as follows:

1. Determine whichever of the following amounts is applicable:

i. 70 per cent of the amount, if any, by which the sum of the insured person’s gross weekly employment income and weekly income from self-employment exceeds the amount of the insured person’s weekly loss from self-employment, if the weekly income replacement benefit is for one of the first 104 weeks of disability, or

ii. the greater of the amount determined for the purposes of subparagraph i and $185, if the weekly income replacement benefit is for a week for which the person is entitled to receive an income replacement benefit after the first 104 weeks of disability.

2. To the amount determined under paragraph 1, add 70 per cent of the amount of the insured person’s weekly loss from self-employment that he or she incurs as a result of the accident.

(3) The insurer may deduct from the amount of an income replacement benefit payable to an insured person,

(a) 70 per cent of any gross employment income received by the insured person as a result of being employed after the accident and during the period in which he or she is eligible to receive an income replacement benefit; and

(b) 70 per cent of any income from self-employment earned by the insured person after the accident and during the period in which he or she is eligible to receive an income replacement benefit.

Analysis

Are the funds paid by the company to the Applicant post-accident deductible from Income Replacement Benefits?

The first question to be answered is, did Mrs. Cariati “receive” the funds provided by the company post-accident, pursuant to Schedule section 7(3)(a)? In her written submissions, the Applicant argues that:

Mrs. Cariati respectfully submits that she did not ‘receive’ this money. The term ‘receive’ is not defined in the SABs or in the Insurance Act. It is respectfully submitted that the use of this word ‘receive’ within s. 7(3)(a) of the SABs was intended to convey a meaning that is in accordance with common sense as well as ordinary and plain meaning….

Black’s Law Dictionary defines the term ‘receive’ as ‘to acquire or get something’. On the facts of our case, Mrs. Cariati respectfully submits that she did not acquire or get the money that was paid from the Corporation to Maria. The un-contradicted evidence is that Mr. Cariati paid the money directly to Maria. Mrs. Cariati was not aware of how much was paid to Maria for taking care of her post-accident, nor how it was paid. Mrs. Cariati was not involved in negotiating the amount, nor was she involved in the weekly giving of this money to Maria. On these facts, Mrs. Cariati respectfully submits that she had not acquired, obtained, or received these payments and as such, they are not deductible from her IRB.

The Insurer argues in its written submissions that the Ontario Court of Appeal decision in Bapoo v. Co-Operators General Insurance Company² is instructive:

The issue in that case [Bapoo] was whether the accident benefits insurer was entitled to deduct the gross disability payments rather than after-tax disability payments in arriving the at [sic] quantum of income replacement benefits. At that time, the SABS provided that the insured person was entitled to deduct disability payments that the insured person “received”. Laskin J. noted:

The dictionary definition of “receive” includes “accept delivery of”, “take or accept into one's hands or one's possession”, “be provided with or given”, “acquire” and “get”: see The New Shorter Oxford Dictionary, vol. 2 (Oxford: Clarendon Press, 1993). This dictionary definition provides a plausible meaning for the word "received" in the context of s. 12(4)(b).

Applying this meaning, Bapoo “received” only the net disability income payments because, as commonly occurs, the disability carrier, Canada Life, withheld the income tax payable and remitted it to Revenue Canada. Because Canada Life withheld the tax payable, Bapoo took the net payments into his hands or his possession. That is all he got. I recognize that, in another context, the word “received” could be interpreted more broadly to include amounts withheld for income tax: see the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.), s. 153(1). But I do not think that this broader interpretation advances the purposes of s. 12(4)(b) of the Schedule.

I agree that in the present context the logic in Bapoo should be followed i.e., just as monies withheld by a third party and remitted directly to the Canada Revenue Agency could be interpreted as “received” by the taxpayer, in the present context the word “received” should be interpreted broadly to include the funds transferred for the benefit of the Applicant, from the company to the Applicant’s service provider. The fact that the funds in question may have been paid by her husband, as her de facto agent, directly to the service provider is irrelevant. I find that the post-accident monies were indeed “received” by Mrs. Cariati pursuant to section 7(3)(a) of the Schedule.

The second question to be answered is whether the post-accident funds provided by the company should be characterized as employment income pursuant to s. 7(3)(a) of the Schedule. The Applicant relies on the decision in Watson v. Dominion of Canada General Insurance Company.³ As the Applicant explains it in her written submissions:

In Watson, the Plaintiff sustained a significant brain injury following a motor vehicle accident. The Plaintiff’s parents owned and operated an IGA grocery store. Following the accident, the Plaintiff’s parents allowed him to work approximately 20 hours per week in the store, and paid him for this work. The evidence at trial was that the Plaintiff was “…unable to work without supervision, becoming easily distracted, not completing tasks, being unable to deal with customers, and not being able to do more than one thing at a time…”. The insurer argued, in part, that the payments received by the Plaintiff for the post-accident period were deductible from his IRBs based upon the equivalent of s. 7(3)(a), which read:

“The insurer may deduct from any benefit payable under this Part 80 per cent of any income received or available from any occupation or employment subsequent to the accident”.

The Honourable Justice Klowak rejected the insurer’s argument that a deduction from the income replacement benefit was appropriate, finding instead that the scenario described does not amount to true employment. Madam Justice Klowak reasoned as follows:

Although the job provided by his parents in their own business may have the appearance of employment, I find that appearance to be a false one, created by the parents in order to bolster this young man’s feelings of self-worth, in the hopes of improving his overall condition. I also find as a fact that he is a liability as an employee to his parents, and that they would not hire him or continue to hire him if he were not their son. Even the accountant/business valuator called by the defence, agreed that if the plaintiff is a liability to his parents as an employee, as opposed to an asset, any compensation he receives may be fairly looked at as a gift from loving and concerned parents.

I regard the money paid by the parents to the plaintiff in the same light when considering s. 15 [the equivalent of the current s. 7(3)(a)]…

In my view, the ‘income received or available’, as well as the ‘occupation or employment’ must be true income from true occupation or employment, and not what is little more than a non arms [sic] length gift masquerading as income from parents who, fortunately, have been able, at least for the present, to create that fiction. There will consequently be no deduction from the benefits payable in that regard. (emphasis added by the Applicant)

The Insurer argues that reliance on Watson would be misplaced. In its written submissions Wawanesa opines:

The accident in Watson occurred in 1992. As a result, neither the current nor the prior version of the SABS was considered. The current version of the SABS requires that the calculation of income replacement benefit be determined in the same manner as income under the Income Tax Act.⁴ Accordingly, one is not free to dictate to this Tribunal whether monies received should be considered income or not, rather, the Income Tax Act establishes the boundaries for determining income.

I agree with the Insurer that because of the different legislative context Watson can clearly be distinguished from the present case and is of little or no value in defining “employment income” in the current Schedule.

I also find the recent appeal decision in Surani and Perth Insurance Company⁵ of no assistance because it deals strictly with the interpretation of Schedule section 7(3)(b), not 7(3)(a) as in the present case.

The Insurer further argues in its written submissions:

…the Applicant’s tax returns are prima facie evidence of the Applicant’s income. Arbitrators have been sceptical where Applicants claim that their actual income is different than that shown on their tax returns. For example, in Pisciotto v. CAA Insurance Co.,⁶ Justice Thomson stated: “Furthermore, I do not find that it would be just for the Plaintiff and her spouse to deem a certain amount as income for income tax splitting purposes and then, in another context, state that this was not really income earned even though she was working. Ms Pisciotto cannot have it both ways.”

Likewise, in Lackstone v. Lumbermens Mutual Casualty Co.⁷ the Applicant claimed that employment income noted in her tax returns was incorrect as a portion of the income reported was not income from employment, but a gift. Arbitrator Miller noted the following principles:

These principles include the following: that the insurer bears the onus of establishing that an insured has received income in respect of employment subsequent to the accident; and that an insured person's income tax returns are prima facie proof of income, but they are not conclusive of the issue of whether payments received are indeed employment income. The insured person bears the onus to present reliable and cogent evidence to overcome the prima facie presumption. I agree with these principles.

Arbitrator Miller then went on to reject the notion that the Applicant’s tax returns should not be relied upon as proof of post-accident income. Arbitrator Miller noted:

In weighing the evidence, I find Mrs. Lackstone’s tax returns for 1995 and 1996 to be the most objective evidence of what Mrs. Lackstone’s employment income actually was for 1995 and 1996. The fact that Mrs. Lackstone’s father may have given her a gift of money for housing and medical expenses, in my view, does not take away from the fact that she received this money as part of her income for employment. She declared it as income from employment and most importantly she paid taxes on the amount as income from employment.

The Applicant argues in her written submissions that the funds provided by the company to the service provider post-accident, “are not as a result of an employment relationship between the Corporation and Mrs. Cariati”. However, the Applicant does not propose an alternative characterization of the funds other than to suggest that the funds were provided because, “Mrs. Cariati was the wife of the owner of the Corporation.” This is notwithstanding the fact that, as noted above, there was no clear evidence presented by the Applicant as to in whose name the company shares are held. There was, however, undisputed evidence that Mrs. Cariati was the president of the company. With regard to that fact, I agree with the Insurer when it argues in written submissions:

Further, the SABS [s. 4 (1)] provides for a broad definition of income. It includes not only salary/wages, but also “remuneration from holding office” suggesting that the income the Applicant received as a result of being a director of the company or having a relationship to a company, be treated no differently from income the Applicant received as a result of the Applicant’s active participation in the company. The Income Tax Act does not treat income differently depending on how active a person is and the SABS income calculation is required to be consistent with the Income Tax Act.

Pursuant to the decision in Lackstone,⁸ I agree that an insured person's income tax returns are prima facie proof of employment income, but they are not conclusive of the issue of whether payments received are indeed employment income. The insured person bears the onus to present reliable and cogent evidence to overcome the prima facie presumption. In the present case, the Applicant has filed income tax returns noting the monies in question as employment income, but now argues that characterization is wrong. Whether obiter or not, I agree with Thomson J. in Pisciotto⁹ that the Applicant, “can’t have it both ways”. In the end, Mrs. Cariati has failed to provide any “reliable and cogent” evidence necessary to overcome the prima facie presumption that the monies in question were employment income.

At the hearing of this matter the Applicant called an accountant, Mr. Ian Wallach, C.A., with expert knowledge of the Schedule. Mr. Wallach clearly testified that if the post-accident funds provided to the service provider were indeed deductible pursuant to the Schedule, s. 7(3)(a), the Applicant would not be entitled to income replacement benefits as claimed. Having found that the funds in question are deductible, the Applicant’s claim for income replacement benefits is dismissed.

ATTENDANT CARE BENEFITS

The Law

Section 3(7) of the Schedule provides, in part, as follows:

e) subject to subsection (8), an expense in respect of goods or services referred to in this Regulation is not incurred by an insured person unless,

(i) the insured person has received the goods or services to which the expense relates,

(ii) the insured person has paid the expense, has promised to pay the expense or is otherwise legally obligated to pay the expense, and

(iii) the person who provided the goods or services,

(A) did so in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident, or

(B) sustained an economic loss as a result of providing the goods or services to the insured person;

Section 3(8) of the Schedule states:

If in a dispute to which sections 279 to 283 of the Act apply, a Court or arbitrator finds that an expense was not incurred because the insurer unreasonably withheld or delayed payment of a benefit in respect of the expense, the Court or arbitrator may, for the purpose of determining an insured person’s entitlement to the benefit, deem the expense to have been incurred.

Section 19(3) of the Schedule provides as follows:

(3) The amount of the attendant care benefit payable in respect of an insured person shall not exceed the amount determined under the following rules:

4. Despite paragraphs 1, 2 and 3, if a person who provided attendant care services (the “attendant care provider”) to or for the insured person did not do so in the course of the employment, occupation or profession in which the attendant care provider would ordinarily have been engaged for remuneration, but for the accident, the amount of the attendant care benefit payable in respect of that attendant care shall not exceed the amount of the economic loss sustained by the attendant care provider during the period while, and as a result of, providing the attendant care.

Analysis

Have the criteria pursuant to the Schedule Section 19(3)4 been satisfied so as to entitle the Applicant to attendant care benefits?

For the Applicant to be entitled to the attendant care benefits, the Applicant must establish that she “incurred” the attendant care costs as defined under s. 3(7)(e) of Schedule. Therefore, according to the criteria provided in the Schedule, the attendant care services must have been provided by a professional attendant care service provider during the course of their ordinary employment or the person providing the service would have to have suffered an economic loss.

It is common ground that neither Maria nor the condominium security personnel suffered an economic loss providing services to Mrs. Cariati. Therefore, the first question to be answered is whether Maria, the service provider, meets the criteria set out in Schedule s. 3(7)(e)(iii)(A) i.e., that she provided the services to the Applicant post-accident, “in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident”. In her written submissions the Applicant argues:

…the evidence before the Tribunal shows unequivocally that Maria had been engaged in these tasks prior to the accident as part of her employment/occupation; she had worked for the Cariatis for 7 years before the accident providing these services. She was compensated for providing these services. Therefore, it is respectfully submitted that in respect of these services (cleaning the bathroom after the applicant’s use, cleaning the bedroom after applicant’s use, making the bed, laundry, and coordination of clothing—all items identified on the Form 1), Maria meets the requirement set out in s. 3(7)(e)(iii)(A) of the SABS, and that the money paid to Maria post-accident for these services are properly recoverable as an Attendant Care benefit.

Likewise, with respect to the Security Guards, the evidence before the Tribunal was that at the time of the accident, Mr. and Mrs. Cariati lived in a boutique condominium building in which the security guards are always there to assist them, the implication being that the guards were responsible for assisting the residents in whichever way they reasonably required. The assistance provided by the Security Guards to Mrs. Cariati post-accident is described above. All of these services were provided by the Security Guards in the course of their employment—employment which they held prior to the accident. Therefore, it is respectfully submitted that in respect of these services (assisting with balance, obtaining groceries, assistance with transfers, prescription medication management—all items identified on the Form 1), the Security Guards meet the requirement set out in s. 3(7)(e)(iii)(A) of the SABS.

…s. 19(3)4 of the SABs does not apply in respect of these service providers, because they provided assistance in the course of the employment/occupation they held prior to the accident.

The Insurer argues in its written submissions that the phrase, “in the course of the employment, occupation or profession” in s. 19(3)(4) refers to a person who is a health care professional who we employed in that capacity immediately prior to the accident. Wawanesa cites Arbitrator Fadal in Josey v. Primmum¹⁰ who noted, “I find that from its plain meaning, [Schedule Section] 3(7)(e)(iii)(A) refers to a person who is trained in and/or working in the health care industry for remuneration”.

In its written submissions, the Insurer also points to a recent Ontario Superior Court decision:

In Shawnoo v. Certas,¹¹ the Applicant suffered a catastrophic brain injury from a December 2010 motor vehicle accident. Her mother was a certified healthcare aide who had not worked in that field since 2006. The Applicant’s roommate was a certified child and youth worker who obtained her professional certification in 2007. Both the Applicant’s mother and roommate had provided some attendant care services to the Applicant. Justice Garson of the Ontario Superior Court of Justice stated that the Applicant’s roommate did not possess the appropriate professional qualifications and the Applicant’s mother, although trained as a healthcare aide, had had not been employed in that capacity immediately prior to the accident. As a result, the attendant care was not payable. With respect to the Applicant’s mother Justice Garson stated:

Applying a broad interpretation to the legislative provisions in question and accepting that the goal of the legislation is to reduce hardship on accident victims, I am still unable to conclude that CB provided her services "in the course of the employment occupation or profession she would ordinarily have been engaged in, but for the accident"…

Prior to the accident, she was not employed for remuneration as a PSW or healthcare aide. There is no evidence she was actively seeking such employment or likely to receive an offer for such employment….

I am not satisfied that, but for the accident, CB would ordinarily have been engaged in healthcare services employment.

With respect to the Applicant’s roommate, the following was noted:

I am mindful of the fact that CP was the roommate of MS and that CP neither trained in the field of healthcare nor has any prior work history or experience in the field. Although I acknowledge that CP provided valuable and much needed attendant care services for MS, I am not satisfied that she did so in the course of the employment in which she would ordinarily have been engaged, but for the accident.

The Applicant responds in her written submissions that:

If it was the intention of the legislature to limit the application of 3(7)(e)(iii)(A) of the SABs to healthcare professionals only—they would have said so. S. 3(7)(e)(iii)(A) of the SABs merely requires that the service provider provide the services in the course of the employment, occupation or profession in which he/she would ordinarily have been engaged, but for the accident. It is respectfully submitted that on the facts of our case, each of Maria and the Security Guards satisfy the requirements set out in s. 3(7)(e)(iii)(A) of the SABs.

In my view, the Insurer is correct in its submission that the Applicant’s interpretation cannot be correct, in that it would undermine the 2010 amendments to the Schedule which created s. 3(7)(e)(iii)(A). As the Insurer notes in its written submissions:

The Ontario Government Regulatory Registry includes the following Summary of Decision¹² regarding the passage of O. Reg. 347/13:

Amendments to Ontario Regulation 34/10 (Statutory Accident Benefits Schedule -- Effective September 1, 2010) have been approved. The amendments will help reduce costs and uncertainty in the system by continuing to crack down on abuse and fraud, and clarifying benefits for auto insurance claimants.

If the Applicant were correct, it would mean that almost anyone would qualify as a professional attendant care service provider. All that would be required is for the individual to provide some form of service to individuals prior to the accident. This would undermine the purpose of the September 2010, amendments which were to reduce the costs and uncertainty in the accident benefits system.

I agree, and therefore conclude, that Maria and the condominium security guards did not provide services to the Applicant, “in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident”. Given that there is also no evidence of economic loss on the part of Maria or the security guards, I find that Mrs. Cariati has failed to satisfy the criteria contained in section 19(3) of the Schedule.

Notwithstanding that the criteria contained in Section 19(3) of the Schedule have not been met, do the provisions of Section 3(8) of the Schedule entitle the Applicant to claim attendant care benefits?

The Applicant argues in her written submissions that:

To allow the Insurer to escape payment of Attendant Care benefits on the basis that Mrs. Cariati cannot show that she meets the definition of 'incurred', would be to reward the Insurer for failing to honour their obligation of the utmost good faith to their insured. The facts of this case cry out for a finding that the Insurer unreasonably withheld/delayed payment of Attendant Care benefits. On this basis, Mrs. Cariati wholeheartedly asks for an Order pursuant to s. 3(8) of the SABS deeming the expenses to have been incurred…

I note that there are three criteria which must be met to engage the provisions of s. 3(8) of the Schedule:

a) The expense was not incurred;

b) The insurer unreasonably withheld or delayed payment of the benefit; and

c) The reason the expense was not incurred was because of the insurer’s failure or refusal to pay the benefit.

In its written submissions, the Insurer cites a recent decision regarding s. 3(8):

The deemed incurred provision will not apply unless all three of the above-noted criteria are present. In Veley v. Motor Vehicle Accident Claims Fund¹³ the Applicant was in a motor vehicle accident which resulted in him losing the use of his left arm. The Applicant argued that he should be exempt from proving that expenses for attendant care benefits were incurred as a result of the deemed incurred provision in Section 3(8) of the SABS. Arbitrator Ahlfeld noted:

I cannot agree with the Applicant's position. I find the Fund's interpretation of section 3(8) to be more persuasive. I agree with counsel for the Fund that section 3(8) of the Schedule deals with conduct of the insurer. It is not meant to waive the requirements of section 3(7) for disadvantaged individuals unless it can be demonstrated that an insurer, knowing that a person is impecunious and cannot afford the attendant care services in the Form 1, unreasonably denied or withheld the benefit. That is not the case here.

In this case, the Applicant states she incurred and paid for attendant care. This is not a case where the Applicant could credibly allege that she was unable to incur attendant care because the Insurer unreasonably withheld payment of the benefit.

The Applicant argues in her written submissions:

In Rezaiezadeh v. State Farm Mutual Automobile Insurance Co.,¹⁴ … Director’s Delegate Blackman confirmed that Veley¹⁵ was wrongly decided stating:

Rather than advancing the legislative purpose of the 2010 Schedule, Veley diluted the legislative purpose by adding a pre-condition the Legislature chose not to include and a pre-condition contrary to its intent, of the insurer’s actual knowledge of the insured person’s impecuniosity. This was an error of law.

Director’s Delegate Blackman confirms that while an applicant’s impecuniosity is a factor that may be relevant in applying s. 3(8), the application of s. 3(8) is not limited to circumstances where the applicant is impecunious and cannot afford to hire an aide because the insurer unreasonably withheld/delayed payment of the attendant care benefit...

[The] purpose of an Accident Benefits claim is to provide timely access to benefits that an insured requires following a motor vehicle accident—where an Insurer fails to do this, resort can be had to s. 3(8) of the SABS to deem the expense to have been incurred….

On the facts of our case, …the Insurer’s handling of the claim for attendant care benefits gave rise to an unreasonable delay/withholding of said benefit.

The evidence at the Hearing was that as a result of the Insurer’s unwillingness to acknowledge Mrs. Cariati’s need for attendant care assistance—even in the face of its own medical evidence, Mr. Carriati [sic] scrambled to patch together temporary makeshift assistance for his wife. This included extending the cleaning lady’s work time and further assistance of the security guards when Mr. Cariati was not home. Mrs. Cariati had to rely upon this makeshift support. If the Insurer had acknowledged the need for Attendant Care Benefits early Mrs. Caraiti [sic] would have had the option of replacing, or supplementing, this makeshift assistance.

As helpful as Maria and the Security Guards and Tony may have been there are numerous documented instances of Mrs. Cariati losing her balance and falling and, as the evidence revealed, Maria was effectively stretched thin trying to do 3 jobs in one. Mrs. Cariati respectfully submits that she did not receive the professional attendant care required by the Form 1 because of the Insurer’s unreasonable withholding of the benefit.

I agree that whether the Applicant is impecunious is an irrelevant consideration in analyzing the applicability of s. 3(8). However, I disagree with the Applicant’s interpretation of the evidence germane to the applicability of s. 3(8) proffered at the Hearing of this matter. I was not provided with evidence that the decision to hire Maria as the post-accident service provider was due to Mr. Cariati, “scrambling to patch together temporary makeshift assistance” for the Applicant. In fact, it seems more likely that one of the main factors in the decision to hire Maria post-accident was because of the Cariatis’ familiarity with her. Nor was evidence proffered that if Wawanesa had approved attendant care benefits that a healthcare professional would have been hired, thus satisfying the criteria of the Schedule s. 3(7). There was evidence presented at the Hearing that post-accident Maria was responsible for housekeeping, attendant care and caregiving to the Applicant’s son. However, Maria was not called as a witness and thus the assertion that she was, “stretched thin trying to do 3 jobs in one” for the Cariatis, is unproven. On the contrary, the testimony from the Applicant and Mr. Cariati seems to suggest that they were satisfied with the service Maria provided.

It is undisputed that a non-professional service provider was hired post-accident and provided attendant care services to the Applicant for a salary of approximately $2,200 per month. There is insufficient evidence before me to demonstrate, on a balance of probabilities, that a healthcare professional would have been hired, instead of Maria, if the Insurer had not withheld payment of attendant care benefits. Thus, I am not satisfied that the reason the attendant care expense was not “incurred” pursuant to the Schedule was because of the Insurer’s refusal to pay the benefit. Therefore, I find that the provisions of section 3(8) of the Schedule do not entitle the Applicant to claim attendant care benefits.

In the result, since the Applicant has failed to satisfy the criteria of the applicable Schedule provisions the claim for attendant care benefits is not sustainable. It is therefore unnecessary for me to consider hypothetically what quantum of attendant care benefits would have been justified as reasonable and necessary in this case. Concomitantly, it is unnecessary for me to consider the testimony of Dr. Lavan Chandran or Ms. Sophie Bielawski regarding attendant care.

In the result, the claim for attendant care benefits is dismissed.

MEDICAL BENEFITS

The Law

Section 15(1) of the Schedule provides as follows:

Medical benefits

15. (1) …medical benefits shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for,

(a) medical, surgical, dental, optometric, hospital, nursing, ambulance, audiometric and speech-language pathology services;

(b) chiropractic, psychological, occupational therapy and physiotherapy services;…

As well, section 16(1) of the Schedule provides as follows:

Rehabilitation benefits

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

(3) The activities and measures referred to in subsection (1) are,

(a) life skills training;

(b) family counselling;

(c) social rehabilitation counselling;…

Analysis

Rehabilitative Coaching

The Insurer argues in its written submissions, “that there was no evidence presented to explain why the Applicant would require ‘rehab coaching’”. I disagree. In her written submissions the Applicant, in my view, makes a substantial case for the reasonableness and necessity of this benefit:

One of the treatment plans was for rehabilitation coaching at a cost of $ 5,980.75. The OCF-18 is dated September 9^th, 2014. In describing the goals of the treatment plan, the OCF-18 notes that treatment will include monitoring Mrs. Cariati’s medical status and recovery as it relates to her injuries, and liaise with her medical/rehabilitation team as needed; accompany Mrs. Cariati to her upcoming medical appointments and liaise with team members including the adjuster, treating physician, therapists and family members, as needed.

Mrs. Cariati testified that she found working with the Rehabilitation Coach helpful. Mr. Cariati testified that when the Rehabilitation Coach was working with Mrs. Cariati, he too found this to be of tremendous help in regard to his role in coordinating Mrs. Cariati’s medical appointments. Dr. Chandra [sic] [the Applicant’s general practitioner] also testified that this service would be extremely helpful to Mrs. Cariati. The provision of these services was also recommended by the Occupational Therapist, Mrs. Sophi [sic] Bielawski.

From a review of the work that the Rehabilitation Coach did while on Mrs. Cariati’s file… it is respectfully submitted that all of her services would assist in Mrs. Cariati’s recovery, treatment, and reintegration into the community.

I also take into consideration the fact that Wawanesa’s own psychiatrist, Dr. Zielinsky, found that, as a result of the accident, Mrs. Cariati exhibited a moderate impairment in her ability to perform her activities of daily living.

The claim for further rehabilitative coaching is therefore allowed.

Assistive Devices

Mrs. Cariati claims the cost of two sets of assistive devices, but allows that, because of duplication, only one claim can succeed.

The Applicant argues in her written submissions that, “Given the significant functional impairments demonstrated in the oral and documentary evidence, Mrs. Cariati respectfully submits that the proposed assistive devices are reasonable and necessary”. However, I note that during the course of her testimony the Applicant stated that she did not wish to use assistive devices because it made her “look old”. I am therefore left with a strong doubt that the requested devices, if acquired, would in fact be utilized by the Applicant.

The two claims for assistive devices are therefore denied.

Occupational Therapy

In her written submissions the Applicant, in my view, also makes a substantial case for the reasonableness and necessity of this benefit:

The second treatment plan dated January 19^th, 2015 is for Occupational Therapy Treatment in the amount of $ 3,961.66. The treatment goals identified in the OCF-18 aimed to improve Mrs. Cariati’s functional deficits in order to assist in her re-engaging in her pre-accident function. The OT focus was to improve Mrs. Cariati’s skills and strategies with respect to her emotional well-being and ability to tolerate pain more effectively with an aim to promote independence.

The Insurer denied this OCF-18 by letter dated February 24^th, 2015, in reliance upon the Insurer’s OT Paper Review dated February 13^th, 2015. The Insurer’s OT opined that based upon her review of the medical file, from a physical perspective, Mrs. Cariati was found to have no objective evidence to suggest that she was suffering from a musculoskeletal or neurological impairment and that she was encouraged to resume all of her pre-accident activities of daily living.

Respectfully, the conclusion that Mrs. Cariati suffered no physical impairment is not supported by the overwhelming medical evidence called at the Hearing, and filed into evidence; Further, this conclusion is not supported by the Insurer’s own medical evidence including the report of Dr. Devlin [physiatrist] who confirmed on physical testing that Mrs. Cariati not only had deficits in her strength and range of motion, but that she had a loss of sensation in her lower extremities, which he confirmed on objective testing.

I also note that the Applicant’s general practitioner testified that continued occupational therapy would benefit Mrs. Cariati. In sum, I am satisfied that the Applicant has met her onus to demonstrate that the cost of occupational therapy is both reasonable and necessary.

The claim for occupational therapy is therefore allowed.

Physiotherapy (Mobilization)

In her written submissions, the Applicant again makes a substantial case for the reasonableness and necessity of this benefit:

…in dispute is payment of the OCF-18 in the amount of $1,197.12 submitted by Harbourfront Medicine Cabinet for mobilization services. Mrs. Cariati testified that when she attended for physiotherapy she felt that this relieved her symptoms. Given the physical and emotional impairments sustained by Mrs. Cariati as a result of this motor vehicle accident, it is respectfully submitted that the proposed treatment would be beneficial in terms of pain management…

I also considered the evidence of the Applicant’s impairment, as noted above, in the discussion of rehabilitative coaching and occupational therapy. In the result, I am again satisfied that the Applicant has met her onus to demonstrate that physiotherapy is both reasonable and necessary.

The claim for physiotherapy (mobilization) is therefore allowed.

COST OF EXAMINATIONS

The Law

Section 25(1) of the Schedule provides as follows:

Cost of examinations

25. (1) The insurer shall pay the following expenses incurred by or on behalf of an insured person:

26. Reasonable fees charged for preparing a disability certificate if required under section 21, 36 or 37, including any assessment or examination necessary for that purpose.

27. Fees charged in accordance with the Minor Injury Guideline by a person authorized by the Guideline for preparing a treatment confirmation form and for conducting an assessment or examination and preparing a report as authorized by the Guideline….

28. Reasonable fees charged by a health practitioner for reviewing and approving a treatment and assessment plan under section 38, including any assessment or examination necessary for that purpose, if any one or more of the goods, services, assessments or examinations described in the treatment and assessment plan have been:…

iii. determined to be payable by the insurer on the resolution of a dispute described in subsection 280 (1) of the Act.

Analysis

Attendant Care Assessment and Follow Up Attendant Care Assessment

As explained above, the Applicant has not met the threshold requirements of the Schedule, so as to entitle her to make a claim for attendant care benefits. Attendant care assessments would therefore be pointless.

The claims for a further attendant care assessment and a follow up attendant care assessment are therefore denied.

Nutritional Assessment

Here again Wawanesa argues in its written submissions that there is no evidence that a nutritional assessment is a reasonable and necessary expense in the Applicant’s circumstances. Again, I must disagree. Mrs. Cariati notes in her written submissions:

The final treatment plan dated May 29th, 2015, put forth by Tru-Path was for funding of a Nutritional Assessment at a cost of $ 1,615.00.

During the course of the hearing, there was extensive evidence that Mrs. Cariati was struggling to keep her food down and had lost 25 to 30 pounds following the accident. This evidence came from Mrs. Cariati, as well as the family physician, Dr. Chandran, whose clinical notes and records make extensive references to Mrs. Cariati having lost significant weight following the accident.

I concur with the Applicant’s recital of the evidence and I am satisfied that the Applicant has met her onus to demonstrate that a nutritional assessment is both reasonable and necessary.

The claim for a nutritional assessment is therefore allowed.

Speech Language Assessment

The Applicant argues in her written submissions:

A treatment plan was submitted by Michelle Cohen & Associates dated August 29^th, 2015, for a Speech Language Assessment at a cost of $ 2,200.00. At the Hearing, there was evidence that following the accident, Mrs. Cariati has had difficulty putting sentences together and that she often speaks ‘gibberish’. Occupational Therapist Lisa Duffus-Cambell [sic] recommended that a Speech Language Assessment be performed regarding the possibility of a swallowing disorder. Given these documented impairments and recommendations, Mrs. Cariati respectfully submits that a Speech Language Assessment is reasonable and necessary. Mrs. Cariati agrees that the cost of the assessment should be limited to $ 2,000.00, pursuant to s. 25(5)(a) of the SABs.

However, I note that Dr. Chandran in cross-examination stated that the Applicant has no speech or language issues. Given the conflict between Ms. Duffus-Campbell’s assessment and that of Dr. Chandran, I am not satisfied that the Applicant has met her onus to demonstrate that a speech language assessment is both reasonable and necessary.

The claim for a speech language assessment is therefore denied.

SPECIAL AWARD

The Law

Section 282(10) of the applicable Ontario Insurance Act¹⁶ provides the statutory basis for me to make a special award:

If the arbitrator finds that an insurer has unreasonably withheld or delayed payments, the arbitrator, in addition to awarding the benefits and interest to which an insured person is entitled under the Statutory Accident Benefits Schedule, shall award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.

Entitlement to a Special Award is therefore contingent on the Insurer’s behaviour having been “unreasonable”. In Erickson and The Guarantee,¹⁷ the Oxford English Dictionary definition of “unreasonable” was relied on. The arbitrator found that “unreasonable” required, “1. Going beyond the limits of what is reasonable or equitable; 2. Not guided by or listening to reason”.¹⁸ FSCO jurisprudence also establishes that an insurer’s actions could be determined to have been unreasonable without having been egregious or performed in bad faith.¹⁹ In Plowright and Wellington²⁰ Arbitrator Palmer described unreasonable behaviour in the withholding of payments as, “behaviour which was excessive, imprudent, stubborn, inflexible, unyielding or immoderate”.

It is not appropriate to award a special award in all cases. As noted in Aviva Canada Inc. v. Peters²¹ “an insurer is not to be held to a standard of perfection in responding to a claim, that an insurer's claims decision is to be judged on the basis of the information available at the time, and not from hindsight, and that an insurer is not to be found unreasonable just because an Arbitrator concludes its claims decision was wrong.”²² Similarly, Arbitrator Feldman noted in Melchiorre and Wawanesa Mutual Insurance Company²³ that a special award will not be awarded in every case. Arbitrator Feldman stated:

A special award is not granted merely because the insurer incorrectly interpreted or failed to comply with a provision of the Schedule; if that were the case, a special award would be granted to every successful applicant. An insurer can come to the wrong conclusion without having acted unreasonably. To merit the granting of a special award, there must be something more - unreasonable conduct on the part of the insurer.²⁴

Analysis

In this case the Applicant has only been successful on four relatively minor claims. The vast bulk of the Applicant’s claims are denied. The Applicant has the onus of demonstrating that a special award is justified. Mrs. Cariati has failed to provide sufficient evidence, on a balance of probabilities, of unreasonable behaviour on the part of Wawanesa. Even though I have disagreed with the Insurer regarding the three medical benefits and two examination claims, in my view per Peters²⁵ and Melchiorre,²⁶ the Insurer came to the wrong conclusions without acting unreasonably.

The claim for a special award is therefore denied.

EXPENSES

Expenses shall be payable. If the parties cannot come to an agreement on the matter of expenses, either party may request in writing an appointment before an ADR Chambers arbitrator to determine expenses, provided the request is made within 30 days from the date of this decision. Pursuant to the Arbitration Order accompanying this decision, ADR Chambers remains seized regarding the quantum of the expenses payable.

October 30, 2017

Alan G. Smith Arbitrator

Date

Financial Services Commission of Ontario

Neutral Citation: 2017 ONFSCDRS 281

FSCO A15-005769

BETWEEN:

MIHAELA CARIATI 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. Mrs. Cariati is not entitled to receive a weekly income replacement benefit from one week post-accident to date and ongoing.

2. Mrs. Cariati is not entitled to receive attendant care benefits from March 5, 2014, to March 5, 2016.

3. Mrs. Cariati is entitled to medical benefits set out below:

   a) $5,980.75 for rehabilitative coaching, service provided by Tru-Path Occupational Therapy Services.

   b) $3,961.66 for occupational therapy treatment, service provided by Tru-Path Occupational Therapy Services.

   c) $1,197.12 for physiotherapy (mobilization), service provided by Harbourfront Medicine Cabinet.

4. Mrs. Cariati is not entitled to medical benefits set out below:

   a) $1,129.30 for assistive devices, service provided by Tru-Path Occupational Therapy Services.

   b) $703.41 for assistive devices, service provided by Ms. Sophie Bielawski, Occupational Therapist.

5. Mrs. Cariati is entitled to the cost of an examination as follows:

   a) $1,615.00 for a nutritional assessment service provided by Tru-Path Occupational Therapy Services.

6. Mrs. Cariati is not entitled to the cost of examinations as follows:

   a) $1,510.61 for an attendant care assessment service provided by Ms. Sophie Bielawski, Occupational Therapist.

   b) $1,522.63 for a follow up attendant care assessment service provided by Ms. Sophie Bielawski, Occupational Therapist.

   c) $2,000.00 for a speech language assessment, service provided by Michelle Cohen & Associates.

7. Mrs. Cariati is entitled to interest for the overdue payment of benefits. If the parties cannot come to an agreement on the quantum of the amount owing pursuant to the directions in my decision, they may deliver written submissions to ADR Chambers of no more than 5 pages each, the Applicant’s submissions to be delivered within 30 days of the date of this decision and the respondent’s submissions to be delivered within 14 days thereafter.

8. Expenses shall be payable. In the event that the parties cannot come to an agreement on the matter of expenses, either party may request in writing an appointment with an ADR Chambers arbitrator to determine expenses, provided the request is made within 30 days from the date the decision on all other issues in dispute was issued.

October 30, 2017

Alan G. Smith Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule - Effective September 1, 2010, Ontario Regulation 34/10, as amended.
2. 21997 CanLII 6320 (ON CA), [1997] 36 O.R. (3d) 616.
3. 3[2000] O.J. 928.
4. 4R.S.C., 1985, c. 1.
5. 5FSCO Appeal P16-00022, August 18, 2017.
6. 6[2000] O.J. No. 2995.
7. 7[2000] O.F.C.S.C. ID. No. 177.
8. 8Ibid.
9. 9Supra, Footnote 6.
10. 10[2014] O.F.S.C. D. No. 241.
11. 11[2014] O.J. 6213, per Garson J.
12. 12Ontario Government Regulatory Registry regarding Reg. 347/13.
13. 13[2014] O.F.S.C.D. No. 89.
14. 142016 Carswell Ont 3304.
15. 15Supra, Footnote 13.
16. 16R.S.O. 1990, c. I.8, as amended.
17. 17FSCO Decision on Special Award, A-000560, July 16, 1992, at p. 7.
18. 18Ibid. at p. 8.
19. 19Ibid. at p. 6.
20. 20FSCO A-003985, October 29, 1993, at p. 17.
21. 21[2007] O.F.S.C.D. No. 53.
22. 22Ibid. at para. 59.
23. 23[2006] O.F.S.C.D. No. 200.
24. 24Ibid. at para. 67.
25. 25Supra, Footnote 22.
26. 26Supra, Footnote 21.