Karine Paradis-Blais v. Aviva Canada Inc., 2017 ONFSCDRS 294

minicounsel

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2017 ONFSCDRS 294

FSCO A15-003524

BETWEEN:

KARINE PARADIS-BLAIS

Applicant

and

AVIVA CANADA INC.

Insurer

REASONS FOR DECISION

Before:

Arbitrator Marshall Schnapp

Heard:

In Ottawa on July 19, 20, 21, 27, 28 and by written submissions completed on August 10, 2017

Appearances:

Ms. Karine Paradis-Blais participated

Mr. Derek Nicholson for Ms. Karine Paradis-Blais

Mr. James M. Brown and Mr. Alex Robineau for Aviva Canada Inc.

Issues:

The Applicant, Ms. Paradis-Blais, was injured in a motor vehicle accident on August 19, 2009 and sought accident benefits from Aviva Canada Inc. (“Aviva”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms. Paradis-Blais, 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

Is Ms. Paradis-Blais entitled to an income replacement benefit of $400.00 per week from August 26, 2009 to the present and ongoing?
Is Ms. Paradis-Blais entitled to the following medical benefits:

Treatment Plan dated March 26, 2013 in the amount of $1,330.64;
Treatment Plan dated October 17, 2013 in the amount of $2,467.24;
Treatment Plan dated November 6, 2013 in the amount of $2,798.54;
Treatment Plan dated November 11, 2013 in the amount of $950.30;
Treatment Plan dated February 21, 2014 in the amount of $8,173.92;
Treatment Plan dated July 15, 2014 in the amount of $10,152.24;
Treatment Plan dated October 17, 2014 in the amount of $11,602.56;
Treatment Plan dated February 26, 2015 in the amount of $7,251.60;
Treatment Plan dated March 3, 2015 in the amount of $7,899.60;
Treatment Plan dated June 16, 2015 in the amount of $13,690.56;
Treatment Plan dated April 9, 2015 in the amount of $30,000.00 (USD);
Treatment Plan dated April 9, 2015 in the amount of $22,000.00 (USD);
Treatment Plan dated July 21, 2015 in the amount of $10,051.26;
Treatment Plan dated November 13, 2015 in the amount of $11,468.80; and
Treatment Plan dated September 21, 2015 in the amount of $568.98?

Is Aviva liable to pay a special award because it unreasonably withheld or delayed payments to Ms. Paradis-Blais?
Is Ms. Paradis-Blais entitled to interest for the overdue payment of benefits?
Is either party entitled to its expenses of the Hearing?

Result:

Ms. Paradis-Blais is entitled to an income replacement benefit of $400.00 per week from March 2, 2014 to the present and ongoing.
Ms. Paradis-Blais is entitled to the following medical benefits:

Treatment Plan dated March 26, 2013 in the amount of $1,330.64;
Treatment Plan dated October 17, 2013 in the amount of $2,467.24;
Treatment Plan dated November 6, 2013 in the amount of $2,798.54;
Treatment Plan dated November 11, 2013 in the amount of $950.30;
Treatment Plan dated July 15, 2014 in the amount of $10,152.24;
Treatment Plan dated February 21, 2014 in the amount of $8,173.92;
Treatment Plan dated October 17, 2014 in the amount of $11,602.56;
Treatment Plan dated February 26, 2015 in the amount of $7,251.60;
Treatment Plan dated June 16, 2015 in the amount of $13,690.56;
Treatment Plan dated September 21, 2015 in the amount of $568.98; and
Treatment Plan dated November 13, 2015 in the amount of $11,468.80.

Ms. Paradis-Blais is not entitled to the following medical benefits:

Treatment Plan dated March 3, 2015 in the amount of $7,899.60;
Treatment Plan dated April 9, 2015 in the amount of $30,000.00 (USD);
Treatment Plan dated April 9, 2015 in the amount of $22,000.00 (USD); and
Treatment Plan dated July 21, 2015 in the amount of $10,051.26.

Aviva is not liable to pay a special award because it unreasonably delayed payments to Ms. Paradis-Blais.
Ms. Paradis-Blais is entitled to interest for the overdue payment of benefits which I have found are payable.
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:

Background

The Applicant, Karine Paradis-Blais (hereinafter the “Applicant”), was involved in a motor vehicle accident (“MVA”) on August 19, 2009. At the time of the MVA the Applicant was driving to work, and her vehicle was at a stop waiting to make a right-hand turn. She recalls feeling her car being lifted up and pushed forward. As a result of the impact of the MVA, she was projected forward and then felt the seat belt pull her back. She recalled a “crushing pull in lower back, felt sudden pain and neck pain.” The only necessary repair to the vehicle was the replacement of the rear bumper cover at a cost of $763.02.²

The Applicant did not attend a hospital or seek medical attention immediately after the MVA. She testified that she was on her way to write an exam required for her job and did not want to miss it. She did attend an Urgent Care facility after her exam. She was told she sustained soft tissue injuries and was prescribed anti-inflammatories. Subsequent to the MVA her condition eventually deteriorated to the point where she two required surgeries: a coccygectomy and a sacroiliac joint fusion.

Causation/Credibility

The dispute between the Applicant and the Insurer in this matter boils down to whether or not the MVA on August 19, 2009 is responsible for the Applicant’s impairments and disabilities. The key issues in dispute between the parties are: 1) causation and 2) credibility. As well, there are some procedural issues with respect to several of the treatment plans in dispute.

According to the Applicant’s testimony she had a number of incidents prior to the 2009 MVA that may be considered as pre-disposing her to back injuries. When she was 12 years old and cross-country skiing, she fell onto the left side of her hip. She did not go to the hospital but recalls it being sore. The second fall was when she was 15 years old. She was walking down a set of stairs with her dinner and she slipped and fell onto her right side; she then slipped down a few stairs on the right side of her body. She does not recall being injured due to this fall. She also broke her wrist in 2000 playing basketball. The next incident she recalls happened a few years later while she was lifeguarding. She strained her back while trying to pull a 362 pound man out of the water - the Applicant weighed 110 pounds at the time. She returned to work approximately three days after the incident. In 2006, while attending paramedic school, she strained her sacroiliac (“SI”) joint on the left side back while lifting a patient. The Applicant was also involved in an MVA in 2007. She was a passenger when the vehicle was hit on the rear-side. She sustained a broken wrist and contusions. She notes there was a mention of a loss of consciousness, but she testified she recalled the incident and was intoxicated at the time – she and others had been celebrating the end of school. She advised that within one week of the 2007 MVA she started intensive training for her new job; while she was sore she was functional and able to do everything.

With respect to the MVA as noted above, the Applicant did experience pain and discomfort immediately after the MVA. She did not attend a Hospital as she was concerned about missing her exam which was necessary for her employment. The Applicant testified she attended an Urgent Care centre in Orleans after her exam. She recalls the doctor advising her that he thought she sustained Whiplash Associated Disorder (“WAD 2”) / soft tissue injuries. No x-rays were taken and she was prescribed anti-inflammatory medication. She testified she was pushing through as she did not want to lose her job and she was able to write all of her exams. She then testified that when she woke up on her first day off, she had a flare up. She had gained 20 pounds around her pelvic area all the way up to her arm pits due to swelling. She went back to Urgent Care and saw the same doctor who referred her to the Ottawa Hospital, where they performed x-rays but they indicated there was too much swelling so they prescribed additional anti-inflammatory medication.

The Applicant advised that as a result of the MVA, she attended physiotherapy and received Prolotherapy - injections to her ligaments and tendons in her back, buttocks and left side of hip. She also saw an Osteopath.

It was the Applicant’s evidence that after the 2009 MVA, she could never go back to sports and had to stop attending the gym for a period of time. She testified that when she would start a new job she would often have a flare up within a few weeks and have to take time off from work. In October 2010 she started a catering job and within two weeks she was on leave for a week and then back on crutches. She further testified that the muscle relaxants and anti-inflammatory medication had caused her significant stomach issues and she was told not to take them unless she had a “huge flare-up”.

The Applicant further testified that after she slipped on ice in 2013, she was unable to work for a week. Eventually she had to stop working all together because her back condition had deteriorated because she was no longer able to take medication. According to the Applicant, by the end of 2013 to early 2014, her pain increased and spread from her back to her legs and it was difficult to bear any weight. The Applicant further testified that she felt a constant crushing feeling which resulted in her being confined to her bed. She could no longer drive, feed herself or bathe and had to rely on her husband for all of her caregiving. The Applicant ended up being hospitalized in January of 2014 as she could no longer walk. She was then referred to an Orthopedic Surgeon but was waitlisted for 12 to 24 months.

At this point the Applicant did some online research and came across Dr. Katzman, an Orthopaedic Surgeon, who practices in Florida. After sending him her MRI and having a phone consultation, the doctor advised her that she had a malunion in the coccyx region and he suggested surgery. He advised that the full extent of her issues may not be known until after the surgery and she may require another surgery. The surgery took place on July 31, 2014 in Florida and she returned to Ottawa on August 2, 2014. The Applicant’s pain on the side of her coccyx came back and while she was able to sit, she could not stand. She underwent an MRI in Quebec as she would have had to wait six months for one in Ontario. She sent the MRI results to Dr. Katzman, who advised that while he had hoped the surgery would help her SI joint heal, the damages were further than expected so he thought she required another surgery. She recalls Dr. Katzman discussing other options, but according to the Applicant she had already tried many of them and they had not worked. The Applicant stated she could not take certain medications and felt there were no other possible options so she opted for and underwent the second surgery.

According to the Applicant, her condition has improved drastically since the surgeries. She was able to sit and walk and not use a cane on good days. She can also bathe on her own and make her own meals. Her endurance is improving and she continues to improve with therapy.

With respect to her income loss due to the MVA, the Applicant provided a report dated September 22, 2015³ outlining her income loss. According to the report, her income replacement benefits (“IRBs”) payable through December 31, 2014 total $70,208.30. This amount was based on a weekly benefit of $400.00.

Cross-examination of the Applicant

A number of important admissions and issues were covered during cross-examination. The Applicant confirmed that during her Examination Under Oath (“EUO”) she answered questions put to her truthfully and to the best of her knowledge. She advised she only sent Dr. Katzman her MRIs to review. She did not recall answering at the EUO that she only sent him that documentation because she did not want him clouded or influenced. She also testified that her doctor provided Dr. Katzman with her file as well as test results before she could undergo the surgery. She confirmed that she signed both treatment plans for the surgeries on May 8, 2015 after they had both been completed. The Applicant also confirmed that a photograph of her and her husband dog-sledding on February 12, 2012 which was taken from a video created by her and her husband was accurate. The Applicant advised she was able to participate in dog-sledding as she was on medication. The Applicant confirmed when she applied for Employment Insurance (“EI”) benefits in December of 2009; the basis of her application was she was not able to work nights. She also noted that she requested an amendment be made to add the MVA. She requested this amendment around February 2016 and she advised EI it needed to be corrected because she was going to a mediation. The Applicant also testified that her EI stopped in April 2010 and at that time she was available and capable of work, as long as it was not overnight shifts, as the doctors told her she required sleep to heal. She confirmed that the notes of the Physiotherapist, Mr. Maxwell, document that she slipped in May and June of 2010 but she did not recall any slips. The Applicant was also questioned about an incident on December 29, 2010. She was asked if she slipped when out walking her dog. She answered that she slipped but did not fall – her foot went through snow, and she crumpled unto herself, she fell into a low ball onto herself and made contact with the top of snow.

At first she did not recall but then she did recall being involved in another MVA on April 23, 2011, at which time according to the Applicant, another vehicle came into contact with her car. She was sore but functional after it. She specifically did not recall an increase in her back pain following this MVA and she did not report it. She testified that she left her employment in August 2011 because of a shortage of work and not due to her injuries. She confirmed that as of October 4, 2011, she applied for regular EI benefits, looking for work and was ready, willing and capable of working immediately.

The Applicant also confirmed that during the EUO she testified she was 90% recovered and she agreed with that statement. She explained that she was doing physiotherapy, going to the gym and obtaining injections; she felt her treatments and medication were maintaining her condition.

The Applicant also confirmed she sent an email on January 28, 2013⁴ to her work supervisor. The email read as follows:

Hello Sylvie:

I am writing this email because I am not doing very well.

In addition to having a bad cold, I injured my back slipping on ice and falling yesterday so that I had to go get a CT scan for it at Monfort.

I don’t know what the procedure is but I need to take a few days off possibly the rest of the week.

I am really sorry for the inconvenience that this can cause at work.

I will wait to hear from you.

Thank you.

Karine Paradis-Blais

The Applicant explained that in her email she did not use the proper term, as she did not fall even though she wrote in the email that she had fallen; the email should have said that she had fell through the snow, but that she did not fall down. She went on to testify that when she then saw Dr. Boyd, she told him she was having pain in her lower back, left buttock, and left iliac crest. The pain was constant and worse when standing or walking. She told him about the MVA and said she was experiencing a relapse from the MVA. When asked by counsel regarding what she said above that she told her work supervisor she sustained injuries due to a fall, the Applicant advised yes, and that it did not take much after the MVA for her to have flare-ups.

The Applicant also confirmed that she saw Marie-Josee Caron-Smith, an Occupational Health and Physical Therapist at her work, who prepared a consultation note dated July 29, 2013.⁵ The Applicant denied telling her she had a fall on ice in January 2013 and the Applicant believes Ms. Caron-Smith noted the fall after she read the email the Applicant sent to her supervisor.

Counsel for Aviva made reference to the fact that during the Applicant’s EUO she denied having a fall and her foot going through the snow in January 2013 and she stated that her flare-up occurred when she was sitting on the couch. The Applicant agreed with what she stated at the EUO. She felt a pull and a strain when her foot went through the snow but no pain; she only felt the pain when she was sitting on her couch. Counsel also noted that when the Applicant saw Nicole Terrier, another Physiotherapist on May 8, 2013, the Applicant told her she had a sudden flare-up and no history of trauma.⁶ The Applicant said that was correct as she did not think her foot going through the snow was a fall or should be described as a trauma. To her a trauma involves being hit, a crash or a fall – you need some trauma to the body itself.

Counsel also referred the Applicant to a report prepared by a Dr. Thulien dated December 13, 2013, which noted that in January of 2013, she was 85% better when she was sitting on the couch and felt pain when she got up and was then “locked” for two weeks. She required treatment shortly thereafter.⁷ The Applicant confirmed the above was correct.

During her re-examination, the Applicant confirmed before January 2013 she believed she was 90% or 85% improved and that she never exaggerated her complaints to secure an advantage. She also testified that when she felt 90% or 85% improved she was receiving therapy and taking medication, and when she could no longer afford them her condition went downhill.

At one point during her cross-examination, the Applicant testified that she does not recall all of the slips noted in the medical records. She does recall her biggest flare-ups that prevented her from working and prevented her from living her life.

Dr. Katzman

Dr. Katzman, the surgeon who performed two surgeries on the Applicant, also provided testimony during the Hearing by Skype. He is an Orthopaedic Surgeon who practices in Florida and has been doing so for the past 20 years. He has an expertise in coccyx problems. He testified that the Applicant presented with complaints of pain in her coccyx and pelvic area. The doctor went on to testify that:

When she presented to the office, she had coccyx pain and she had a mobile coccyx segment, which means that at some point in time in her life it became loose or injured, and often the simple removal of that cures the condition, which otherwise is chronic…⁸

He went on to testify that the Applicant advised she has had these issues since the MVA. Dr. Katzman believed the 2009 MVA either caused the problem or aggravated her coccyx as per the history provided by the Applicant. He also noted the cause of her issues were irrelevant to him as his goal was to make the Applicant feel better and improve.

He completed two surgeries; the first on her coccyx and the second on her SI joint. He completed treatment plans and testified that he felt both surgeries were reasonable and necessary to resolve the pain issues from the MVA.

During his cross-examination, Dr. Katzman testified that the Applicant “had a coccyx problem and she had an SI problem. That is, in my opinion, not disputable. The question is: Where did it come from.”⁹

Stephane Maxwell, Physiotherapist

The Applicant’s Physiotherapist, Mr. Maxwell, also testified via Skype at the Hearing. He has been working as a Physiotherapist since 1999. He first started seeing the Applicant in 2005. He testified that on August 20, 2009, a day after the subject MVA, his student saw her. At that time the Applicant complained of issues with her neck, T-Spine and low back. The following week she was back for further assessment and she had complaints of left hip pain and left low back pain. Mr. Maxwell testified that he then submitted a treatment plan for 25 treatments to run until December 2009 which was approved by the Insurer. After that treatment plan was completed, another treatment plan dated December 21, 2009 was submitted for 24 treatments to run until July 2010. This treatment plan was approved. Subsequent to that treatment plan, there were approximately 10 more treatment plans submitted, providing between 12 and 24 treatments each plan and running until early 2014. It should be noted that the last treatment plan dated November 6, 2013, was only partially approved in the amount of $2,100 out of $4,900.

According to Mr. Maxwell, the Applicant has had a couple of flare-ups each year. He recalled a flare-up caused by her moving oddly on a couch and another time when she stepped out of a vehicle. Her therapy was ongoing and was occurring prior to the couch flare-up incident.

He testified that the majority of her flare-ups resulted in pain in her low back, SI area, down the leg and resulted in limited walking and tolerance issues with sitting. He also indicated that his notes showed she had another flare-up in February of 2013. Mr. Maxwell confirmed that after the November 2013 partial denial all of the subsequent treatment plans submitted were denied. He believes all the treatment plans were reasonable and necessary. He recalls around this time the Applicant was bed-ridden and homebound. He wanted to get her mobile so she could attend the clinic. When asked if there was a period she deteriorated after the August 2009 accident, he responded as follows. She had flare-ups but would improve. The main flare-up was after she had stomach surgery in November 2012 – she had little activity after that and she was told to stop taking her medication because of her stomach issues. His notes indicated that in January 2013 she had a severe flare-up and she had to start using crutches and her functioning and condition declined. Mr. Maxwell believes it was because of her discontinuing her medication and a reduction in physiotherapy treatment which contributed to her instability and her condition got worse.

Mr. Maxwell does not agree with the Physiatrist for the Insurer, Dr. Oshidari, as he believes the Applicant was improving with physiotherapy treatment and medication. As well, Mr. Maxwell noted an improvement after the first surgery and he believes the surgeries absolutely assisted the Applicant and improved her condition.

When cross-examined, Mr. Maxwell reviewed his notes and could not find any records of the Applicant’s flare-up from getting off the couch. He also confirmed that his assessment dated September 9, 2009¹⁰ did not include a diagnosis of any injury to her coccyx or sacroiliac joints. During the cross-examination, Mr. Maxwell further reviewed his chart which noted multiple slips and incidents the Applicant complained of which aggravated her condition. When asked about the Applicant’s email to her hospital supervisor dated January 28, 2013, which noted an injury because of a slip and fall, he advised he did not have this recorded in his notes and he had previous slip and falls recorded. He went on to testify that it was his understanding that she did not fall but just slipped. He noted that if she had fallen, he was not aware because she did not tell him and he said she was very good at telling him everything. His notes went on in the winter and spring of 2013 to record limitations around work due to her condition. She was to be reassessed by him in June 21, 2013 but by that time he stopped treating her as she was obtaining treatment from her employer, the Monfort hospital. He also testified about his progress report dated January 15, 2014.¹¹ The report noted that by this time the Applicant’s pelvis and sacrum had become very unstable – they had become aggravated in July 2013. He also noted that her coccyx had shifted to the right and he queried if she had a bone or joint disorder. I note that in his testimony he advised that he thought in 2009 that the Applicant may have a disorder with her coccyx.

During his re-examination, Mr. Maxwell advised that after the MVA her function got worse and then slowly got better. He would treat events post-MVA but the Applicant did not completely recover. She would still have complaints and issues related to the same area from the MVA. He also noted that his progress note dated January 15, 2014 suggests an aggravation in the summer of 2013 and not January 2013. It was his opinion that no other incident, besides the MVA, including any slip and falls, were the cause of her problems. Her back had not fully recovered from the MVA which caused instability in supporting her body over time. He also testified that it makes sense that she described different areas where the pain was because when she experiences pain in one area this can irritate other areas and compensation takes effect.

Joshua Blais (Applicant’s Husband)

Joshua Blais, the Applicant’s husband, also testified. His testimony was very consistent with the Applicant’s testimony. He testified that they lead a very active life in 2008, which included roller blading, basketball, baseball, Frisbee, long walks and trekking through the forest. When they moved in together in January 2009 they shared the housework. According to Mr. Blais everything was going well until the Applicant was involved in the 2009 MVA. He testified on their wedding day, December 11, 2009, the Applicant was in a lot pain and experiencing a lot of swelling to the point that she was scared she would not be able to walk down the aisle. He testified that after the MVA the Applicant was always in a certain amount of pain and discomfort and it never completely went away. Mr. Blais also testified that after the Insurer stopped paying for treatment, physiotherapy specifically, her condition regressed until she started receiving treatment again – but her pain increased, and she had trouble functioning physically. When asked about her flare-ups, he testified he did not know what triggered them but recalled some mornings she would wake up in worse pain than she was before.

With respect to the incident in January 2013, he recalls the Applicant told him on the same day that her feet fell through the crust of the snow and caused a flare-up and she would most likely go for physiotherapy.

Overall, he recalled that after the 2009 accident, while they could participate in some activities, they had to plan around her flare-ups, until her condition deteriorated to the point that she was bed-ridden and required two surgeries.

When cross-examined, he confirmed in a copy of a Go-fund me page he created to help raise money for the Applicant’s surgery in Florida, he wrote that the first few years following the 2009 MVA, she was almost back to normal, getting better, and able to work. But he then testified that all these things changed in the summer of 2013. In his re-examination, Mr. Blais testified there was a flare-up and her pain continued to increase. He stated it was his belief that nothing other than injury she had from the 2009 MVA made things worse.

Jennifer Giroux and Lea Lindsay (Applicant’s friends)

The Applicant also had two friends of hers provide testimony: Jennifer Giroux and Lea Lindsay.

Both witnesses’ testimony confirmed that prior to the 2009 MVA the Applicant lead a very active lifestyle that involved a lot of physical activities. They both confirmed that since the MVA she no longer participated in sports and is limited in her physical activity. They also testified that the Applicant went into a depression and her mood became more negative since the MVA. When cross-examined both witnesses also confirmed that their first-hand knowledge and most of their in-person interactions they had with the Applicant were only up until 2010. Neither of them had direct knowledge that she was 85% to 90% improved in the summer of 2012. Ms. Lindsay recalled that when she tried to arrange a visit with the Applicant over Christmas in 2013, the Applicant could not get out of bed that day.

Dr. Oshidari (Witness for the Insurer)

The Insurer called Dr. Oshidari, a physiatrist, to testify as he prepared a report and multiple addendums to his report on the Applicant. As he was testifying to his document review in preparation of his report, he noted that the Whole Body Scan conducted on the Applicant noted something with her SI joints.¹² The doctor also testified that he was unable to come to a conclusion in his report dated May 23, 2014¹³ without specific investigations to be completed, including a dynamic x-ray, which would be able to show if there was any sublimation. Dr. Oshidari was also asked to comment on the treatment plan dated February 21, 2014 and he advised he required the dynamic x-ray to come to a conclusion and recommendation. He also advised that he saw no abnormality to her neck and back so there was no need for further treatment. He felt that the MVA may not be responsible for her complaints as it was difficult to see how her coccyx pain started. He also testified to his findings in his Report dated May 10, 2016,¹⁴ which concluded that the Applicant’s coccyx pain was not related to the MVA. He thought her fall in 2013 was a contributing factor to her coccyx pain because all her symptoms and investigations came after 2013 and there were no investigations in 2009 and 2010, and if symptoms started 4 or 5 years later it is not MVA-related.

When cross-examined, Dr. Oshidari was referred to the report of Dr. Tessier,¹⁵ a Chiropractor, that noted as of May 16, 2012, the Applicant was still experiencing problems on her left side sacral area and experienced chronic mechanic dysfunction. He agreed that was a fair summary of her condition at that time. Dr. Oshidari also acknowledged that while the Applicant believes she received pain relief from massage therapy, the literature says it is not helpful. He went on to say that proper treatment for chronic pain would be cognitive treatment and not massage or physiotherapy. As well, it was Dr. Oshidari’s testimony that while the Applicant believes she received some relief from her two surgeries, he thinks it is due to the placebo effect. He testified that he disagrees that it helped her and that she and Dr. Katzman are wrong. The doctor agreed that flare-ups are normal and consistent for the low back area. Dr. Oshidari also confirmed that because he never obtained the dynamic x-ray he was requesting he was never in a position to come to a diagnosis on the reason for the Applicant’s coccyx pain. The doctor also confirmed his findings in his reports that the Applicant had long-standing pre-existing back issues and the 2009 MVA exacerbated her long-standing pre-existing medical condition.¹⁶ The doctor also testified that each time a person has an injury to their tail bone, each subsequent injury may be worse, and an individual may be asymptomatic and some little thing will set it off.

Engineer Witnesses

Both parties retained engineers to provide reports and testify about the accident itself. I will not go over their testimony in any detail as I have found that it was not helpful in deciding the issues before me. It appears the Insurer was attempting to have its experts show that the Applicant could not have sustained an injury to her coccyx in the MVA. While I note the evidence was not conclusive on that point, it is not the Applicant’s position that the MVA did cause a direct injury to her coccyx bur rather the Applicant sustained an impact in the MVA that rendered an

asymptomatic condition which later became symptomatic. No evidence was provided by the engineers to dispute that fact.

Employment

In support of the above, Dr. Landriault, the Applicant’s family doctor since 2002, wrote in his report dated June 15, 2017, the following:

. . .Karine Paradis-Blais suffered injuries after a motor vehicle accident on August 19, 2009 that resulted in significant disability. The working diagnosis is that of chronic post traumatic sacrococcygeal pain. Diagnosis made retrospectively during surgery included coccyx fracture with a malunion and right-sided sacroilitis...

Before the 2009 accident, I had treated Karine for low back pain on various brief occasions. None of the episodes resembled the type and intensity of the pain that she suffered from since 2009...¹⁷

Causation

The Applicant’s Position

The Applicant denies that she is attempting to perpetuate a fraud or misrepresent the facts surrounding her condition and what resulted from the MVA. The Applicant submits that the Insurer must take the Applicant as it finds her. It is not the Applicant’s position that she fractured her coccyx at the scene of the MVA. It is her position that she had an asymptomatic condition that was rendered symptomatic by the MVA.

During her testimony and from a review of the medical documentation, a noteworthy pre-accident medical history was reviewed and conveyed that over the years her condition deteriorated to the point that she required two surgeries.

The Insurer’s Position

The Insurer submits that the Applicant is not entitled to benefits for any impairment or disability because they are the result of a slip and fall approximately 3.5 years after the MVA. It is Aviva’s position that the Applicant has failed to establish that her impairment and disability were caused by the MVA, in part due to difficulties with her credibility.

The Insurer concedes there is no dispute that the Applicant sustained soft tissue injuries in the August 19, 2009 accident. The Insurer relies on several examples that put into question the credibility of the Applicant, including but not limited to a discrepancy between her testimony and EI documentation on why she left her job in 2009. As well, according to the Insurer, the Applicant has provided three conflicting versions of the events. In one version, she reported a spontaneous onset of symptoms while sitting on the couch. This version was reported to Drs. Thulien and Oshidari when she testified at her EUO on September 8, 2015. The Applicant provided a different version of events to her employer, when on January 28, 2013, she sent an email to her supervisor, Sylvie Malette. The Applicant wrote that she was "not doing very well" and had "injured back slipping on the ice and falling" the previous day.¹⁸ During the Hearing, the Applicant’s testimony was that her foot went through a crust of ice while walking on her driveway between her driveway and the snow bank, and she experienced "a drop" when her foot went through the crust of ice and into the snow below. However, the Applicant insisted that she did not fall.

The Insurer also believes that it was the “fall” in January of 2013 that is responsible for the Applicant’s coccyx issues. Her medical records reveal a significant change in her reported symptoms starting in 2013. While her complaints had previously focused on the areas of her lumbar spine and her left hip, the Applicant began to include complaints of pain to her coccyx area. According to the Insurer, the Applicant’s subjective evidence linking the coccyx injury to the MVA cannot be accepted due to significant issues with her credibility.

Findings on Causation

Overall I found the Applicant to be a credible witness. She appeared to answer questions to the best of her ability and had a good recall of the events. I also believe she explained things as best she could and when inconsistencies were brought up between some of the documentation, both non-medical and medical, her evidence provided at the EUO, and the Hearing, she was able to explain it. It may be at certain times she told different things to different individuals but in my view, there was no persuasive evidence of an intention to deceive.

I also note that upon reviewing her testimony and the evidence, it is apparent the Applicant was doing all she could to improve her physical condition after the MVA. I also note that after the MVA she had numerous incidents which caused multiple flare-ups – the worst flare-up happening in January of 2013.

With respect to whether or not she had a “fall” in January 2013, while I do not think a finding on this is even necessary as to determine causation, as the evidence shows she had not fully recovered before this incident and was still receiving treatment, I do find that based on the Applicant’s testimony at the Hearing and during her EUO, her husband’s testimony was that she did not fall and land on her back. I find her explanation credible that she misstated what she had written in her email, namely that she had fallen. She stated through her testimony that she fell onto herself but did not fall down in the snow. I note that even if I did find that she actually fell, I there is not sufficient evidence to find that the January 2013 fall is responsible for her impairments and condition and not the MVA. I come to this conclusion keeping in mind that she had not fully recovered from the 2009 MVA, and had a significant history of incidents and flare-ups after the 2009 MVA, and though while her condition had improved to a significant degree due to her treatment and use of medications, she had not fully recovered. Due to the MVA, her condition was such that she was vulnerable to subsequent incidents which caused aggravation to her prior injuries and contributed to the flare-ups. I note that as the last treatment plan approved by the Insurer was in February 2013 and I also note that due to other medical conditions, unrelated to the MVA, the Applicant was no longer supposed to take pain medication. The evidence given by the Applicant, her husband and her Physiotherapist, Mr. Maxwell, was all consistent that her condition deteriorated significantly after she stopped receiving treatment. I find there is insufficient evidence that the incident in January of 2013 led to any significant new injuries but rather further aggravated the injuries which had not resolved and were sustained by the Applicant in the MVA.

Income Replacement Benefits

In her testimony the Applicant advised that her last employment was in or around July 2013 and she applied for IRBs in 2014 but received no benefits. The Applicant is relying on an Income Loss Report prepared by M.D.D. dated September 22, 2015.¹⁹ It should be noted that an assumption of the report is that any periods of unemployment after the accident are related to the MVA.²⁰

The Applicant’s testimony was that as a result of and within 104 weeks after the MVA she suffered a substantial inability to perform the essential tasks of that employment. Specifically, she testified that after the MVA she worked for about 1.5 weeks and was then off work for a period of time due to a flare-up. The Applicant testified that over the next few years she would have flare-ups on occasion that would result in her having to go off work for different periods of time. Mr. Maxwell also provided testimony that due to her flare-ups there were times she needed to be off work and placed on modified duties at work. The Applicant also testified that she stopped working at the end of 2013 and went on permanent leave on August 4, 2013.

The Insurer submits the Applicant only became disabled after January 27, 2013, and this was caused by an unrelated fall, and the Applicant cannot recover any IRBs.

Findings

Based on my findings, I cannot accept the Insurer’s submissions on this issue.

Dr. Landriault, the Applicant’s family doctor since 2002, noted the following in his report dated June 15, 2017:

In summary, Karine has been disabled for a number of years to chronic back pain, sacroiliac pain and coccodynia but had the onset after the accident of August 19, 2009. Her treatment with physical therapy and surgery were all necessary and appropriate and led to stabilization and /or improvement of her condition through the years. Please note that she also has a gastrointestinal disorder called gastroparesis that has made it impossible to take oral medications to treat her pain. Although her condition has improved since the surgery in 2015, she remains unable to function normally and is unable to do any type of work at the moment. Due to the chronicity and intensity of her injuries, I am unsure if she will ever be able to return to regular gainful employment in the future.²¹

The Insurer provided no evidence to counter the above or to show that the Applicant is capable to return to regular gainful employment. I note that Dr. Oshidari’s testimony did not comment on the Applicant’s ability to work.

Therefore the evidence before me has shown on a balance of probabilities that the Applicant as a result of and within 104 weeks after the accident suffered a substantial inability to perform the essential tasks of employment as required by the Schedule. As well, the evidence before me shows that the Applicant from on or about July 2013, as a result of the MVA, was suffering a complete inability to engage in any employment for which she is reasonably suited by education, training or experience. The testimony from the Applicant, her husband, and the medical evidence demonstrated how her condition significantly deteriorated to the point where she often had flare-ups and was bed-ridden prior to the surgeries. I also note Dr. Oshidari’s testimony where he said that each time a person has an injury to their tail bone, each subsequent injury may be worse, and an individual may be asymptomatic and some little thing will set it off.

Dr. Landriault’s medical report discussed above specifically comments on the Applicant’s inability to work as of June 2017:

… her condition has improved since the surgery in 2015, she remains unable to function normally and is unable to do any type of work at the moment. Due to the chronicity and intensity of her injuries, I am unsure if she will ever be able to return to regular gainful employment in the future.²²

The question of when the Applicant should start receiving income replacement benefits is challenging based on the lack of specific evidence put forth by the Applicant in her testimony and submissions on any time period prior to the end of July 2013 that she actually lost income due to being off work due to her injuries. I also note that the testimony of the Applicant confirmed that when she applied for EI and was receiving EI benefits, she was at all times ready and willing to work. Therefore, I find that the Applicant should start receiving income replacement benefits at the rate of $400.00 per week from March 2, 2014, which is 10 days after February 21, 2014, the date she submitted her disability certificate to the Insurer as per s. 35(3) of the Schedule.

The Treatment Plans

This was for a treatment plan submitted for massage services. The goal of the plan was pain reduction, increased range of motion, increase strength, return to activities of normal living, and return to pre-accident work activities.

The Insurer had the treatment plan assessed by Nicole Terrier, a Physiotherapist, and she completed a report dated May 23, 2013 which partially approved the plan.²³ Ms. Terrier noted in the report at the time she assessed the Applicant, the Applicant was no longer able to take pain and anti-inflammatory medication due to side effects on her stomach and the Applicant had been referred to a specialist for these issues. The clinical findings of the assessor were that the Applicant demonstrated impairments during range of motion testing of the cervical spine but in particular, the lumbar spine.²⁴ The assessor acknowledged the benefits of the treatment but was of the opinion that a shorter course of treatment was more appropriate. She does not go into extensive detail on why 8 treatments are more appropriate than the 20 treatments proposed in the plan.

Given the assessor’s overall findings and as the Applicant was no longer able to take pain and anti-inflammatory medication, I find that the remaining portion of the treatment was reasonable and necessary and should have been approved.

This treatment plan was denied by the Insurer after a medical assessment was conducted which found that the Applicant had been receiving massage therapy on a consistent basis prior to the recent exacerbation in July 2013. There had been no lasting benefit and it was the assessor’s opinion that the Applicant had plateaued with this type of treatment.²⁵ Given the evidence from the Applicant and her treating practitioners, I find that this treatment plan was reasonable and necessary. The evidence has demonstrated to me that the continued treatment was valuable to the Applicant to maintain her condition, provided pain relief and assisted with preventing a deterioration of her condition. The evidence during the Hearing demonstrated that when the Applicant stopped obtaining the necessary treatment her condition deteriorated. Therefore, I find the treatment plan was reasonable and necessary.

With respect to this treatment plan, it appears that it was partially approved and the disputed amount is due to Aviva’s assessor taking the position that in-home one-hour treatments were more reasonable than two-hour treatments and that after two treatments each week for six weeks, the Applicant should be able to attend in-clinic treatments. From the evidence provided by the Applicant and Mr. Maxwell on her treatment needs and the consequences of her not obtaining the recommended amount of treatment, I find that that the entire amount of this treatment plan is reasonable and necessary.

This is a treatment plan for Chiropractic treatment. Aviva’s assessor took the position that $1,165.30 out of $2,115.60 was reasonable and necessary. The reasoning was based on an Insurer’s Examination (“IE”) conducted by Dr. Thulien dated December 12, 2013 which concluded that it was unlikely that further passive care alone would be of any greater therapeutic benefit.²⁶ The reasons provided went on to note that given the Applicant’s inability to take medication and her reported subjective improvement with her last laser therapy sessions those would be approved.

Based on the same reasoning I had with respect to the treatment plan dated October 17, 2013, I find that the Applicant should have received the remaining $950.30 for chiropractic treatments. Given her testimony during the Hearing, the testimony and the medical documentation presented as evidence, I find that continued treatment was reasonable and necessary in that it assisted the Applicant with pain reduction and was necessary for the prevention of further deterioration of her condition.

This treatment plan was submitted by Mr. Maxwell. This treatment plan was denied by Aviva by letter dated March 7, 2014 and the medical reason given was that the Applicant’s diagnosis appears inconsistent with the damage to the vehicle or mechanisms of injury.²⁷ Given my findings above on causation and the evidence that the Applicant did sustain soft tissue injuries in the MVA that lead to her asymptomatic condition becoming symptomatic, I find the reason given by Aviva in denying this treatment plan is inappropriate and given her condition the plan was reasonable and necessary.

This is a treatment plan for additional physiotherapy treatments by Mr. Maxwell. The goals for the treatment included pain reduction, increased range of motion, increased strength, and to help the Applicant return to activities of normal living.

Aviva denied this treatment plan by letter dated July 30, 2014 based on its assessment dated May 23, 2014, which found that in the past few months the treatment has not increased function or decreased pain dramatically and that the Applicant has not been able to return to work. It was Dr. Oshidari’s finding that the origin of the pain is from the sacrococcygeal joint area with subluxation. Further, Dr. Oshidari found that the treatments proposed would not have any rehabilitation benefit and were not reasonable. But the denial letter then goes on to note that until Dr. Oshidari has the opportunity to review a dynamic x-ray, which the evidence provided at the Hearing showed one was never completed, the treatment plan is not reasonable and necessary.

Based on the same reasons I found the treatment plan dated October 17, 2013 was reasonable and necessary and the fact that the Insurer never arranged for the Applicant to have a dynamic x-ray, I find this treatment plan also reasonable and necessary.

This is a treatment plan for additional physiotherapy treatments by Mr. Maxwell – specifically hydro-therapy sessions three times per week. Aviva denied this treatment plan based on Dr. Oshidari’s IE report dated May 23, 2014 and his Addendum and Paper Review reports dated October 22, 2014.²⁸ Neither the Applicant nor Mr. Maxwell provided me with specific testimony on why hydro-therapy sessions were required as opposed to the modalities she had been receiving previously. I find that without such evidence the Applicant has not been able to show on a balance of probabilities that this treatment plan was reasonable and necessary.

This is a treatment plan for in-home physiotherapy treatments by Mr. Maxwell. Aviva denied the treatment plan based on Dr. Oshidari’s IE report dated May 23, 2014 and his Addendum report dated October 22, 2014.²⁹ Based on the same reasons I found the treatment plan dated October 17, 2013 was reasonable and necessary, I find this treatment plan reasonable and necessary.

This treatment plan was submitted by Joan Simms, an Occupational Therapist at Bayshore Therapy and Rehab. The plan details that the therapy is to aid the Applicant in her recovery post-surgery. No specific evidence was provided at the Hearing with respect to this treatment plan. I note that the proposed treatment appears to be very similar and to duplicate the treatment plan dated June 16, 2015 in the amount of $13,690.56 submitted by Mr. Maxwell which I have found was reasonable and necessary. As such I find that the Applicant has not proven this treatment plan was reasonable and necessary.

The treatment plan noted it was to provide treatment after the Applicant’s surgery in April 2015 consisting of 6 weeks of in-home physiotherapy, 3 times per week and then another 6 weeks of physio and rehab in-clinic 3 times per week.³⁰ Aviva denied the treatment plan in its letter dated March 9, 2015, on the basis of Dr. Oshidari’s IE report dated May 23, 2014 and his Addendum report dated October 22, 2014 as well as the uncertainty of the surgical outcome. In the denial, Aviva also advised that once the surgery was completed, medical documentation should be submitted so it can re-consider the treatment plan.³¹

I note during Mr. Maxwell’s testimony at the Hearing, this particular plan was not reviewed. I am in agreement with Aviva’s denial based on the uncertainty of the surgical outcome that this treatment plan was not reasonable and necessary at the time it was submitted.

This treatment plan was submitted by Mr. Maxwell post-surgeries for physiotherapy treatments and the goals of the plan were the following: pain reduction, increased range of motion, increase in strength and to recover from surgery.³² Aviva denied this treatment plan based on its assessors findings that these goals had previously been accomplished by 2012 and the Applicant failed to prove that the sudden deterioration in her condition subsequent to January 27, 2013 was caused by the accident, and therefore these treatment plans are not recoverable. Based on the same reasons I found the treatment plan dated October 17, 2013 was reasonable and necessary and due to my finding that the surgeries were a viable option due to the Applicant’s deteriorated medical condition which I have found are related to the MVA, I am finding that this treatment plan is reasonable and necessary.

The treatment plans were for the two surgeries performed on the Applicant by Dr. Katzman in Florida. The Applicant acknowledges that both treatment plans were submitted after she received the treatment, being the two surgeries in Florida performed by Dr. Katzman. In support of a finding that these two treatment plans were reasonable and necessary and the fact that they were not submitted to the Insurer for consideration prior to the treatment, the Applicant is relying on two decisions. In T.N. and Personal and Kelly and Guarantee, it was held that an insured does not forfeit the right to attendant care benefits prior to a Form 1 being submitted.³³ The Applicant’s position is that the Schedule should not be found to mean that a treatment plan must always come before an expense is incurred as that would result in unnecessary delays of treatment and increased pain, and go against the consumer protection nature of the Schedule. As well, such a finding would be contrary to section 31(1) of the Schedule which states “A person’s failure to comply with a time limit set out in this Part does not disentitle the person to a benefit if the person has a reasonable explanation.” O. Reg. 403/96, s. 31 (1).

The Insurer takes the position that the cases relied on by the Applicant are distinguishable from the facts and legislation relevant to this matter. Within this matter, Dr. Katzman is not a “regulated health professional” under the Schedule so the plans are not valid, and as they were signed and submitted after the treatment was obtained so they should not be found reasonable and necessary.

I do appreciate that the Applicant’s condition had deteriorated to such a point in 2014 that she sought treatment from Dr. Katzman. However, both treatment plans were submitted after the surgeries took place and the Insurer was not provided the opportunity to consider the treatment plans before the Applicant underwent the surgeries. Therefore they cannot in these circumstances be deemed reasonable and necessary. I agree with the Insurer that the cases provided are distinguishable and I also note the Applicant did not provide any cases where medical treatment plans that were not submitted prior to the treatment being obtained were later awarded. Further, even if I accept the Applicant’s argument that in her case, section 31(1) of the Schedule does not disentitle the person to a benefit if the person has a reasonable explanation, I find there has been no reasonable explanation provided during the Hearing as to why the Applicant did not attempt to have the treatment plans for the two surgeries considered by the Insurer prior to her undergoing the surgeries.

This treatment plan was submitted by Joan Simms of Bayshore and the recommendation was for a trolley and a wheelchair for a total cost of $568.98. The Insurer denied this plan based on Dr. Oshidari’s paper review which found that the surgical intervention performed by Dr. Katzman was not supported by any objective investigations conducted prior to the surgeries.³⁴ As per my earlier findings that it was the MVA that caused the deterioration in the Applicant’s condition which led her to the surgeries, I find that this treatment plan was reasonable and necessary.

This was for further treatment to be provided by Mr. Maxwell post-surgery. It was denied by the Insurer based on the same reasons discussed above. I find the treatment plan to be reasonable and necessary based on the same reasons as I found the treatment plan dated June 16, 2015 reasonable and necessary.

Special Award

An order for a special award is only if an Insurer acted in manner that was imprudent, stubborn, and inflexible with respect to benefits being claimed, that an order for a special award shall be made. From the evidence before me, I cannot find that this was the case. The Insurer was under the belief that the Applicant had recovered and due to a fall in January 2013, not related to the accident, her condition deteriorated significantly. The Insurer also relied on the opinions of its medical assessors when finding treatment plans or portions of treatment plans not reasonable and necessary. As well, the Applicant did not receive an IRB as the Insurer took the view that when her condition deteriorated to such a point that she may have been entitled to an IRB, the deterioration was not due to the August 9, 2009 MVA but rather a slip and fall on her driveway in January 2013.

I find that the Insurer has not unreasonably withheld or delayed payments to the Applicant. There were genuine issues to be tried. There were genuine issues of causation and the medical evidence was complex, and thus the Insurer was entitled to require that the Applicant prove her case. My finding is this is not an appropriate case to order a special award as I do not find the Insurer acted in an imprudent, stubborn, and inflexible manner.

EXPENSES:

The parties are encouraged to resolve the issue of expenses for this matter on their own. If they are unable to do so, they may schedule an Expense Hearing in writing before me according to the provisions of Rule 75 to 79 of the Dispute Resolution Practice Code.

November 9, 2017

Marshall Schnapp

Arbitrator

Date