Jesus Martinez v. Aviva Canada Inc., 2017 ONFSCDRS 3

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2017 ONFSCDRS 3

FSCO A14-009657

BETWEEN:

JESUS MARTINEZ

Applicant

and

AVIVA CANADA INC.

Insurer

REASONS FOR DECISION

Before:

Arbitrator Marcel D. Mongeon

Heard:

In person at ADR Chambers on October 18, 19 & 20, 2016

Appearances:

Mr. Jesus Martinez participated

Mr. Michael Wentzel, Mr. Aaron Tamber, Mr. Shane Leroux and Mr. Rocco Lofranco participated for Mr. Jesus Martinez

Mr. Petros Yannakis and Mr. Andy Smith participated for Aviva Canada Inc.

Issues:

The Applicant, Mr. Jesus Martinez, was injured in a motor vehicle accident on March 10, 2014 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 the Applicant, through his representative, applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c. I.8, as amended.

The issues in this Hearing are:

Are the Applicant’s injuries predominantly a “minor injury” as defined in the Minor Injury Guideline made under the Schedule?
Is the Applicant entitled to a medical benefit of $1,300.00 for a treatment plan for physiotherapy (dated July 30, 2014 – Nayida Bowen at Physiomed Rogers Centre)?
Is the Applicant entitled to receive the cost of examinations for an orthopaedic assessment ($2,486.00 – Tim Dwyer, dated February 9, 2015) and a chronic pain assessment ($2,200.00 – Inese Robertus, dated September 11, 2015)?
Is the Applicant entitled to a medical benefit of $14,364.72 for a treatment plan for chronic pain (dated September 30, 2015)?
Is the Applicant entitled to receive a special award?
Is either party entitled to its expenses of the Arbitration Hearing?

Result:

The Applicant’s injuries are predominantly a “minor injury” as defined in the Minor Injury Guideline.
The Applicant is not entitled to the payment of any further benefits.
If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may request an appointment with me for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

EVIDENCE AND ANALYSIS:

Facts

I have established the following facts from the testimony of the witnesses and the documents filed as Exhibits. I present them mostly in chronological order.

The Applicant was involved in a rear-end automobile accident at about 10:30 a.m. on March 10, 2014. He attended at a self-reporting centre to report the collision. He did not have the benefit of any immediate medical care, nor was any sought until nine days later.

Because he did not know what to do about the accident, he contacted a friend. The friend advised him to contact the law firm that now represents him. Within 48 hours of the accident, the firm sent a letter to the Insurer with an OCF-1 (Application for Accident Benefits) and a direction signed by the Applicant.²

As part 3 of the OCF-1, the Applicant stated, “[a]s a direct result of the accident, I have been experiencing pain and discomfort in my neck, shoulders, back, numbness in neck and head. Since the accident, I have been experiencing episodes of dizziness, anxiety, stress, sleeping disturbances, and nervousness.”

An OCF-3 (Disability Certificate), based on the first post-accident examination of March 19, 2014 conducted by Nayida Bowen, physiotherapist, was submitted to the Insurer.³ The physiotherapist completing the form indicated in Part 7 that no further examinations, investigations or consultations were contemplated or required. The form also indicated in Part 8 that there were no prior injuries.

Undisputed treatment of $2,200.00 was sought by the physiotherapist on an OCF-23 (Treatment Confirmation Form) submitted through HCAI.⁴ It was authorized by the Insurer on March 27, 2014.⁵ The Insurer sent an Explanation of Benefits on March 27, 2014⁶ noting that it was dealing with Mr. Martinez’s matter under the Minor Injury Guideline with a limit of $3,500.00 in treatment available.

The Applicant sought additional medical care on April 24, 2014 from Dr. Sood at Albany Medical Clinic.⁷ In part, the Applicant explained his delay in seeking medical care from a family physician because having been in good health, he had not visited a physician in a number of years. When he went to his previous physician, he was told that they had dropped the Applicant from their patient roster. He then was counseled to go to the Albany Medical Clinic, which accepted walk-in patients.

Dr. Sood’s April 24, 2014 note indicates, “Post neck and L low back pain S/P MVA”. I read this as meaning ‘posterior neck and left lower back pain subjected post motor vehicle accident.’ The prescription is noted as “continue physio” and two pain-killers.

On April 29, 2014, the Applicant saw Dr. David Tsai at the same clinic. The purpose of this visit was to enrol on the clinic’s patient roster,⁸ for an annual checkup and a “report for MVA”.

An OCF-18 (Treatment and Assessment Plan) was submitted by Nayida Bowen, physiotherapist, and submitted through HCAI on July 31, 2014.⁹ This plan is disputed in this Hearing. Under Part 9 of the form, the goals of additional treatment were identified as pain reduction and increase in strength. In part 4, Ms. Bowen certified – by checking the applicable box – that the impairment suffered by the Applicant was predominantly a minor injury as referred to in the Minor Injury Guideline. Additional explanation by the physiotherapist in the OCF-18 was provided as follows:

[The Applicant] has slightly improved the mobility and strength of his neck and back muscles. We believe he needs further treatments so that he can reduce his pain levels and successfully return to his ADLs [activities of daily living]. Also in his last few weeks of his treatment plan, he was only coming to the clinic once a week. He would need more sessions per week so that his rehabilitation be maximized effectively.

The additional explanation may be ambiguous in suggesting the injuries may have been more extensive than just a minor injury within the Minor Injury Guideline. However, I find the checking off of the applicable box in Part 4 of the form that it was a minor injury should be used to limit the explanation to just that.

The plan of July 31, 2014 was denied by the Insurer on August 5, 2014, requiring the Applicant to attend an Insurer’s Medical Examination (“IME”). The report of that examination¹⁰ was sent to the Applicant on September 16, 2014. Dr. Howard Platnick, a general practitioner, conducted the examination of the Applicant on August 29, 2014. His report concurred that the Applicant had suffered a minor injury. The conclusion was clear:

[The Applicant’s] soft tissue injuries as a result of the March 10, 2014 motor vehicle accident have resolved and were adequately addressed in prior Treatment Plans. I have not been able to identify ongoing accident-related injury or impairment that requires the goods and services listed in the above disputed Treatment Plan, dated July 30, 2014. I have not been able to identify a medical or clinical indication of the goods and services listed in the disputed Treatment Plan and conclude that it is not reasonable or necessary to treat injuries as a result of the March 10, 2014 motor vehicle accident.

On September 3, 2014, the Applicant’s law firm sent him a letter which included a document called a Patient Injuries and Complaints (“PIC”) form.¹¹ The letter asked the Applicant to follow up with his family physician, give the PIC form to the physician and ask the physician to refer the Applicant for five different types of specialists.

On February 6, 2015, the Applicant went to see his family physician. The physician’s note advised:

here b/c his lawyer was asking him to see FD [family doctor] back in March 10, 2014. Asking for referrals to orthopedic surgeon; physiatrist; neurologist; psychiatrist; chronic pain. Says he didn’t follow up b/c he was a busy restaurant owner; just sold his 2 restaurants in December and now he has more time.

s/p mva March 2014 – low back pain; no red flags; **contrary to the documents he provided from his lawyer patient is not and has not experienced sciatica; (Dr. Soods notes from april 2014 also do not indicate radicular sxs); physio see instructions 0 0 refills; pt declined medications – saying he doesn’t like to take meds; **X-Ray: LUMBAR SPINE; ** AMC orthopedics.

if pt needs other items in the lawyers letter addressed – asked him to followup; fu prn [fu as required].

On September 29, 2014, an OCF-18 was submitted by Dr. Judith Pilowsky through HCAI, proposing a psychological treatment plan for the Applicant of $2,014.93.¹² Dr. Pilowsky proposed treatments that included opinions relating to the Applicant’s psychological condition. This treatment plan was withdrawn from the dispute by the Applicant. However, although withdrawn, this report and some of the opinions contained in it formed the basis of subsequent reports by medical professionals.

Both the Applicant and Dr. Pilowsky gave testimony that they had a continuing friendly relationship of at least 10 years duration. It was in fact Dr. Pilowsky who suggested that the Applicant choose the law firm he continues to use.

The Applicant and Dr. Pilowsky acknowledged a financial relationship which saw Dr. Pilowsky’s corporation paying the Applicant $10,700.00 in 2009, $3,000.00 in 2010 and $2,000.00 in 2011.¹³ Additional testimony provided that the sums were for work the Applicant did around Dr. Pilowsky’s office.

Dr. Pilowsky’s treatment plan was tentatively rejected by the Insurer by fax-back on October 1, 2014, followed by a November 3, 2014 letter seeking an additional IME.¹⁴ The plan was firmly rejected on December 3, 2014 with the support of a report of Arnold Rubinstein, Psychologist, based on his assessment conducted on November 17, 2014.¹⁵ This report’s conclusion includes, “The claimant did not sustain a psychological impairment as a direct result of the motor vehicle accident.”

On October 15, 2014, an OCF-18 was prepared by Dr. Stephen James, Psychologist, proposing $2,830.26 in psychological treatment to be delivered by himself and an assistant.¹⁶ This treatment plan was withdrawn from the dispute by the Applicant. Although this report was also withdrawn – as was the Pilowsky report – it continued to form the basis of reports by subsequent medical professionals, and accordingly remains relevant.

Dr. James’ OCF-18 form was submitted to HCAI through the facility Pilowsky Psychology Professional Corporation. Dr. Pilowsky testified that she is the sole shareholder of that corporation.

On October 16, 2014, Dr. James conducted a psychological assessment of the Applicant, summarized via a report of November 11, 2014.¹⁷ That report is clearly on the letterhead of Pilowsky Psychological Professional Corporation, with Dr. J. Pilowsky at the top of the letterhead. Dr. James’ signature block on the letter reads as follows:

Dr. Stephen H. James, C. Psych.

Psychologist, on behalf of the Pilowsky Psychology Professional Corporation

The letter starts with the statement “please note that I submitted an OCF-18 requesting a comprehensive psychological assessment of this patient, dated September 29, 2014, which was subsequently denied.” There is an inconsistency in this sentence. The September 29, 2014 OCF-18 was submitted by Dr. Pilowsky, not Dr. James.

The report provides Dr. James’ opinion of the need for a 12-session psychotherapy program for the Applicant. It was also Dr. James’ opinion that the Applicant “suffers a complete inability to carry on a normal life as a result of the 2014 accident, as his psychological impairments continuously prevent him from engaging in most of the activities in which he routinely performed before the accident.”¹⁸

Dr. James testified that he conducted the assessment and reported on it independently of Dr. Pilowsky. He did not consult her in any way, nor did he do anything other than use her administrative support to prepare and submit his reports. Dr. Pilowsky also testified that she was not aware of any aspect of Dr. James’ work, nor had she reviewed or even read his report prior to being asked to do so by the Insurer at the Hearing. All notes and records relating to Dr. James’ work through Dr. Pilowsky’s corporation continue to be retained by Dr. Pilowsky.¹⁹

Dr. Pilowsky was adamant in her testimony that she did not believe that anything was wrong by allowing Dr. James to use her corporation to prepare his report. She was merely providing an administrative convenience to Dr. James as he did not have his own HCAI access.

On February 24, 2015, Dr. Tim Dwyer conducted an assessment of the Applicant.²⁰ Dr. Dwyer described himself as a licensed orthopaedic surgeon practicing sports medicine and trauma surgery in Toronto, and suggested that he is qualified to express “an orthopaedic opinion”.

In his report, Dr. Dwyer expressed the following two opinions:

In my medical opinion [the Applicant] displays features of categories 3 through 6 [of the 6th edition of the Guide to the Evaluation of Permanent Impairment being deconditioning, withdrawal, failure to restore pre-activity function and development of psychosocial sequelae.] confirming a diagnosis of chronic pain syndrome.

In my medical opinion, Jesus Martinez meets criteria A through C [of the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders] confirming a diagnosis of somatic symptom disorder. This conclusion is formed on a basis of this consultation, the reviewed psychological assessment and [the applicant’s] responses on [the questionnaires.]

Dr. Dwyer reported that the medical briefs he reviewed included “Psychological Assessment report dated November 11, 2014 prepared by Dr. J. Pilowsky, Clinical and Rehabilitation Psychologist”.

On March 11, 2014, Dr. Eric Silver, general practitioner, conducted an IME to determine the necessity of Dr. Dwyer’s proposal. The report, dated March 25, 2014,²¹ concluded:

On September 11, 2015, an OCF-18 was submitted by Dr. I. Robertus, proposing a chronic pain assessment of $2,200.00.²² This plan is disputed. Dr. Robertus provided an additional page-and-a-half of comments in the form, suggesting that the chronic pain assessment was recommended by Dr. Dwyer on the basis of “chronic pain syndrome, somatic symptom disorder and major depressive disorder with mild anxious distress.” Other reports referred to include a Psychological Assessment Report, dated November 11, 2014, by Dr. Judith Pilowsky. This plan was rejected by the Insurer by fax back on September 18, 2015 and by letter, dated September 24, 2015, and the Insurer requested an additional IME with Dr. Eric Silver, general practitioner.²³

Dr. Robertus conducted an assessment of the Applicant on September 30, 2015.²⁴ The reports she reviewed included a “Treatment and Assessment Plan (OCF-18) by Stephen James dated October 15, 2014” and “Psychological Assessment Report dated November 11, 2014 by Dr. Judith Pilowsky”.

As a part of Dr. Robertus’ report, an OCF-18, dated September 30, 2015, proposing a chronic pain program of $14,364.72 was submitted. This plan is disputed. The detail of the work proposed shows approximately $3,990.72 of psychotherapy and progress-report psychotherapy to be performed by Dr. Judith Pilowsky.²⁵

On October 7, 2015, Dr. Silver conducted an IME of the Applicant, and reported on October 13, 2015.²⁶ The report referred to Dr. Robertus’ proposal for a $2,200.00 chronic pain assessment, and included the conclusion:

Based on a thorough review of the documents provided and today’s history and physical examination, it is my clinical opinion that [the Applicant] was involved in a motor vehicle accident on March 10th 2014 in which he sustained uncomplicated soft tissue injuries. At today’s assessment, I have not found any objective evidence of ongoing accident-related musculoskeletal injury or impairment. It is my opinion that the majority of his ongoing pain is secondary to degenerative changes which may have been aggravated during the subject accident. It is my opinion that [the Applicant] will benefit most at this point from continued active care, consisting of core strengthening, peripheral muscle strengthening, cardiovascular conditioning, and stretches. He may also benefit from the use of pain medications as needed.

An additional psychological IME was conducted by Dr. Mohammad Nikkhou on November 19, 2015,²⁷ which became part of a multidisciplinary assessment report of December 2, 2015.²⁸ Dr. Nikkhou also testified. His conclusions included:

[the Applicant] is experiencing some mild emotional concern mainly due to his reported pain and sleep difficulties but there is no indication from his general presentation or from his objective testing that would indicate that his problems are of a substantive nature (specifically from a psychological viewpoint.)

On May 3 2016, the Applicant had an MRI.²⁹ The report opined “Degenerative disk changes and facet degenerative changes greatest at the L4-L5 level with a severe spinal canal stenosis.” No testimony was provided by the Applicant as to the medical implications of this report.

The Insurer presented surveillance evidence of the Applicant conducted between May 13 and May 16, 2016. However, I found the videos presented to be relatively unhelpful other than to show me that the Applicant was ambulatory and could transact business on behalf of his business using his automobile. They give me little information about any pain that the Applicant was having to deal with.

Issues to be determined

At the Hearing in this matter, the Applicant withdrew claims for the treatment plans relating to Dr. Pilowsky and Dr. James. The Insurer submitted that despite such withdrawals, his cross-examination of Dr. Pilowsky and Dr. James should be allowed to proceed because some of their work formed the basis of other medical evidence provided by the Applicant. I agreed.

The remaining issues in dispute were the Minor Injury Guideline issue and the claim for a physiotherapy program of $1,300.00. The Applicant also added issues prior to the Hearing³⁰—specifically, the Robertus OCF-18, proposing an examination (dated September 11, 2015 for $2,200.00), a chronic pain plan (dated September 30, 2015 for $14,364.72) and the Dwyer examination (dated February 9, 2015 for $2,486.00).

To address the issues in dispute, I have determined that I need to consider two separate sets of questions.

Even though the Applicant withdrew any claim for the work of Drs. James or Pilowsky, I must first determine if their reports represent a conflict of interest. The reports presented by Drs. Robertus and Dwyer were both based on the Pilowsky and James work. If I determine that there was a conflict of interest, I must then determine if the evidence presented by the Applicant was coloured by this conflict, and any adjustments that should be made as a result.

The second set of questions is to determine on the evidence if the Applicant’s impairments were “minor”. If so, is any additional treatment “reasonable and necessary”?

Dr. Pilowsky’s Conflict of Interest

It is not contested that Dr. Pilowsky and the Applicant are close friends. It was Dr. Pilowsky whom the Applicant called to find out what to do when he had the accident. Dr. Pilowsky referred him to the law firm that represented him through this Hearing. I see nothing wrong in that referral.

Things were made more difficult when Dr. Pilowsky signed an OCF-18, proposing treatment for her friend, the Applicant. The Insurer submitted that section 12.1 of the Standards of Professional Conduct of the College of Psychologists of Ontario,³¹ to which Dr. Pilowsky belongs, provides in part:

A member shall not undertake or continue to provide psychological services with an individual client when the objectivity, competence or effectiveness of the member is, or could reasonably be expected to be, impaired because of the member’s present or previous familial, social, sexual, emotional, financial, supervisory, political, administrative, or legal relationship with the client or a relevant person associated with the client. (my emphasis)

Dr. Dwyer’s report makes clear that, “I have specifically noted the following aspects of the records: - Dr. Judith Pilowsky [sic—the reference should be correctly made to Dr. James], Psychological Assessment, November 11, 2014: Diagnosis of major depressive disorder moderate, single episode, with mild anxious distress.”³² Dr. Robertus’ OCF-18 proposing a chronic pain assessment in turn relies on Dr. Dwyer’s report. Finally, Dr. Robertus’ proposal of a chronic pain program suggests in its detail that Dr. Pilowsky should deliver psychotherapy services that we know she would be unable to deliver due to the conflict of friendship.

If Dr. Pilowsky had a conflict of interest, is Dr. James’ assessment tainted because it was performed through Dr. Pilowsky’s corporation? In her testimony, Dr. Pilowsky scoffed at the idea. She was clear that Dr. James carrying out his work through her corporation did not create any professional problems.

The answer is found in a part of the Health Professions Procedural Code set out in Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18. This code is incorporated into the Psychology Act, 1991, S.O. 1991, c. 38, which governs Dr. Pilowsky and her corporation. The following sections of the code are relevant.

85.11 (1) The professional, fiduciary and ethical obligations of a member to a person on whose behalf the member is practising a health profession,

(a) are not diminished by the fact that the member is practising through a health profession corporation; and

(b) apply equally to the corporation and to its directors, officers, shareholders, agents and employees.

85.14 (1) In the course of practising a health profession, a health profession corporation shall not do, or fail to do, something that would constitute professional misconduct if a member of the health profession did, or failed to do, it.

Ontario Regulation 801/93 on Professional Misconduct under the Psychology Act, 1991 includes the following and is also useful:

The following are acts of professional misconduct for the purposes of clause 51 (1) (c) of the Health Professions Procedural Code:
Failing to maintain the standards of the profession.
Practising the profession while the member is in a conflict of interest.

When I read these provisions together, I come to the following views:

Dr. Pilowsky had a conflict of interest under the standards of her profession as she had a social relationship with the Applicant.
Dr. James did not have a conflict of interest with the Applicant.
However, Dr. James did not render his services in his own name, but rather through and on behalf of Pilowsky Psychology Professional Corporation.
The use of Pilowsky Psychology Professional Corporation, by the provisions referenced above, does not diminish Dr. Pilowsky’s professional responsibilities; a report issued in the name of the corporation is as if it was issued by Dr. Pilowsky herself no matter who signed the letter.
Section 85.14(1) specifically makes it clear that the corporation could not do what Dr. Pilowsky herself could not do.

The conclusion is inescapable: even though Dr. James prepared the report, there was a conflict of interest because of Dr. Pilowsky’s relationship with the Applicant. That conflict in turn affects Dr. James’ report.

The psychology profession’s standards of conduct set a high bar prohibiting a professional and friendly relationship at the same time. As a result, I cannot rely on Dr. James’ report and I exclude it from my further consideration. I note that I am making no other legal or factual finding on point.

What Applicant’s evidence should I accept?

Since I have excluded Dr. James’ report, I consider what other evidence presented by the Applicant I should consider and what weight I should give it.

I begin with Dr. Dwyer’s report. As noted above, Dr. Dwyer relied heavily on Dr. James’ findings. I was not asked to accept testimony from Dr. Dwyer. Had I been, it is clear that I could not have qualified him as an expert beyond that of his specialty of orthopaedic surgery.

I have previously noted that in Dr. Dwyer’s report, he purported to express medical opinions on “deconditioning, withdrawal, failure to restore pre-activity function and development of psychosocial sequelae, confirming a diagnosis of chronic pain syndrome” and “confirming a diagnosis of somatic symptom disorder”. My understanding is that both of these are not normally within the purview of an orthopaedic surgeon, but rather opinions that should be rendered by a psychologist. To the extent that Dr. Dwyer gave those opinions, he had to rely in whole or in part on information provided to him by Dr. James.

Since Dr. Dwyer’s report was based on Dr. James’ excluded report and otherwise outside of the scope of his expertise, I accord it no weight.

I turn to Dr. Robertus’ evidence presented in report form. Dr. Robertus did not testify. As previously mentioned, Dr. Robertus relied on Dr. Dwyer’s opinion that the Applicant suffered chronic pain syndrome, somatic symptom disorder and major depressive disorder.³³

Even if I were to overlook this reliance and read Dr. Robertus’ work as independently resulting in a medical need for a chronic pain program, I note that Dr. Robertus’ proposal for the program recommends that almost $4,000.00 of the work should be done by Dr. Judith Pilowsky. Clearly this is not allowable. I note though that Dr. Robertus did not have critical information available on the relationship between Dr. Pilowsky and the Applicant.

We do not know what opinions Dr. Robertus may have come to with this additional information. Given the uncertainty over Dr. Robertus not having such a key detail of the work that formed the foundation of her report, it would be unwise for me to rely on it. I choose to accord zero weight to all of Dr. Robertus’ reports.

This leaves us with the only medical evidence being presented by the Applicant being the OCF-23 presented by the original physiotherapist. That report was clear—physiotherapist, Nayida Bowen, in both the funded OCF-23 and the subsequent disputed OCF-18 that was rejected for $1,300.00,³⁴ made clear that her opinion was that the Applicant came within the Minor Injury Guideline.

Conclusion on Minor Injury

The Applicant’s injury is a minor injury. Accordingly, the Schedule limits the amount of the Applicant’s treatment to $3,500.00, of which $2,200.00 was previously expended. As a minor injury, the Applicant is not entitled to the benefits being sought as issues numbers 3 and 4 in this Hearing are in excess of the $1,300.00 remaining under the Minor Injury Guideline limits.

Is the Applicant entitled to any benefits?

Should the Applicant be entitled to an additional $1,300.00 being the balance owing under the Minor Injury Guideline limits? This is the benefit being sought as issue number 2 in this Hearing.

The simple answer is no. To be entitled to benefits within the aggregate of $3,500.00, any proposed expenses must be reasonable and necessary. The Insurer obtained an opinion of Dr. Howard Platnick of September 12, 2014, which concluded that any further treatment was neither reasonable nor necessary.

I note the following that I have considered:

After the initial accident, it was 9 days before the Applicant sought treatment from a physiotherapist.
It was more than a month before he sought assistance from a family physician.
The Applicant’s own family physician was infrequently consulted, and apparently at the instigation or suggestion of the Applicant’s legal representative.
The IMEs establish that the residual pain that the Applicant feels is more likely the result of degenerative conditions than the exacerbation of a pre-existing condition.

I note that the Schedule is quite specific that if an exacerbation of a pre-existing condition is to be used to exceed the $3,500.00 limit, s. 18(2) requires that “compelling evidence that the insured person has a pre-existing medical condition that was documented by a health practitioner before the accident” is required. I received no such evidence.

To conclude: the OCF-18 for $1,300.00 is not payable as it is not reasonable or necessary. I accept the evidence of the IME reports in this regard without reservation.

As to all other benefits, since I am satisfied that the Applicant has not presented any evidence that I can consider other than the physiotherapist’s opinion that the injuries fall within the Minor Injury Guideline, no other benefit is payable.

EXPENSES:

The parties agreed at the conclusion of the Hearing that I should allow them to determine if they can agree on expenses. Otherwise, I am prepared to deal with the same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

January 3, 2017

Marcel D. Mongeon Arbitrator

Date