Financial Services Commission of Ontario

Neutral Citation: 2017 ONFSCDRS 321

FSCO A12-006732

BETWEEN:

EVERTON BROWN

Applicant

and

GORE MUTUAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Marcel D. Mongeon, Arbitrator

Heard: At London, Ontario on August 16, 17, 18 and September 12, 2017 and by written submissions completed on September 20, 2017

Appearances: The Applicant participated Mr. Stanley Razenberg for the Applicant Ms. Janet Young for Insurer

Issues:

The Applicant was injured in a motor vehicle accident on February 26, 2011 and sought accident benefits from Gore Mutual Insurance Company (“Gore Mutual”), 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:

1. Is the Applicant entitled to an Income Replacement Benefit and, if so, in what amount(s) and for what period(s)?

2. Is the Applicant entitled to an Attendant Care Benefit and, if so, in what amount(s) and for what period(s)?

3. Is the Applicant entitled to receive payment for the following medical treatments:

• $3,790.64 for psychological treatment from Michael MacDonald submitted on September 10, 2015?
• $850.00 for exercise multiple regions by AIM Strathroy?
• $3,076.61 for occupational therapy services by Shannon Ross dated April 25, 2014?

4. Is the Applicant entitled to receive payment for the following assessments:

• $965.82 for an attendant care assessment by Best Choice Medical dated August 10, 2011?
• $1,320.75 for an in-home assessment by Excess Health dated June 6, 2011?
• $1,979.36 for a psychological assessment by Michael MacDonald dated March 5, 2014?
• $1,970 for an orthopedic assessment by Fred Langer dated March 18, 2014?
• $1,679.52 for an occupational therapy assessment by Judith McNichol dated March 26, 2014?
• $2,206.41 for a vocational assessment dated October 22, 2014?

5. Is the Applicant entitled to the payment of interest on benefits?

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

Result:

1. The Applicant is entitled to an Income Replacement Benefit in the amount of $121.46 per week less amounts paid from March 5, 2011 to February 25, 2013, and thereafter at the rate of $185.00 per week.

2. The Applicant is not entitled to any Attendant Care Benefit for any period of time.

3. The Applicant is entitled to receive payment for the medical treatments as follows:

• $3,790.64 for psychological treatment from Michael MacDonald submitted on September 10, 2015; and
• $850.00 for exercise multiple regions by AIM Strathroy.

The payment of medical treatment for $3,076.61 for occupational therapy services by Shannon Ross dated April 25, 2014 is denied.

4. The Applicant is entitled to receive payment for the assessments as follows:

• $1,979.36 for a psychological assessment by Michael MacDonald dated March 5, 2014;
• $1,970 for an orthopedic assessment by Fred Langer dated March 18, 2014; and
• $2,206.41 for a vocational assessment dated October 22, 2014.

The payment of the following assessments is denied:

• $965.82 for an attendant care assessment by Best Choice Medical dated August 10, 2011;
• $1,320.75 for an in-home assessment by Excess Health dated June 6, 2011; and
• $1,679.52 for an occupational therapy assessment by Judith McNichol dated March 26, 2014.

5. Any payments of benefits hereunder that were overdue shall bear interest at the rate of one (1) per cent per month, compounded monthly.

6. 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 (“DRPC”).

PRELIMINARY MATTERS

At the outset of the Hearing, two matters were raised by Notice of Motion by the Applicant’s representative. Orders were sought as follows:

• An order to exclude all surveillance evidence for failure to comply with Rule 40 of the DRPC; and
• An order to exclude evidence of a Neuropsychologist for failure to comply with Rules 39 and 42 of the DRPC.

I disposed of the motion relating to the surveillance evidence as follows. The following facts were relevant:

• This Hearing commenced on August 16, 2017;
• On July 14, 2017, an Arbitration Brief “Index” was sent from the Insurer’s representative to the Applicant’s representative;
• On August 10, 2017, the Applicant’s representative advised the Insurer’s representative by letter that despite the receipt of the Index, they had not received copies of the surveillance evidence;
• In response to the letter, some surveillance material was delivered to the Applicant’s representative. However, the material was incomplete as no video footage was included nor were copies of any investigator’s notes provided;
• On August 14, 2017, the Applicant’s representative wrote to the Insurer’s representative warning of their intention to object to introduction of the surveillance evidence; and
• Later on August 14, 2017, the Insurer’s representative sent some edited video to the Applicant’s representative. However, the raw video evidence was not provided nor were the investigator’s hand-written notes.

Based on the foregoing facts and the submissions of the representatives, I made the following decision.

Rule 40 of the DRPC is clear requiring all surveillance evidence to be provided if any such evidence is to be used. The reason for this rule is clear: a party has the right to know about all possible surveillance evidence to ensure that the presenting party does not “cherry pick” that surveillance for the most detrimental evidence possible.

The thirty-day requirement of Rule 40 is also provided to ensure that a party can prepare in the face of surveillance evidence. The timeframe is not a desired date, it is a reasonable estimate of a timeframe within which a party must comply in order to ensure there is procedural fairness in preparing for a hearing.

In this case, although the Applicant was given notice within the thirty days of the existence of some surveillance evidence, it was only less than a week before the Hearing that he actually received some of the evidence. He clearly did not receive all of it. Based on the failure to deliver complete surveillance material in a timely manner and Rule 40 of the DRPC, the surveillance evidence will be excluded.

I disposed of the motion relating to the Neuropsychologist’s report as follows. The following facts were relevant:

• The Neuropsychologist’s report was dated July 26, 2017 and was the result of an Insurer’s medical examination conducted in June 2017 under section 44 of the Schedule to obtain medical information relating to Proposed Treatment Plans of March and April, 2017 that are not in issue before me; and
• The formal report was only provided to the Applicant’s representative on August 10, 2017. Although the Applicant had received notice of the existence of the report by way of the Arbitration Brief “Index” received on July 14, 2017, the actual document was not provided until August 10.

Based on these facts and the representations of the representatives, I made the following decision.

Although the normal practice between representatives in complying with the Pre-Hearing letter issued in matters under the Schedule contemplates the use of document indexes, they have no formal standing in the DRPC. Under the normal form of Pre-Hearing letter, it is clear that indexes should be exchanged far in advance of the thirty-day period provided by the DRPC for the final exchange of documents. The intent of the DRPC is clear: document exchange should take place early between the parties; the thirty-day period is only a deadline to ensure that there is at least this many days for a party to prepare.

I note the neuropsychological report was obtained by the Insurer in order to respond to new treatment proposals from March and April of 2017; it was not obtained to directly address any issues engaged in this Hearing. Although in an ongoing case, those medical issues are likely related, in this case procedural fairness suggests that it would not be proper to allow the Insurer to obtain last minute medical reports which could not be properly responded to by the Applicant. Accordingly, I have excluded the report.

EVIDENCE AND ANALYSIS:

Facts

The subject motor vehicle accident (“MVA”) took place on February 26, 2011 in London. The Applicant was the seat-belted driver of an automobile that was passing through a busy intersection. His motor vehicle was struck by another vehicle which forced the driver’s side of his vehicle into a light post. No immediate medical attention was sought or received by the Applicant.

On the next day, the Applicant did seek medical attention at the South London Urgent Care Clinic and obtained a doctor’s note stating “he might not be able to perform physically at full capacity for the next week.”²

Prior to the MVA, the Applicant was in good health with almost no visits to his family physician. After the MVA, the Applicant’s first visit to his family physician was March 22, 2011 at which time he complained of pain in his neck and low back.³

The Applicant’s back pain is important to understand as it becomes a limitation to his functioning for the purposes of my determination of the benefits that he is entitled to.

From the Applicant’s representative’s submissions, I note the Applicant’s relevant medical record includes:

• OCF-3 of Dr. Leung dated March 23, 2011:⁴ Dr. Leung diagnosed the Applicant as suffering from a WAD 2 and a sprain/strain of the lumbar spine. Dr. Leung opined that the Applicant would be disabled for an anticipated duration of 9 to 12 weeks;
• OCF-3 of Dr. Leung dated July 19, 2011:⁵ Dr. Leung opined that the anticipated duration of the Applicant’s impairments would be in excess of 12 weeks;
• Medical Certificate of Dr. Daniel Leung dated October 19, 2011:⁶ This Medical Certificate was completed by Dr. Leung in support of EI Sickness Benefits. Dr. Leung opined that the Applicant was incapable of working for an indefinite period of time;
• Limitations to Participation Form dated September 17, 2013:⁷ This is a Medical Certificate which Dr. Daniel Leung completed in support of the Applicant’s position with Ontario Works that he is unable to participate in the work training programs offered through Ontario Works due to medical limitations;
• Report of Treating Psychologist Dr. MacDonald dated March 25, 2014:⁸ Dr. MacDonald diagnosed the Applicant as suffering from a Pain Disorder, chronic, multiple sources of pain, a Major Depressive Disorder, as well as a probable Post Traumatic Stress Disorder;⁹
• Orthopedic Report of Dr. Fred Langer dated March 27, 2014:¹⁰ Dr. Langer opined that the Applicant’s injuries to his lower back and lower extremities have become chronic and have resulted in the formation of chronic pain.¹¹ Therefore, threshold for pain perception is lowered as sensitivity to pain is enhanced;¹²
• Psychiatry Insurer’s Medical Examination (“IME”) of Dr. Takhar dated April 14, 2014:¹³ Dr. Takhar observed that the Applicant’s affect was decreased in range and that psychomotor retardation was evident; his thought processes were slowed;¹⁴
• Treating Psychologist’s Report of Dr. MacDonald dated January 10, 2015:¹⁵ Dr. MacDonald opined that the Applicant continues to suffer from a Pain Disorder, Chronic, a Major Depressive Disorder, Chronic, as well as a Post-Traumatic Stress Disorder;¹⁶
• Vocational Report of OT Josh Campbell and OT Christine Kennedy dated March 20, 2015:¹⁷ On March 20, 2015, the Applicant was assessed by OTs Christine Kennedy and Josh Campbell to determine whether there was any job he could reasonably do given his impairments and his education, training and experience. The assessors concluded there was not;
• Psychiatry IME of Dr. Shreekant Sharma dated December 3, 2015:¹⁸ Dr. Sharma observed that the Applicant was extremely pain focused; he kept referring back to the limitations that have been placed on him because of the pain.¹⁹ In his report, Dr. Sharma concludes “He is very pain focused. All of his impairments are related to limitations placed on him by pain. As outlined in the narrative report, he has to pace himself for activities of daily living. He is not able to participate in heavy work or drive long distances because of pain limitations.”

The Insurer conducted an IME in July 2011 by a physiatrist. He was assessed by Dr. John Heitzner, Physiatrist, at the request of the Insurer on July 13, 2011 and Dr. Heitzner completed a report dated July 25, 2011. The Applicant reported: constant mid lower back pain improved 30% since the accident, intermittent neck pain which occurred two to three times a week, headaches that were initially daily but had decreased to one to two times a week and daily numbness from his hand to his elbow initially, now decreased to three to four times a week and lasting for 30 minutes to 1 hour in duration. The Applicant also reported he was independent in his activities of daily living and hygiene other than assistance with his shoes and socks secondary to low back pain. He also reported being able to drive for one hour before experiencing lower back pain. He also reported being able to do some cooking, cleaning and laundry. He described his mood as irritable at times because of ongoing pain. He had not returned to work as there were no modified duties available. Dr. Heitzner found that the Applicant had sustained a cervical strain – WAD II and lumbar strain with no neurological impairments which fell within the Minor Injury Guidelines (“MIG”).²⁰

The Applicant agreed with Dr. Heitzner’s report on cross-examination regarding his pain reports and level of function but stated his problems got worse over the years.

Medical imaging of the Applicant conducted in November of 2011 and 2013 shows an annular tear at L5-S1.²¹ The notation of the 2013 imaging also suggests that the appearance has not changed from 2011 to 2013.

At the time of the MVA, the Applicant had been working at a LCBO Warehouse doing shipping and receiving. His employment was through an employment agency. Ms. Christine Sawyer of that agency testified to confirm the Applicant’s employment.

Two years after the MVA, the Applicant was involved in an incident in Woodstock with the local police force. The Applicant alleged that he was assaulted by members of the local police force. There was a hospital visit as a result of this assault.²² The Applicant testified that he was tasered in his upper back and punched in his head and body and thought he had bruises on his face after this assault, yet he insisted he suffered no new injuries as a result of this assault and the assault only aggravated his MVA-related injuries for 6 months or so. The police assault was not mentioned to many of the various IME assessors.

The Applicant described himself as having had a limited education in Jamaica before coming to Canada permanently in the early 1990s. He also testified to be functionally illiterate. Although in the documents and IME reports there are some contradictions as to the level of his ability to read, I accept from reviewing appropriate documents and hearing the testimony of the Applicant, his daughter and a friend, that he is functionally illiterate.

The Applicant today walks with a cane. His past employment at the LCBO clearly involved carrying cases of wine and liquor. Because of his pain, which in turn causes limitations on his ability to lift and carry, he is unable to go back to that job. It is, though, also correct that he has never tried. He also has not tried any other employment since the MVA.

One of the Applicant’s daughters who had lived with him after the MVA testified on his behalf. Given the Applicant’s large family,²³ the daughter testified that it was common for many of her siblings and half-siblings to stay over with their father on weekends both before and after the MVA. In order to help her attending school (which was closer to her father’s home), she moved in with her father a year after the MVA in the late spring of 2012.

I note that from the time of the MVA to the daughter’s moving in, the Applicant lived alone and, except on the weekends when his children would visit, he functioned on his own without any incident.

The daughter’s testimony was that she noted changes in her father’s demeanour and personality after the MVA. She also recalls there was deterioration in the cleanliness of his home. However, on weekends when many of her siblings were visiting, she recalls that her father continued to be able to cook for all even after the MVA. Finally, the daughter recalls the Applicant being relatively independent as to his activities of daily living although she recalls he was more forgetful – especially with shopping lists – and would require help to bring grocery bags into the house because of his inability to carry heavier packages.

A good female friend of the Applicant’s testified. The friend had known the Applicant on and off for more than twenty years although at the time of the MVA they had fallen out of touch. However, at some point in 2014, the Applicant bumped into the friend while walking. He explained that his daughter was getting older and was becoming less help around the house and that there might be an opportunity for the friend to share the home while providing the Applicant some assistance. The friend and her own daughter moved into the Applicant’s home in February 2015.

The friend testified that she has been assisting the Applicant in many activities around his home. Specifically, she helps with cleaning and kitchen duties. She also accompanies the Applicant to medical and other appointments and, due to the Applicant’s illiteracy, will assist in reading and completing forms as required.

The friend testified that the Applicant can be quite emotional and anxious at times. He can become angry and irritable as well. The friend moved out in January 2017. I noted that she regularly accompanied the Applicant to the Hearing. She testified even after moving out, she will be with the Applicant about 5 to 6 hours per day.

On an issue related to attendant care, neither the daughter nor the friend testified that they had suffered any economic loss as a result of providing assistance to the Applicant. I also note that neither of them testified to any expectation of compensation for assisting the Applicant.

As noted above, a representative of the employment agency that had placed the Applicant with the LCBO testified. She confirmed that if it were not for the MVA, the Applicant may have been offered permanent employment directly with the LCBO.

The next witnesses to testify were the Insurer’s and Applicant’s assessors for Attendant Care.

There are 4 Assessment of Attendant Care Needs Reports or Forms filed into evidence in this proceeding:

i. Attendant Care Needs Report and Form 1 dated December 10, 2011, completed by Michelle Mag-Iba, RN, recommending $617.84 of monthly attendant care assistance;

ii. Occupational Therapy Assessment Report and Form 1 of Shannon Ross and Judith McNichol, OTs dated May 7, 2014, recommending $436.89 of monthly attendant care assistance;

iii. Occupational Therapy In-Home Assessment IME and Form 1 of OT Joseph Morgan dated June 23, 2014, recommending no attendant care assistance; and

iv. Occupational Therapy In-Home Assessment with Attendant Care Needs Form 1 of OT Lindsay Sinclair, dated May 18, 2017, in the sum of $7,835.55 (capped at $6,000.00 depending on whether or not Mr. Brown is catastrophically impaired).

Both Joe Morgan and Lindsay Sinclair for the Insurer and Applicant respectively testified.

Mr. Morgan’s assessment was deficient in a number of respects. For example, it did not pick up on the annular tear that the Applicant had and how that might affect his range of motion and pain. Mr. Morgan also admitted that he did not specifically record in his report witnessing the Applicant going up and down stairs even though he recalls having a tour of the entire house which included a basement, ground floor and second floor. Mr. Morgan was clear though that the annular tear would not affect his conclusion that the Applicant did not require any Attendant Care.

Ms. Sinclair noted that her report was significantly different than previous reports in recommending 24-hour, 7-day attendant care for the Applicant. She admitted on cross-examination that normally it would be expected that a subject would require less attendant care the longer time has passed since a motor vehicle accident. She admitted that the Applicant was independent in driving and was not aware how long he had lived on his own.

Three experts testified.

Dr. Michael MacDonald, the Applicant’s treating psychologist, testified. He testified that the Applicant’s pain caused the Applicant a lot of stress in his life and he (Dr. MacDonald) had been working with him to be able to cope and deal with it. He noted that the situation with the Woodstock police did affect the Applicant but that, even before this, the Applicant had had panic attacks. He was consistent in his opinion that the Applicant suffered from a Pain Disorder, chronic, multiple sources of pain, a Major Depressive Disorder, as well as a probable Post Traumatic Stress Disorder.

On cross-examination, Dr. MacDonald did note that after the Woodstock incident there were additional panic attacks. However, his view was that the MVA continued to be the root reason for the need for therapy. Dr. MacDonald was also questioned about the continuing need for therapy. In reply he believed that the Applicant was coping as well as he was with his pain because of the continuing therapy.

Dr. Shreekant Sharma testified as an expert in physiatry for the Insurer. He presented his reports and his opinion that further psychological treatment was not warranted on the basis that the Applicant had reached his maximum level of improvement. On cross-examination, Dr. Sharma admitted that the Applicant was unlikely to ever achieve his pre-MVA status. He also agreed that there was no reason to doubt the Applicant’s limitations in being able to lift heavy weights. In testifying about psychological treatment, Dr. Sharma was clearly outside of the area in which I qualified him and I have discounted his testimony accordingly.

Luigi Grimaldi, who had prepared a functional abilities examination for the Insurer,²⁴ testified. He had completed the examination in July 2011 (shortly after the MVA), which purported to determine the Applicant’s abilities to work. In the report, Mr. Grimaldi noted that there was a question as to whether or not the Applicant had exerted himself properly.

As a result of validity verifications built-in to the system which Mr. Grimaldi used, the report was deemed not to be a valid or true representation of the Applicant’s capabilities. During the examination, it was also noted that the examination was conducted during the acute phase of the Applicant’s pain – normally within 6 months post-MVA. The report would only have long-term validity if it had been conducted during the chronic phase of the Applicant’s pain limitations.

In order to ensure that the parties were able to present all appropriate documents into evidence, I invited both Applicant and Insurer to submit an outline of their final submissions in writing. Through these documents, I have been able to ensure that any other documents in the briefs will be considered by me.

As a part of the submissions exercise, a number of documents were brought to my attention from the briefs.

Included was a Vocational Report of OT Josh Campbell and OT Christine Kennedy dated March 20, 2015. This was to the effect that the Applicant had been assessed to determine whether or not there was employment he could reasonably do given his impairments and his education, training and experience. The assessors concluded there was not, noting the following:

[The Applicant] has been substantially unable to return to work in any capacity post-collision, due to his ongoing pain symptoms, psychological deficits, and functional limitations. Based on the review of available documentation and assessment of [him], it is this therapists’ opinion that he is substantially unable to engage in the duties of his pre-collision employment as a material handler or farm labourer. Using his current education, training, and experience, a transferrable skills analysis identified material handler and farm labourer as the only areas for which he has relevant skills. When accounting for his current physical and psychological limitations these positions were not considered appropriate. As such it is this therapists’ opinion that [the Applicant] is substantially unable to engage in employment for which he is currently suited by education, training or experience.

There were also a number of other IMEs and assessments which I reviewed as submitted.

Analysis

Income Replacement Benefit

There are two relevant rules and periods for an Income Replacement Benefit in this case. These are found in section 6 of the Schedule.

The first rule – applicable to the first 104 weeks post-MVA – is that the Applicant “suffers a substantial inability to perform the essential tasks of his … employment.” The second – applicable after the first 104 weeks – is that “as a result of the accident, the insured person is suffering a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience.”

For the first 104 weeks, the parties have agreed that the appropriate benefit would be $121.46 per week. After the first 104 weeks, section 7(2)1. ii of the Schedule provides that the benefit is $185 per week.

The Insurer resists the Income Replacement Benefit on a number of bases.

The first is that the Applicant’s employment at the LCBO was just casual work on an on-call basis. In addition, either before or after the 104-week period, the Applicant has not done anything to find any employment.

The Insurer points to the Applicant’s owning his own home as suggesting talents or capabilities more than just those of a manual labourer. It also points to the functional abilities evaluation and other reports that, at times, suggest that the Applicant has been “holding back” on his abilities in order to make his situation appear worse than it really is. The Insurer also suggests that the Applicant may not be illiterate as he has functioned in society prior to the MVA.

These objections are really just red herrings. I must act on the facts as I find them, not supposition. I give no weight to the Insurer’s concerns as they have not been proved on the evidence presented.

With respect to the Income Replacement Benefit, I find the following facts relevant to both the pre- and post-104 week benefit: The Applicant had steady employment with the LCBO through an employment agency. There was no reason to believe that the employment was in jeopardy other than for the MVA.

The Applicant’s pain is real. After the MRI imaging performed in both November 2011 and 2013, we also know that in addition to disk bulging, there is also an annular tear in the L5-S1 disk. All medical experts who were asked indicated that the annular tear could be the source of both pain and a functional limitation in lifting heavier objects. I find as a fact that the Applicant has pain, there is an organic cause for that pain which arose as a result of the MVA and that pain creates a functional limitation that restricts the weights that the Applicant can carry.

After the MVA, it was unlikely that the LCBO would want the Applicant as an employee in a position that required the carrying of cases of liquor and wine. It is reasonable to accept that the Applicant’s entitlement to pre-104 week Income Replacement Benefits has been made out. The ongoing medical diagnoses of the Applicant’s pain and his continuing use of a cane give credence to his inability to perform his pre-MVA employment.

In my view, the Woodstock police incident did not aggravate or otherwise affect the Applicant’s lower back pain. Although he may have other impacts from that incident, as a fact I find that the lower back pain that the Applicant was experiencing was unchanged as a result. I come to this conclusion as there is no evidence whatsoever that makes such a suggestion.

Post-MVA, I must determine what are the Applicant’s capabilities based on his employment, training and experience. I accept as a fact that the Applicant’s literacy is not sufficient to allow him to work in employment in anything other than a labourer’s or menial position. Nothing in his testimony about his previous employment, training or experience suggests anything different.

There is no question that the Applicant’s physical situation is such that he is unable to do any employment other than light lifting. The Vocational report identified above also supports the proposition that the Applicant is entitled to an Income Replacement Benefit even after the 104-week post-MVA milestone.

Attendant Care

The Attendant Care Benefit under the Schedule has a number of conditions. The first important condition is that an attendant who is a family member or a friend should have suffered an economic loss.²⁵ In this case, it is clear that there has been no such evidence from either the Applicant’s daughter or his friend.

Alternately, there was no evidence that any family or friend of the Applicant had provided services for which the Applicant was legally obligated to pay them. Accordingly, no Attendant Care Benefit can be paid for the periods that they purported to provide the Applicant such services. This covers the period to at least January 2017 being the time when the Applicant’s friend moved out.

I now turn to the issue of a possible Attendant Care Benefit moving forward (or at least from the date of the most recent Form 1 being May 18, 2017).

The Applicant’s representative in his submissions provided the following table to summarize the difference between the three different Form 1s submitted by the Applicant:

Assistance with:	December 10th, 2011 Michelle Mag-Iba, RN Recommendation	May 7th, 2014: Shannon Ross, OT Recommendation:	May 18th, 2017: Lindsay Sinclair, OT Recommendation:
Dressing lower body:	Nil;	Nil;	14 min. per week;
Undressing lower body:	Nil;	Nil;	14 min. per week;
Shaving:	Nil;	Nil;	20 min. per week;
Fingernail Care:	Nil;	Nil;	5 min. per week;
Toe Nail Care:	10 min. per week;	Nil;	5 min. per week;
Preparing, Serving, and/or Feeding Meals:	420 min. per week;	280 min. per week;	420 min. per week;
Mobility: supervises/assists with walking:	Nil;	140 min. per week;	840 min. per week;
Cleaning Tub, Shower, Sink, Toilet:	40 min. per week;	14 min. per week;	14 min. per week;
Changing bedding, making bed, cleaning bedroom:	40 min. per week;	10 min. per week;	14 min. per week;
Ensures comfort, safety and security in environment (bedroom):	Nil;	Nil;	840 min. per week;
Co-ordination of Attendant Care:	Nil;	Nil;	60 min. per week;
Medications:	Nil;	14 min. per week;	50 min. per week;
Prescribed Exercises:	50 min. per week;	Nil;	105 min. per week;
Bathing:	Nil;	Nil;	70 min. per week;
Maintenance/ preparation of treatment/ assistive equipment:	60 min. per week;	Nil;	10 min. per week;

When the Applicant’s own Form 1s are considered, it is obvious that the most significant difference in the last Form 1 is the 840 minutes per week allocated to ensuring bedroom safety and the additional 700 minutes per week to supervise the Applicant’s walking. In addition, there are some increases over the previous Form 1s in areas such as dressing; shaving; meal preparation; supervising of walking; and bathing.

I also have the Insurer’s proposed Form 1²⁶ as well as Mr. Morgan’s testimony suggesting that no attendant care is necessary.

I note from the testimony of the Applicant, his daughter and his friend that none of them suggested that there was any concern that the Applicant would be a danger to himself while sleeping or walking. I also note the daughter’s testimony that the Applicant was regularly in charge of a house full of children when her siblings would stay over on weekends with no adult assistance.

As to shaving, I note that the Applicant had a beard. As to bathing and dressing, it was clear from all of the testimony that the Applicant was independent in these functions.

Finally, I had the testimony of Ms. Sinclair who prepared the Form 1. She acknowledged that the biggest difference between the previous Form 1s was her determination that 24/7 care was required. In reviewing her report,²⁷ it is clear that she has not given any weight to the fact that the Applicant has been relatively self-sufficient with little assistance since the MVA. As between the Form 1 prepared by her and that prepared by the Insurer, I have chosen to accept that prepared by the Insurer showing an amount of $0 per month.

I am not convinced that there was evidence that Ms. Sinclair could use that suggested that the Applicant was someone who should be supervised at all times.

In passing, I note that the Applicant sought that I make a determination of the amount of the Attendant Care Benefit even in excess of $3,000 per month and after the 104-week post-MVA. Although the Applicant has not been designated as catastrophically impaired, the Applicant’s representative has suggested that there may be such a pending application.

Given my analysis that no Attendant Care Benefit is payable at any time, I believe little now turns on this issue.

Medical treatments

In the statement of issues above, there are three sets of medical treatments requested by the Applicant. Of these three sets, I note that on one treatment – being the $3,076.61 for occupational therapy services by Shannon Ross dated April 25, 2014 – no evidence or submissions were offered by the Applicant as to the nature, need or reasonableness of the treatment. As a result, it is difficult for me to make a decision with such information and I deny the proposed expense as a benefit.

With respect to the other two treatments being the psychological treatment and the exercise multiple regions plans, there have been both evidence and submissions on the nature, need and reasonableness of these treatments.

On the psychological treatment, I note the comments of the Insurer’s expert that he believes that the Applicant has reached the point of maximal improvement. However, I accept the opinion of Dr. MacDonald, the Applicant’s psychologist, that ongoing psychological treatment is likely warranted in order to prevent any regression in the Applicant’s mental state.

With respect to the exercise treatment, I note that this was early in the post-MVA treatment. The Applicant testified to continuing with exercises as possible and I conclude that his self-exercise was likely based on a firm foundation in a more formal setting.

The two treatment plans are accepted as being both reasonable and necessary treatments for the Applicant.

Costs of assessments

In the statement of issues above, there were six (6) different assessments that the Applicant was seeking. I note that there were no specific Applicant’s submissions relating to the reasonableness and necessity of these assessments. The Insurer touched on the Attendant Care assessments suggesting that these were not reasonable and necessary. The Insurer has also pointed out that, until the Applicant is designated as catastrophically impaired, there is no entitlement under the Schedule to such benefits.

The logic then continues that if an Attendant Care Benefit cannot be awarded, what is the purpose of proposing Attendant Care assessments? I agree. Until there is a designation of catastrophic impairment, there is no entitlement to such a benefit. Accordingly, any assessment to help establish the benefit could not be reasonable or necessary.

On this basis, I have denied any assessments which seek to establish the Attendant Care Benefit.

The remaining three assessments are for: 1) a psychological assessment; 2) an orthopedic assessment; and 3) a vocational assessment.

The orthopedic assessment was initially denied due to the MIG being applicable to the Applicant’s claim. However, after a point, the Insurer agreed that the MIG was no longer applicable. In addition, the Insurer conducted its own IME orthopedic assessment. In these circumstances and given the need to determine a source for the Applicant’s pain, it was reasonable and necessary for the Applicant to be able to conduct his own orthopedic assessment.

The vocational assessment is clearly reasonable and necessary. I have relied on it to establish that the Applicant is entitled to a post-104 week Income Replacement benefit.

I have also relied on the psychological assessment and Dr. MacDonald’s testimony in making a determination on the benefits that are payable. It is reasonable and necessary as well.

To conclude, the assessments for 1) a psychological assessment; 2) an orthopedic assessment; and 3) a vocational assessment; are all reasonable and necessary and are allowed as benefits.

Interest

Any payments of benefits hereunder that were overdue shall bear interest at the rate of 1 percent per month, compounded monthly pursuant to section 51(2) of the Schedule. Although in the arbitration file there is a Consent to Fail Mediation Form signed on February 2015 filed that has the hand-written notation “interest: 2% per month compounded”, it is clear to me that the date of the MVA and the provisions of the Schedule provide for a 1% per month interest rate. No other submission on this issue has been made to me.

EXPENSES:

If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may request an appointment with me for determination of same in accordance with Rules 75 to 79 of the DRPC.

November 30, 2017

Marcel D. Mongeon Arbitrator

Date

Financial Services Commission of Ontario

Neutral Citation: 2017 ONFSCDRS 321

FSCO A12-006732

BETWEEN:

EVERTON BROWN

Applicant

and

GORE 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. The Applicant is entitled to an Income Replacement Benefit in the amount of $121.46 per week less amounts paid from March 5, 2011 to February 25, 2013, and thereafter at the rate of $185.00 per week.

2. The Applicant is not entitled to any Attendant Care Benefit for any period of time.

3. The Applicant is entitled to receive payment for the medical treatments as follows:

• $3,790.64 for psychological treatment from Michael MacDonald submitted on September 10, 2015; and
• $850.00 for exercise multiple regions by AIM Strathroy.

The payment of medical treatment for $3,076.61 for occupational therapy services by Shannon Ross dated April 25, 2014 is denied.

4. The Applicant is entitled to receive payment for the assessments as follows:

• $1,979.36 for a psychological assessment by Michael MacDonald dated March 5, 2014;
• $1,970 for an orthopedic assessment by Fred Langer dated March 18, 2014; and
• $2,206.41 for a vocational assessment dated October 22, 2014.

The payment of the following assessments is denied:

• $965.82 for an attendant care assessment by Best Choice Medical dated August 10, 2011;
• $1,320.75 for an in-home assessment by Excess Health dated June 6, 2011; and
• $1,679.52 for an occupational therapy assessment by Judith McNichol dated March 26, 2014.

5. Any payments of benefits hereunder that were overdue shall bear interest at the rate of one (1) per cent per month, compounded monthly.

6. 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.

November 30, 2017

Marcel D. Mongeon Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule - Effective September 1, 2010, Ontario Regulation 34/10, as amended.
2. 2Exhibit 8.
3. 3Exhibit 9.
4. 4Tab 2B of the Applicant’s Medical Brief.
5. 5Ibid.
6. 6Tab 4A of the Applicant’s Medical Brief.
7. 7Tab 7 of the Applicant’s Medical Brief.
8. 8Tab 9A of the Applicant’s Medical Brief.
9. 9Ibid. at page 2.
10. 10Tab 10A of the Applicant’s Medical Brief.
11. 11Ibid. at page 7.
12. 12Ibid. at page 8.
13. 13Tab 3G of the Applicant’s Medical Brief.
14. 14Ibid. at page 6 of the report.
15. 15Tab 9D of the Applicant’s Medical Brief.
16. 16Ibid. at page 3.
17. 17Tab 12B of the Applicant’s Medical Brief.
18. 18Tab 3I of the Applicant’s Medical Brief.
19. 19Ibid. at page 10.
20. 20Exhibit 10.
21. 21Exhibit 11, St Joseph’s Health Care London Radiology Consultation Reports of November 15, 2011 and November 13, 2013.
22. 22Exhibit 5.
23. 23He has 17 children.
24. 24Exhibit 29.
25. 25Section 3(7) (e)(iii)(B) of the Schedule.
26. 26Exhibit 12.
27. 27Exhibit 20.