Norma Byfield v. TD General Insurance Company, 2017 ONFSCDRS 323

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2017 ONFSCDRS 323

FSCO A16-003926

BETWEEN:

NORMA BYFIELD

Applicant

and

TD GENERAL INSURANCE COMPANY

Insurer

DECISION

Before:

Lynda Tanaka, Arbitrator

Heard:

In person at ADR Chambers on October 2, 3, 4, 5, 6, and 12, 2017

Appearances:

Ms. Norma Byfield participated

Mr. Jonathan Shulman, Licensed Paralegal and Student-at-Law for the Applicant

Mr. Amit Gogna, counsel, and Ms. Alexandra Cohen, Student-at-Law for the Insurer

Issues:

The Applicant, Ms. Norma Byfield (the “Applicant”), was injured in a motor vehicle accident on February 2, 2012 and sought accident benefits from TD General Insurance Company (“TD”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and the Applicant, 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 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.

The issues in this Arbitration are:

1. Is the Applicant entitled to receive medical benefits and rehabilitation benefits provided by Superior Rehabilitation Services (“SRS”) and to payments for the cost of examinations by SRS, all as follows:

a) $980.00 as per treatment plan dated 2013-10-26 for an Assessment of Attendant Care Needs;

b) $2,000.00 as per treatment plan dated 2015-04-12 for Chronic Pain/Pain Management Assessment;

c) $1,572.20 as per treatment plan dated 2015-04-12 for a TMJ Assessment;

d) $1,716.25 as per treatment plan dated 2015-04-12 for Functional Ability Evaluation/FAE Assessment;

e) $1,154.47 as per treatment plan dated 2013-09-25 for Active Treatment/Exercises;

f) $400.00 as per treatment plan dated 2013-10-11 for a Home Based Exercise Program/Brochure;

g) $3,357.57 as per treatment plan dated 2015-04-12 for Psychological Treatment;

h) $350.00 for completion of the OCF-3 2013-08-16;

i) $380.00 as per treatment plan dated 2014-05-15 for a Minor Injury Determination Progress Report; and

j) $2,000.00 as per treatment plan dated 2015-04-12 for a Psychological Assessment?

2. Is the Applicant entitled to interest for overdue payment of benefits?

3. Is either party entitled to its expenses of the arbitration?

Result:

1. The Applicant is entitled to receive medical benefits and rehabilitation benefits provided by Superior Rehabilitation Services and to payments for the cost of examinations, as follows:

a) $1,154.47 as per treatment plan dated 2013-09-25 for Active Treatment/Exercises;

b) $2,000.00 as per treatment plan dated 2015-04-12 for Chronic Pain/Pain Management Assessment;

c) $3,357.57 as per treatment plan dated 2015-04-12 for Psychological Treatment;

d) $350.00 for completion of the OCF-3 2013-08-16;

e) $380.00 as per treatment plan dated 2014-05-15 for a Minor Injury Determination Progress Report; and

f) $2,000.00 as per treatment plan dated 2015-04-12 for a Psychological Assessment.

2. The Applicant’s claim for medical benefits and rehabilitation benefits provided by Superior Rehabilitation Services and to payments for the cost of examinations is dismissed for the following claims:

g) $980.00 as per treatment plan dated 2013-10-26 for an Assessment of Attendant Care Needs;

h) $1,572.20 as per treatment plan dated 2015-04-12 for a TMJ Assessment;

i) $1,716.25 as per treatment plan dated 2015-04-12 for Functional Ability Evaluation/FAE Assessment; and

j) $400.00 as per treatment plan dated 2013-10-11 for a Home Based Exercise Program/Brochure.

3. The Applicant is entitled to interest for the overdue payment of benefits.

4. 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 (“DPRC”), with the following revised timetable. The party requesting expenses shall submit the request including supporting material to ADR Chambers, served on the opposing party, within 20 days of the date of this decision. The responding party shall serve and file its response within 10 days of receipt of the request for expenses. Reply material shall be served and filed within 5 days of receipt of the response.

PRELIMINARY ISSUES

The parties agreed to an order that witnesses be excluded until called to testify.

EVIDENCE AND ANALYSIS:

The Applicant and Dr. John Balkansky DC testified in support of her claims and Dr. Todd Levy M.D. testified as the independent assessor who assessed the Applicant’s injuries on behalf of TD.

The Applicant is a 53 year old Registered Practical Nurse employed at a long-term care facility for the past 11 years. Prior to the accident she had no mental or emotional problems requiring psychological therapy and no medical conditions which interfered with her functioning. She would get headaches once every few months and used Tylenol when she had one.

The accident occurred when she was a passenger in a 1991 Integra driven by one Errol Finn. She recalled the accident. While stopped at a red light, the car was hit from behind and shoved into the intersection. After the accident, the car that hit them was sitting in the place where they had been before they were hit. She was nauseous and dizzy when she got out of the car. She could not get back into the car because her seat, the front passenger seat, was out of line. The back seat was pushed in even more than her seat had been. She testified that she was wearing her seat belt and went forward in her seat from the lumbar portion of her back and up. She did not lose consciousness but was taken to the hospital by ambulance. She was at the hospital for a few hours while they ran tests and took x-rays, but there were no broken bones and she was sent home. She recalled that her neck hurt; she had a headache and sore shoulders and she was “just not feeling great” after the accident. The Accident Benefits First Call Interview Guide² documents her injuries as “low back pain, dizziness, neck pain, shoulder pain, right foot/ankle pain; head”. In her Application for Accident Benefits dated February 14, 2012³ she reported on page 3 injuries to her “neck, shoulders, arms, back and both knees” and that she is “suffering from headaches and having great trouble sleeping at night.”

The Applicant went to her family doctor right away complaining of severe pain in her neck, headaches, and shoulder pain. He diagnosed whiplash injury and sent her for physiotherapy and gave her medication. She was the provider for her children and she only took one week off work after the accident because she was only paid if she works. She found that she could not maintain her usual pace of 10 shifts of work and had to confine herself to 8 work shifts per week. Before the accident, she had never refused a work shift.

She has continued to suffer pain from her injuries. At the current time, over five years after the accident, she continues to have headaches, now two or three days per week. She has back pain. Her pain levels vary: some days she’s “great” and some days, the pain is as bad as it can get. Similarly her range of motion varies widely. When she coughs, she gets a headache. She says her pain in her knees impacts on her work.

Sometimes her fingers are so numb that it takes a while before she can hold her pen. She becomes depressed and anxious over her neck pain. She believes she is going to have her neck and shoulder pain for a long time. She has some pain radiating down into her foot. She also has numbness and tingling in her hands in all fingers except the baby finger and the fingertips are numb. She cannot hold things properly. Her sleep is interrupted because of the pain in her neck and her hands, and her doctor has given her depression medication and medication to assist her sleeping. She is anxious in cars and scans the rear of the vehicle. She testified that she thinks back to the accident, especially when stopped at a traffic light, and starts reliving the accident. Her pain limits her activities in that, when it is at its worst, she just wants to go home and take it easy. Her social life is not good; she just goes home from work and does not socialize much. She has limitations in the housekeeping duties she can do and is assisted by her children.

She testified that for her, her injuries are significant. She had physiotherapy until she understood that TD would not pay anymore. She has resumed some therapy in 2017 using her employee benefits. She testified that she needs to have her body whole.

She would like to have psychotherapy so that she has some strategies for moving on and living a healthy life, how to live with the pain, how to get more sleep and of better quality.

Any recovery for the Applicant in this case depends on whether or not the Applicant’s injuries fall within the Minor Injury Guideline (“MIG”).⁴ The onus is on the Applicant to establish that her injuries fall outside the MIG.⁵ The issue of interpretation of the legislative scheme of the MIG must be considered in the context that this is consumer protection legislation.

The Schedule in section 3 provides a definition of a minor injury as one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such injury. There are two ways that an injured person can be removed from the MIG: first, if the injured person meets the requirements of section 18(2) which provides a mechanism for those insured who can provide compelling evidence that they had a pre-existing medical condition documented by a health practitioner that will prevent the insured from achieving maximal recovery from the minor injury if the benefits are limited to the $3,500.00 provided under the MIG, and, second, if the injuries suffered do not fall within the definition of minor injury.

The Applicant submits that her injuries fall outside the MIG because they include radiculopathy as documented in Dr. Balkansky’s assessment and psychological impairment as well as chronic pain. Further, the Applicant submits that TD approved treatment in a treatment plan for symptoms (radiculopathy) that are outside the MIG and, having approved such treatment, TD cannot now change its position and deny that her injuries fall outside the MIG.

Medical Evidence

The first treatment plan submitted on behalf of the Applicant was an OCF-23⁶ submitted by a physiotherapist who described the Applicant’s injuries as “Other sprain and strain of cervical spine, Sprain and strain of shoulder joint and disorders of initiating and maintaining sleep [insomnias]”.⁷ In March 2012, a physiotherapist in a different treatment centre, Total Osteopathy and Physiotherapy (“TOP”), submitted a second OCF-23 with a diagnosis of “Sprain and strain of other and unspecified parts of the shoulder girdle and Whiplash associated disorder [WAD2] with complaint of neck pain with musculoskeletal signs”.⁸ TD approved this second OCF-23 in part because the Applicant had completed Block 1 of the MIG at the other treatment center.⁹ TOP subsequently submitted an OCF-3 (Disability Certificate) dated April 19, 2012 identifying radiculopathy and it included a handwritten note signed by the Applicant that she had numbness and tingling in her left hand as well as pain and discomfort in her neck.¹⁰ The Applicant testified that she did not have the numbness and tingling prior to the accident. A treatment plan OCF-18 dated May 22, 2012 for $943.24 was submitted by TOP and approved by TD on May 24, 2012.¹¹

A further treatment plan submitted by Dr. Judy Silverman, a chiropractor at SRS, dated March 23, 2013, was approved by TD for assessment and therapy for multiple regions in the amount of $1,318.00 on June 25, 2013.¹² The description of the complaints, injuries and sequelae in Part 6 of that treatment plan include “Radiculopathy”. The treatment plan also refers to “resume therapy and psych consult” as a recommendation to overcome discogenic cervical pain. This is the treatment plan that the Applicant relies on as being approved for treatment for radiculopathy which does not fall within the MIG. I note that the record shows that, at the same time, TD sent a letter denying a treatment plan by the same author at SRS and dated the same date because the injuries “remain to be predominantly minor”.¹³

The Applicant’s ongoing complaints of numbness and tingling in her hands are well documented. In addition to the above noted documents, the following documents contain references to these symptoms:

a) SRS Minor Injury Determination Report dated June 11, 2013 completed by a kinesiologist, Leonid Rosentsveig; and

b) OCF-3s completed by Dr. John Balkansky, DC, on August 8, 2013,¹⁴ over 18 months after the accident, and on March 28, 2014.¹⁵

Dr. Balkansky recommended In-Home Assessment, Psychotherapy, Attendant Care Assessment, Diagnostic Imaging, Social Rehabilitation Support and Psychotherapy as well as family physician follow-up. The disputed treatment plans, Issues 1(a), (e) and (f), as well as the dispute concerning payment for this OCF-3 (Issue 1(h)) flow from his assessment of August 2013. TD denied all these treatment plans.

Following the issuance by Dr. Balkansky of the second Disability Certificate on March 28, 2014¹⁶ (which mirrored the previous Disability Certificate submitted in August 2013), the only dispute with respect to 2014 treatment plans is Issue 1(i), a treatment plan dated 2014-05-15 for a “Minor Injury Determination Progress Report”.¹⁷

Also in the spring of 2014, the Applicant obtained a “MIG Determination and Initial Impairment Medical Psychological Determination Report” by Dr. Igor Wilderman dated April 1, 2014.¹⁸ Dr. Wilderman is a medical doctor who specializes in pain management. His title is “Director of Pain Clinic”. He assessed the Applicant in April 2014, two years after the accident. He administered some screening tests which identified a moderate level of general anxiety and a minimal level of depression. He concluded that she suffered from Post-Traumatic Stress disorder and made a determination of Generalized Anxiety Disorder as well. He assessed her under the impairment domains used for catastrophic injury. His conclusion was that she requires a full psychological assessment and that her psychological impairments are not considered to be minor injuries under the MIG. Her reported complaints were symptoms of anxiety and depression such as intrusive thoughts of the accident in the form of flashback with associated heart palpitations and breathing difficulties, fear of driving, passenger anxiety, sleeping difficulties, decreased memory and concentration ability and persistent fatigue. These interfere with her social, recreational, occupational and housekeeping functions.

Dr. Balkansky and Dr. Wilderman submitted further treatment plans in March 2015 and these are reflected in Issues 1(b), (c), (d), (g) and (j). These treatment plans would provide for psychological assessment as well as treatment and assessments of chronic pain and the TMJ (Temporal Mandibular Joint), and a functional ability evaluation.

Dr. Balkansky’s opinion is that the Applicant’s injuries do not fall within the MIG because his testing confirms neurological symptomatology. His opinion is that she is suffering radiculopathy in her lower back with pain shooting down her leg and the numbness in her hands is also radiculopathy from the nerve roots in her neck. His view is that she should have recovered years ago but is still impacted in her neck and back. In addition to the opinions expressed in his treatment plans and disability certificate, he also provided a Summary Report dated July 23, 2015,¹⁹ a Case Profile with Initial Intake Form dated August 16, 2013,²⁰ a Consultation Report dated March 28, 2014,²¹ a Consultation Report dated March 27, 2015²² and an Initial Intake Form dated February 27, 2017.²³

He saw the Applicant as recently as September 2017 but because of a failure to serve the documents in accordance with the DRPC, his evidence was confined to his observations and opinions as of February 2017, which was the last time he saw the Applicant prior to September 2017.

Dr. Balkansky, as a chiropractor, conducted various tests of the range of motion of the Applicant’s joints at each visit. His detailed notes of his observations are contained in Exhibits 2, 3, 4 and 5. His summary report of 2015 contains ranges of motion in numerical form while those in the detailed notes are in graphic form.

TD obtained a Psychological Insurer’s Examination Assessment report by Dr. Randy Silverman dated June 30, 2014²⁴ and a General Practitioner Insurer’s Examination Assessment Report by Dr. Todd S. Levy M.D. of the same date.²⁵ Relying on these assessments, TD took the position that the Applicant’s injuries fell within the MIG and no further treatment was appropriate or provided under the policy.

Dr. Levy conducted an assessment in June 2014. The assessment was to determine if an OCF-18 for treatment dated March 28, 2014 was reasonable and necessary. Dr. Levy is a general practitioner and his examination focussed on her physical injuries, though he did indicate that he questioned her about her mood and any driver or passenger anxiety. With respect to physical injuries, he reported that she had muscle pain in the left upper trapezius muscle at the end ranges of bilateral rotation. He observed that the nature of her physical injuries “is certainly much less severe than that listed on the Treatment Plan in dispute”.²⁶

Dr. Levy conducted a further assessment May 19, 2016 and provided a further report²⁷ for the specific purpose of determining whether the Applicant’s injuries meet the criteria of the MIG. She continued to complain of intermittent posterior neck pain radiating to both sides and across the upper trapezius muscles, intermittent but daily knee pain, intermittent occipital headaches that come five times per month, intermittent numbness in her hands (“upper extremities”) as well as in her lower extremities, and intermittent weakness in her extremities. She continued to complain of sleep disturbance but most notably her mood was now sad, depressed and frustrated. While she previously complained of intermittent crying and irritability, she added to that complaints of intermittent feelings of hopelessness and helplessness with ongoing passenger anxiety and intermittent driver anxiety.

Again she reported tenderness on deeper palpation in the trapezius muscles and reported right knee pain in a full squat. He concluded that she had no significant physical changes since her last assessment but worsening psychological distress. He diagnosed WAD I, Bilateral Knee sprain/strain and cervicogenic headaches and met the criteria of a minor injury “from a physical point of view”.²⁸

Dr. Levy testified. He explained the ranges of motion of the joints as being not uncommon in 50 year old people. He had difficulty interpreting the tests conducted by Dr. Balkansky and referenced in his report. Dr. Levy testified that, while he was familiar with some of the tests referred to, chiropractors conduct differently named tests and different tests than medically trained general practitioners.

With respect to the report by Dr. Wilderman, Dr. Levy described it as cursory. He pointed out that Dr. Wilderman is a chronic pain specialist but did not make a diagnosis of chronic pain disorder. According to Dr. Levy, chronic pain must be such that the person is overwhelmed with the pain and having significant emotional distress. People with Chronic Pain Syndrome cannot function at home, are generally not working or are working part-time or on modified duties. Any treatment plan for chronic pain includes a strong component of psychological treatment. He did not agree with a diagnosis of radiculopathy even though she persistently reported numbness and tingling. On cross-examination, he said that people over time are going to develop age related aches and pain. He also admitted that he did not examine for her for sleep problems and that a non-organic sleep disorder would be outside the MIG.

Dr. Silverman was asked to determine whether the Applicant had developed an accident related psychological impairment or DSM-5 psychological disorder. Dr. Silverman had reviewed Dr. Wilderman’s report. According to Dr. Silverman, at the assessment the Applicant denied that she suffered from the psychological difficulties identified in the report by Dr. Wilderman. Dr. Silverman reported that she told him she had no nightmares, no marked affective distress, anxiety or clinical depression. Dr. Silverman administered different psychological tests than were administered by Dr. Wilderman and concluded that the Applicant had been coping with the accident and injuries, based on her presentation and self-report, as well as the objective psychometric findings. His conclusion was that there was no need for psychological intervention or treatment that would propel her rehabilitative requirements outside the $3,500.00 policy limits under the MIG.

One problem with the evidence in this case is that only in 2014 do I have reports from experts assessing the Applicant in a relatively close timeframe. There is no report by Dr. Wilderman or anyone else with similar credentials in chronic pain in 2016 when Dr. Levy identifies the Applicant’s worsening psychological impairment. Dr. Levy does not opine on the psychological issues, other than to identify a worsening situation, and TD did not follow up on those statements in his report. The Applicant submits that Dr. Levy’s 2016 report provides the solid basis that the Applicant’s impairments bring her out of the definition of minor injury.

TD says that the Applicant’s case is not corroborated but is merely based on her own report from time to time and therefore she cannot meet her onus of proof. TD specifically relied on the absence of any clinical notes and records of her family doctor, though the Applicant testified that she had such a doctor and that the doctor had prescribed medication to assist her in her recovery from her injuries as well as referrals to specialists. Nor was I provided with the police accident report, pictures of the vehicle after the accident, the ambulance records or the hospital records on the day of the accident. The Applicant’s representative advised that the reason for the lack of records from the hospital emergency room where the Applicant was taken, the ambulance records, and from the family doctor was the Applicant’s financial constraints, and that all these records cost money that the Applicant does not have. That does not explain why TD could not have paid for them and why those records which TD would get in the normal course such as the police report were not included in the Insurer’s Brief of Documents. I infer that the documents would have provided some corroboration for the severity of the collision impact as recounted by the Applicant and the vehicle driver. What is clear is that all the assessors were operating under a similar limitation; i.e. their assessments could not include a multi-year medical history of the Applicant nor detailed information concerning the accident. I recognize that medical doctors must question and analyze the assertions of those whom they are assessing, but the cross-examination of Dr. Levy and review of the medical reports as well as the evidence of the Applicant has left me with the impression that the independent assessors gave little weight to her report on the severity of the accident nor to the interference in her functioning.

I find that the Applicant has complained about the numbness and tingling in her hands caused by the accident. By 2016 when she is seen again by Dr. Levy, her physical injuries have not resolved; rather they continue with worsened psychological condition. Despite his observation of her worsened psychological condition, Dr. Levy clearly limited his opinion in response to the question put to him by TD to the physical impairments.

A determination that an injury is a minor injury is fact specific. I was referred to various cases in which arbitrators have tackled the issue of whether or not the evidence satisfied them in the particular case that the insured person’s injuries were not caught by the MIG. Arbitrators’ decisions are not binding on me but it is highly desirable to have consistency in outcomes on similar facts. There appears to be general agreement that the existence of pain alone is not sufficient. The pain must be such, on the evidence, that it interferes with the insured person’s ability to function.

The Applicant has impressed me as a credible witness, modest in her expectations of pain following the accident, and her expressions of sadness and depression to Dr. Levy were echoed in the evidence she gave. Her pain has lasted long past the time when it should have resolved and that she still experiences pain is clear on her own evidence and on the 2016 report of Dr. Levy as well as the evidence of Dr. Balkansky. In arriving at this conclusion I have not given any weight to the catastrophic impairment ratings applied by Dr. Wilderman since the references are very brief.

I find that her pain causes her suffering and distress and she has limitations in her functioning in her ability to carry out her work, her household work such as grocery shopping as well as in her social interaction, and therefore her ability to engage in her community. She has been prescribed anti-depressants by her family doctor. Therefore she meets the requirements to come out of the MIG.²⁹

If she is to overcome or at least effectively manage her chronic pain, she needs help to cope with the psychological issues. She has been denied that help by TD through the five years since the accident and she is worse now than she was when Dr. Levy and Dr. Wilderman saw her in 2014. I give little weight to the note in Dr. Silverman’s report of 2014 of the Applicant resisting psychological counselling when I have the viva voce evidence of the Applicant indicating that she would find that counselling helpful.

I find that the Applicant has provided compelling evidence that on the balance of probabilities the Applicant has suffered impairments which, due to their persistence in the years since the accident and the interference in her functioning, fall outside the MIG.

Issue 1: Is the Applicant entitled to receive medical benefits and rehabilitation benefits provided by Superior Rehabilitation Services (“SRS”) and to payments for the cost of examinations by SRS?

I will deal with the claims for the various treatment plans under three separate topics, first, physical assessment and treatment, second, psychological assessment and treatment and third, miscellaneous. The limitation on coverage under the MIG that TD relied on is no longer relevant.

With respect to physical assessment and treatment, the relevant treatment plans are Issues 1(a), and (c) to (e) inclusive.

Only one treatment plan for $1,154.47 dated 2013-09-25 for Active Treatment/Exercises (Issue 1(e)) addresses the Applicant’s need for further physical treatment and I find that the Applicant has satisfied the onus that this treatment is reasonable and necessary as it is directed to her back and spine. She has resumed treatment through her employee benefit plan and I find the treatment plan will address the needs she expressed in evidence. I note also that the evaluation will assess neurological issues though this is not to be confused with a proper neurological assessment.

The Applicant has not met the onus of establishing that the treatment plans for physical impairment assessments (Attendant Care, Functional Ability Evaluation, TMJ, Issues 1(a), (c) and (d)), are reasonable and necessary. There was no argument raised that the costs of the assessments were not reasonable. They are all assessments proposed in 2014 and I am not convinced on the evidence that they will shed much light on the Applicant’s needs as the Applicant has returned to work and continues to work, albeit with pain, difficulties with her hands and worsening psychological impairment. Such assessments may be appropriate in the future. I note TD’s concern that SRS is using up the policy limits on assessments and not on treatment and the Applicant will need to exercise caution before signing an OCF-18 to request an assessment to be sure she understands what is to be accomplished by the assessment so that her treatment is not jeopardized by an aggressive program of assessments.

Secondly, with respect to the treatment plans for psychological assessment and treatment (Issues 1(g) and (j)), TD disputes these as not reasonable and necessary. Some psychological assessment is required as I have noted in the MIG analysis. In addition to the psychological issues identified by Dr. Levy, there is a persistent complaint of driver and passenger anxiety, though I note that Dr. Silverman’s report is inconsistent with this record.

The psychological assessment OCF-18³⁰ proposes to address, among other issues, the Applicant’s sleep pattern, her anxiety and her difficulty concentrating due to headaches and neck pain for a total cost of $2,000.00. The treatment OCF-18 in question³¹ proposes twelve sessions of therapy and one session of education for a total cost of $3,357.57. I agree with TD that it would have been better to have the psychological assessment done before the treatment plan was put forward, but I also find that, based on Dr. Levy’s observations, there is reason to provide for both the assessment and the treatment at this time. There is currently a lot of information available which will no doubt assist in the timeliness and effectiveness of the psychological assessment.

In addition to the psychological assessment and treatment, I also find that the treatment plan for $2,000.00 dated 2015-04-12 for Chronic Pain/Pain Management Assessment (Issue 1(b)) is also reasonable and necessary and should also be approved. I do not dismiss Dr. Wilderman’s report, as TD would have me do, because it is brief and relied on screening tests only. I acknowledge that that he made no finding of chronic pain syndrome. I have, however, found that the evidence satisfies me that the Applicant suffers from chronic pain which interferes with her functioning and she is responding emotionally to that situation. There is a difference between a chronic pain assessment and treatment³² and the psychological treatment and assessment I am approving under the other treatment plans.

Third, there are a number of miscellaneous matters. I refuse to approve the treatment plan Issue 1(f) for the brochure for $400.00 which I find to be an extraordinary amount of money for an exercise plan, especially as Dr. Balkansky was unable to provide any real detail on it.

I approve the two treatment plans in Issues 1(h) and (i) for $350.00 for completion of the OCF-3 dated 2013-08-16;³³ and $380.00 as per treatment plan dated 2014-05-15 for a Minor Injury Determination Progress Report.³⁴ The OCF-3 was an important document to identify the progress made by the Applicant following treatment and the persistent nature of her complaints and impairments. I also found the Minor Injury Determination Progress Report prepared about a year later to be a useful document. I give no weight to TD’s complaints about the lack of information on the qualification of the kinesiologist who prepared the additional comments section as there is clear reference to Dr. Balkansky’s supervision. The kinesiologist was with SRS and the OCF-18 was refused based on the MIG and not on the refusal of SRS to provide information as to the qualifications of the author. Finally the information is consistent with the other documentary evidence of the impairments of the Applicant.

Issue 2: Is the Applicant entitled to interest for overdue payment of benefits?

The Applicant is entitled to interest for the overdue payment of benefits.

EXPENSES:

The parties agreed at the conclusion of the Hearing that I should make my final determination on the substantive issues in dispute without determining then the issue of expenses. One of them may wish to rely on an offer as provided in the DPRC. I also urged the parties to attempt to agree on expenses if possible.

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 DPRC, with the following revised timetable. The party requesting expenses shall submit the request including supporting material to ADR Chambers, served on the opposing party, within 20 days of the date of this decision. The responding party shall serve and file its response within 10 days of receipt of the request for expenses. Reply material shall be served and filed within 5 days of receipt of the response.

November 30, 2017

Lynda Tanaka

Arbitrator

Date

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2017 ONFSCDRS 323

FSCO A16-003926

BETWEEN:

NORMA BYFIELD

Applicant

and

TD GENERAL 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 receive medical benefits and rehabilitation benefits provided by Superior Rehabilitation Services and to payments for the cost of examinations, as follows:

a) $1,154.47 as per treatment plan dated 2013-09-25 for Active Treatment/Exercises;

b) $2,000.00 as per treatment plan dated 2015-04-12 for Chronic Pain/Pain Management Assessment;

c) $3,357.57 as per treatment plan dated 2015-04-12 for Psychological Treatment;

d) $350.00 for completion of the OCF-3 2013-08-16;

e) $380.00 as per treatment plan dated 2014-05-15 for a Minor Injury Determination Progress Report; and

f) $2,000.00 as per treatment plan dated 2015-04-12 for a Psychological Assessment.

2. The Applicant’s claim for medical benefits and rehabilitation benefits provided by Superior Rehabilitation Services and to payments for the cost of examinations is dismissed for the following claims:

a) $980.00 as per treatment plan dated 2013-10-26 for an Assessment of Attendant Care Needs;

b) $1,572.20 as per treatment plan dated 2015-04-12 for a TMJ Assessment;

c) $1,716.25 as per treatment plan dated 2015-04-12 for Functional Ability Evaluation/FAE Assessment; and

d) $400.00 as per treatment plan dated 2013-10-11 for a Home Based Exercise Program/Brochure.

3. The Applicant is entitled to interest for the overdue payment of benefits.

4. 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, with the following revised timetable. The party requesting expenses shall submit the request including supporting material to ADR Chambers, served on the opposing party, within 20 days of the date of this decision. The responding party shall serve and file its response within 10 days of receipt of the request for expenses. Reply material shall be served and filed within 5 days of receipt of the response.

November 30, 2017

Lynda Tanaka

Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule - Effective September 1, 2010, Ontario Regulation 34/10, as amended.
2. 2Exhibit 1, Insurer’s Document Brief, Tab 1.
3. 3Exhibit 1, Tab 2.
4. 4Minor Injury Guideline, Superintendent’s Guideline No. 01/14.
5. 5Scarlett v. Belair Insurance Co., 2015 ONSC 3635, 2015 CarswellOnt 8586.
6. 6Exhibit 1, Tab 3.
7. 7Ibid. at p. 2 of 4.
8. 8Exhibit 1, Tab 5.
9. 9Exhibit 1, Tab 7, Letter of March 30, 2012 from TD to the Applicant.
10. 10Exhibit 1, Tab 8.
11. 11Exhibit 1, Tabs 9 and 10.
12. 12Exhibit 1, Tab 11.
13. 13Exhibit 1, Tab 13, Letter of April 11, 2013 from TD to the Claimant [sic].
14. 14Exhibit 1, Tab 15.
15. 15Exhibit 1, Tab 22.
16. 16Ibid.
17. 17Exhibit 1, Tab 25.
18. 18Exhibit 1, Tab 24.
19. 19Exhibit 1, Tab 41 “Chiropractic Chronic Pain & Functional Impairment Disability Summary Report”, July 23, 2015.
20. 20Exhibit 2.
21. 21Exhibit 3.
22. 22Exhibit 4.
23. 23Exhibit 5.
24. 24Exhibit 1, Tab 28.
25. 25Exhibit 1, Tab 29.
26. 26Ibid. at p. 6.
27. 27Exhibit 1, Tab 59.
28. 28Ibid. at 6th and 7th pages.
29. 29Y.X.Y. (Applicant) and The Personal Insurance Company, 2017 CarswellOnt 14355 (LAT) at paras. 27-28.
30. 30Exhibit 1, Tab 32.
31. 31Exhibit 1, Tab 35.
32. 32Chronic pain has been defined by the Supreme Court of Canada as pain that “persists beyond the normal healing time for the underlying injury or is disproportionate to such injury and whose existence is not supported by objective findings at the site of the injury using current techniques”: Patel and TD General Insurance Company, A15-002293, April 10, 2017 CarswellOnt 6213 at para. 61.
33. 33Exhibit 1, Tab 15.
34. 34Exhibit 1, Tab 25.