Errol Finn v. TD General Insurance Company, 2017 ONFSCDRS 324

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2017 ONFSCDRS 324

FSCO A16-004994

BETWEEN:

ERROL FINN

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:

Mr. Errol Finn, Applicant, 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, Mr. Errol Finn (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 his 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, rehabilitation benefits and cost of examinations provided by Superior Rehabilitation Services as follows:

a) $1,625.67 as per treatment plan dated 2015-07-28 for Assessment of Attendant Care Needs;

b) $1,940.18 as per treatment plan dated 2014-06-18 for Psychological Assessment;

c) $1,993.25 as per treatment plan dated 2014-06-18 for Chronic Pain/Pain Management Assessment;

d) $1,967.75 as per treatment plan dated 2014-06-08 for Work Site/Work Abilities Adaptation Assessment;

e) $400.00 as per treatment plan dated 2013-10-11 for Home-Based Rehabilitation Exercises/Manual;

f) $3,357.57 as per treatment plan dated 2014-06-18 for Psychological Treatment;

g) $1,403.20 as per treatment plan dated 2014-06-18 for an FAE Assessment;

h) $1,230.20 as per treatment plan dated 2015-07-28 for Assistive Devices Evaluation;

i) $1,679.81 as per treatment plan dated 2015-07-28 for Work Site/Work Abilities Adaptation Assessment;

j) $815.00 as per treatment plan dated 2015-08-11 for Optometric Eye Strain Impairment Prognosis Evaluation;

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

l) $1,978.53 as per treatment plan dated 2015-07-28 for TMJ Treatment;

m) $1,140.00 as per treatment plan dated 2015-07-28 for Routine Treatment;

n) $1,737.00 as per treatment plan dated 2014-12-18 for Worksite/Work Abilities Adaptation Assessment;

o) $1,998.25 as per treatment plan dated 2014-12-18 for Chronic Pain/Pain Management Assessment;

p) $1,716.25 as per treatment plan dated 2014-12-18 for FAE Assessment;

q) $992.81 as per treatment plan dated 2015-07-28 for Chiropractic General Prognosis Assessment;

r) $1,661.06 as per treatment plan dated 2015-07-28 for Chiropractic Chronic Pain & Suffering Prognosis Assessment;

s) $3,357.57 as per treatment plan dated 2014-12-18 for Psychological Treatment;

t) $912.81 as per treatment plan dated 2015-07-28 for Impairment of Activities of Daily Living Assessment;

u) $2,000.00 as per treatment plan dated 2015-07-28 for Home Assessment; and

v) $612.01 as per treatment plan dated 2015-07-28 for Chiropractic Housekeeping Needs Evaluation?

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, rehabilitation benefits and cost of examinations provided by Superior Rehabilitation Services as follows:

a) $1,998.25 as per treatment plan dated 2014-12-18 for Chronic Pain/Pain Management Assessment;

b) $1,940.18 as per treatment plan dated 2014-06-18 for Psychological Assessment;

c) $3,357.57 as per treatment plan dated 2014-06-18 for Psychological Treatment;

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

e) $2,000 as per treatment plan dated July 28, 2015 for Home Assessment.

2. The Applicant is not entitled to receive medical benefits, rehabilitation benefits and cost of examinations provided by Superior Rehabilitation Services as follows:

a) $1,625.67 as per treatment plan dated 2015-07-28 for Assessment of Attendant Care Needs;

b) $1,993.25 as per treatment plan dated 2014-06-18 for Chronic Pain/Pain Management Assessment;

c) $1,967.75 as per treatment plan dated 2014-06-08 for Work Site/Work Abilities Adaptation Assessment;

d) $400.00 as per treatment plan dated 2013-10-11 for Home-Based Rehabilitation Exercises/Manual;

e) $1,403.20 as per treatment plan dated 2014-06-18 for an FAE Assessment;

f) $1,230.20 as per treatment plan dated 2015-07-28 for Assistive Devices Evaluation;

g) $1,679.81 as per treatment plan dated 2015-07-28 for Work Site/Work Abilities Adaptation Assessment;

h) $815.00 as per treatment plan dated 2015-08-11 for Optometric Eye Strain Impairment Prognosis Evaluation;

i) $1,978.53 as per treatment plan dated 2015-07-28 for TMJ Treatment;

j) $1,140.00 as per treatment plan dated 2015-07-28 for Routine Treatment;

k) $1,737.00 as per treatment plan dated 2014-12-18 for Worksite/Work Abilities Adaptation Assessment;

l) $1,716.25 as per treatment plan dated 2014-12-18 for FAE Assessment;

m) $992.81 as per treatment plan dated 2015-07-28 for Chiropractic General Prognosis Assessment;

n) $1,661.06 as per treatment plan dated 2015-07-28 for Chiropractic Chronic Pain & Suffering Prognosis Assessment;

o) $3,357.57 as per treatment plan dated 2014-12-18 for Psychological Treatment;

p) $912.81 as per treatment plan dated 2015-07-28 for Impairment of Activities of Daily Living Assessment; and

q) $612.01 as per treatment plan dated 2015-07-28 for Chiropractic Housekeeping Needs Evaluation.

3. The Applicant is entitled to interest on 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.

On consent of TD, the Applicant withdrew a claim for housekeeping benefits at the outset of the Hearing but TD reserved the right to argue the matter of expenses relative to that claim.

EVIDENCE AND ANALYSIS:

Any recovery for the Applicant in this arbitration depends on whether or not the Applicant’s injuries fall within the Minor Injury Guideline (“MIG”).² The onus is on the Applicant to establish that his injuries fall outside the MIG.³ The interpretation of the legislative scheme of the MIG must be considered on the principle 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 limitations on the benefits available under the MIG: first, if the injured person meets the requirements of section 18(2) which protects those insureds 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 and, second, if the injuries suffered do not fall within the definition of minor injury.

The Accident

At the time of the accident the Applicant was almost 60 years old, and was working as a truck driver for a friend in a moving business. He was not employed by the friend and described himself as self-employed.⁴ He said he used to lift furniture so he was in pretty good shape. He saw his family doctor regularly for other health issues but not for back pain. He has very little formal education, having completed only Grade 6, and was physically active.

The accident occurred when the Applicant was driving his 1991 Acura Integra and had a passenger. Both were wearing their seatbelts and his car was in good working order. He recalled that when he was stopped at a red light, the car was hit from the rear 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. He described the impact as 10 out of 10 and said that the back of the car had been pushed into the rear passenger seat. A rear seat passenger would have been badly injured. His passenger who also testified corroborated his recollection of the accident.

The Applicant said he was badly shaken and frightened by the accident. He did not lose consciousness. His foot hurt, his shin below the knee was bleeding and his back hurt. The police came, and he and the passenger were taken by ambulance to hospital. X-rays revealed no broken bones and, following tests, he was sent home. He said his back “just kept paining”.⁵ At the hospital he was offered medication but he refused it as he does not like medications. When he got home, he took some Tylenol and went to bed. About a week after the accident, he began getting headaches.

He called his family doctor promptly after the accident and, when he saw the doctor, he was referred for chiropractic treatment and given some Tylenol. He took chiropractic therapy until TD stopped paying for it. He was also given and took some anti-inflammatory medication. He did not go back to work after the accident because of the back pain.

In his application for accident benefits,⁶ the Applicant included a summary that said that he had sustained injuries to his neck, shoulders, right elbow and back. He has provided three OCF-3 Disability Certificates to TD. The first, dated February 22, 2012⁷ describes his injuries as cervicalgia, muscle strain, lower leg, dorsalgia, other bursitis of elbow, other biomechanical lesions, lumbar region and disorder of ligament, ankle and foot. The second, dated May 29, 2012,⁸ was completed by a different chiropractor than the first, but the description of the injury in Part 5 of the OCF-3 is the same as in the February 22, 2012 OCF-3. A third OCF-3 dated August 12, 2015⁹ was completed by a third chiropractor, Dr. John Balkansky. The injuries listed in Part 5 in 2015 were extensive and added to the existing list segmental and somatic dysfunction, subluxation complex (vertebral), in the cervical region, tension-type headache, radiculopathy in the cervical region, subluxation complex (vertebral) thoracic region, dislocation, sprain and strain of joints and ligaments of the lumbar spine and pelvis, subluxation complex (vertebral) lumbar region and nonorganic sleep disorders.

Since the accident the Applicant has been unable to work and is living on money saved in his RRSP and pension income. He cannot do any heavy lifting as he used to because of his pain. The back pain is interfering with his social life and his activities have become predominantly sedentary.

Currently he still has back pain. He has seen no improvement in his lower back and he describes the pain as “no joke”. He also has pain in his leg and tingling in his fingers. He gets shooting pains in his headaches (he had no headaches prior to the accident). He testified that the headaches really scare him because the pain is so intense over his right brow that he has to stop what he is doing and wait for it to pass. He has no memory of hitting his head.

He testified that he sometimes has pain in his shoulders which he attributes to not being active enough because of the back pain which he rates at times at 9 out of 10. He blames other pains also on his inactivity imposed by his injured back.

The Applicant testified that he is “stressed”. There are times when he cannot sleep because he keeps seeing the accident. Sometimes he has what he described as panic attacks when he is afraid of driving. For a while after the accident, he would wake up sweating when he had a flashback about the accident. He said that he did not have nightmares; he kept seeing the accident over and over again when he was sleeping and it would wake him up. The incidence of these flashbacks has decreased but in the first month after the accident it was every night. He testified at the Hearing that he had one in the previous month and that he estimated at one time he had them twice a week. With respect to driving, he lets someone else drive most of the time. He said that he is much more careful, cautious and aware when he drives, more than before. He testified that he found the accident really frightening.

He would undertake psychotherapy if it was offered. He remains cautious about medication and uses natural herbs for his health.

During his testimony he was shown a Minor Injury Determination Report attached to an OCF-18 dated September 25, 2013¹⁰ in which the author lists difficulties with sustained and divided attention, dizziness with fast movement and numbness and tingling in his right hand. He confirmed those symptoms except the difficulties with sustained and divided attention.

Medical Evidence

The Applicant’s position that his injuries fall outside the MIG is supported by the evidence of Dr. John Balkansky, DC, who signed a number of the disputed OCF-18s and provided a summary report (“Balkansky 2015 Report”).¹¹

Dr. Balkansky was qualified as an expert in rehabilitation treatment and assessment of patients within chiropractic medicine. The Applicant saw Dr. Balkansky on June 27, 2013, June 8, 2014, December 16, 2014 and February 27, 2017,¹² but did not get any treatment from him. Following those visits, Dr. Balkansky submitted OCF-18s to TD for examinations and assessment as well as treatment, all of which were denied because of the MIG. Dr. Balkansky also completed a Disability Tax Credit Certificate on February 10, 2016¹³ setting out his opinion on the Applicant’s ongoing impairments.

He testified that the Applicant’s injuries do not fall within the definition of minor injury. The Applicant’s pain continues to exceed the symptoms time line and definitions under the MIG. There are radiculopathic symptoms of pain running from the lower back down into the right leg and from the neck going into the right arm. He testified that it would not be possible for someone to walk away from the accident as described to him without some loss of range of motion in joints. He testified that there are normally accepted values for range of motion and the loss of range of motion is assessed based on how the patient conducts himself and the tests done.

TD disagrees with Dr. Balkansky’s evidence, his report and the treatment plans on several grounds:

1. Even though the treatment plans are complete and the author and treatment provider are identified by their profession (chiropractor, etc.) TD complains that there is no information on the qualification of the individual.

2. TD also questions whether or not the authors of the treatment plans even met with the Applicant.

3. There is inadequate information to support the OCF-18s for Issue 1 (e) for a home based Rehabilitation Exercises/Manual for $400.00.

4. The OCF-18 for psychological treatment includes additional comments from the kinesiologist, not from the psychologist, and the comments do not include a statement that the Applicant reported any symptoms of depression.

5. The only information Dr. Balkansky had concerning the Applicant suffering from depression was that the Applicant had lost his job and he included no further specific note of any depression or psychological complaint that can lead to depression in his June 27, 2013 notes.¹⁴

6. While there are notes and records in Exhibits 24, 25, 27 and 28 of Dr. Balkansky’s assessments, there is no comment or objective support given for psychological assessment.

7. The treatment plans are essentially cut and paste from one to another.

8. There are other reasons why the Applicant could have suffered loss of range of motion, other than the accident including intervening events, age related degeneration of joints or the presence of osteoarthritis, and there are no x-rays or other imaging that would provide such information.

9. Despite the fact that the case for taking the Applicant out of the MIG rests on radiculopathy and neurological symptoms, there is no treatment plan for a neurological assessment.

10. While Dr. Balkansky has given the numbers identifying limitation in range of motion of the Applicant’s joints, he does not have any information on the Applicant’s condition prior to the accident and therefore cannot say that the range of motion loss identified is due to the accident specifically.

When shown the assessment conducted on behalf of TD, Dr. Balkansky testified that the findings were not consistent with the injuries he assessed. It showed ranges of motion that he had never seen in the four assessments he had done of the Applicant. He believes that the Applicant would benefit from upper and lower back chiropractic rehabilitation. He believes that the Applicant exhibited neurological symptoms that a lay person cannot fake.

Dr. Balkansky described the functional interference due to the impairment of the cervical spine and lumbar spine as a 20 to 30 percent reduction in range of motion. The Applicant has difficulty with regular home maintenance chores and work tasks that involve sitting and standing for extended periods and lifting or carrying heavy objects. His chronic pain will impede his travel, interaction with friends and family as well as participation in outdoors activities.¹⁵ These functional impairments and other limitations were described by the Applicant in his testimony.

Dr. Igor Wilderman M.D. also assessed the Applicant and is Director of his pain clinic, Wilderman Medical Clinic. He has credentials in pain management. He is certified in Impairment Rating under the American Medical Association Guides, IVth edition. Dr. Wilderman assessed the Applicant in December 2014 and issued a written report in January 2015 (“2015 Wilderman Report”)¹⁶ also opining that the Applicant’s injuries fall outside the MIG.

Dr. Wilderman reported that the Applicant’s main psychological complaints included symptoms of anxiety and depression. The Applicant reported to Dr. Wilderman the following:

a) intrusive thoughts of the accident in the form of flashbacks with sweating, heart palpitations and breathing difficulties;

b) distress at exposure to reminders of the accident, irritability, fear of driving anxiety in public and passenger anxiety;

c) panic attacks, sleeping difficulties, decreased memory and concentration ability, and persistent fatigue; and

d) various physical pain symptoms including bilateral foot pain and numbness and pain in fingers.

The Applicant told Dr. Wilderman that his condition interfered with his social, recreational, occupational and housekeeping functions. Dr. Wilderman’s diagnosis was major depressive disorder, generalized anxiety disorder and Post-Traumatic Stress Disorder. He recommended a full psychological assessment and treatment and opined that the injuries fall outside the definition of minor injury.

TD first sent the Applicant for independent assessment to a physiatrist, Dr. Michael Lang, MD. In his report dated July 11, 2012,¹⁷ Dr. Lang reviewed the first of the three disability certificates and an OCF-23 submitted February 24, 2012 which requested treatment under the MIG but which also included a statement that the chiropractor did not think that the injuries fall within the MIG.

Dr. Lang diagnosed the Applicant with Cervical Strain WAD I, no impairment; thoracolumbar strain with ongoing core muscle weakness and myofascial strain of the right rhomboid minor muscle. The question he was asked to answer was whether or not the Applicant’s injuries were such that he suffered a complete inability to carry on a normal life. Dr. Lang’s opinion was that he did not and that an active core muscle strengthening program and active strengthening of the shoulder girdles should resolve the thoracolumbar strain and right rhomboid strain.

He was also examined in independent assessments at the request of TD by Dr. Howard Platnick, M.D., a family physician, and by Dr. Paul Kelly, Ph.D., C. Psych. Both assessors found the Applicant to be co-operative and to have not exaggerated or overstated his symptoms.

Dr. Platnick was qualified to give opinion evidence as a family physician with an expertise in chronic pain and neuromusculoskeletal medicine. He prepared a General Practitioner Insurer’s Examination Assessment Report¹⁸ dated August 21, 2014 (“2014 Report”) and an Addendum Report dated November 12, 2015¹⁹ (“2015 Addendum”). He concluded in his 2014 Report that the Applicant had suffered a cervical myofascial strain WAD I and a lumbosacral myofascial strain but there were no valid indicators to support ongoing musculoskeletal, neurological or orthopaedic accident related injury or impairment. His opinion was that the injuries satisfy the definition of minor injury and there was no pre-existing medical condition to prevent the Applicant achieving maximal recovery within the MIG.

Dr. Platnick set out the Applicant’s complaints and commented that they did not include any radicular symptoms, that is, no weakness, numbness or tingling. In his evidence, he described neck and back pain as very common conditions in society in all age groups. He testified that there is reliable testing available to confirm radiculopathy and nerve issues but none had been done here. His opinion was that:

a) the Applicant’s injuries due to the accident would have resolved with the four to six months of treatment he undertook;

b) he saw no benefit to the Applicant having additional treatment;

c) the Functional Evaluation Assessment was not reasonable or necessary as there were no findings in his assessment to justify it;

d) the Workplace Assessment was also not reasonably required as there was no evidence in his examination of the injuries from the accident;

e) the report of Dr. Balkansky did not give him enough information to support the conclusion;

f) some of the tests that were conducted by Dr. Balkansky were screening tests, not diagnostic tests; and

g) to diagnose radiculopathy he would need to see reflexes impacted, sensory loss, and muscle wasting.

I do not accept Dr. Platnick’s opinion for a number of reasons. Dr. Platnick stated in his report that at the assessment, the Applicant had pain but no tingling or numbness in his arms, hands, legs or feet.²⁰ Dr. Platnick’s testimony was that when he saw the Applicant his injuries were “cured” and he had only pain – not tingling or numbness in his hand. He said that if there were later tests indicating other symptoms, then those symptoms are not connected to the accident. This evidence is in stark contrast to the record by Dr. Paul Kelly, the psychologist, who saw the Applicant on August 7, 2014, about a month after the assessment by Dr. Platnick. Dr. Kelly set out in quotation marks the Applicant’s statements to him that he got numbness and cramping in his fingers almost every day since the accident and that his back pain has been the same since the accident but the neck pain and pain in his leg does not bother him anymore.²¹

Also, Dr. Platnick’s recollection was that the description of the accident led him to believe that it was not severe. In his view, a severe accident was a rollover or an intrusion into the cab of the vehicle or a car ripped apart. He said that it is not surprising to find that a 1991 vehicle would have the seat brackets shifted in an accident. The Applicant and his passenger both characterized the accident as severe and while the accident was not as severe as those described by Dr. Platnick, we are not dealing with a catastrophic injury claim as might well result from the accidents he described. I accept the evidence of the witnesses who were the victims of the impact.

Even if this was not a severe accident according to his definition, Dr. Platnick agreed that radicular symptoms could develop even in a minor accident and that you could have radicular type of pain without having radiculopathy. Given that potential, there are too few measurements in his report to support his conclusion. Also he testified that, if there was radiculopathy in the patient’s history, he would have taken more measurements but he regarded this as a straightforward, non-complicated case.

Dr. Platnick testified that the objective testing for radiculopathy starts with symptoms of pain going from the neck or back to an extremity and the objective testing would be done for reflexes, sensory tests, nerve root tension signs, loss of strength and muscle atrophy. His opinion was that if a patient had none of the five test responses, then there was no radiculopathy; if he had one of those five plus clinical symptoms then he could have radiculopathy. These statements support the Applicant’s case as he complained of numbness and tingling, and not Dr. Platnick’s conclusion.

Dr. Platnick’s assessment included review of the documents supporting the treatment plans including the review of the Balkansky 2015 Report. That review must necessarily have been limited because Dr. Platnick was not familiar with all the tests that Dr. Balkansky referred to as support for his conclusions.

Dr. Paul Kelly is a psychologist whose qualifications to give opinion evidence as a treating and assessing psychologist and in chronic pain from a psychological perspective were not disputed. He first conducted a paper assessment in November 2013 of the OCF-18 requesting approval of a mental health assessment dated September 20, 2013.²² He found the treatment plan was not reasonable and necessary because of the paucity of information included in the OCF-18.

He next conducted an in-person assessment of the Applicant on August 7, 2014,²³ concluding that the psychometric testing indicated that the Applicant did have some relatively mild and transient anxiety symptoms but no evidence of Post-Traumatic Stress Disorder or of clinically significant depression. His opinion was that the Applicant did not meet DSM-IV-TR diagnostic criteria for any disorder or condition and that the Applicant did not want or need to receive any psychological treatment or other mental health services. Therefore the Applicant did not have any psychological impairment that would bring him outside the minor injury definition.²⁴

Dr. Kelly conducted psychological tests and found that the Applicant’s responses fell within the normal range of emotional expression. He dismissed the fact that the Applicant was waking up in the middle of the night because he testified that the Applicant was not saying that worry was waking him up; he was saying that pain or need to use the washroom was the issue. Also there was no report of nightmares and he distinguished between nightmares and flashbacks. Flashbacks happen when people who have been through a traumatic event feel themselves to be back in the actual event itself with sweating and breathing difficulties. The Applicant had not reported any flashbacks or nightmares to Dr. Kelly. Also, the Applicant had not said that he wanted treatment because the impairment from the accident interferes with his life. For instance, he complained of irritability and being short-tempered but he did not state that he was so worried about this state that he wanted help. Dr. Kelly found no evidence that the Applicant was depressed; the Applicant did not look sad or say he was sad and there were no other symptoms of a major depressive disorder.

Dr. Kelly also provided a Psychological Insurer’s Examination Paper Review Report dated March 9, 2016 (“2016 Kelly Report”).²⁵ While Dr. Kelly had provided comments in the 2014 Kelly Report on a proposed assessment to be conducted by Dr. Wilderman, it was not until 2016 that he was provided with the 2015 Wilderman Report on which to comment. He concluded after review of the report that his opinion concerning the Applicant’s psychological impairments did not change. Dr. Wilderman drew his conclusions four months after Dr. Kelly had seen the Applicant and there was no explanation as to how the Applicant could be psychologically normal when he conducted his assessment including the psychometric tests and then show clinically significant psychological symptoms four months later. Dr. Kelly noted the significant differences in the reported symptoms in the two reports.

Dr. Kelly found the 2015 Wilderman Report lacking in necessary information. He said that most of the symptoms that Dr. Wilderman reported the Applicant had not shared with him. He could not believe that four and a half months after his assessment there were very significant symptoms that he had not seen. He did not believe that he had “blocked” the Applicant in the course of the interview from sharing his symptoms. While he acknowledged that psychological status can change, the worsening psychological condition did not follow the natural history of psychological disorders. He did not recognize one of the tests that Dr. Wilderman undertook but he did note that there were no validity tests done or identified. The high score in the Beck Anxiety test he dismissed because Beck Anxiety Test is not used for diagnosis but rather to track a change in symptoms over time.

When he was shown the documentary record of the complaints of the Applicant of his sleep disturbance because of stress and his emotional difficulties, Dr. Kelly testified that in his view the psychological issues were not severe or frequent enough to be a clinical problem that warranted treatment. Under cross-examination, Dr. Kelly was advised that the Applicant had expressed the desire for psychological treatment but Dr. Kelly indicated that he would not change his opinion unless he was satisfied as to the reasons the Applicant had for wanting the treatment.

The Applicant relies on Dr. Kelly’s diagnosis of mild and transient anxiety as taking the Applicant out of the MIG. There are weaknesses in Dr. Kelly’s opinion that indicate that his diagnosis may understate the anxiety that the Applicant is coping with.

Dr. Kelly ignored signs in his own examination that the Applicant was in difficulty psychologically and emotionally. Dr. Kelly ignored or gave little weight in arriving at his conclusion to:

a) the Applicant’s statements to him that worry and stress affect his sleep, focusing instead only on the pain and need to use the washroom that woke him up;²⁶

b) stated worsening of the Applicant’s anxiety as a passenger, because the Applicant was always a little nervous as a passenger prior to the accident; and

c) the Applicant’s report in his assessment that he thought about the accident all the time and that he worried because he had been unable to work, so things were tough financially.

Instead of giving weight to the articulated anxiety, Dr. Kelly focussed on the Applicant’s assessment that he did not think he had any serious psychological problems that he needed treatment for.

Dr. Kelly also did not accept the complaints set out in the OCF-18s that indicated other anxieties or worries as a result of the accident. He relied too heavily on the Applicant’s self-assessment that the passenger anxiety will go away by itself in time.

In my view, the criticisms by TD of the qualifications of the authors of the OCF-18s and the lack of information in the OCF-18s and reports are a distraction from the real issue of the treatment plans. The OCF-18s were not approved because of the MIG and because TD relied on the opinions of its assessors, not because of a perceived issue of qualifications of the authors or information contained in the OCF-18s. The 2013 Kelly Report is the exception to this because it is based on a lack of information. Even Dr. Kelly acknowledged that when he sent out such a report, he expected that the psychologist in question would contact him to provide clarification but that was not done here. I am left wondering why Dr. Kelly or TD could not have contacted the psychologist on receiving the OCF-18 prior to issuing this report, since his report in essence attacks the professionalism of the other psychologist. I note that the Applicant was frank in setting out that his emotional and psychological symptoms were less severe now than they had been; for instance, he had nightmares and flashbacks every night in the month after the accident and that problem eased to semi-weekly and now to monthly flashbacks. I also accept that there are issues listed in the treatment plans over the years that may no longer be relevant, but I accept the evidence of the Applicant as to ongoing interference with sleep due to his worry and stress from the accident and that he continues to have driver and passenger anxiety. I find that a proper assessment and appropriate treatment are reasonable and necessary. We are now five years after the accident and the Applicant should not have to cope without appropriate psychological treatment for the rest of his life. I do not accept Dr. Kelly’s opinion that the Applicant’s anxiety symptoms are mild and transient anxiety and that there is no evidence of Posttraumatic Stress Disorder or of clinically significant depression. I refuse to dismiss Dr. Wilderman’s opinion out of hand. I find that the psychological impairments identified are sufficient to bring the Applicant’s injuries out of the MIG.

MIG

The Applicant referred me to the Patel case,²⁷ a decision of Arbitrator Barrington, which is not binding on me but which contains reasoning that applies to this case. Arbitrator Barrington also referred to the Ali and Certas Direct Insurance Co. case²⁸ which deals with chronic pain and the MIG. Arbitrator Barrington noted that the MIG’s stated objectives are to speed access to rehabilitation for persons who sustain minor injuries in an auto accident and to be more inclusive in providing immediate access to treatment without insurer approval for those persons with minor injuries as defined in the Schedule and in Part 2 of the MIG. Most treatment is envisioned to take place in a period of about six months after the accident up to one year. Chronic pain cannot be identified until after the limits will, in many cases, have been exhausted.

The arbitrators in both Patel and Ali held that chronic pain does not fall within the definition of minor injury under the MIG. In those cases as here, the insurer’s position is that the applicant is going to just have to live with the pain. Here the Applicant relies on the diagnosis of chronic pain to take him out of the MIG and on Dr. Kelly’s diagnosis of mild and transient anxiety. The Applicant submits that any injury not listed in the MIG will bring someone out of the MIG but he submits also that Dr. Kelly’s diagnosis is wrong because he interpreted the test results inappropriately.

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 that the pain interferes with the insured person’s ability to function.

Having carefully reviewed the evidence, I conclude that the Applicant has met the onus that his injuries fall outside the MIG. I find that the Applicant has provided compelling evidence that on the balance of probabilities he has suffered injuries which, due to their persistence in the years since the accident, fall outside the MIG by virtue of chronic pain, psychological impairments and the numbness and tingling in his hands and lower extremities.

I accept the evidence of the Applicant and that of his passenger as to the severity of the accident and I find that the opinions on which TD based its refusal to approve the treatment plans understate the severity of the impact of the accident. The health care practitioners acknowledged that the severity of the accident usually has a correlation to the injuries suffered by passengers and drivers in motor vehicles, though there are instances where drivers walk away from very serious accidents with only minor injuries. I also accept the evidence of the Applicant that he has ongoing pain and that he has been complaining about tingling and numbness in his fingers and down his leg which is radicular in nature.

I do not accept TD’s allegations of intervening events or degeneration due to age as causes of the Applicant’s pain. If there was degeneration of joints due to age, there may be grounds to take the Applicant out of the MIG as a pre-existing condition in any event. I recognize that there are no clinical notes and records of the family doctor which might have either corroborated or undermined the Applicant’s evidence. 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 medical records 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 normally obtained by an insurer such as the police report were not included in the Insurer’s Brief of Documents. I infer that the documents would have corroborated the severity of the collision impact as recounted by this Applicant and his passenger.

I prefer the assessment by Dr. Balkansky of the Applicant’s injuries as he has had the longest period over which to assess the Applicant’s physical condition and pain and has seen the Applicant four times. He was extensively cross-examined about his notes, his report and his observations and he did not resile from his diagnosis.

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

There are twenty-two individual treatment plans in dispute. Two were submitted in 2013 (Issues 1 (e) for a home based Rehabilitation Exercises/Manual for $400.00 and (k) for active treatment/exercises for $1,154.47). Five treatment plans were submitted in June 2014 (Issues 1 (b), (c), (d), (f), and (g)) for four assessments and one for psychological treatment). A further four treatment plans were submitted on December 18, 2014 which repeat the requests for assessment contained in four of the treatment plans submitted in June 2012. The December 2014 treatment plans include plans for psychological assessment and treatment and chronic pain assessment. On July 28, 2015 a further nine OCF-18s were submitted with repetition of the assessments contained in both the July and December 2014 treatment plans. The only treatment plans proposing treatment rather than assessment submitted in 2015 are Issues 1(k) for active treatment/exercises, 1(l) for TMJ treatment, and 1(m) for routine treatment. Finally, there is a treatment plan submitted August 11, 2015 for Optometric Eye strain Impairment Prognosis Evaluation (Issue 1(j)).

The structure of putting forward similar assessment proposals is based on a concept of a multipart rehabilitation program and that the Applicant has not previously been assessed on the particular basis proposed in the particular OCF-18. The timing of the submissions reflects the assessments by Dr. Balkansky over the years and the effort to get TD to review its decision on the MIG.

TD correctly points out that there is much repetition in these treatment plan proposals and I agree that, at most, there should be one treatment plan approved for any single type of assessment. TD did not raise an issue as to the reasonableness of the costs of the assessments. 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 he understands what is to be accomplished by the assessment so that his treatment is not jeopardized by an aggressive and unnecessary program of assessments.

The Applicant bears the burden of proof that the structure of multipart rehabilitation with several assessments including Functional Abilities, Work Site, TMJ, and chiropractic assessments is required to address the impairments that flow from the accident. He has not done so. His evidence supports a finding that the treatment plans that provide him with physical treatment are reasonable and necessary, especially as they should address Dr. Lang’s opinion that active exercises targeting certain weaknesses would be appropriate. He will also benefit from assistance with the emotional and psychological impairments.

I agree that Dr. Wilderman’s report is brief and that a full Chronic Pain Assessment is reasonable and necessary. I am also satisfied that a psychological assessment to deal with stress, generalized anxiety, driver and passenger anxiety, and the nightmares/flashbacks is reasonable and necessary and should be conducted with a view to developing a treatment plan to give the Applicant the tools to manage those anxieties. I reject TD’s reliance on the Applicant’s self-assessment that he does not need psychological treatment and that his passenger anxiety will go away in time. The advantage of having experts is that they can identify situations where future problems will develop if current issues are not addressed. The Applicant testified that he would use the treatment and my impression is that he understands the importance of taking it in his recovery. I recognize that the Applicant presents as a resilient individual but I do not accept that he has the education or experience to assess properly what lies ahead if he does not get treatment. He could not understand the medical terms in several of the documents that he was questioned about. He presented as an individual who does not over-react to situations he faces and his description of his ongoing pain and the interference from the pain in his life was frankly and clearly expressed.

I therefore approve the treatment plans for medical benefits and rehabilitation benefits and costs of examination as follows:

1. $1,998.25 as per treatment plan dated 2014-12-18 for Chronic Pain/Pain Management Assessment;²⁹

2. $1,940.18 as per treatment plan dated 2014-06-18 for Psychological Assessment;³⁰

3. $3,357.57 as per treatment plan dated 2014-06-18 for Psychological Treatment;³¹ and

4. $1,154.47 as per treatment plan dated 2013-09-25 for Active Treatment/Exercises.³²

Since I am satisfied on the evidence that the Applicant has some difficulties in managing housekeeping tasks, I am approving the OCF-18 dated July 28, 2015 for Home Assessment in the amount of $2,000.00.³³ I am not approving any assessment related to his work environment since his work was as a truck driver and mover and it is not clear from Dr. Balkansky’s evidence how that assessment would be conducted and if it remains appropriate.

I am satisfied that in not approving the other OCF-18s that are titled slightly differently than the five that I am approving I have avoided duplication of services without sacrificing appropriate treatment and assessment as supported by the evidence. I note that there is no treatment plan providing for neurological assessment of the radicular pain, numbness and tingling.

I see no credible rationale for a $400 brochure of exercises and decline to approve this treatment plan.

With respect to the Optometric Eye Strain Impairment Prognosis Evaluation, I am not persuaded by the report that was provided that this issue flows from the accident as there is no allegation that the Applicant hit his head. The report³⁴ posits the proposition that wearing glasses will address the issue but in fact there is no outstanding issue on the Applicant’s evidence and he does not wear glasses. I therefore decline to approve the treatment plan (Issue 1(j)).

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

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

EXPENSES:

At the conclusion of the Hearing it was agreed that I would render my decision on the substantive issues in this Arbitration and the parties would discuss the matter of expenses on review of the decision. It was also agreed that 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, but with a shortened timetable that they believed was appropriate. Therefore the submissions, if any, will be provided within 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 324

FSCO A16-004994

BETWEEN:

ERROL FINN

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, rehabilitation benefits and cost of examinations provided by Superior Rehabilitation Services as follows:

a) $1,998.25 as per treatment plan dated 2014-12-18 for Chronic Pain/Pain Management Assessment;

b) $1,940.18 as per treatment plan dated 2014-06-18 for Psychological Assessment;

c) $3,357.57 as per treatment plan dated 2014-06-18 for Psychological Treatment;

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

e) $2,000 as per treatment plan dated July 28, 2015 for Home Assessment.

2. The Applicant is not entitled to receive medical benefits, rehabilitation benefits and cost of examinations provided by Superior Rehabilitation Services as follows:

a) $1,625.67 as per treatment plan dated 2015-07-28 for Assessment of Attendant Care Needs;

b) $1,993.25 as per treatment plan dated 2014-06-18 for Chronic Pain/Pain Management Assessment;

c) $1,967.75 as per treatment plan dated 2014-06-08 for Work Site/Work Abilities Adaptation Assessment;

d) $400.00 as per treatment plan dated 2013-10-11 for Home-Based Rehabilitation Exercises/Manual;

e) $1,403.20 as per treatment plan dated 2014-06-18 for an FAE Assessment;

f) $1,230.20 as per treatment plan dated 2015-07-28 for Assistive Devices Evaluation;

g) $1,679.81 as per treatment plan dated 2015-07-28 for Work Site/Work Abilities Adaptation Assessment;

h) $815.00 as per treatment plan dated 2015-08-11 for Optometric Eye Strain Impairment Prognosis Evaluation;

i) $1,978.53 as per treatment plan dated 2015-07-28 for TMJ Treatment;

j) $1,140.00 as per treatment plan dated 2015-07-28 for Routine Treatment;

k) $1,737.00 as per treatment plan dated 2014-12-18 for Worksite/Work Abilities Adaptation Assessment;

l) $1,716.25 as per treatment plan dated 2014-12-18 for FAE Assessment;

m) $992.81 as per treatment plan dated 2015-07-28 for Chiropractic General Prognosis Assessment;

n) $1,661.06 as per treatment plan dated 2015-07-28 for Chiropractic Chronic Pain & Suffering Prognosis Assessment;

o) $3,357.57 as per treatment plan dated 2014-12-18 for Psychological Treatment;

p) $912.81 as per treatment plan dated 2015-07-28 for Impairment of Activities of Daily Living Assessment; and

q) $612.01 as per treatment plan dated 2015-07-28 for Chiropractic Housekeeping Needs Evaluation.

3. The Applicant is entitled to interest on 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. 2Minor Injury Guideline, Superintendent’s Guideline No. 01/14.
3. 3Scarlett v. Belair Insurance Co., 2015 ONSC 3635, 2015 CarswellOnt 8586.
4. 4In some reports he is described as unemployed prior to the accident but he explained in his testimony that in his view if he is not employed by someone then he is unemployed when in fact he was self-employed.
5. 5See also Exhibit 4, Accident Benefits First Call Interview Guide in which he complained of back injury, left leg and neck pain.
6. 6Exhibit 5, OCF-1.
7. 7Exhibit 6.
8. 8Exhibit 8.
9. 9Exhibit 2.
10. 10Exhibit 12.
11. 11Exhibit 19, Tab 27, “Chiropractic Chronic Pain & Functional Impairment Disability Summary Report”, dated July 23, 2015.
12. 12Notes taken by Dr. Balkansky during the assessments were entered as Exhibits 24, 25, 27 and 28.
13. 13Exhibit 26.
14. 14Exhibit 24, Intake Form.
15. 15Exhibit 26 at p. 5.
16. 16Exhibit 3, “Follow up Impairment Change Medical Psychological Report” by Dr. Igor Wilderman of Wilderman Medical Clinic, dated January 7, 2015 (“2015 Wilderman Report”).
17. 17Exhibit 11.
18. 18Exhibit 19, Tab 18.
19. 19Exhibit 19, Tab 46.
20. 20Exhibit 19, Tab 18 at p. 3 of 7.
21. 21Exhibit 16, “Psychological Insurer’s Examination Assessment Report” dated August 21, 2014 (“2014 Kelly Report”) at p. 5 of 22.
22. 22Exhibit 14, Psychological Insurer’s Examination Paper Review Report dated November 8, 2013 (“2013 Kelly Report”).
23. 232014 Kelly Report.
24. 24Ibid. at p. 20 of 22.
25. 25Exhibit 9, Tab 48.
26. 262014 Kelly Report at p. 5 of 22.
27. 27Patel and TD General Insurance Co., 2017 CarswellOnt 6213, (FSCO A15-002293), April 10, 2017.
28. 282016 CarswellOnt 5683 (FSCO A13-002459), March 23 2016.
29. 29Exhibit 19, Tab 20.
30. 30Ibid., Tab 13.
31. 31Exhibit 15.
32. 32Exhibit 12.
33. 33Exhibit 19, Tab 33, Issue 1 (u).
34. 34Exhibit 19, Tab 41, Treatment and Assessment Plan by Dr. Mila Kisilevsky for $815.00 dated August 11, 2015 and Exhibit 17, “Medical Report” by Dr. Mila Kisilevsky dated July 30, 2015.