Faed Hashi v. Certas Direct Insurance Company, 2017 ONFSCDRS 92

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2017 ONFSCDRS 92

FSCO A13-014953

BETWEEN:

FAED HASHI

Applicant

and

CERTAS DIRECT INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Arbitrator Harvey Savage

Heard: In person at ADR Chambers on August 24 & 26, 2016; October 5-7, 13, 24 & 27, 2016; November 4 & 30, 2016 and by written submissions due February 17, 2017

Appearances: Mr. Essam Elbassiouni, Licensed Paralegal, participated for Mr. Faed Hashi

Mr. Patrick Ho, Lawyer, participated for Certas Direct Insurance Company

Issues:

The Applicant, Mr. Faed Hashi, was injured in a motor vehicle accident (“MVA”) on November 28, 2012 and sought accident benefits from Certas Direct Insurance Company (“Certas”), payable under the SABS.¹ The parties were unable to resolve their disputes through mediation, and Mr. Hashi, 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 Mr. Hashi entitled to receive a weekly Income Replacement Benefit (“IRB”) at the rate of $400.00 per week from December 5, 2012 to July 1, 2014?

2. Is Mr. Hashi entitled to Medical Benefits claimed as follows:

a) For services provided by Spinex Rehab Clinic:

i) $602.00 for active and passive treatment in respect of an OCF-23 treatment plan and invoice, dated January 28, 2013;

ii) $710.00 for active and passive treatment in respect of an OCF-23 treatment plan and invoice, dated June 14, 2013?

b) For services provided by HealthMax Physiotherapy:

i) $1,300.00 for active and passive treatment in respect of a treatment plan dated June 5, 2013;

ii) $2,607.20 for physiotherapy, OCF-18 dated June 14, 2013?

c) For services provided by Injury Management and Medical Assessments:

i) $1,995.32 for a psychological assessment, dated November 13, 2014;

ii) $2,762.98 for a psychological treatment plan, dated December 2, 2014?

3. Is Mr. Hashi entitled to the Cost of Examinations as follows:

a) $2,200.00 in respect of a chronic pain assessment, dated November 13, 2014;

b) $9,890.11 for a chronic pain treatment plan, dated December 11, 2014?

4. Is Certas liable to pay a Special Award because it unreasonably withheld or delayed payments to Mr. Hashi?

5. Is Mr. Hashi entitled to interest for the overdue payment of benefits?

6. Is Certas liable to pay Mr. Hashi’s expenses in respect of the Arbitration?

7. Is Mr. Hashi liable to pay Certas’ expenses in respect of the Arbitration?

Result:

1. Mr. Hashi is not entitled to receive a weekly IRB.

2. Mr. Hashi is entitled to Medical Benefits claimed as follows:

a) For services provided by Spinex Rehab Clinic:

i) $602.00 for active and passive treatment in respect of an OCF-23 treatment plan and invoice, dated January 28, 2013;

ii) $710.00 for active and passive treatment in respect of an OCF-23 treatment plan and invoice, dated June 14, 2013.

b) For services provided by HealthMax Physiotherapy:

i) $1,300.00 for active and passive treatment in respect of a treatment plan, dated June 5, 2013.

ii) $2,607.20 for physiotherapy, OCF-18 dated June 14, 2013.

c) For services provided by Injury Management and Medical Assessments:

i) $1,995.32 for a psychological assessment, dated November 13, 2014;

ii) $2,762.98 for a psychological treatment plan, dated December 2, 2014.

3. Mr. Hashi is entitled to the Cost of Examinations as follows:

a) $2,200.00 in respect of a chronic pain assessment, dated November 13, 2014.

b) $9,890.11 for a chronic pain treatment plan, dated December 11, 2014.

4. Mr. Hashi’s claim for a Special Award is dismissed.

5. Mr. Hashi is entitled to interest on the overdue payments for Medical Benefits and the Costs of Examinations as stated above.

6. No Order has been made with respect to expenses.

EVIDENCE AND ANALYSIS:

Background

The Applicant’s car was rear-ended on November 8, 2012 when he was stopped at a red light. The property damage was substantial. He went from the scene of the accident by ambulance to the Etobicoke General Hospital where he underwent examination before being discharged on the same day. The Applicant testified that the injuries he experienced that day emanated from his neck, head and lower back. After release from the hospital, the Applicant said he went to a clinic at Dixon and Kipling in Toronto, and at that time he was prescribed a painkiller and told by the clinic doctor that he might need to see a psychologist as well as a physiotherapist.

The Applicant stated he did go to see a physiotherapist and commenced physiotherapy a short time following the MVA. In January 2013, the Applicant received a phone call from Somalia that his siblings were injured as a result of a MVA. He therefore left for Somalia on February 13, 2013 and returned to Toronto in April 2013.

Shortly following his return in April 2013, the Applicant met with the same doctor at the walk-in clinic in Toronto and resumed his physiotherapy. He continued this treatment twice per week until July 2013. The Applicant testified that the treatment helped him improve, especially the treatment to his lower back and neck. He said that he did not stop treatment willingly, but only because the Insurer refused to cover further expenses per a treatment plan pursuant to an OCF-18, dated July 15, 2013, in the amount of $1,988.80. He did not have sufficient funds to finance the continuing sessions on his own. However, feeling the need for continued treatment, he continued some treatment on his own, paying for it himself, after the termination date.

The Applicant stated he attempted employment, with parking and cleaning buses. However, this position lasted only one month. He was forced to quit because of the pain he was experiencing. He had thoughts of returning to Alberta and his former job at Diversified (from which he initially took a one month’s absence to help with his children in Ontario), but his pain was too sharp and persistent.

The Applicant stated he has been employed by Hertz Rent a Car on a part-time and full-time basis with parking vehicles. He continues presently with full-time employment at Hertz. However, he said that initially he was offered a better-paying position with Hertz, but had to decline it because of his persistent and ongoing back pain.

About a month before the MVA, the Applicant testified he was living and working in Fort McMurray when around October 20, 2012, he received a phone call from his wife in Toronto stating he needed to return home and assist with school transportation for his disabled children, which had been discontinued by the government. Subsequently, he asked his manager on or about October 24, 2012 for a one-month leave, in order to attend to the family situation. He was granted one month as vacation leave and returned to Toronto around October 28, 2012.

Sometime around November 26-27, 2012, he received a call from his manager in Fort McMurray asking him to return to his employment. He asked him for an extension of the leave to enable him to continue his efforts to arrange transportation for his children. His employer refused the extension. He said that he had already replaced him and told him he could apply for EI.

The employer’s Record of Employment² states that the Applicant’s last date of employment with Diversified was October 20, 2012. It is further noted on this Form that the Applicant was not returning, and the reason he provided was that he quit.

In the Decision, dated December 22, 2012, it is recorded that the Applicant was granted Employment Insurance (“EI”) retroactive to October 21, 2012.

In the Supplementary Record of Claim, it is noted that during his December 22, 2012 interview with Candice Ducharme, the EI officer, the Applicant stated he did not request a leave from Diversified because it was anticipated his move back to Ontario would be permanent, for the reason that he did not think the government would change its mind regarding busing his kids to and from school.

The Applicant testified he has not been in any kind of treatment since July 2013, when Certas terminated his benefits, and following the period that he continued treatment at his own expense, because he felt a continued need for it despite the Insurer’s termination of the benefit.

The Positions of the Parties

Applicant

The Applicant submits he is entitled to all of the benefits claimed. He further submits that when he left Fort McMurray in October 2012, his intention was to resolve the transportation issue for his children and return to his job. Unfortunately, his employer would not extend his leave.

The Applicant states the MVA occurred shortly thereafter. He continues to have neck, back and shoulder pain from the MVA.

The Applicant retained Mr. Elbassiouni and applied for accident benefits from Certas. He commenced physiotherapy treatment and said that the treatment had been helping him, especially with a reduction in pain.

The Applicant further stated he was assessed by a number of specialists on behalf of both parties. Various treatment plans were denied by Certas. He is relying on the assessments of Dr. Mills and Dr. Getahun, which would take him out of the Minor Injury Guideline (“MIG”).

The Applicant submits that Certas treated him unfairly and ignored his evidence in denying the various treatments, and that it acted unreasonably in delaying and/or denying benefits to which he was entitled, causing him distress. That is the basis for the claim for a Special Award.

Insurer

The Insurer submits that the claim fails on several grounds. The Applicant did not discharge his onus that his injuries fall outside the MIG, on which the Insurer relies on the opinions of its assessors. In any event, the Insurer contends that the treatments requested are neither reasonable nor necessary.

The Insurer submits the Applicant is not entitled to the IRB in that he is not unable to substantially perform his essential duties as a result of the MVA, and further that he is unemployed for reasons entirely unrelated to the MVA. The Insurer further states the Applicant did not make himself available for the Insurer’s medical examination resulting in a failure to comply with the procedural requirements of sections 33 and 44 of the SABS, and the Applicant’s failure to do so prejudiced the Insurer irrevocably because the assessment time frame is narrow and has now passed with respect to the treatment plans in question.

Analysis

The determinative issues in this Arbitration are: whether the Applicant has sufficiently satisfied, by evidence, that his injuries fall outside the MIG, and if so, whether the proposed treatments are reasonable and necessary; whether the Applicant is ineligible for the benefits claimed for failing to comply with sections 33 and 44 of the SABS; whether the Applicant is entitled to an IRB for the time period claimed; and should a Special Award be granted in the circumstances of this case?

IRB

The first issue in dispute is whether the Applicant is entitled to receive a weekly IRB at the rate of $400.00 per week from December 5, 2012 to July 1, 2014.

The Applicant testified at the Hearing that around October 20, 2012, while working in Fort McMurray, he received a call from his wife in Ontario, informing him that he needed to return to Ontario because his children’s special needs transportation funding to and back from their school for the year had been terminated. The school was far from his Ontario residence, and he was needed at home to try and arrange alternative transportation.

On or around October 24, 2012, the Applicant was granted a month-long vacation leave from his work, for this purpose. He clearly identified the leave as a month’s vacation.

The Applicant’s employer called him on November 26 or 27, 2012 and asked him when he was returning. In that call, he said that he was unable to make satisfactory transportation arrangements, and asked for an extension. It was denied, and he was told his position was being filled.

The Applicant then applied for EI, but he told a different story when he applied versus when he was interviewed. He told the EI Officer that he had quit his position on October 20, 2012 with no intention of returning. He represented that the last day of employment was October 20, 2012, and began receiving EI effective from that date. His termination date of October 20, 2012 is corroborated in the Record of Employment.

The disparity between his testimony and the evidence surrounding the EI Application and Record of Employment, as well as what he told the officer interviewing him, calls into question whether he was employed at the time of the MVA on November 28, 2012. I am not satisfied that he discharged his onus, that he was employed then.

The Applicant also made it clear in his application for EI that he was ready, willing and able to return to employment (a pre-requisite to being approved for EI). In the subsequent January 24, 2013 interview, he said to the EI Officer that he told his employer about the MVA, and that he did not know where he stood.

Under cross-examination, the Applicant said that by the statement “did not know where he stood”, he was not referring to his employment status, but rather to his health. However, during that same interview, the Applicant also answered that he was not sure if he still had his job. Elsewhere, the Applicant was quite clear that he quit his job on October 20, 2012, and that this was irrevocable and permanent.

This is a discrepancy which was not satisfactorily resolved by the Applicant, and his failure to be consistent on the responses is a credibility problem for him with respect to that issue.

He also did not obtain an OCF-2 from his employer, which is a requirement to provide under the SABS, in addition to income tax returns and other related data if one is claiming an IRB. The part of the OCF-2 completed by an employer requires from the employer pertinent information for an adjuster in processing the claim, including the full length of the employment period, the last date worked and the date of return to work if applicable. This information arguably would have been particularly important in a case such as this where there is conflicting evidence as to when the Applicant left his work, whether the leaving was temporary or permanent, what the reasons were for leaving and by implication whether he had worked for 26 weeks in the 52 weeks leading up to termination.

In addition, the Applicant, at his counsel’s advice, did not attend any scheduled section 44 examinations required by the Insurer to assess his eligibility to receive an IRB. His counsel wrote that the Applicant at the relevant times was receiving EI and therefore was not in the employment stream for purposes of the IRB and probably not eligible for an IRB, so it was not reasonable or necessary to conduct a section 44 examination to consider his IRB claim.

However, at no time did the Applicant withdraw his IRB claim. The claim for this benefit covered both the time when he was receiving EI and when he was not. I agree with the Insurer that as long as the Applicant was claiming the IRB, the Insurer was entitled to conduct an independent examination in order to have its own medical opinion as to whether the Applicant met the test under the SABS. I further agree with the Insurer that the harm caused by the Applicant’s counsel in advising his client to not attend is irreversible, and much time has passed since the Insurer was refused access to the Applicant to conduct the independent examination.

Medical Benefits and Costs of Examinations

MIG

In Scarlett and Belair Insurance Company,³ Director’s Delegate David Evans, from the Office of the Director of Arbitrations, clarified the law with respect to the applicability of the MIG. The law, briefly, provides that:

a minor injury means one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury [SABS, s. 3(1)]

that an insured who sustains an impairment that is predominantly a minor injury can receive no more than $3,500 towards medical and rehabilitation expenses (including assessments) [SABS, s.18(1)]

an exception for pre-existing conditions may apply based on “compelling evidence" [SABS. s. 18(2)]⁴

Director's Delegate Evans emphasized that the appropriate legal test to apply in determining whether a claimant's impairments fall within the MIG is whether the claimant's injuries are predominantly minor, not simply whether any particular injury is a minor injury.

Furthermore, a claimant's injuries will be subject to the MIG even if some of the injuries

are not clinically associated sequelae of a minor injury, as long as the claimant's impairment is predominantly a minor injury.⁵

Sections 18 and 38(3)(c)(i) of the SABS allow for exclusion from the MIG in the face of "compelling evidence" showing the insured person has a pre-existing medical condition that will prevent the insured person from achieving maximal recovery under the MIG. Director’s Delegate Evans emphasized that "compelling evidence" means more than simply credible evidence.

However, the existence of a pre-existing medical condition does not automatically exclude a person's impairment from the MIG, and it is intended that the vast majority of pre-existing conditions will not do so.⁶

Director's Delegate Evans in Scarlett also reiterated that the legal onus always remains on an insured to prove that he or she fits within the scope of coverage.⁷

Director's Delegate Evans’ decision was judicially reviewed and upheld in the Divisional Court by Justice Gordon in Scarlett and Belair Insurance.⁸

Gordon J. further supported the Director's Delegate's interpretation of the meaning of "compelling evidence", recognizing that "compelling" is directed at the sufficiency of the evidence required to meet the standard, and whether the evidence is sufficiently compelling is determined on the facts and medical evidence of each individual case.⁹

It is often challenging for an Arbitrator confronted with conflicting expert opinions, a dilemma often described as adjudication on “the battle of the experts.” In this matter, there are conflicting opinions of Drs. Getahun, Hashi and Mills for the Applicant on one hand, and Drs. Chiew, Nesterenko and Seon for the Insurer on the other hand.

Medical Witnesses

Dr. Tajedin Getahun for the Applicant

Dr. Tajedin Getahun filed a report¹⁰ and provided oral testimony. I qualified him as an expert witness as an orthopaedic surgeon.

Dr. Getahun testified as to his assessment process. In addition to reviewing all of the Applicant’s medical information, including treatment plans provided, he asked the Applicant about the circumstance of the MVA and questioned him about complaints, symptoms, occupational history, social functioning and activities of daily living. He also conducted a physical exam. He noted at the examination that the Applicant’s chief physical complaints were neck and back pain.

Dr. Getahun made particular reference to the Applicant’s CT scan, dated February 11, 2015.¹¹ Under “clinical history”, the CT scan notes back pain radiating to the legs. He further states that the CT images were obtained from L2/L3 level to S1 level. At L2/L3 and L3/L4 the appearance was normal. “At L4/L5 there is a prominent broad-based disc bulge, which has resulted in mild spinal stenosis” (Emphasis added). It noted no neural foraminal stenosis. At L5/S1 there was disc bulge, but no spinal or neural foraminal stenosis.

Dr. Getahun testified that at L4/L5, it would be expected that pain would be felt in both legs. He described spinal stenosis as being usually intermittent pain, and the pain being brought on by activity or, as he put it, by an insult, meaning an external event. Under cross-examination, he opined that this insult was likely caused by the car accident because there were no complaints of back pain before the MVA. He referred to spinal stenosis as intermittent, and testified that it could be asymptomatic until it became symptomatic through an insult, which he reiterated was likely the car accident. He said that given the Applicant’s age profile, it was probable that the Applicant already had degenerative spinal stenosis before the MVA.

In Dr. Getahun’s opinion, the Applicant is not in the MIG (with which he expressed familiarity), since the significant degenerative changes noted in the CT scan would preclude him from reaching his maximum physical potential without further treatment, and such treatment could not be provided within the confines of the MIG. He recommended a course of physiotherapy and epidural injections. He further testified that the Applicant could have sitting tolerance in any occupation for a period less than 5 hours, but could not be expected to exceed that.

Dr. Getahun commented during cross-examination on the straight-leg test administered by several of the medical witnesses on both sides, including himself. Everyone agreed that the test was negative. However, he testified that a negative finding on this test does not necessarily equate to no spinal stenosis, and is, therefore, not a good test for determining spinal disc stenosis. If the test had been positive, it would have been a useful indicator of leg pain, but not the back pain that the Applicant was experiencing, and not as an indicator of pain as a result of spinal stenosis.

He finally commented under cross-examination that various tests used to determine the existence of symptom magnification are very limited and have been shown in some instances to not being a valid indicator of that. He himself stopped using these tests (which he identified as Waddell tests) since they were not helpful, especially when dealing with patients having a language barrier like the Applicant.

Dr. Dahir Hashi for the Applicant

Dr. Dahir Hashi is qualified as a chiropractor. He submitted several treatment plans on behalf of the Applicant.¹²

Initially, he submitted an OCF-23 for which he personally assessed the Applicant. This is a form used by treatment providers when it is clear from their examination that the person is within the MIG. Beyond the initial pre-approved $2,200.00, the treatment provider may submit an additional plan by way of an OCF-18 to the maximum MIG limit of $3,500.00. Since the thrust of the MIG is thought to be speedy access to treatment without the need for claimants to await long delays (which may occur if an injury is applied for outside the MIG), the initial $2,200.00 fulfills this objective. But any subsequent OCF-18 form potentially triggers a decision by the Insurer to conduct an independent examination by one of its contracted medical practitioners.

Although the OCF-23 is usually considered a pre-approved clearance, the OCF-23 submitted on behalf of the Applicant was in fact formally approved by the adjuster on January 10, 2013.

Dr. Hashi’s examination and interview noted the Applicant’s injuries: chronic post-traumatic headache; injury of muscle and tension at neck level; pain and strain of lumbar spine; sprain and strain of sacroiliac joint; and strain of thoracic spine. He also listed various psycho-emotional factors reported to him.

Pursuant to the approval, treatment was provided to the Applicant. Following that, Dr. Hashi then completed an OCF-24 (a MIG Discharge Summary), wherein he recommended treatment for the balance of the MIG since in his view, the Applicant had not sufficiently recovered from his injuries and required further goods and services as specified and in the accompanying OCF-18. He noted that despite a 40% improvement in range of motion, the Applicant had not reached maximal improvement and continued to have difficulties with activities involving pushing/pulling, carrying/lifting objects, overhead reaching, bending, twisting, prolonged sitting/standing, walking, prolonged repetitive tasks, etc. He also noted psychological factors as a barrier to recovery.

The Insurer denied the further recommended treatment, and subsequently also denied the OCF-23 which it appeared to have approved previously. Dr. Hashi had a number of conversations at the time surrounding this with the adjuster, but the adjuster told him the reasons for the denials were non-compliance, collateral health coverage and that the matter was now being arbitrated.

I note that the evidence is satisfactory and that the Applicant was not in fact covered by Manitoba Blue Cross during the treatment period, as alleged by the adjuster.

Dr. Hashi was also sent correspondence by the Insurer that in the spring of 2013, one of his treatment clinics alleged the Applicant was refusing treatment. Dr. Hashi denied that any such letter was sent by this clinic to the Insurer. No copy of any such letter was provided by the Insurer in evidence.

Dr. Hashi was made aware by the Applicant that he would be in Somalia dealing with a family emergency between February 2013 and April 2013, which would be a hiatus in treatment. It was resumed in April 2013 upon his return.

Dr. Hashi continued to meet with the Applicant several more times following the Insurer’s termination, and eventually the Applicant agreed to pursue the denied treatment on his own since he continued to complain of back pain, pain down his legs and psychological effects, all from the MVA. The Applicant began but did not complete his treatment, and no treatment has been incurred since June 2013.

Dr. Hashi is explicit in the denied treatment plans regarding the premature interruption of the treatment, the patient’s continuing symptoms, and the necessary treatment required to alleviate his symptoms and move him forward. The goals were to reduce the Applicant’s pain, increase the range of motion to achieve functional restoration and to increase strength. Essentially, he wished to build upon the first part of the MIG treatment that he thought had already been pre-approved (the $2,200.00) and consumed, and now proceed with the balance of the MIG (to a maximum of $3,500.00).

Dr. Hashi met with the Applicant again in and around November 2014. The Applicant told him he had not been treating because of the denials, but that he needed treatment. He was experiencing back pain, pain down his legs and was distressed psychologically. Dr. Hashi referred the Applicant to Hal Disability, one of his clinics, for a chronic pain assessment to be provided by Dr. Wilderman, and to Dr. Mills for a psychological assessment. He also submitted a treatment assessment plan for Dr. Getahun to assess orthopaedic issues.

Dr. James Chiew for the Insurer

Dr. James Chiew reviewed Dr. Hashi’s OCF-18 for the Insurer. I accepted his qualifications as a licensed chiropractor in Ontario. He assessed the Applicant on April 21, 2015 as an independent evaluator.

He noted in his report that following the MVA, the Applicant began attending therapy about twice per week for approximately 8-9 months (Dr. Chiew may not have been aware of the two-month hiatus when the Applicant was in Somalia between February and April 2013). He noted the Applicant said at the interview that his treatment provided him with short-term relief.

Dr. Chiew also noted the Applicant’s statements during the assessment that he experienced intermittent sharp pain, aggravated by sitting and standing for prolonged periods of time, and from lifting and bending. He reported a high level of pain, which had improved somewhat since the time of the MVA as he was taking pain medication as well as an anti-depressant.

Dr. Chiew further noted with respect to the lumbar spine that the ranges of motion were within normal limits with “complaints of pain at the end ranges in all planes of motion” (emphasis added). He also noted that the Applicant “anticipated lower back pain and was guarded during range of motion testing” (emphasis added).

He concluded that the Applicant had already achieved maximum therapeutic benefit and therefore the treatment recommended by Dr. Hashi in the OCF-18 was not reasonable and necessary.

Under cross-examination, Dr. Chiew commented on the CT scan, which was not available at the time of his assessment. He said it would not have changed his mind since the disc bulge and spinal stenosis were likely degenerative, and the Applicant, then aged 51, was in the right category for that. Responding to another question under cross-examination, he opined that the Applicant probably had the disc bulge at the time of the MVA, but it may have been exacerbated by the MVA.

Dr. Maria Nesterenko for the Insurer

Dr. Maria Nesterenko was qualified as a family physician to provide a medical opinion on musculoskeletal injuries. She was called as a witness in support of her report, dated January 8, 2015. She had conducted an independent examination on the Applicant in respect of two treatment plans: an OCF-18, dated November 5, 2014, submitted by Dr. Igor Wilderman and co-signed by Dr. Dahir Hashi, for listed goods and services totalling $2,200.00, and a Treatment and Assessment, Plan dated December 11, 2014, for $9,890.00 for multi-faceted treatment.

Dr. Nesterenko made several clinical observations in her report, and focused on several physical parts of the Applicant’s body: cervical spine, shoulders, thoracic spine and lumbar spine, knees, and neurological examination. The detailed findings contained in her report are not recounted here.

Dr. Nesterenko noted the Applicant’s self-observations that he reported decreased memory and appetite, as well as depression and decreased libido issues. She also observed that he had a normal gait, with no observed limping, and sat comfortably in the chair throughout the interview without any visible distress due to pain.

She added pertinent comments in her testimony. Although the ranges of motion which she observed were in some cases not the full normal range (although as the report indicates she did sometimes find full range of motion), she found that all of the ranges were functional and later elaborated that being functional meant that he was able to do everyday activities.

Dr. Nesterenko also noted that the Applicant sometimes experienced pain at the end range of motion (as was in the thoracic spine and lumbar spine), but the ranges were functional. He declined to undergo the ranges of motion testing of his left knee, due to concerns of exacerbating his back pain. However, her casual observation revealed functional ranges of motion in this knee, no pain on hyperextension of the right or left knee, and right knee flexion being within normal range of motion.

She conducted the straight-leg test when she examined the Applicant’s spine and during the neurological examination. She noted that it was negative. This test was important for her since both legs were elevated, and if the Applicant had been in pain it would have been an indication of an active disc related problem. He expressed no pain in either leg.

Of note is that both Drs. Getahun and Chiew conducted these tests with similar results.

Dr. Nesterenko commented on the CT scan which was noted in Dr. Getahun’s Report. She confirmed that at L4/L5 there is a prominent broad-based disc bulge, which has resulted in a finding of mild spinal stenosis. She first noted there are three degrees of stenosis: mild, moderate and severe. The Applicant was at the mild end of the scale. She provided an opinion that this finding is compatible with degenerative changes in the Applicant’s body, which is normal, given his age of 51 at the time. She and Dr. Getahun were in agreement that the Applicant is not experiencing any symptoms in connection with either the prominent broad-based disc bulge or the other disc bulge found on the CT scan.

Dr. Nesterenko further testified that although at the time of her examination she had not had the benefit of seeing the CT scan, having now reviewed the CT scan she would not change her medical opinion since the Applicant did not have any symptoms of disc pain either at the time of the examination conducted by Dr. Getahun or herself. Further, the Applicant’s mild disc bulge was compatible with a degenerative problem. Therefore, she continued to defend her medical opinion that from a strictly physical medicine perspective, the Applicant had achieved maximum medical recovery from his injuries related to the MVA, and therefore, the assessed treatment plans were not considered reasonable and necessary.

Dr. Jon Mills for the Applicant

I accepted Dr. Jon Mills’ qualifications as an expert witness with regard to a psychological assessment¹³ after reviewing his qualifications and his testimony regarding same. There was no objection. He filed a Report of his assessment, co-signed by Dr. Umair Malik, MD (licenced in Ukraine as a medical practitioner) who conducted part of the assessment under Dr. Mills’ supervision. He also filed an Addendum, dated May 31, 2016,¹⁴ part of a process mandated by my Order, dated May 4, 2016, whereby Dr. Mills and Dr. Seon (conducting the independent examination for the Insurer) were to exchange with one another the raw test data relating to their respective assessments of the Applicant, with time stipulations for Addendum reports. He also testified orally and was examined in chief and in cross-examination.

Dr. Mills provided the following procedures he and his supervisee, Dr. Malik, followed with the Applicant: clinical interview (both structured and unstructured) and the followings tests: Beck Depression Inventory-II (BDI-2); Beck Anxiety Inventory (BAI); Impact of Event Scale-Revised (IES-R); Accident Fear Questionnaire (AFQ) and Symptom Checklist (SCL-90).

Dr. Mills noted his test findings were based on the Applicant’s responses to widely-used standardized psychological tests and the interpretation of the test results. He noted further that the validity of the results reflects the Applicant’s honesty and self-awareness. He also remarked that the Applicant had difficulty reading the questionnaire, which he associated with blurry vision since the MVA. In another section of the report, it is noted that the Applicant reported difficulty in reading and understanding the questionnaire, asking for help with reading, which Dr. Malik provided.

Dr. Mills commented on the test results. On the BDI-2, he noted that the Applicant’s symptoms of depression were in the severe range. On the BAI, the Applicant’s responses on the 21-item questionnaire had him in the severe range. That test usually highlights symptoms typically associated with anxiety. On the IES-R test, the Applicant listed difficulties one sometimes experiences after stressful events, and especially focussing on the seven days following the MVA. The Applicant scored as having experienced a moderate degree of stress. On the AFQ, the Applicant indicated that since the MVA he expressed being distressed because of it in a number of areas in his life. Similar feelings came up in the SCL-90 test.

Dr. Mills’ clinical opinion and diagnosis are excerpted from the report:

With a diagnosis of DSM-5:

• Major Depressive Disorder, Single Episode

• Somatic Symptom Disorder, with Predominant Pain, Persistent

Dr. Mills concluded from this that the Applicant’s injuries do not fall within the MIG, presumably for psychological reasons. He elaborated that the MVA has materially contributed to his impairment and poses a significant barrier to his functioning. Pursuant to this, he recommends a minimum of 15 sessions of psychotherapy to help him address the clinical symptoms he was presenting. He continued that his prognosis appears guarded without the proposed therapy and consultations.

Under direct examination, he noted that during the interview, the Applicant endorsed many of the psychological symptoms which were verified by the testing.

Dr. Mills also commented in his Addendum on Dr. Seon’s raw data findings. Dr. Seon made a finding from the BDI-2 test that the raw test score of 18 placed the Applicant in the mild category of range of depression. He disputed this, saying that a score of 18 is in the moderate category, to which Dr. Seon replied in her Addendum that as per the BDI-2 Manual provided by the Psychological Corporation, a raw score of 14-19 is in the mild category and 20-28 is moderate. During his examination-in-chief, he corrected himself and agreed on this issue with Dr. Seon, about the Applicant being in the mild range on that particular score.

Dr. Mills and Dr. Seon differed in their respective Addendum Reports with respect to the Brief Battery for Health Improvement 2 (BBHI-2) scores, the Test of Memory Malingering (TOMM) scores, the Applicant’s language difficulties and the overall treatment of the Applicant. Dr. Mills testified he never uses these tests, which test for attributes such as feigning symptoms, malingering and lying. He said that results from such tests are unreliable. They do not take into account the patient’s different cultural background, the suspicion toward a female assessor, and attitudes towards women (all aspects of cultural differences) which could have an important effect on the outcome of those kinds of testing.

As a clinical psychologist he was more interested in the whole picture, which included the fact that the Applicant had come seeking treatment and had endorsed a number of features indicative of serious depression. In his opinion, the Applicant was not feigning his symptoms. He noted that two flags ignored by Dr. Seon were the Applicant’s disclosure at Dr. Seon’s interview that he was taking medication for his pain and had been prescribed anti-depressant medication by his family doctor. These should have alerted her that the Applicant was experiencing real issues of pain and depression, and not feigning symptoms.

Further comparisons of the results of their respective data are also contained below in the analysis of Dr. Seon’s evidence.

Dr. Terra Seon for the Insurer

I accepted Dr. Terra Seon’s qualifications as an expert witness on her psychological assessment, after reviewing her qualifications and her testimony regarding same. There was no objection. She filed a report of her assessment, which was dated January 29, 2015.¹⁵ She also filed an Addendum, dated August 18, 2016,¹⁶ part of the process mandated by my May 4, 2016 Order. She also testified orally and was examined in-chief and in cross-examination.

In both her report and in her oral testimony, Dr. Seon outlined the process of the assessment in its totality. The entire process is readily available in the body of her report, so I will only provide an overview and refer specifically to what I consider relevant aspects for the purpose of my analysis.

She conducted a clinical interview wherein she recorded the background and present status of the Applicant. The Applicant consented to undergo all of the evaluation. Present at the interview and testing was a Somali-to-English interpreter. However, the Applicant conducted the clinical interview independently, and requested assistance in the completion of the psychometric testing.

Three of the psychometric tests were self-reports. One test, the TOMM was objective – a method to help discriminate between bona fide memory impairments and malingering. Another test was the BBHI-2. Much of the contention between the parties relates to the results from these latter tests.

Dr. Seon reviewed all of the documents listed in the Appendix attached to her report, and issued a caveat statement in her report that if additional information was provided at a later date, her opinion could change.

She noted some faulty memory issues but wrote that overall the Applicant “displayed a fair memory for events leading up to, during, and post-accident”. She listed the areas where he displayed poor memory, such as describing that the MVA had occurred in 2011, not 2012.

Dr. Seon noted that the Applicant’s psychological defensiveness score was unusually low, at a level seen in less than 6% of patients in a clinical study. The test administered was the BBHI-2. She reported that the psychological defensiveness score was similar to scores in an experimental sample of patients who were asked to magnify their difficulties. She further noted that the Applicant’s level of somatic complaints was higher than the levels reported in 92% of “normal” individuals in the community.

In addressing Dr. Mills’ criticism of her report, she stated that the objective test findings of the BBHI-2 test indicated that the Applicant’s scores were lower than 94% of patients and lower than the overwhelming majority of scores of an experimental sample of patients who were asked to magnify or exaggerate their difficulties.

In her Addendum Report, Dr. Seon addressed in some detail the results of the TOMM, a test that she describes as being sensitive to motivation and effort. She stated that the test had two trials (Trial 1 and Trial 2) and that it was administered in its entirety.

The Applicant’s scores on the TOMM were “well below” 45 on both trials. In her testimony she addressed that research outlined in the TOMM Manual cites any score lower than 45 on Trial 2 (or the Retention Trial) should raise concern that the individual is not putting forth maximum effort or is malingering. Her evidence was that the Applicant’s scores on the TOMM were well below 45 on Trial 1 and Trial 2 of the test measure, and that his scores on Trial 2 were in fact lower than his score on Trial 1.

Dr. Seon’s overall conclusion was that based on the results of the administered psychological assessment, the Applicant’s presentation at the test date was not of the magnitude to warrant a psychological diagnosis. She noted that the objective psychometric testing indicated the potential of an exaggeration of his current complaints and problems. The test results questioned the effort the Applicant put forth on self-reported questionnaires, and she concluded from this that symptom magnification could not be ruled out.

Responding to Dr. Mills’ criticism, she acknowledged the Applicant’s language issues, and said she also had a Somali-to-English interpreter available, which according to Dr. Mills, she failed to do. She differentiated her objective components testing from the totally subjective testing administered by Dr. Mills. She questioned whether Dr. Mills even personally interviewed the Applicant. She held firm that the Applicant’s subjective test findings were still in the mild range of depression, and no unusual anxious thoughts or feelings were identified within the BAI or the objective test measure, the BBHI-2. She testified that in arriving at her overall conclusion, she had considered that the Applicant expressed sadness and she considered that his memory was not perfect, but nevertheless she stood by the objective test results which supported her conclusion.

In making my overall findings with respect to the Medical Benefits and Costs of Examinations, I must note several things stand out.

The first is the marked contrast between the opinion reports of the Applicant and Insurer. This seems endemic to the Adjudication process under the SABS.

That said, I am giving more weight to the Applicant’s testimony and to his self-reported symptoms to the various assessors and his testimony at the Hearing, over the opinions of Drs. Seon and Chiew that the Applicant was likely feigning his symptoms. This is not in any way to question the skills or expertise of these witnesses; I am not qualified to do that. But I am qualified to weigh and prefer particular evidence over other evidence.

Without minimizing some of the weaknesses in the Applicant’s case, the Applicant has been both explicit and consistent in recognizing his need for treatment and credible in the discomfort he has experienced since the MVA.

Fairly soon following the MVA, in November 2012, the Applicant sought out and began to receive treatment. He continued treatment as long as the Insurer maintained the coverage, and then went beyond termination and incurred treatment on his own for a while. The Applicant said the treatment had been helping him and he was still in pain, and so desired further treatment. I take this at face value. Why incur treatment when it is not being covered, other than because it had been helping him, and he believed he needed more, even though he could not financially afford it? The Applicant is credible on this point.

The Applicant’s expressed need for additional treatment is mirrored in the OCF-18 prepared by Dr. Hashi. Dr. Hashi testified in support of both the Applicant’s need for additional treatment and his empirical finding from tests that the Applicant required additional treatment.

After June 30, 2013, when the Applicant could no longer afford to incur treatment costs, no further treatment was provided. According to both the Applicant and Dr. Hashi, the Applicant returned to Dr. Hashi’s clinic in November 2014, more than a year after treatment had been suspended, and complained of back pain, pain down his legs and that he was distressed psychologically. Dr. Hashi was unable to provide further treatment since the previous treatment plans were denied, and the Applicant was unable to incur any further treatment.

However, the Applicant submitted referrals to Hal Disability for a chronic pain assessment by Dr. Wilderman, to Dr. Mills for a psychological assessment, and for Dr. Getahun to assess orthopaedic issues.

All of the OCF-18s which incorporated these were denied by the Insurer, on the basis of the Insurer’s independent examinations by Drs. Seon, Nesterenko and Chiew.

There is a consistent chain underlying this narrative, from the time the Applicant first sought treatment shortly following the MVA to the later examinations. That theme is the Applicant initially engaging treatment for his injuries shortly following the MVA; continuing treatment as long as he was able to financially; expressing improvement from the treatment; and continuing to the present day to experience lower back pains, pain shooting down his legs, difficulties in standing, bending and sitting for periods of time, and even missing a Hearing date when he became hospitalized due to his pain. He has also been on painkillers and anti-depressants. The pain has caused him difficulties in keeping the employment he wanted and settling for a less physically-demanding job at lower pay. His pain had interfered with his libido and other activities.

I have observed the Applicant’s demeanour and saw his discomfort and expressions of pain, and frequent Hearing breaks he needed because of the pain. His observed demeanour mirrors the findings of Dr. Getahun, Dr. Mills and Dr. Hashi, and his pain was also acknowledged by the Insurer’s doctors Dr. Seon, Dr. Chiew and Dr. Nesterenko.

In view of the above, in reviewing the reports of Drs. Seon, Getahun and Chiew in particular, listening to their oral evidence and the testimony of the Applicant, I do not accept that the Applicant was malingering or that he was feigning his symptoms.

The next questions are whether his injuries take him out of the MIG and whether the proposed treatments are reasonable and necessary.

I find based on the above analysis that the Applicant’s injuries have taken him out of the MIG and that the treatments recommended in the treatment plans are reasonable and necessary. In coming to this conclusion, I prefer the evidence of Drs. Mills and Getahun as expressed both in their reports and testimony to that of the Insurer’s specialists, and I also prefer the testimony of the Applicant. That evidence achieves several things: it negates that the Applicant was feigning his symptoms, and corroborates at several points the Applicant’s seeking out treatment for the difficulties he was experiencing. In Dr. Getahun’s case, in particular, it referred to objective evidence of an L4/L5 prominent-based disc bulge, which has resulted in mild spinal stenosis.

In Dr. Getahun’s opinion, he diagnosed the following:

1. Chronic myofascial strain of the cervical spine and aggravation of pre-existing degenerative changes as noted on his x-ray;

2. Chronic myofascial strain of the lumbar spine and aggravation of pre-existing degenerative changes as noted on his CT of the lumbar spine.

The Applicant came to his office complaining of pain, and Dr. Getahun opined that in all likelihood, given the Applicant’s age and the MVA, there was likely a pre-existing degenerative factor which was exacerbated by the insult or MVA.

I endorse Dr. Getahun’s treatment recommendations as reasonable and necessary in the Applicant’s circumstances: physiotherapy in a multidisciplinary supervised setting, enrolment in a multidisciplinary chronic pain program and chronic pain consultation.

On the psychological side, I prefer the evidence of Dr. Mills given my conclusion that the Applicant was neither malingering nor feigning or exaggerating his symptoms. I accept that Dr. Malik, working under the supervision of Dr. Mills, was providing assistance to the Applicant towards understanding the tests when he required it because of language difficulties. The tests administered through Dr. Malik and interpreted by Dr. Mills supported the Applicant’s symptoms of emotional distress and pain which he attributed to the accident.

I support Dr. Mills’ conclusion that the serious and recalcitrant nature of the Applicant’s ongoing physical pain and psychological impairment is a direct result of the MVA. I also endorse Dr. Mills’ finding that the MVA materially contributed to the Applicant’s impairment and poses a significant barrier to his function, an observation I was able to make from the Applicant’s demeanour throughout the Hearing when he attended. His impairments should not be characterized as falling within the MIG.

Given the Applicant’s prolonged symptoms since the MVA, Dr. Mills’ treatment recommendation of 15 sessions of psychotherapy to help the Applicant address the clinical symptoms he is experiencing is both reasonable and necessary.

The various recommendations above are encapsulated in the denied treatment plans. For reasons expressed, I approve them as being reasonable and necessary.

Special Award

The jurisdiction to make a Special Award comes from s. 282(10) of the Insurance Act, which provides as follows:

Special Award

(10) If the arbitrator finds that an insurer has unreasonably withheld or delayed payments, the arbitrator, in addition to awarding the benefits and interest to which an insured person is entitled under the Statutory Accident Benefits Schedule, shall award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule. R.S.O. 1990, c. 1.8, s. 282 (10); 1993, c. 10, s. 1.

The evidence in this case does not rise to the level of my finding that a Special Award is an appropriate remedy.

My saying this does not absolve that the adjuster for the Insurer made errors in adjusting this file. Ignoring timely notifications from the Applicant’s legal representative that the Applicant was away from Canada for two months in 2013 because of a family emergency, and nonetheless scheduling section 44 examinations during that period and suspending benefits despite receiving tangible evidence of the Applicant’s whereabouts, is one such instance.

Another example included a letter suspending benefits and listing as a reason that one of the treatment providers indicated that the Applicant had refused to engage in treatment. Dr. Hashi, who owns that clinic, denied that such was the case and stated under oath no such statement was made and that the Applicant never refused treatment. Under cross-examination, the adjuster conceded that instead of using “refusing”, “not attending” treatment would have been a more appropriate comment.

The reason was also never made clear at the Hearing for the Insurer’s termination of the original OCF-23 which it had initially approved. Treatment was conducted in good faith on the basis of such approval. Perhaps the consent was revoked because the Insurer (erroneously as it turned out) decided that at some point early in 2013, the Applicant was non-compliant. The Insurer did not satisfactorily explain this revocation.

But on the other side, the Applicant’s legal representative bears responsibility for the fact that the Applicant failed (on his advice) to attend several medical examinations which were aimed at assessing his eligibility to receive an IRB. The Applicant also failed to attend several other examinations and in my view failed to provide reasonable excuses for those non-attendances. Any delays in payment or adjusting the claim which were as a result of his counsel’s advice cannot be attributed to improper adjustment.

This was a difficult file to adjust at least in part because there was so much confusion generated by the Applicant. Was he “on vacation” during October 2012 or was he released from his employment in that same month? When he applied for EI, he gave the reason that he quit his job with no intention to return, yet that is not the story he told the Insurer and repeated during this Hearing. The story which was related at the Hearing had more to do with taking temporary leave from work to deal with his children’s lack of access to transportation to school.

There were also Insurer Examinations that the Applicant missed which had nothing to do with either his overseas emergency travel or his legal representative’s advice. The need to reschedule several of the examinations caused delays, by the Applicant not the Insurer.

At the end of the day, the Applicant was a contributor to delays in processing his claim, of which there is too much evidence to justify a Special Award. Therefore, this claim is dismissed.

Concluding Observations

This Hearing was strongly contested by both counsel. At times, the conduct of both counsel came into question – periodically speaking over one another, interrupting one another amid examination or cross-examination, overly lengthy examinations featuring much repetition, and making statements during direct or cross-examination more in the realm of submissions than of examinations. Thus, this provided difficulties for the court reporters, the parties, witnesses and for myself. It contributed in no small measure to the Hearing’s length. My own frustration is captured in the transcript at its conclusion, as per my remarks to Applicant’s counsel:

It is unfortunate you can’t finish your whole day of examinations because once again we have gone way over. I’ve tried really hard to keep you within timelines, but you evaded all of my attempts to do that. Seriously, you did. The upshot is that you don’t get to totally finish the case the way you wanted to. Unfortunately, you have to bear the responsibility for that because we could have done this in a much more timely manner.¹⁷

EXPENSES:

I am not making a finding with regard to who, if anyone, will bear the expenses. If the parties are unable to mutually agree, either or both of them may approach me to deal with that matter.

March 27, 2017

Harvey Savage

Arbitrator

Date

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2017 ONFSCDRS 92

FSCO A13-014953

BETWEEN:

FAED HASHI

Applicant

and

CERTAS DIRECT 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. Mr. Hashi is not entitled to receive a weekly Income Replacement Benefit.

2. Mr. Hashi is entitled to Medical Benefits claimed as follows:

a) For services provided by Spinex Rehab Clinic:

i) $602.00 for active and passive treatment in respect of an OCF-23 treatment plan and invoice, dated January 28, 2013;

ii) $710.00 for active and passive treatment in respect of an OCF-23 treatment plan and invoice, dated June 14, 2013.

b) For services provided by HealthMax Physiotherapy:

i) $1,300.00 for active and passive treatment in respect of a treatment plan, dated June 5, 2013.

ii) $2,607.20 for physiotherapy, OCF-18 dated June 14, 2013.

c) For services provided by Injury Management and Medical Assessments:

i) $1,995.32 for a psychological assessment, dated November 13, 2014;

ii) $2,762.98 for a psychological treatment plan, dated December 2, 2014.

3. Mr. Hashi is entitled to the Cost of Examinations as follows:

a) $2,200.00 in respect of a chronic pain assessment, dated November 13, 2014.

b) $9,890.11 for a chronic pain treatment plan, dated December 11, 2014.

4. Mr. Hashi’s claim for a Special Award is dismissed.

5. Mr. Hashi is entitled to interest on the overdue payments for Medical Benefits and the Costs of Examinations as stated above.

6. No Order has been made with respect to expenses.

March 27, 2017

Harvey Savage

Arbitrator

Date

Footnotes

1. 1Effective September 1, 2010, the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “new SABS”) came into force. The transition rules in the new SABS provide that, subject to certain exceptions, benefits that would have been available pursuant to the Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996 (the “old SABS”) shall be paid under the new SABS, but in amounts determined under the old SABS.
2. 2Exhibit 18, R1, V1, Tab A-39.
3. 3Cited as El-Saikali v. Co-operators General Insurance Company, [2003] O.F.S.C.I.D No. 35, at para. 44.
4. 4Ibid., at para. 3.
5. 5Ibid., at para. 26.
6. 6Minor Injury Guideline. Superintendent’s Guideline, No. 02/10.
7. 7Supra note 3, at paras. 32, 35, 41-42.
8. 8Ibid.
9. 9Ibid., at paras. 26-27.
10. 10Report of Dr. Getahun, dated March 16, 2015.
11. 11A2, Tab 3 (I).
12. 12Exhibits 27, 31, 32, 33 and 34.
13. 13Exhibit A2, Tab H I.
14. 14Exhibit A2, 23.
15. 15Exhibit R1V2, at Tab 7.
16. 16Exhibit R1V2, No. 23.
17. 17Transcript of Proceedings, November 30, 2016, at page 232.