Financial Services Commission of Ontario

Neutral Citation: 2018 ONFSCDRS 13

FSCO A16-003993

BETWEEN:

MAHASSEN JEDEON Applicant

and

AVIVA CANADA INC. Insurer

REASONS FOR DECISION

Before: Lynda Tanaka, Arbitrator

Heard: In person at ADR Chambers on October 30 and 31, 2017

Appearances: Ms. Mahassan Jedeon, Applicant, participated Mr. Christopher D. Finlay, Counsel for Mahassan Jedeon Mr. Andrew Smith and Mr. Michal Baura, Counsel for Aviva Canada Inc.

Issues:

The Applicant, Ms. Mahassen Jedeon ("Applicant"), was injured in a motor vehicle accident on July 28, 2014 and sought accident benefits from Aviva Canada Inc. ("Aviva"), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and the Applicant, through her representative, applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c. I.8, as it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, and Ontario Regulation 664, as amended.

The issues in this Arbitration are:

1. Is the Applicant entitled to receive medical benefits as follows: a) $2,540.80 for chiropractic and massage treatment by Mavis Wellness Inc. ("Mavis Clinic") submitted on August 5, 2014; and b) $74.55 for prescription medication from Terry Fox Pharmacy submitted on August 5, 2014?

2. Did Ms. Jedeon sustain an impairment within the meaning of the Minor Injury Guideline and Schedule as a result of the accident?

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

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

Result:

1. The Applicant is entitled to receive medical benefits as follows: $2,540.80 for chiropractic and massage treatment by Mavis Wellness Inc. submitted on August 5, 2014.

2. The Applicant did sustain an impairment within the meaning of the Minor Injury Guideline and Schedule as a result of the accident.

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.

EVIDENCE AND ANALYSIS:

At the outset of the Hearing the parties advised that Aviva had paid the amount of the prescription medicine claim in Issue 1(b) in full and that claim was no longer in dispute.

The Accident

The Applicant is a 53 year old woman who was the front seat passenger of a 2008 Dodge van that was "t-boned" during a left turn when an oncoming car ran a red light, striking her vehicle on the passenger side. She felt pain on her right side from her neck down to her hip and particularly in her shoulder. The paramedics helped her get out of the car, checked her out and released her. She was not taken to hospital. She saw her family doctor three days after the accident where she reported that she had headaches and right shoulder pain as a result of the accident. Her family doctor prescribed chiropractic treatment and massage and recommended that she attend the Mavis Clinic which is located in the same building as her family doctor.

Prior to the accident, she worked full-time and looked after her husband, three children and her elderly father. She did the laundry, cleaning, cooking, and caring for the children and various household chores. She did not do the shopping as she had difficulty with heavy bags.

At the time of the accident, the Applicant was an hourly paid employee at a children's party event location that is part of a chain of such facilities. She was a "cast member" which meant that her duties included donning a costume and performing for the children as well as physical work maintaining and cleaning the facilities for the customers including "jungle gyms", as well as general maintenance such as cleaning the stove, oven, dishwasher, tables and carpet. Her work included climbing ladders (for cleaning both inside and outside the event space), and going into confined spaces ("sky tubes") to clean.

After the accident, the Applicant did not miss any days of work but she worked fewer hours and was assigned some modified duties such as more time working on cash and watching the door. She was only able to work a half regular shift for the first work shift after the accident due to the pain from her injuries. She returned to a full shift at work a week after the accident but only to very light duties. Sometime in the following year, she was given a promotion to a management role and never returned to her former duties. At home she still needs help with her housekeeping from her daughter and husband. She testified that her strength is not as it was before because of the back and neck pain.

Medical Evidence

Prior to the accident, the Applicant had a tremor in her right (dominant) hand which she noticed 5 or 6 years ago. She had a long history of osteoarthritis in her spine as well as osteoporosis. She has complained to her family doctor about her hand tremor, her neck pain and back pain. She has been referred to a specialist concerning the hand tremor. In her family doctor's clinical notes and records for January 23, 2014,² the Applicant is noted as complaining of mid-back pain to her doctor that required treatment. She has had osteoarthritis for 10 years and testified that, if it is painful, she takes painkillers and does physiotherapy. She was involved in another car accident in 1998, a rear end collision, suffering back pain which did not go away. Her x-rays in 1998 revealed the arthritis in her upper back and lower back.

The OCF-18 in dispute in Issue 1(a) was submitted by chiropractor Dr. Lily Zayed in August 2014 within two weeks of the accident.³ Dr. Zayed stated that the Applicant's injuries do not fall within the Minor Injury Guideline ("MIG") in Part 4 of the OCF-18. Dr. Zayed identified the Applicant's injuries in Part 6 including jaw and neck sprain and strain, and sprains, dislocation and pain in her back, shoulders, elbows, wrist and hand, as well as nonorganic sleep disorders and phobic anxiety disorders.

In Part 7 she provided the details of a condition that could affect the Applicant's response to treatment for the injuries identified, as follows:

PATIENT SUFFERS FROM A TREMOR OF HER RIGHT HAND WHICH HAS BEEN SIGNIFICANTLY AGGRAVATED BY THE MOTOR VEHICLE ACCIDENT. SHE ALSO SUFFERS FROM DEGENERATIVE CHANGES IN THE THORACIC AND LUMBAR SPINE AND REDUCED BONE DENSITY.

She specifically noted in Part 8 as follows:

PATIENT HAS DIFFICULTY WITH USING THE RIGHT UPPER EXTREMITY (PATIENT IS RIGHT HANDED). SHE HAS DIFFICULTY WITH PROLONGED STANDING, SITTING, BENDING, AND LIFTING. SHE HAS RETURNED TO WORK BUT REPORTS THAT HER PAIN IS EXACERBATED AT THE END OF HER SHIFT. PATIENT HAS DIFFICUTLY WITH HOURSEKEEPING DUTIES.

The OCF-3 Disability Certificate dated September 9, 2014⁴ was provided to Aviva, indicating that the Applicant had returned to work because "she loses benefits and income" and confirming what was included in the OCF-18, that "work aggravates pain."⁵ The OCF-3 noted that the Applicant suffered a substantial inability to engage in caregiving activities and a substantial inability to perform the housekeeping and home maintenance services she normally performed before the accident, as noted in Part 8 of the OCF-18 noted above.

At the time of the Hearing, the Applicant continued to have neck, right shoulder pain and back pain and her hand shook a lot. The pain that she suffered prior to the accident has increased since the accident and lasts longer. She testified that she has seen a neurologist concerning the hand tremor but the neurologist was unable to give a diagnosis. She recalls that he told her it could be something in her spine. A different specialist opined that her tremor might be due to carpal tunnel syndrome or Parkinson's disease. At the present time, she cannot put on make-up using that hand or hold containers of liquids without risk of spilling. She testified that she wakes up in the middle of the night with pain in her back. In response to a question under cross-examination as to whether or not she mentioned her sleep difficulties and anxiety to the independent assessor she testified that she felt she should have had psychotherapy to cope with her sleep difficulties and anxiety. She wants to take more physical therapy because she did get pain relief from it. She cannot stand for more than 10 to 15 minutes before she feels pain.

She took chiropractic therapy from the Mavis Clinic but they stopped calling her to arrange appointments and the chiropractor who was treating her moved away. The therapy did help her and she would like more therapy. She has medical benefits from her employment that pay for treatment up to $500 per year. After the chiropractic treatment was stopped, she returned to her family doctor who arranged for x-rays and a MRI because her pain continued. He has prescribed painkillers and he recommended that she should do more therapy.

Dr. John Brooks, B.A., M.Ed., M.D. C.C.F.P., is a family physician with over 30 years of experience as a clinician who was called to testify as an expert witness for the Applicant in the diagnosis of chronic pain syndrome and arthritis. He was asked to assess the Applicant to determine if her impairments fall within the MIG and if the disputed treatment plan is reasonable and necessary. He assessed her on September 21, 2017 and she presented with ongoing pain in her upper, mid- and lower back, which was persistent and recurrent. Her pain was significant in that she rated it a 9 out of 10, though some days are better than others. She has limited range of motion and pain in her right shoulder with a reduction of 30 to 40 percent in internal rotation. Her range of motion in her neck in lateral flexion was reduced by 20 to 30 percent. There is also a reduced range of motion in the thoracic and lumbar segments of the back where she has a good range of motion but experiences pain.

In his experience, patients with arthritis are slower to recover from injuries such as those suffered in an accident, as are older persons, whether or not the micro fractures and tissue tears are discernible in the imaging available. His opinion was that the Applicant had mainly soft tissue injuries that were made worse by her pre-existing conditions. In addition, there may be a component of central sensitization where a patient will continue to feel pain because the body has become programed to feel pain after a period of time, regardless of how much tissue recovery has been accomplished. In his opinion, the pain she is suffering is chronic pain and secondary to her motor vehicle accident injuries. In his experience, muscles and joints interact and pain or injury in one can aggravate the other. In his view, the injuries are not minor and do not fall within the MIG. Given what he saw on the x-rays and the Applicant's score in the osteoporosis tests, he would expect that she has had pain for a long time that is legitimately affecting her daily activities.

In his opinion, the treatment plan had as its goal pain relief and it was comprehensive in that it contained definitive references to the Applicant's previous history. He determined that the treatment plan was reasonable and necessary.

His diagnosis was that she suffered from chronic pain syndrome ("Syndrome") with a nervous system programed to suffer pain more. While her original injuries were significant, the fact that she is still suffering from pain three years after the accident is a sign of the programming into the neurological system. His view of her tests is that, while she was chronologically 50 years old at the date of the accident, biologically she was a bit older because of the osteophytes in her neck. He explained that, while the Syndrome is the sequelae of the accident injuries, it is also the sequelae of her pre-existing physiology. He had assumed that she had used up the entire limit of $3,500.00 under the MIG, but the fact that she did not have that much treatment did not change his opinion because the treatment may have been ineffective or made it worse. When he was told she had not taken any more treatment recently, he indicated that he was not sure she really understood what his team was proposing, that she probably needs psychological treatment. The Syndrome does not fall within the MIG.

The Applicant was assessed by Dr. Bob Karabatsos, M.D. RCPSC, at the request of Aviva on September 16, 2014, about seven weeks after the accident. Dr. Karabatsos testified as an expert qualified in orthopaedics. He has had a fellowship in lower extremity reconstruction (joint replacement). He was asked to assess the Applicant to determine if her injuries were minor injuries and whether the treatment plan was reasonable and necessary.

At the assessment he asked the Applicant where she had pain and she pointed to her trapezius muscle that runs from the neck to the shoulder. She told him her pain radiated front and back and that she also had headaches and jaw pain. She told him her pain was in her jaw, shoulder, neck, but not her back, as he recalled. He found that she had very good range of motion in her back, though she complained of localized tenderness in muscles during the assessment. Similarly he saw only normal alignment range of motion and neurology in her cervical spine. He was told about her old back pain from the previous accident and that the pain now was not worse but different.

In the body of his report⁶ Dr. Karabatsos is clear that he would not and did not comment on the pain in her jaw because the temporal mandibular joint is not his field. He confined his opinion to the right trapezius muscle. His opinion was that she was pointing to the muscle and not the joint as the point of pain so arthritis would not make it more difficult for her to recover. He did note in his report that she had "past medical history significant for osteoporosis and arthritis". He also noted the tremor in her right hand and that she has had the tremor for many years. He does not appear to have focused on the notation in the OCF-18 that the tremor had been aggravated by the accident but he does note that the tremors "were largely pre-existing" (emphasis added). He indicated in his evidence that the tremors would not be an orthopaedic issue but rather a neurological one.

With respect to the treatment plan, his view was that a lot of passive therapies would not alter her pain and that these therapies are effective in the acute stage but not at the stage at which he examined her. He acknowledged that some people take longer to recover, and that the dermatomes in the C2, C3, and C4 vertebrae can give headaches. He also testified that he had erred in his report in referring to the pain in her shoulder as spreading distally – rather the pain spread over the back of the shoulder or proximally. Her evidence and what she told him as recorded in his report is that the pain was anterior and posterior. He assumed she was taking prescription medication including non-steroidal anti-inflammatory medications because she was feeling pain and that is noted in his report⁷ but he did not inquire as to when she had last taken the medication prior to the assessment.⁸ He assumed also that she had had some therapy prior to seeing him.

He concluded that she "may have sustained some sprain/strain/type injuries" (emphasis added) and that she had no impairment due to the accident at the assessment. He opined that she does suffer from a predominantly minor injury and that she does not have a pre-existing medical condition that will prevent her from achieving maximum medical recovery if subject to the minor injury cap of $3,500.00.⁹

With respect to the treatment plan dated August 5, 2014, he opined that at the time of the assessment (September 16, 2014, less than two months after the accident) that the treatment plan was not reasonable and necessary, stating that she has had extensive supervised rehabilitation.

The Applicant was questioned on a number of statements in Dr. Karabatsos' report and she did not disagree with the range of motion in her back that he noted. She testified that she can move her neck but she has pain. She is able to bend and move her back but she has pain. She did not mention her anxiety and sleep difficulties to Dr. Karabatsos. He had misstated the extent of her functioning on a day-to-day basis including elements that she testified she could not in fact do. He agreed that he knew she was on modified duties at work at the time of the assessment but chose not to include that in his report, "a simple omission on our part".

Dr. Karabatsos did acknowledge in cross-examination that some people take longer to recover than others and some can develop chronic pain. He testified under cross-examination that older people will take longer to recover and that pre-existing conditions can affect recovery time if the injury is to the joint itself. The severity of the impact of the accident may also play a role and in this case he viewed the accident impact as moderate. Further, he is familiar with chronic pain as persistent pain and to satisfy a chronic pain diagnosis there must be significant psychological sequelae. In his experience such patients are reliant on significant medications and treatment and tend to become socially withdrawn.

Neither assessor expressed any concerns about the Applicant's truthfulness.

Analysis

Motion by Aviva

Aviva brought a motion which was intended to be a preliminary issue but was instead argued within the Hearing. Aviva sought an order that the Applicant was barred from disputing its denial of the treatment plan in Issue 1(a) because FSCO lacked jurisdiction to determine the dispute under s. 38(6) of the Schedule and therefore the MIG issue cannot be determined because there is no dispute of an associated substantive benefit pursuant to section 280 of the Insurance Act ("Act").

Section 280 of the Act provides for the process of mediation and arbitration of disputes "in respect of an insured person's entitlement to statutory accident benefits or in respect of the amount of no-fault benefits to which the insured person is entitled".

Sections 38(5) and 38(6) of the Schedule provide that an insurer may refuse to accept a treatment plan "if the plan describes goods or services to be received… in respect of any period during which the insured person is entitled to receive goods or services" under the MIG in respect of the injury and that an insurer's refusal to accept such a plan under subsection (5) is "not subject to review".

Aviva submits in its motion that its decision to deny the treatment plan cannot be reviewed in this mediation and arbitration process because the treatment described is treatment for a minor injury as defined in the MIG. Therefore, it argues, since there is no disputed benefit, there is no jurisdiction in this Hearing to deal with the MIG issue, Issue 2.

The Applicant submits that Aviva is barred from taking the position that the Applicant cannot have the dispute concerning the treatment plan determined by this Hearing because it did not take that position at the Mediation or at the Pre-Hearing stage. Indeed, its letters refusing to approve the treatment plan expressly state that the Applicant is entitled to mediate and arbitrate the issue of approval of the treatment plan.¹⁰ It has therefore waived this defence, if such existed.¹¹

The Applicant submits that Aviva's interpretation of s. 38 of the Schedule is not consistent with the ordinary meaning of the words, is contrary to the intent of the legislation as consumer protection legislation, and is inconsistent with the case law under the Schedule, though there is no specific case law dealing with these two sections of the Schedule.

Both parties filed extensive case law in support of their positions which I have reviewed. A substantial number of them are decisions of other arbitrators which, while informative, are not binding on me. I recognize, however, the desirability of consistency in outcomes where cases have similar facts.

I reject Aviva's arguments and dismiss the motion.

I agree with the Applicant that Aviva is barred from taking the position that the MIG issue in this Hearing is outside my jurisdiction unless there is a treatment plan in dispute. I note the wording of the Pre-Hearing Letter of Arbitrator Morris¹² amending the issues in dispute in this Hearing in the following terms:

"The issues in dispute were identified and agreed to as follows:

1. Did Ms. Jedeon sustain an impairment within the meaning of the Minor Injury Guideline and Schedule as a result of the accident?" (emphasis added)

Aviva has consented to the addition of this issue and therefore cannot now argue that it is outside the jurisdiction of this Hearing. Aviva also consented to the issues identified as Issue 1 as issues in this Hearing, dealing with the specific benefit claims. In addition, in filing its Response to the Application for Arbitration, Aviva did not plead in the attached Schedule A the jurisdictional arguments that it raises here.¹³

There is, however, a general proposition that parties cannot grant jurisdiction to a statutory decision-maker that is not contained in the legislation under which the decision-maker is functioning and therefore I will also address the merits of Aviva's position under the case law.

In Do and Guarantee Co. of North America,¹⁴ the arbitrator was dealing with a limitation period argument that, if successful, would have barred the insured person from proceeding with arbitration. The case was appealed both to the Director's Delegate and to the Divisional Court¹⁵ where the issue of catastrophic impairment as a standalone issue without a claim under a treatment plan was dealt with. In finding that the limitation period is not triggered if there is no refusal of a benefit, Arbitrator Alves found that, to trigger the running of a limitation period,

…refusals are required to be clear and unequivocal. Insurance legislation is consumer protection legislation and refusals must also communicate information about the dispute resolution process in a clear manner. In my view it follows that the information about the dispute resolution process must relate in a meaningful way to the refusal.¹⁶

Arbitrator Alves found that disputes concerning catastrophic impairment are subject to the dispute resolution process comparable to a dispute with respect to other elements of the statutory scheme such as whether or not a person is an insured, a dependant or a spouse that must be determined prior to entitlement to a benefit being determined.¹⁷ On appeal of Arbitrator Alves' decision rejecting the limitation period defence, the Director's Delegate held that at the heart of the dispute was the issue of whether or not a dispute concerning catastrophic impairment is refusal of a benefit and subject to the dispute resolution process.¹⁸ The Director's Delegate found that Arbitrator Alves' decision was correct in finding that the limitation period did not apply and also that the issue of catastrophic impairment was a determination of an entitlement under the Act that was properly within the arbitrator's jurisdiction.¹⁹ When the Director's Delegate failed to grant its appeal from Arbitrator Alves' decision rejecting its limitation period defence, Guarantee Co. of North America sought judicial review by the Divisional Court. The Divisional Court rejected Guarantee's position, finding that the decision of the Director's Delegate had fully addressed the insurer's submissions and was reasonable.

I agree with the Applicant's submission that the question of whether or not the injuries fall within the MIG is within the arbitrator's jurisdiction by necessary implication, with or without a disputed benefit or treatment plan and that the case law supports that conclusion. On the basis of the Do decisions, I find that, even if I found there was no treatment plan in dispute, I would still have jurisdiction to deal with Issue 2. I am supported in this view that this issue has been resolved in favour of the Applicant's position by the Minutes of a Meeting May 30, 2013 of the Dispute Resolution Group – Companies Forum in which FSCO has announced that it was accepting mediation applications where the MIG was "noted as a standalone issue".²⁰

I also find that Aviva's refusals of the treatment plan benefit are not caught by section 38(6) of the Schedule. The refusals by Aviva of the treatment plan were clear and unequivocal in directing the Applicant to the mediation and arbitration process that she has followed.

Aviva's motion is based on a misinterpretation of the Schedule and in particular of those sections dealing with dispute resolution. Section 38(6) of the Schedule was not intended to prevent an insured person from having a dispute resolved through mediation and arbitration as to whether his/her injuries fall within or outside the MIG. The wording of s. 38(6) notably does not say that the issue is not subject to "dispute"; the section refers to "review". In the context of the entirety of s. 38, if the drafters had intended to bar a dispute of the insurer's determination that the insured person's injuries fell within the MIG, the legislative changes of 2010 would have made that clear. I agree with the Applicant's submission that the phrase "not subject to review" flows as a logical amendment to the legislation that previously required that an independent examination was required if treatment was refused.

The motion is dismissed.

Issue 1 – Is the Applicant entitled to receive medical benefits as follows: a) $2,540.80 for chiropractic and massage treatment by Mavis Wellness Inc. ("Mavis Clinic") submitted on August 5, 2014; and b) $74.55 for prescription medication from Terry Fox Pharmacy submitted on August 5, 2014?

As noted at the outset, Issue 1(b) has been resolved with Aviva reimbursing the Applicant for this expense.

With respect to Issue 1(a) Aviva relies on the opinion of Dr. Karabatsos that the treatment plan dated August 5, 2014 (about eight days after the accident) is not reasonable and necessary. The Applicant's position is that the treatment is reasonable and necessary to achieve the goals set out in it. She has found treatment helpful and she testified that with respect to her injuries suffered in the 1998 accident she had continued with physiotherapy when the pain from those injuries was beyond what she could manage on her own.

In addition to relying on Dr. Karabatsos's assessment, Aviva disputes the claim because the Applicant has only used $1,700 in treatment paid for by them on top of $500 from her health benefits provider. The Mavis Clinic records²¹ indicate that the Applicant regularly attended for treatment until October 28, 2014. Thereafter, however, she only attended at the clinic for treatment on three occasions in December 2014, once in January 2015 and once in May 2015.

The date of October 28, 2014 is significant as this is the date of the Minor Injury Discharge report OCF-24 submitted to Aviva in which the Applicant's treating chiropractor reported that additional treatment outside the MIG was required.²² The Applicant testified (and it is noted in the disability certificate dated September 9, 2014) that her work aggravated her injuries. She testified that her work duties were modified by her employer so that she spent more time doing less demanding physical work and that in 2015 she was promoted to a managerial position where she did not have the physical demands. It is reasonable to conclude based on her evidence and her past medical and personal history that the Applicant will cope with her pain without taking time from her work and that she only goes for treatment when she cannot cope on her own. It is also reasonable to conclude on the evidence that her promotion to less physically demanding duties allowed her to avoid aggravating her injuries to at least some degree. Given her age and pre-existing conditions, however, her pain has not successfully resolved.

I do not accept the evidence of Dr. Karabatsos in this matter. He specializes in lower extremities reconstruction and general orthopaedics according to his qualifications set out in his report. He gave too little weight and regard to the fact that at the time of her assessment she was in the midst of regular treatment that provided relief from her symptoms and under prescription medication that would, if it were effective, give her relief from inflammation and pain allowing her to move more easily. He appears to have ignored her pain complaints, that she was taking medication that would impact both her movement and her pain level, and that her functioning was compromised, i.e. he omitted to include in his report that she was on modified work duties. He testified that in his practice his patients post-surgery have a follow-up appointment with him and a physiotherapist who instructs them on exercises to do at home and "they all get better", an outcome many accident victims only dream of.

Also he did not have a full documentary record. In September 2014, he assessed the Applicant about a week after the disability certificate was signed but this document was not provided to him; he was given only the Application for Accident Benefits dated August 14, 2014 and the disputed OCF-18. He did not have and apparently was never given the clinical notes and records of the Applicant's family doctor, all of which dating back to 2010 have now been made available together with imaging results. At the time of Dr. Karabatsos' assessment the Applicant was only seven weeks post-accident and had had only seven treatments which had started August 5, 2014. She was therefore within Block 2 of the treatment under the MIG (Section 8(ii)). The MIG contemplates that only if the insured person has achieved maximal recovery at the end of eight weeks is treatment to be stopped. Therefore, even if the injuries fall within the MIG, the Applicant was entitled as of right to at least two more weeks of treatment under Block 2 or the full 12 weeks or 3 blocks of treatment, whereas Dr. Karabatsos seems to be of the view that even at this stage, and despite her experiencing pain in the test for range of motion, she has had "extensive" or enough treatment.

Further, while the answers to the questions at the conclusion of his report are given without qualification, in the body of his report, Dr. Karabatsos is careful to note the limitation of his expertise and to confine himself to testing the neck, upper and lower extremities and spine. He opines only on the neck, back and shoulder injuries. He was well aware that she suffered other injuries. He failed to address the hand tremor which she said was made worse by the accident and pain in the temporal mandibular joint and headaches in stating his opinion on the MIG. He did not even flag these as areas that might well be investigated by someone with the expertise to do so before Aviva drew a conclusion as to the nature of her injuries or her ability to recover under the MIG course of treatment.

On the basis of the evidence of Dr. Brooks and the Applicant, I find that the treatment plan is reasonable and necessary and should be approved. I prefer the evidence of Dr. Brooks who had a much more complete record on which to base his assessment of the Applicant and who, in his family practice, regularly deals with patients with chronic as well as acute pain. He has studied the literature concerning central sensitization and chronic pain and he acknowledges that many medical practitioners are not as alert to the issues of chronic pain as he is. The Applicant has met her burden of proof on the balance of probabilities that the treatment plan is reasonable and necessary.

Issue 2 – Did the Applicant sustain an impairment within the meaning of the Minor Injury Guideline and Schedule as a result of the accident?

I accept the opinion of Dr. Brooks and, on the basis of the Applicant's evidence and his opinion, I find that the Applicant has met the burden of proof that her pre-existing injuries and documented medical conditions provide compelling evidence that, given her age, these injuries and conditions would prevent her from achieving maximal recovery from the minor injuries with treatment capped at $3,500.00.

I find the evidence of Dr. Brooks more persuasive than that of Dr. Karabatsos. Given the confined nature of his inquiry and the lack of access to the OCF-3 that contained detail of the impact of the injuries and more background on the Applicant's pre-existing conditions, his opinion cannot be taken as based on a full view of the Applicant's injuries. He did not have the information available to Dr. Brooks and Aviva did not ask him for an addendum report.

Dr. Brooks' evidence and the Applicant's evidence confirm the interference in her functioning at her pre-2014 accident levels as a result of the injuries from this accident. In addition, the documents in evidence are consistent with a broader range of post-accident complaints than those dealt with by Dr. Karabatsos' assessment and report. Both the original OCF-18 and the clinical notes and records of Dr. Brooks reflect the Applicant's testimony of her disturbed sleep, increased anxiety and fear of driving as well as her ongoing pain.

No evidence was led of any medical assessment conducted on behalf of the Insurer more recently than Dr. Karabatsos's September 2014 assessment or one that rebuts Dr. Brooks' evidence as to the Applicant's suffering from the Syndrome.

I therefore find that the Applicant has met the burden of proof as to the nature of her injuries, flowing as they do both from her pre-existing conditions as well as from the injuries suffered in the accident of July 28, 2014. Therefore, I find that the Applicant did not sustain an impairment within the meaning of the MIG as a result of the accident, also on the ground that her injuries do not fall within the definition of minor injury.

INTEREST:

The Applicant has claimed interest on overdue benefits. Since she has successfully established entitlement to benefits denied to her, she is entitled to interest as well.

EXPENSES:

At the conclusion of the Hearing, the parties agreed on a modified process for the submissions for expenses in the event that they are unable to resolve the issue themselves. 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.

January 11, 2018

Lynda Tanaka Arbitrator

Date

Financial Services Commission of Ontario

Neutral Citation: 2018 ONFSCDRS 13

FSCO A16-003993

BETWEEN:

MAHASSAN JEDEON Applicant

and

AVIVA CANADA INC. 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 as follows: a) $2,540.80 for chiropractic and massage treatment by Mavis Wellness Inc. submitted on August 5, 2014.

2. The Applicant did sustain an impairment within the meaning of the Minor Injury Guideline and Schedule as a result of the accident.

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.

January 11, 2018

Lynda Tanaka Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule - Effective September 1, 2010, Ontario Regulation 34/10, as amended.
2. 2Exhibit 1, Applicant’s Arbitration Brief, Tab 18, page 30 of 56.
3. 3Ibid. at Tab 4.
4. 4Ibid. at Tab 17.
5. 5Ibid. at Tab 17, page 3 of 4.
6. 6Exhibit 1, Tab 19, Insurer’s Examination Orthopaedic Surgeon Assessment dated October 3, 2014.
7. 7Ibid. at page 4 of 10.
8. 8The assumption is that the pain medication would affect her responses and the anti-inflammatories she was taking would affect her range of motion.
9. 9Ibid. at page 8 of 10.
10. 10Letters dated August 27, 2014 September 4, 2014 and October 7, 2014 submitted as Tabs 5, 6, and 7, Applicant’s Factum and Book of Authorities.
11. 11Jose Pires and Zurich Insurance Company, FSCO A97-000110 November 19, 1999, M. Kaye Joachim at page 24 of 28. The concepts of waiver and estoppel will apply in arbitrations under the Act to prevent a party from asserting procedural rights.
12. 12ADR Chambers Pre-Hearing Letter dated November 11, 2016, Tab 11, Applicant’s Factum and Book of Authorities.
13. 13Exhibit 1, Tab 16.
14. 14[2012] O.F.S.C.D. No. 143, upheld on appeal to the Director’s Delegate, [2013] O.F.S.C.D. No. 203 and by the Divisional Court (2015), 2015 ONSC 1891, 125 O.R. (3d) 585.
15. 15Paragraph 38, reasons of the Divisional Court in The Guarantee Company of North America v. Do (2015) 2015 ONSC 1891, 125 O.R. (3d) 585; paragraph 27 decision of the Director’s Delegate [2013] O.F.S.C.D. No. 203.
16. 16Paragraph 23 of [2012] O.F.S.C.D. No. 143.
17. 17Ibid. at paragraph 19.
18. 18[2013] O.F.S.C.D. 203 at paragraph 27.
19. 19Ibid. at paragraphs 54 and 64.
20. 20Applicant’s Factum and Brief of Authorities, Tab 14, p. 2
21. 21Exhibits 4 and 5, OCF-21 dated April 13, 2015 and June 13, 2015.
22. 22Exhibit 1, Tab 10.