E.E. v. Aviva Insurance Company, 2018 CanLII 81909

E.E. v Aviva Insurance Company

Date: 2018-01-16 Tribunal File Number: 16-004281/AABS Case Name: 16-004281/AABS v Aviva Insurance Company

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

E.E.

Applicant

and

Aviva Insurance Company

Respondent

DECISION

Adjudicator: Catherine Bickley

Appearances: Christopher Bialkowski and James Leone, Counsel for the Applicant Kevin Griffiths, Counsel for the Respondent Christina Prawdzik, Representative for the Respondent

Heard in person: June 19, 20, 21, July 19 and 20, 2017

INTRODUCTION

1On January 28, 2012, E.E. was in a car that hit black ice, bounced off a snow bank and rolled over before landing on its side. The car was written off; the driver (E.E.’s father) fractured his ankle. E.E. refused to go to the hospital because he wanted to participate in a local charitable event where he had been a key volunteer for 15 years. The next day, his wife drove him to Brockville General Hospital (“BGH”). The hospital’s records note complaints of neck and back pain as well as tingling and numbness in his right arm. Tenderness was noted in his cervical, thoracic and lumbar spine. No neurological deficits were noted.¹

2In the years after the accident, E.E. experienced several emergency hospital visits, dozens of medical appointments, numerous assessments, and a significant spinal surgery. He stopped working at his passion – car detailing and window tinting – and was able to play only a limited role in the care of his children and home. At the time of the hearing, he still had significant physical impairments as well as some mental and behavioural impairment.

3In January 2016, E.E. submitted an Application for Determination of Catastrophic Impairment (“OCF-19”)² to his insurer, Aviva Insurance Company, pursuant to the provisions of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). Aviva told E.E. on August 15, 2016 that it had determined, based on a number of s.44 assessments, that he had not sustained a catastrophic impairment.³

4E.E. believes that as a result of the accident he sustained a catastrophic impairment because he has a whole person impairment (“WPI”), significantly above the 55% threshold required by the Schedule. Aviva disagrees. It says his WPI is much lower – only 15% to 18% -- and that his impairments are not caused by the January 2012 accident. E.E. and Aviva also disagree about whether he is entitled to Attendant Care Benefits (“ACBs”), case manager services and four treatment plans (“OCF-18s”) for medical and rehabilitation services. As a result of these disagreements, E.E. filed an application with the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

5Based on the totality of the evidence before me and the parties’ submissions, I find that E.E. has sustained a catastrophic impairment. I find that he is not entitled to any ACBs before March 16, 2016, the date on which he sent Aviva three Assessment of Attendant Care Needs forms (“Form 1s”)⁴ and an Expenses Claim Form (“OCF-6”)⁵. With respect to ACBs after March 16, 2016, I find that he is entitled to ACBs at a monthly rate of $3,704.91. I find that E.E. is not entitled to payment for the OCF-18 submitted by ARCG or the three OCF-18 submitted by Brockville Chiropractic Services. I find that he is entitled to the OCF-18 submitted by Wright & Associates for case manager services. Lastly, I find that he is entitled to interest on all overdue benefits.

Witnesses

6E.E. and his spouse (J.E.) testified. Dr. Gordon Cushing (E.E.’s treating chiropractor), and Dr. Lisa Becker (physiatrist) also testified on E.E.’s behalf. Aviva called physiatrist Dr. Alborz Oshidari. Both Dr. Becker and Dr. Oshidari were qualified as experts in physical medicine and rehabilitation and in rating impairments in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment 4th Edition, 1993 (“the Guides”).

ISSUES

1. Has E.E. sustained a catastrophic impairment because as a result of the January 28, 2012 accident he has a combination of impairments that result in 55% or more WPI when evaluated in accordance with the Guides?

2. Is E.E. entitled to attendant care benefits as follows:

a. $3,524.40 per month for the period January 28, 2012 to October 13, 2013;

b. $6,000.00 per month for the period October 14, 2013 to January 9, 2016; and,

c. $3,704.96 for the period January 10, 2016 to-date and ongoing.

3. Is E.E. entitled to receive the following medical and rehabilitation benefits:

a. $2,567.00 for occupational therapy services, recommended by ARCG in an OCF-18 dated January 14, 2016, denied by the Respondent on February 10, 2016;

b. $2,597.80 for chiropractic treatment, recommended by Brockville Chiropractic and Health Associates (“Brockville Chiropractic”) in an OCF-18 dated November 8, 2016, denied by the Respondent on November 21, 2016;

c. $12,710.62 for physiotherapy treatment, recommended by Brockville Chiropractic in an OCF-18 dated November 8, 2016, denied by the Respondent on November 21, 2016; and,

d. $2,034.14 for chiropractic treatment, recommended by Brockville Chiropractic in an OCF-18 dated November 8, 2016, denied by the Respondent on November 21, 2016.

4. Is E.E. entitled to case manager services in the amount of $8,525.98, provided by Wright & Associates and denied by the Respondent on August 30, 2016?

5. Is E.E. entitled to interest on any overdue payment of benefits?

RESULT

7I find that:

1. E.E. has sustained a catastrophic impairment as defined by section 3(2)(e) of the Schedule.

2. E.E. is entitled to ACBs of $3,704.91 monthly from March 16, 2016 to date and ongoing.

3. E.E. is not entitled to the January 14, 2016 OCF-18 submitted by ARCG or the three November 2016 OCF-182 submitted by Brockville Chiropractic.

4. E.E. is entitled to case manager services as set out in the August 30, 2016 OCF-18 submitted by Wright and Associates.

5. E.E. is entitled to interest on the benefits I have found owing.

OVERVIEW OF THE GUIDES

8While the Schedule sets out several different criteria which, if met, result in a determination of catastrophic impairment, only one criterion is relevant in this case. Criterion 7 on the OCF-19 references section 3(2)(e) of the Schedule which incorporates the Guides. If an individual has an impairment or combination of impairments that results in a WPI of 55% or more when rated in accordance with the Guides, then the individual is catastrophically impaired.

9It is useful to review the general scheme of the Guides. They were developed to assist American doctors in making workers’ compensation determinations. Chapters 1 and 2 give a general overview of the Guides’ purpose and rating methods. Chapters 3 through 13 each focus on a particular body system. Chapter 14 deals with Mental and Behavioral Disorders and Chapter 15 deals with Pain. The most relevant chapters in this case are Chapter 3 (The Musculoskelatal System) and Chapter 4 (The Nervous System).

10The Guides do not fit seamlessly with Ontario’s accident benefit scheme. They were developed for one purpose (workers’ compensation in the USA) and are being used for another (determining the available envelope of benefits available to individuals covered by Ontario insurance who are injured in automobile accidents).

11Jurisprudence developed at the Financial Services Commission of Ontario (“FSCO”), in the Ontario courts and at the Tribunal directs that the Guides be interpreted in a manner consistent with the purpose of the Schedule. For example, the combination of mental and behavioural issues with physical issues was once controversial; it is now accepted as a result of decisions interpreting the Guides in the accident benefit context. The practice has also developed of converting non-numerical ratings in Chapter 14 (mental and behavioural) to percentages in order to combine them with physical impairments to arrive at an accurate estimate of WPI. Insurance coverage provisions should be construed broadly and exclusion clauses narrowly. When there are two possible interpretations, the one more favourable to the insured should govern.

DECISION AND ANALYSIS

Causation

12I have considered the parties’ submissions on whether the appropriate legal test is material contribution or but for. I conclude that it does not matter; the evidence supports a finding in E.E.’s favour whichever test is applied. I find that the accident materially contributed to E.E.’s impairments and that but for the accident he would not have become so significantly impaired as to reach a WPI rating of more than 55%.

13Aviva submits that E.E.’s impairments are caused in large part by a 2006 workplace accident and a June 2012 car accident.⁶ Aviva relies on Dr. Oshidari’s opinion that E.E.’s neurological symptoms manifested too long after the accident for his neurological impairment to be caused by the accident. Aviva also relies on statements by E.E. to two assessors that his neck had returned to its pre-accident state. For the following reasons, I reject Aviva’s causation argument.

14In 2006, E.E. fell from a scissor lift. He and his spouse both testified that he returned to physically demanding work within a few days. The evidence supports E.E.’s submission that by the time of the 2012 accident, he was fully functional despite some residual pain for which he took Tramacet. He was working long hours, snowmobiling, boating, doing major renovations on his home, cutting large amounts of firewood and taking care of the family’s rural property.

15Dr. Oshidari opined that E.E.’s neurological symptoms arose too long after the accident to be connected to the accident. During cross-examination, however, Dr. Oshidari admitted that he had not reviewed contemporaneous medical records such as the BGH emergency report⁷, Dr. Marcassa’s Statement of Attending Physician⁸ and Dr. Cushing’s records.⁹ Dr. Oshidari agreed that the symptoms recorded in these records could be signs of radiculopathy or neurological injury.

16Aviva points to two reports that state E.E. said his neck was no worse than before the accident¹⁰. E.E. denied these statements.¹¹ In any event, E.E. is not a doctor. Any statements he made about his neck are not conclusive of the issue. It is unlikely that he was aware at the time that spinal damage could impair the function of body parts far from his neck.

17Dr. Cushing’s chiropractic clinic treated E.E. both before and after the accident. E.E. submits that he is the medical practitioner who saw E.E. most often between the two 2012 accidents. Dr. Cushing testified that, in his opinion, E.E.’s “current health status is the result of the neurological injuries sustained in the [January 28, 2012] motor vehicle accident”¹².

18With respect to whether E.E.’s impairments were caused by the January 2012 or the June 2012 accident, Dr. Cushing’s records show that E.E. had right arm paresthesia by January 31, 2012 and was already experiencing weakness in his right hand by April 2012.¹³ Dr. Fern (orthopaedic surgeon) opined that the June 2012 accident exacerbated the effects of the January 2012 accident.¹⁴

19For all of these reasons, I reject Aviva’s causation argument. I turn now to determining the appropriate WPI rating for E.E.

1. E.E. sustained a catastrophic impairment as a result of the January 28, 2012 accident

20E.E. underwent multi-disciplinary catastrophic impairment assessments in October 2015 and August 2016. The s.25 assessor assigned a WPI of 18% for mental and behavioural impairments while the s.44 assessor assigned a WPI of 15% to 18%.

21The physical impairment ratings were drastically different: 65% WPI by Dr. Becker (reduced to 64% in her addendum report) and 0% WPI by Dr. Oshidari. The latter also considered an alternate rating of 29% but rejected it based on his opinion on causation. Given my findings on causation above, a 0% rating is clearly inappropriate. I have used Dr. Oshidari’s alternate rating of 29% (corrected to 31%) in the chart below.

WPI Ratings	Dr. Becker	Dr. Oshidari
Physical Impairment
Medications	10	0
Cervothoracic spine	25	30
Lumbosacral spine	0	0
Upper extremities	39	0
Lower extremities	9	0
Skin	2	1
Total Physical Impairment	64	3115
Mental/Behavioural Impairment	18	15 - 18
Combined WPI16	70	41 - 43

22There is little dispute as to E.E.’s actual impairments. Dr. Oshidari agrees that E.E. has cervical myelopathy. The reasons for the difference in the WPI ratings offered by Dr. Becker and Dr. Oshidari are Dr. Oshidari’s views on causation and a disagreement as to whether it is sufficient to rate E.E.’s impairments under only Chapter 3 (The Musculoskelatal System) or whether it is necessary to also rate his impairments under Chapter 4 (The Nervous System).

23Aviva submits that Dr. Oshidari’s opinion should be preferred to that of Dr. Becker because, it says, Dr. Becker accepted self-reports on important points at face value while Dr. Oshidari put more reliance on contemporaneous medical records. This argument is weakened by Dr. Oshidari’s admission that he did not review significant contemporaneous material (as noted in paragraph 15 above).

24Dr. Becker testified that E.E. is hyper-reflexive and has spasticity. She also testified that he has a significant reduction in dexterity in his right hand.¹⁷ From my observations at the hearing, E.E. is clearly impaired in both upper and lower extremities. His gait is far from normal. The very limited use he has of his right hand was apparent throughout the hearing.

25Dr. Becker testified that E.E. has two separate injuries, as shown on a July 17, 2013 MRI,¹⁸ each causing different impairments:

• A post-traumatic cord edema at C3/C4

• A disc protrusion at C6/7 causing impingement on the C7 nerve root.

26Dr. Oshidari disagrees that E.E. has two separate injuries. However, even if there are, he says they should both be rated under Chapter 3. Dr. Becker uses both Chapter 3 and Chapter 4 to rate as she says that E.E. has both a “bony issue” (a muskuloskelatal injury) and a neurological injury.

27I note that Chapter 4.3a deals specifically with “Station and Gait”. Dr. Becker rated E.E. at 9% which is in the lowest of four categories. The description of the impairment is consistent with the evidence regarding E.E.’s difficulties.

28Aviva submits that Dr. Becker is double-counting impairments. In turn, E.E. submits that Dr. Oshidari is lumping impairments together resulting in an under-assessment of his actual impairments.

29I prefer Dr. Becker’s opinion in all respects. Dr. Oshidari did not take into account important contemporaneous medical documents (as noted above). When presented with these documents at the hearing, he refused to alter his opinion. In contrast, Dr. Becker modified her opinion, adjusting her WPI rating after considering new information.¹⁹ Dr. Oshidari also put forward interpretations of the Guides that are simply incorrect. For example, he stated that when combining impairment ratings, it is acceptable to move from the lowest to the highest rating. This is completely contrary to the instructions in the Guides.²⁰ As well, Dr. Oshidari relied on extraneous material²¹ to interpret the Guides. Dr. Oshidari’s unorthodox approach to interpretation of the Guides calls into question the reliability of his assessment and resulting opinion.

30I agree with Dr. Becker that Dr. Oshidari’s approach underestimates E.E.’s impairments. I accept Dr. Becker’s rating of E.E.’s WPI at 64% as the appropriate rating for physical impairment. When combined with a 15 to 18% rating for mental behavioural impairment, the resulting overall WPI is 69 to 70%.

2. E.E. is entitled to Attendant Care Benefits of $3,704.91 per month from March 16, 2016 to date and ongoing

31An insurer must pay all reasonable and necessary expenses incurred by an insured as a result of an accident for services provided by an attendant (i.e., ACBs)²². An application for ACBs must be accompanied by an Assessment of Attendant Care Needs (“Form 1”) completed by an occupational therapist or registered nurse²³.

32E.E. claims ACBs (in different amounts for three different periods) from January 28, 2012 to date and ongoing.

33I find that E.E. has not established entitlement to ACBs on a retroactive basis, i.e., before he filed any Form 1s. With respect to ACBs from March 16, 2016 to date and ongoing, I find that he is entitled to ACBs in the monthly amount of $3,704.91.

E.E. is not entitled to ACBs before he filed a Form 1

34E.E. submitted three Form 1s and an OCF-6 to Aviva on March 16, 2016, more than four years after the accident. For the following reasons, I find that he is not entitled to payment for any ACBs before that date.

35An insurer may, but is not required to, pay an expense incurred before it receives a properly completed Form 1²⁴. Aviva does not want to pay E.E. for any ACBs incurred before the Form 1s were submitted. The failure to meet a time limit, however, is not always fatal to a benefits claim.²⁵

36Aviva submits that no ACBs are payable because section 32 of the Schedule requires that a benefit must be claimed within seven days of the circumstances giving rise to a benefit²⁶. In the alternative, no ACBs are payable before March 2016 when Aviva received the three Form 1s. E.E. submits that the totality of the situation²⁷ reveals that Aviva had sufficient information to know that he was in need of and seeking ACB long before March 2016.

37E.E. submits that it was difficult to communicate with Aviva. While I accept that Aviva representatives at one point told E.E. to no longer communicate with them by telephone, the evidence shows that he could and did communicate effectively with Aviva by email.²⁸ Further, E.E. submitted documentation to Aviva, including an Activities of Normal Life (OCF-12) form²⁹ indicating that he was capable of performing his self-care activities. E.E. testified that he was not totally honest about the assistance he needed because he was embarrassed to admit the extent of his limitations.³⁰ That may be so. But it does not change the fact that he gave Aviva information suggesting he did not need attendant care. As a result, I find that this case is distinguishable from the facts in Mulhall v. The Wawanesa Mutual Insurance Company³¹.

38E.E. was represented by counsel from February 2013 or earlier.³² Even after he retained his current counsel, there was significant delay in filing a claim for ACBs. At a September 23, 2015 Examination Under Oath³³, E.E.’s counsel gave an undertaking to let Aviva know if E.E. would be making a claim for ACBs. It was almost six months later before the Form 1s were submitted.

39I agree with Adjudicator Shapiro’s comment in T.K. v. Unica Insurance Inc.³⁴ that to allow all retroactive claims would render section 42(5) meaningless. Similarly, to never allow retroactive claims would render section 34 meaningless. Each case will turn on its particular facts. Having reviewed the totality of the dealings between E.E. and Aviva, I conclude that it is not appropriate in this case to allow an ACB claim for any period before the Form 1s were submitted. The delay in submitting the Form 1s deprived Aviva of the opportunity to conduct its own timely assessment of E.E.’s attendant care needs. This is not a case in which an emergency situation or other special circumstance rendered a more timely submission of a Form 1 impractical.

40For all of these reasons, I find that E.E. is not entitled to ACBs before March 16, 2016 when he submitted Form 1s to Aviva.

The ACBs from March 16, 2016 to date and ongoing were incurred

41Having decided that E.E. may be entitled to ACBs from March 16, 2016 forward, I must determine whether those ACBs were incurred as that term is defined in the Schedule, and if so, what monthly amount is reasonable and necessary.

42Section 3(7)(e) of the Schedule provides that an expense is incurred if:

(i) the insured person has received the goods or services to which the expense relates,

(ii) the insured person has paid the expense, has promised to pay the expense or is otherwise legally obligated to pay the expense, and,

(iii) the person who provided the goods or services,

(A) did so in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident, or

(B) sustained an economic loss as a result of providing the goods or services to the insured person.

43For an expense to be considered incurred, all three elements of the test must be met.

44E.E. submits that ACBs were provided to him by his spouse, J.E., that he promised to pay her for her services and that she provided the services in accordance with section 3(7)(e)(iii)(A). Aviva submits that the ACBs were not incurred as there was no promise or legal obligation to pay. Further, E.E.’s spouse does not meet either branch of the 3(7)(e)(iii) requirement. Aviva further questions whether the services as set out in the January 2016 Form 1 were all reasonable and necessary as Sally Anne Nicholson, the occupational therapist who conducted the s.44 assessment, found that – absent causation concerns - the appropriate level of ACBs was $1,024.92 per month, significantly lower than the $3,704.91 per month in the submitted Form 1.

45I will first consider whether the ACBs were incurred in accordance with 3(7)(e)(iii).

J.E. provided attendant care services in the course of her occupation, employment or profession

46For the following reasons, I find that J.E. provided services in the course of her occupation, employment or profession in which she would have ordinarily been engaged but for the accident.

47J.E. began working for Bayshore HealthCare in 2001 and was still working there at the time of the hearing. The only exceptions were maternity leaves and time away from her regular employment to care for E.E.. She was trained and certified as both a personal support worker and a registered practical nurse.³⁵ The duties that she performed in her work as a PSW and RPN mirror the services that she provided to E.E.³⁶ I accept J.E.’s testimony that if not for the accident, she would have continued active employment with Bayshore in December 2012 or January 2013. She ultimately returned to work with Bayshore in early 2016. J.E. has continuously maintained her membership in the College of Nurses of Ontario and has kept her CPR certification current.

48Given my finding that J.E. meets the criteria in 3(7)(e)(iii), it is not necessary for her to establish an economic loss.

E.E. promised to pay J.E. for providing attendant care services

49Aviva argues that no ACBs were incurred because E.E. has not established that the facts of this case satisfy the conditions of 3(7)(e)(i). I find that the evidence establishes that E.E. promised to pay E.E. for the attendant services she provided. Aviva has conflated the second and third elements of 3(7)(e)(i) by arguing that there is no legal obligation. The three elements of the section are separate as indicated by the use of the word “or” in contrast to 3(7)(e)(iii) where “and” indicates that all three elements of that section must be met.

50J.E. testified that she and E.E. had multiple conversations in which he promised to compensate her for the attendant care services she provided. She was not able to pinpoint the precise dates although she thought the conversations were around August or September 2012, at the time that she told her employer she would be staying at home past the end of her maternity leave.³⁷ She recalls that whether or not the insurance company paid benefits “[E.E.] making that up to me would have come out of his pocket one way or another.”³⁸ E.E. testified that he bought J.E. a car in partial compensation for the services she provided.³⁹

51E.E. is clearer than J.E. with regards to timing. He recalls that he promised to pay J.E. for the services she was providing on a day when he woke up and couldn’t move. He began thinking about what life would be like if he ended up having to use a wheelchair. He promised J.E. that he would pay her back for her services.⁴⁰ The records of BGH confirm a date in May 2012.⁴¹

52I find, based on E.E. and J.E.’s testimony and the Attendant Care Confirmations of Expenses for Services Provided⁴² in which E.E. certified that he had promised to pay J.E. for attendant care services, that E.E. promised to pay J.E. for the services she provided. This case is thus different than M.P. v. Certas Home and Auto Insurance Company⁴³ in which the adjudicator found that the applicant did not promise his spouse compensation.

The appropriate monthly amount of ACBs is $3,704.96

53Aviva acknowledges that E.E. needs some attendant care⁴⁴. As a result of my conclusions above, only the third of the three Form 1s completed in January 2016 by Danielle Reynolds and the Form 1 completed in April 2016 by Sally Anne Nicholson are under consideration. Ms. Reynold’s Form 1 states that E.E. needs 321.78 hours of attendant care per month at a cost of $3,704.96. Ms. Nicholson’s Form 1 states that E.E. needs 72.24 hours of attendant care per month at a cost of $1,024.92.

54The most significant difference between the two Form 1s is the 8 hours of overnight supervision that Ms. Reynolds found necessary. If those hours are subtracted, the two assessments, while differing in some details, are relatively similar: 72.24 hours vs. 81 hours monthly.

55Is the overnight supervision necessary? I am convinced that it is.

56I agree with Aviva’s submission that the evidence⁴⁵ does not support the need for 24 hours of daily care. That does not, however, determine the issue of overnight care. Ms. Reynolds recommended overnight assistance because E.E. “demonstrated decreased functional ability to exit the home safely in the event of an emergency due to right leg weakness and reported falls.”⁴⁶ This is consistent with J.E.’s testimony that when E.E. has been sleeping it is 10 or 15 minutes before he is steady enough to walk any distance.⁴⁷ I find that overnight supervision is necessary.

57The other attendant care services listed in the Form 1 prepared by Ms. Reynolds are consistent with the evidence and vary little from the Form 1 prepared by Ms. Nicholson. Accordingly, I find that E.E. is entitled to attendant care services at the rate of $3,704.96 per month from March 16, 2016 to date and ongoing.

3. E.E. is not entitled to the OCF-18s in dispute

58E.E. seeks payment for four OCF-18s. I find that he has not met his onus to establish that the first of these OCF-18s is reasonable and necessary. While I find that the three OCF-18s from Brockville Chiropractic are reasonable and necessary, I find that they are not payable due to the timing of their submission to Aviva.

OCF-18 from ARCG submitted January 14, 2016

59This OCF-18 was for an occupational therapy assessment. As E.E. made no submissions addressing the reasonableness and necessity of this assessment, he has not met his onus to establish that this OCF-18 is reasonable and necessary. I find, therefore, that it is not payable.

Three OCF-18s from Brockville Chiropractic submitted in November 2016

60The other three OCF-18s in dispute are from Brockville Chiropractic for chiropractic and physiotherapy treatment. There is no doubt that the services were provided to E.E. and that he benefitted from them. The difficulty is that the OCF-18s were submitted to Aviva after the services in question were provided.

61The Schedule requires that proposed treatment plans be submitted in advance of the treatment being provided⁴⁸. E.E. submits that I should consider the context between Dr. Cushing and Aviva, in particular the fact that Aviva was routinely denying submitted OCF-18s. He relies on the FSCO appeal decision, State Farm v. Jazey⁴⁹ for the proposition that an OCF-18 need not always precede an expense in order for that expense to be payable. E.E. has not, however, persuaded me that the facts of this case are such as to warrant an exception to the general requirement that OCF-18s be submitted prior to treatment expenses being incurred.

62If not for the issue with the date of submission, I would find these OCF-18s payable. The treatment goals listed were pain reduction, increase in strength, increased range of motion, a return to the activities of normal living and pre-accident work activities. Dr. Cushing, E.E. and J.E. all testified that the treatments were beneficial to E.E., giving him periods of time in which he had reduced pain and improved function. Aviva suggests that because the treatments would not “fix” E.E., i.e., restore him to normal function they were not reasonable and necessary. I disagree. Reduction in pain and increase in function, even if temporary, are both legitimate goals of treatment.

63I find that these three OCF-18s are reasonable and necessary. However, due to their late submission they are not payable.

4. E.E. is entitled to Case Management Services

64An insurer must pay all reasonable and necessary expenses related to services provided by a qualified case manager⁵⁰. I find that E.E. is entitled to $8,525.98 for case manager services as set out in the August 2016 OCF-18 submitted by Wright and Associates.⁵¹

65Both E.E. and J.E. testified that he needed case management services. E.E. submits that his medical needs are ongoing and complicated and that, particularly in a rural setting, case management services are reasonable and necessary.

66The testimony of J.E. and E.E. and other evidence⁵² establish that E.E. has issues with organization and memory. As well, both the s.25 and s.44 catastrophic impairment assessments found E.E. had mental and behavioural impairment. The sometimes conflictual nature of E.E.’s relationship with Aviva also supports the need for a professional, arms-length case manager.

67For all of these reasons, I find that the OCF-18 from Wright and Associates is reasonable and necessary.

5. Interest

68Pursuant to section 51 of the Schedule, where a benefit is overdue interest is payable. Thus, interest is payable on all benefits that I have found owing.

CONCLUSION

69E.E. has sustained a catastrophic impairment. He is entitled to ACBs from March 16, 2016 to date and ongoing at a monthly rate of $3,704.91. He is not entitled to payment for the January 14, 2016 OCF-18 submitted by ARCG or the three November 2016 OCF-18s submitted by Brockville Chiropractic Service. He is entitled to payment of the OCF-18 submitted by Wright & Associates. He is entitled to interest on all overdue benefits.

ORDER

70Aviva shall pay the following:

• ACBs of $3,704.96 per month from March 16, 2016 to date and ongoing;

• the August 2016 OCF-18 from Wright and Associates in the amount of $8,525.98; and,

• interest on all outstanding benefits.

Released: January 16, 2018

_____________________________

Catherine Bickley, Adjudicator

Footnotes

1. 1Exhibit 4, Brockville General Hospital records.
2. 2Exhibit 2, Applicant’s Document Brief, Volume 2, Tab 9B, Catastrophic Impairment Evaluation, Omega Medical (including assessment reports dated October 13, 14 and 15, 2015) and OCF-19, January 6, 2016.
3. 3Exhibit 3, Applicant’s Document Brief Volume 3, Tab 16D.
4. 4Exhibit 2, Applicant’s Document Brief, Volume 2, Tab 9C.
5. 5Exhibit 3, Applicant’s Document Brief, Volume 3, Tab 15G.
6. 6There was also evidence that E.E.’s neck may have been over-rotated during a s.44 assessment. The issue was not pursued in argument. E.E. was involved in a motor vehicle accident in June 2006. The injuries from that accident were psychological rather than physical. As the parties essentially agree on the appropriate mental and behavioural rating, there is no need to delve into any role that accident could have played in his current state.
7. 7Respondent’s Document Brief, Volume 3, Tab 28, p.11.
8. 8Exhibit 2, Applicant’s Document Brief, Volume 2, Tab 7D, page 35.
9. 9Exhibit 2, Applicant’s Document Brief, Volume 2, Tab 7D, page 17 and Dr. Cushing’s treatment card, April 16, 2012, page 15.
10. 10Exhibit 7, Respondent’s Document Brief, Volume 2, Tab 23 (Dr. M. Martin, Multidisciplinary Assessment Report, December 3, 2012) and Tab 25 (Dr. T. Dorman, Chiropractic Assessment Report, May 28, 2013).
11. 11Transcript, June 19, 2017, page 100.
12. 12Transcript, July 20, 2017, page 183.
13. 13Exhibit 2, Applicant’s Document Brief, Volume 2, Tab 7H, and Exhibit 3, Applicant’s Document Brief, Volume 3, Tab 15F.
14. 14Exhibit 2, Applicant’s Document Brief, Volume 2, Tab 9A.
15. 15Dr. Oshidari subtracted 5% from each of the cervical and lumbar spine impairment ratings after first combining all physical ratings. He did so due to his interpretation of the Guides’ direction on how to deal with pre-existing impairments. The result was a total physical impairment of 29%. I disagree with Dr. Oshidari’s interpretation of the relevant paragraph in the Guides. However, Dr. Becker agreed in her addendum report that the rating for the lumbar spine impairment should be reduced to zero. Dr. Oshidari proposed a 29% total impairment rating. When calculating the combined impairment rating as directed by the Guides’ Combined Values Chart, the total is actually 31%.
16. 16Calculating a total WPI impairment rating is not done by simply adding the numerical rating of each impairment. Rather, the Guides’ Combined Values Chart must be used to combine ratings.
17. 17Transcript, July 19, 2017, pages 11 – 14.
18. 18Exhibit 1, Applicant’s Document Brief, Volume 1, Tab 2G.
19. 19After reviewing Dr. Oshidari’s report Dr. Becker reduced her rating for lumbar spine impairment from 5% to 0%.
20. 20Guides, Combined Values Chart, page 322.
21. 21During his testimony, Dr. Oshidari referred to a book that he apparently obtained at an American course. The book was neither disclosed nor entered as an exhibit.
22. 22Section 19 of the Schedule.
23. 23Section 42(1) of the Schedule.
24. 24Section 42(5) of the Schedule.
25. 25Section 34 of the Schedule.
26. 26The section also states “or as soon as practicable”.
27. 27E.E. relies on the following FSCO decisions: Beltrame v. Dominion of Canada General Insurance Company, 2014; Moran v. Economical Mutual Insurance Company, 2016; Grewal v. State Farm Automobile Insurance Company, 2017.
28. 28Exhibit 5, Respondent’s Document Brief, Volume 1, Tab 2, email from EE to Aviva November 7, 2012 enclosing a quote for a sander.
29. 29Exhibit 7, Respondent’s Document Brief, Volume 3, Tab 18.
30. 30Transcript, June 20, 2017, pages, 34, 89 – 91 and 165.
31. 312015 ONSC 7495.
32. 32Exhibit 2, Applicant’s Document Brief, Volume 2, Tab 7D, Letter from Laushway Law to Brockville Chiropractic, February 13, 2013.
33. 33Exhibit 5, Respondent’s Document Brief, Volume 1, Tab 16, Transcript of Examination Under Oath, Eric Essex, September 23, 2015.
34. 342017 CanLII 15835. See also: G.S. v. Aviva Insurance Company of Canada, 2017 CanLII 33655.
35. 35Exhibit 3, Applicant’s Document Brief, Volume 3, Tabs 15K and J (Registered Practical Nurse Certificate of Registration, December 4, 2006 and College of Nurses of Ontario Registration History for [J.E.’s maiden name])
36. 36Transcript, June 21, 2017, page 10.
37. 37Transcript, June 21, 2017, pages 55 – 56, 81 – 83.
38. 38Transcript, June 21, 2017, page 96.
39. 39Transcript, June 20, 2017, page 121.
40. 40Transcript, June 20, 2017, pages 118 – 119.
41. 41Exhibit 4, Brockville General Hospital records, page 8 (May 12, 2012).
42. 42Exhibit 3, Applicant’s Document Brief, Volume 3, Tabs 15H, I and J, March 3, 2016.
43. 432017 CanLII 9810.
44. 44Respondent’s closing submissions, Transcript, July 20, 2017, page 123.
45. 45E.E. testified, and his Facebook posts confirm, that he spent a significant number of hours snowplowing by himself in the winter of 2015. Further, a Facebook post shows that he drove a limousine to Toronto and back on January 10, 2014. J.E. testified that she had no recollection of that trip. Exhibit 6, Respondent’s Document Brief, Volume 2, Tab 17, E.E.’s Facebook Timeline posts. Transcript, June 21, 2017, pages 79 to 80.
46. 46Exhibit 2, Applicant’s Document Brief, Volume 2, Tab 9C, Report and Form 1 by Danielle Reynolds, January 2016.
47. 47Transcript, June 21, 2017, page 43.
48. 48Section 38(2).
49. 49P14-00046, July 29, 2016.
50. 50Section 17 of the Schedule.
51. 51Exhibit 3, Applicant’s Document Brief, Volume 3, Tab 15e.
52. 52Exhibit 1, Applicant’s Document Brief, Volume 1, Tab 6A, Records of Dr. Daniel Taylor, psychologist.