Citation: Shwaluk v. Royal & Sun Alliance, 2023 ONLAT 20-000137/AABS

Licence Appeal Tribunal File Number: 20-000137/AABS

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:

Emma Shwaluk

Applicant

v.

Royal & Sun Alliance

Respondent

DECISION

VICE-CHAIR:

Brett Todd

APPEARANCES:

For the Applicant:

Emma Shwaluk, Applicant

David Preszler, Counsel

For the Respondent:

Melody Ashby, Adjuster

Nestor Kostyniuk, Counsel

Alina Martsenyuk, Legal Assistant

Court Reporter:

Reem Ali (Victory Verbatim)

Heard by Videoconference: November 21-25, 2022

BACKGROUND

1Emma Shwaluk (the “applicant”) was injured in an automobile accident on July 29, 1994 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Accidents After December 31, 1993 And Before November 1, 1996 (the “Schedule”)¹ from Royal & Sun Alliance (the “respondent”). The applicant was denied certain benefits by the respondent and applied to the Licence Appeal Tribunal (the “Tribunal”) for resolution of the dispute.

2After making a claim in 1994 following the subject accident, a file was opened with the insurance company of the time, Lumbermens Mutual Casualty Company, which was acquired by the current named respondent, Royal & Sun Alliance, in 2001. Benefits related to injuries suffered during this accident were awarded from 1994 to at least 1996.²

3The applicant requested a re-opening of her file with the respondent as of November 12, 2015, alleging that impairments caused by the subject accident had never resolved, and had in fact worsened.³ The respondent disputed this claim, first by claiming that there was no causal connection between the accident and the treatment being sought, and later by relying on medical evidence provided during insurer’s examinations (“IEs”).

4The applicant’s position is that she is entitled to a “supervisory care” level of attendant care and that she is entitled to the treatment plans in dispute. The respondent does not dispute that the applicant is entitled to attendant care, but rather takes issue with the number of hours required per week to deliver such services. The respondent further denies the treatment plans in dispute, arguing that they are not medically reasonable and necessary.

5As per the amended case conference report and order (“CCRO”) dated May 12, 2021, this application proceeded to a videoconference hearing before me held on November 21-25, 2022.

ISSUES IN DISPUTE

6The following issues were agreed to be in dispute:

1. Is the applicant entitled to a supervisory care level of attendant care benefits (“ACB”) of $3,000.00 per month (plus indexation) from November 21, 2022 to date and ongoing?
2. What amount of ACB is payable from April 3, 2020 to December 31, 2021, including indexation?
3. What amount of ACB is payable from January 1, 2021 to December 31, 2021, including indexation?
4. What amount of ACB is payable from January 1, 2022 to November 20, 2022, including indexation?
5. Is the applicant entitled to $1,397.00 for physiotherapy treatment, recommended by Markus Walser/Walser & Associates Physiotherapy in a treatment plan/OCF-18 (“treatment plan”) submitted on November 3, 2017?
6. Is the applicant entitled to $1,600.00 for occupational therapy treatment, recommended by Karen Pontello/Partners in Rehab in a treatment plan submitted on January 27, 2020?
7. Is the applicant entitled to $3,620.00 for chiropractic treatment, recommended by Alexander Kipershlak/Mediwise Healthcare Centre in a treatment plan submitted on November 2, 2020?
8. Is the applicant entitled to $1,920.53 for social work treatment (psychological assessment), recommended by Bruce Cook/Mediwise Healthcare Centre in a treatment plan submitted on November 10, 2020?
9. Is the applicant entitled to $4,314.20 for psychological treatment, recommended by Bruce Cook/Mediwise Healthcare Centre in a treatment plan submitted on November 24, 2020?
10. Is the applicant entitled to $3,270.86 for chiropractic treatment, recommended by Alexander Kipershlak/Mediwise Healthcare Centre in a treatment plan submitted on March 30, 2021?
11. Is the applicant entitled to interest on any overdue payment of benefits?
12. Is the respondent liable to pay an award pursuant to Section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

RESULT

7The applicant is entitled to a supervisory care level of attendant care. The specifics of this attendant care are:

i. 1,288 minutes per week of Level 1 attendant care services for routine personal care; and,

ii. 8,687 minutes per week of Level 2 attendant care services for basic supervisory functions; and,

iii. 105 minutes per week of Level 3 attendant care services for complex health care and hygiene functions.

8The monetary amount for attendant care is set at $3,000.00 per month, the maximum allowable in the Schedule, plus indexation as also specified in the Schedule. This results in a total of $5,054.64 per month for the remainder of 2022. This amount is to be recalculated on January 1 of each year going forward to account for indexation as specified in the Schedule.

9The applicant is entitled to $27,775.00 for past attendant care services from April 3, 2020 to December 31, 2020, an amount that includes indexation and interest.

10The applicant is entitled to $73,604.00 for past attendant care services from January 1, 2021 to December 31, 2021, an amount that includes indexation and interest.

11The applicant is entitled to $52,429.00 for past attendant care services from January 1, 2020 to November 20, 2022, an amount that includes indexation and interest.

12I find that the applicant is entitled to all of the treatment plans in dispute listed above, plus interest as applicable, as I find that they are reasonable and necessary.

13I find that the applicant is entitled to an award of 50% of the past amount awarded for attendant care services from April 3, 2020 to November 20, 2022, including indexation and interest, as the insurer has unreasonably withheld and delayed payments. This award amounts to a total of $76,904.00 (half of the $153,808.00 ACB owing⁴).

14I find that the applicant is entitled to an award of 50% of the value of all six denied treatment plans, as the insurer has unreasonably withheld and delayed payments of these benefits. This award amounts to a total of $8,061.30.

ANALYSIS AND OVERVIEW

15I will begin by addressing the applicant’s claim to the maximum monetary entitlement for a supervisory care level of ACB, along with the indexation and interest as set forth in the Schedule, as well as the applicant’s claim for past owing ACB.

16I note that there is no dispute regarding whether or not the applicant is entitled to ACB. The dispute is regarding the type and quantum, with the applicant claiming that she is entitled to a supervisory care level (roughly 24 hours per day, 7 days per week) of attendant care at the number of minutes per week listed above, and the respondent claiming that she is entitled only to the five hours per week of attendant care, which the respondent has been paying. As a result, I will not be ruling on whether or not the applicant is entitled to ACB, but solely on the type and quantum.

17I will then turn to the six treatment plans in dispute to determine whether or not they are medically reasonable and necessary, and also if the interest sought is applicable. I will also consider the applicant’s argument that payment is owed for these treatment plans under the “pay pending” provisions of the Schedule in effect at the time of the subject accident.

18Finally, I will address the question of an award.

Attendant Care Benefits (ACB)

19The test for entitlement to ACB is set out in Part X: Attendant Care Benefits of the Schedule.⁵ This section holds that “If an insured person sustains an impairment as a result of an accident, the insurer shall pay for all reasonable expenses incurred by or on behalf of the insured person as a result of the accident.”⁶ These expenses include “services provided by an aide or attendant” or “services provided by a long-term care facility, including a nursing home, home for the aged or chronic care hospital.”⁷

20“An aide or attendant” is defined as “any person who is capable of providing the services, including a family member of the injured person, even if the aide or attendant does not possess any special qualifications.”⁸

21In this case, attendant care services have been provided by the applicant’s husband, Marc Shwaluk, which was permitted by the Schedule in effect at the time of the accident in 1994. Therefore, the service provider is not in dispute.

22The maximum amount payable per month under this section of the Schedule is $3,000.00, subject to the following qualifications.⁹ If the “insured person suffers cervical spinal cord injuries, severe brain injuries or an upper bilateral amputation or other injuries that cause the total loss of use of both hands or arms,” the maximum amount payable per month is $6,000.00.¹⁰ If the “insured person suffers severe brain injuries that cause violent behaviour that may result in physical harm to the insured person or other persons,” the maximum amount payable per month is $10,000.00.”¹¹

23Pursuant to the Schedule, ACB shall be paid “to the person entitled within 14 days after the insurer receives an application for the benefit.”¹² Also according to the Schedule, any ACB monetary amount “shall be revised, effective the 1^st^ day of January in every year after 1994, by adjusting the amount by the indexation percentage published under section 268.1 of the Insurance Act.”¹³

24As the applicant is not claiming any special qualifications involving spinal cord or brain injuries, the maximum amount of the ACB in dispute is $3,000.00 per month, subject to the indexation and interest terms as specified in the Schedule.

25Both parties agreed to admit into evidence a document specifying the amounts owed during the time periods in dispute, if a decision were to be rendered entitling the applicant to supervisory care ACB.¹⁴ The figures therein were agreed upon by both parties.

Is the Applicant Entitled to a Supervisory Care Attendant Care Benefit?

26I find the applicant’s request for a supervisory care level of ACB to be reasonable and necessary. I further find that the applicant is entitled to the past amounts claimed for the same supervisory level of ACB, as her impairments have been shown to have occurred during the time frames in question from April 3, 2020 to November 20, 2022.

27Firstly, however, I will review what supervisory care means, both in general and in this specific application.

28The applicant relies upon the Form 1 prepared by Karen Pontello, occupational therapist, dated February 27, 2020.¹⁵ A Form 1 sets out the services and the amount of attendant care that a person requires, as well as the monthly amount payable. A Form 1 is also used to specify the amount of time required for three different levels of personal care that qualify for ACB. Each level has a different hourly rate, and the care activities are measured in minutes per day.

29Level 1 attendant care is for routine personal care tasks such as grooming. Level 2 is for basic supervisory functions such as personal hygiene and ensuring comfort, safety, and security in the home. Level 3 is for complex health care and hygiene functions such as assisting with genitourinary functions and assisting with exercise and stretching programs.

30Ms. Pontello assessed the applicant as requiring a total of 1,288 minutes per week for Level 1 attendant care, focusing on assistance dressing and undressing, personal grooming, feeding, and mobility. She assessed the applicant as requiring 8,687 minutes per week of Level 2 attendant care, focusing on bathroom and bedroom hygiene, ensuring comfort, safety, and security, and assisting with exercise and stretching. Ms. Pontello assessed the applicant as requiring 105 minutes per week of Level 3 attendant care needs, focusing on assisting with an exercise and stretching program.¹⁶

31Ms. Pontello calculated the total monthly attendant care costs as $10,212.96, based on the following breakdown:

i. Level 1: 1,288 minutes per week/60 = 21.466 weekly hours X 4.3 = 92.306 total monthly hours X $14.05 hourly rate = $1,296.90;

ii. Level 2: 8,687 minutes per week/60 = 144.78 weekly hours X 4.3 = 622.56 total monthly hours X $14.05 hourly rate = $8,746.97; and,

iii. Level 3: 105 minutes per week/60 = 1.75 weekly hours X 4.3 = 7.525 total monthly hours X $22.47 hourly rate = $169.09.¹⁷

32This $10,212.96 figure was adjusted by the applicant’s counsel at the beginning of the hearing, however. The applicant accepted that the maximum amount of $3,000.00 per month for ACB was the actual figure in dispute, due to the specifications in the Schedule at the time of the accident, plus what the Schedule at the time of the accident specified regarding the calculation of indexation and interest.¹⁸

Testimony of Applicant and Her Husband

33The applicant testified that she was a “healthy and active” 29-year-old when the subject accident occurred on July 29, 1994. She was married to Marc Shwaluk and they had two young daughters at the time. She was working full time in administration for the provincial government in her hometown of Thunder Bay. The applicant said that she played ringette and took part in a recreational volleyball league.

34As the applicant’s husband worked lengthy stretches of 14-30 days away from home in a construction job requiring extensive travel, the applicant reported doing most of the household chores herself at the time of the accident. She testified that she would look after the young children, mow the lawn, take care of snow cleaning, and do all the home maintenance herself, such as painting. She characterized herself as being a “hands-on” person, who liked to take things apart and fix them.

35The accident occurred when the applicant was driving the family van on Memorial Avenue in Thunder Bay with her elder daughter in the passenger seat.¹⁹ The applicant testified that she noticed a discoloration on the road just before the van began to “hydroplane” on what was actually a wet surface. She explained that she had little recollection of the accident other than reaching across to hold her daughter back in the passenger seat immediately before the van collided with an island and light post in the road median. She could not remember if she lost consciousness.

36The applicant testified that she began developing tremors at the hospital immediately following the accident. While she said that she did not remember going to the hospital or how she got there (she accepted that her mother took her to the hospital after the accident on the same day), she said that she did recall how her “buttocks were twitching a mile a minute” and that she experienced pain in her head, neck, and back. She also remembered a “wet” tingling feeling of pain running from her lower back down both legs.

37According to the applicant, these symptoms persisted after the accident. She testified that she developed tremors in her arms that would then spread into her legs and at times her entire body, along with nerve tingling and pain that would radiate down her legs into her toes. She stated that these tremor attacks could last anywhere from a minute to over an hour, and that they could be minor or involve her entire body shaking uncontrollably. She said that she required almost around-the-clock assistance from her mother to look after the children and the family home.

38The applicant took a leave from her employment from the time of the accident until January 1995. She returned to her place of employment in January 1995, but reported during testimony that her tremor and related symptoms never resolved.

39The applicant testified that she was only able to continue working due to being “strong willed” and wanting to be “normal.” She described her personal philosophy as “suck it, buttercup.” Her employer at the time allowed her regular use of what she called the office’s “sick room” whenever she would experience serious tremor attacks. The applicant explained that she used this retreat as a coping mechanism and as a way to hide the tremors from others.

40Following provincial downsizing in November 1995, the applicant lost her job with the Ontario government. She accepted a position with HSBC Bank in 1997, but testified that the tremors continued in this new place of employment. The applicant reported trying to hide the tremor attacks by retreating to either the company “sick room” or a washroom, or closing the door to her office. The applicant described a “pins and needles” sensation of pain running down her back, arms, and legs that felt like she was “sitting on the San Andreas Fault.” She said that she began regularly experiencing a “brain fog” that caused performance issues at HSBC and eventually contributed to her leaving the company in 2015.

41The applicant testified that she began to take added precautions to guard herself in case of a tremor attack, waking at 5:00 A.M. every day to prepare for being at work by 8:00 A.M. She also took extra time in the mornings to prepare “escape routes” to safety that she felt were needed when she had a tremor attack, and said that she would pack extra clothing and food for lunch due to a tendency to spill meals on herself during such attacks.

42The applicant testified that she continually sought medical treatment throughout her time working for the Ontario government and HSBC. She visited specialists such as audiologists, neurologists, and other physicians to secure a diagnosis and treatment plan for her tremors, which seemed to have no neurological basis. The applicant also sought treatment for related symptoms of pain in her neck, shoulders, mid-back, and lower back, the nerve pain running from her back into her legs and toes, and bladder and bowel concerns, amongst other complaints.²⁰

43The applicant said that she tried various forms of prescription medication, naming Lyrica as one example, but that nothing was effective. She also explained that she became resistant to medication, as at times it would “set [her] off,” meaning trigger a full-body tremor attack, and that she became sometimes resistant to physical forms of therapy and touch due to heightened sensitivities.

44From November 14, 2016 until December 23, 2016, the applicant took part in a six-week chronic pain management program operated by the St. Joseph’s Care Group at St. Joseph’s Hospital in Thunder Bay.²¹ At this point she was diagnosed with conversion disorder, also known as a functional neurologic disorder. This condition is marked by uncontrollable neurological symptoms (such as the applicant’s tremors and pain) that cannot be explained by a neurological disease or other medical condition.

45The conversion disorder diagnosis was supported by Dr. Anthony Lang, neurologist, of the Movement Disorder Clinic, which is part of the University Health Network (“UHN”) in Toronto.²² The applicant attended this same clinic on a number of occasions in 2019 and 2020, where the conversion disorder diagnosis was confirmed again, along with the same recurrent symptoms noted above.²³ A plan of treatment was recommended, but with the provision that UHN had no ability to offer services to patients who lived outside of the Greater Toronto Area. As a result, the UHN physicians drafted a “comprehensive note” for her family physician in Thunder Bay, so that treatment options could be sourced locally.²⁴

46During testimony, the applicant spoke to continuing symptoms as a result of the 1994 accident that have increased in recent years. She testified that she was continuing to experience regular tremors. She experienced at least two full-body tremor attacks of durations lasting more than five minutes during her testimony that forced breaks in the proceeding. The applicant could be seen to be trembling through much of her upper body throughout her testimony.

47The applicant reported that her current tremors were accompanied by a “wet, tingling feeling” that would run down her back and through her buttocks, along with numbness in her hands, the sensation of her entire body vibrating, and jaw clenching that would result in recurrent headaches. The applicant noted that tremor attacks involving her entire body could happen without any apparent cause at all, but that they were also triggered by stressful situations, as well as by bright lights, noises, and smells.

48The applicant testified to ongoing tinnitus, trouble swallowing, a feeling like her tongue was “glued” to the top of her mouth, and sleep issues that resulted in her moving around during the nights and getting little rest, along with pain in her lower back and leg weakness. She also explained that she was experiencing ongoing psychological issues, with the “brain fog” noted above that continued to impact on her ability to concentrate, as well as depression and sadness.

49The applicant said that she was always focused on her tremors, anticipating when they would occur and planning ways to escape and hide so that people would not see her shaking. She described a life of almost complete isolation where she rarely left home, remaining almost entirely on the first floor of her house due to feeling so unsteady on her feet that she very rarely went downstairs to the rec room or ventured to the back yard or out the front door. She testified that she avoided socializing with anyone other than family, and that she relies almost entirely on her husband to cook, clean, do laundry, and handle family finances, along with occasional assistance from her now adult daughters, who she said are both registered nurses.

50The applicant displayed burn marks on her forearms during testimony, apparently as a result of trying to cook on a hot stove. She said that she avoided using implements like forks and knives, instead preferring easier to consume meals such as sandwiches. She claimed to use straws for drinks and to consume meals like soup due to the mess she would make due to her tremors.

51While the applicant admitted to maintaining her driver’s licence and occasionally driving short distances, she said that her only regular activities were watching television, using her cell phone, doing in-home yoga and virtually guided physiotherapy exercises, and interacting with the family dog, which was purchased as a therapeutic animal in 2021. She believed that the yoga and physiotherapy were helped her stay somewhat limber and active, and described the family dog as having a dramatic, positive impact on her mood.

52The applicant’s husband, Marc Shwaluk, provided evidence in support of her testimony. He reiterated his wife’s health challenges, explaining that he had been essentially providing her with 24/7 attendant care since heart-related health issues forced him to retire from his mining job in 2018.

53Mr. Shwaluk explained that his wife was very unsteady on her feet, and that she would use walls as support both inside the family home and whenever she ventured outside. Mr. Shwaluk said that he did virtually all of the cooking and he made sure his wife was not around anything hot, as she could easily burn herself due to her tremors.

54Mr. Shwaluk confirmed that his wife rarely left the home. He said that she rarely went outside, although she would walk short distances with him at times when he would walk their dog to a nearby park. He praised the yoga and physical therapy treatment that his wife was doing at home, saying that she needed this to at least remain somewhat healthy and active.

55Mr. Shwaluk confirmed that his wife maintained a driver’s licence, and that he could not understand why a physician had not ordered it cancelled due to her tremors. He said that she rarely drove, and even then, she went only short distances, often with her father to medical appointments. Mr. Shwaluk did not support his wife’s decision in continuing to drive and said he would never ride in a vehicle with her at the wheel.

Applicant Medical Testimony and Evidence

56The applicant relied on the testimony and medical reports of Karen Pontello, orthopaedic therapist,²⁵ and Dr. William Gnam,²⁶ psychiatrist, with regard to the ACB issue in dispute.

57Ms. Pontello testified to the unpredictable nature of the applicant’s tremors in supporting her supervisory care recommendation. Ms. Pontello rejected the idea of scheduling specific time periods of attendant care for the applicant, saying that the tremors did not occur on a schedule so such planning would be ineffective. She explained that the applicant’s safety would be in jeopardy if she had to “engage with her environment” if an emergency arose at home, which could happen at any time.

58Dr. Gnam’s testimony largely dealt with the diagnosis of conversion therapy. He elaborated on his report by explaining that the applicant required supervisory attendant care for three primary reasons:

i. Safety. Dr. Gnam explained here that supervisory care was required due to the unpredictable nature of the applicant’s tremors, and the fact that they could put her personal safety in jeopardy at any time.

ii. Motivational impairment. Dr. Gnam testified to his belief that having someone with the applicant at all times would increase her confidence level. This would allow her to feel that she could do more for herself, and that she need not always focus on her tremors, which preoccupied her mind at all hours of the day, even when trying to sleep.

iii. Comfort. Dr. Gnam believed that supervisory attendant care would add to the applicant’s comfort levels and reduce her feelings of anxiety and depression. He explained that having an attendant to help with relaxation techniques would lessen the applicant’s anxieties and possibly help reduce her tremors.

59Dr. Gnam spoke to the conclusions of the respondent’s examining psychiatrist, Dr. Velan Sivasubramanian. He concurred with many of his colleague’s assessments, especially with regard to conversion disorder. Still, Dr. Gnam believed that Dr. Sivasubramanian did not properly assess the impairments of the applicant, and that his recommendation of just five hours of attendant care per week were inadequate given the applicant’s health issues.

Respondent Medical Testimony and Evidence

60The respondent relied upon the testimony and medical reports of Dr. Velan Sivasubramanian, psychiatrist,²⁷ Dr. Michael Angel, neurologist,²⁸ and Meinwen Valley, occupational therapist.²⁹

61Dr. Sivasubramanian referred to examining the applicant via videoconference for one hour and 10 minutes for the purposes of completing his report. He used a personal interview to deem her “cognitively intact.” He spoke to the diagnosis of conversion disorder, and explained how the applicant’s tremors were psychological in nature.

62Dr. Sivasubramanian recommended a multidisciplinary approach for treatment involving physical and psychological therapy, but he did not agree with the three principles noted by Dr. Gnam. Dr. Sivasubramanian criticized the safety, motivational impairment, and comfort concepts, adding that he was not aware of any clinical studies that supported such philosophies or the use of attendant care for treating conversion disorder.

63Dr. Sivasubramanian concluded that the applicant qualified for five hours per week of attendant care to assist with personal grooming tasks such as bathing, dressing, brushing her teeth, and combing her hair. He believed that the applicant could prioritize how those five hours would be spent, which would allow for an attendant care service provider to follow a set schedule.

64Dr. Angel spoke to his observations of the applicant for 45 minutes for the purpose of writing his report. He assessed the applicant through a neurological lens, emphasizing that she did not suffer from organic neurological injury or disease. While he said that he did not do any sort of cognitive testing, he did examine her cranium for neurological issues, finding no evidence of injury, and assessed her reactions and strength as normal. He did not recommend any level of attendant care or any devices “from a neurological perspective.”³⁰

65Dr. Angel observed the applicant’s tremors throughout his examination. He spoke to these movements being a “functional tremor” or a “psychogenetic tremor,” meaning that the tremors were not caused by an organic neurological issue like a brain injury. He said that the applicant should have no difficulties with daily life, and that she needed to be more active and relax in the knowledge that her “brain is healthy.”

66Occupational therapist, Ms. Valley, testified with regard to her in-home assessment of the applicant that lasted two hours. She reviewed her resulting report, which rated the applicant as “within functional limits” in most active ranges of motion, and “independent” in most common household tasks and movements such as transferring from standing into bed and chairs, using the toilet, lifting, and home safety.³¹

67Ms. Valley assessed the applicant as needing to modify her approach to activities like driving, meal preparation, and feeding herself, and rated her as being unable to complete a number of personal grooming tasks like nail cutting, shaving her legs and underarms, and applying makeup. As a result, she recommended one hour of attendant care per week for grooming.³²

68The respondent also submitted a surveillance report including screen captures from a video.³³ This report summarized surveillance that was conducted in Toronto on September 30, 2021, October 1, 2021, and October 2, 2021. It mainly depicted the applicant and a woman identified as a personal support worker attending stores in downtown Toronto on the afternoon of October 1, 2021.³⁴

Decision

69I find that the applicant is entitled to a supervisory care level of attendant care on a current and ongoing basis, as it is medically reasonable and necessary.

70I find that the applicant is entitled to past attendant care benefits sought for the time period between April 2, 2020 and November 20, 2022, plus interest and indexation. A preponderance of the evidence demonstrates that the applicant suffered from impairments during the time in question.

71I find the testimony of the applicant and her husband persuasive. The applicant is clearly suffering debilitating tremor attacks and connected physical and psychological issues that have dramatically changed her life. These impairments have rendered it impossible for her to continue to hold a job, and have virtually confined her to her home and the around-the-clock care of her husband who has been acting as her attendant care attendant since at least 2018.

72As the version of the Schedule in effect at the time of the subject accident allows for the provision of attendant care services by a family member, I take no issue with these services being provided by the applicant’s husband.³⁵ I further accept that her husband has been providing these services on essentially a 24/7 basis since at least 2018.

73The applicant’s tremors were on display throughout her testimony. She consistently trembled in her upper body, with her shoulders and arms shaking. The tremors regularly involved her head and neck, as well. I needed to halt the hearing during the applicant’s testimony on two occasions when she developed intense tremors that involved her entire upper body (all that could be seen on screen during the videoconference hearing). During one of these attacks, her husband needed to hold her, and she was unable to resume her testimony for some 30 minutes. The applicant went into apparent full-body tremors on many other occasions, as well, although she continued her testimony through these episodes.

74Such consistent trembling and regular full-body tremor attacks are in accordance with the medical evidence submitted by both parties and the diagnosis of conversion disorder confirmed by multiple physicians from both parties. As a result, I accept these symptoms at face value and do not dispute that the applicant is suffering from precisely what she described in her testimony.

75I place significant weight on the testimony and the reports of both Ms. Pontello and Dr. Gnam. Both supported supervisory care as opposed to scheduled attendant care services for one primary reason—the applicant’s tremors were unpredictable. I agree with them that it would be impossible to schedule attendant care in this situation, as the applicant could encounter tremors at any time that could put her personal safety and security at risk.

76With that said, the applicant did not refer to any incidents where her personal safety was in jeopardy, or that she was injured, save for the displayed burn marks on her forearms. These burn marks were difficult to properly assess or even see during the videoconference hearing, so I assign them little evidentiary weight.

77Still, I do not accept that an accident or injury needs to happen to prove that someone is in danger. The respondent’s position that the applicant simply needs to wait out the tremors, and that she is in no jeopardy of falling or injuring herself, does not, in my view, fully appreciate the seriousness of the applicant’s condition. I favour the opinion of Ms. Pontello here. The applicant does not need to fall or hurt herself on her own to be in danger; she simply has to be confronted with an emergency at the home that would require her to “engage with her environment.”

78I also favour Dr. Gnam’s reasoning with regard to his safety, motivational improvement, and comfort rationale. This approach would help address the applicant’s varied impairments in a multidisciplinary fashion, as well as deal with the above concerns about the applicant’s personal safety at home.

79Dr. Gnam’s examination was comprehensive, lasting some three hours and resulting in a report of 38 pages. He supported his conclusions through an extensive review of the applicant’s health history in relation to the accident, an interview covering her current symptoms, and a thorough analysis that led to his concluding that the applicant suffered from conversion disorder, major depressive disorder, other specified anxiety disorder (with features of panic disorder), and a specific phobia (driving).³⁶

80I place less weight on the testimony and reports of Dr. Sivasubramanian. Dr. Sivasubramanian spent just one hour and 10 minutes in his primary examination of the applicant, a very brief time in consideration of her significant and lengthy medical history.

81Dr. Sivasubramanian’s reports contain little analysis of the applicant. Much of them refer solely to her personal and medical history. There is no assessment of her current situation and medical complaints, as in the Dr. Gnam report.

82I do not accept Dr. Sivasubramanian’s explanation that the applicant could prioritize her personal tasks so that they could be scheduled in a set five hours of attendant care service per week. Dr. Sivasubramanian devoted just a single short paragraph to his recommendation of five hours of attendant care, and provided no specific rationale therein as to how or why he came to that conclusion.³⁷

83I place little weight on the assessments of Ms. Valley. Her conclusion that the applicant required just one hour per week of attendant care for basic grooming is an outlier, even by comparison with Dr. Sivasubramanian. In his recommendation that the applicant qualified for five hours of attendant care per week, Dr. Sivasubramanian acknowledged that the applicant was “far more disabled”³⁸ than Ms. Valley cited in her report.

84Dr. Angel did not address the diagnosis of conversion disorder in his testimony or report. He notes in his report that the applicant informed him about the conversion disorder diagnosis, and that he did not review any of the medical documentation relating to this diagnosis.³⁹ Dr. Angel seemed somewhat dismissive about this condition in his testimony, in my opinion, noting that there was an element of suggestibility to the applicant’s tremors.

85I find Dr. Angel’s conclusions to be unrealistic, due to the medical evidence and the testimony of the applicant. He testified as to the need to reassure the applicant that her tremors and other physical symptoms did not have a neurological source in any sort of injury or disease. He further said that the applicant should be encouraged to be more active and do more for herself, as that would help with her anxiety. But Dr. Angel did not specify how the applicant would adopt these new approaches and activities without the assistance of supervisory attendant care and treatment, a sizable gap in his assessment.

86Finally, I place no weight on the respondent’s surveillance report. It shows the applicant simply walking Toronto streets and entering a handful of stores. The applicant testified that she was in Toronto for medical reasons relating to her alleged impairments, and at the time of the surveillance she was unwillingly accompanying a personal support worker during her shopping trip. Regardless, the surveillance report does not show the applicant engaged in any activity incongruous with her alleged impairments.

87As a result of all of the above, I find that a supervisory care level of attendant care is medically reasonable and necessary. The applicant is entitled to the ACB issue in dispute, as well as past payment for ACB between April 3, 2020 and November 20, 2022, including interest and indexation.

The Treatment Plans

OCF-18 $1,397.00 Physiotherapy Treatment, November 3, 2017

OCF-18 $1,600.00 Occupational Therapy Services, January 27, 2020

OCF-18 $3,620.00 Chiropractic Treatment, November 2, 2020

OCF-18 $1,920.53 Social Worker (Psychological Assessment), November 10, 2020

OCF-18 $4,314.20 Psychological Treatment, November 24, 2020

OCF-18 $3,270.86 Chiropractic Treatment, March 30, 2021

88I find that the applicant is entitled to all six of the treatment plans in dispute, as they are medically reasonable and necessary, plus interest as applicable on any incurred amounts.

Testimony and Medical Evidence

89The applicant relied largely on the testimony and accompanying report of Markus Walser, physiotherapist.⁴⁰ He spoke specifically to the physiotherapy treatment plan in dispute that he authored,⁴¹ to the OCF-3 that he signed,⁴² and to the general benefits of physical therapy in treating the applicant.

90Mr. Walser testified that the applicant had shown some resistance to physical manipulation when he treated her in 2014. As a result, his treatment plan as submitted and denied in 2017 took a different approach. He said that the 2017 plan was a “movement based” method to teach exercises that would encourage the relaxation of the applicant’s nervous system so that a pain response was no longer activated.

91The respondent submitted little medical evidence with regard to the treatment plans. All of the respondent’s witnesses spoke almost entirely to the ACB matters in dispute.

92Much of the other testimony and medical evidence relating to the treatment plans have been reviewed above in the section covering the ACB matter in dispute, so I will not reiterate these points here.

Decision

93For the following reasons, I agree with the applicant and find that the six treatment plans in dispute are medically reasonable and necessary.

94I come to this conclusion largely because the medical experts from both parties who provided testimony and reports supported treating conversion disorder with a multidisciplinary approach that would blend psychological and physical therapy. As this approach concurs with the treatment plans in dispute—all of the recommended treatment involves physical therapy, chiropractic, and psychological therapy—it seems that all essentially agree with the nature of this approach, even if the respondent does not accept the specifics of these plans.

95Dr. Gnam supported this concept in both testimony and in his written assessment for the applicant, and so did Dr. Sivasubramanian and Dr. Angel for the respondent. Both physicians who testified for the respondent spoke to the value of physical activity and psychological treatment in addressing the applicant’s symptoms.

96I accept that the applicant’s prognosis is guarded due to how long she has been suffering from conversion disorder, as this is the general consensus of all medical experts who provided testimony and evidence. But I do not accept that physical treatment of different varieties (including the chiropractic treatment plans in dispute here, which include functional exercises and yoga similar to what the applicant is currently doing) cannot be of significant value when it comes to managing the applicant’s tremors, pain, and depression and anxiety. All of the experts who provided testimony in this hearing spoke to the value of such treatment when dealing with conversion disorder and its concurrent symptoms.

97When it comes to the physical treatment plans in dispute, I place significant weight on the testimony and the reports of Mr. Walser. He explained that his denied treatment plan of 2017 was something new and not just a repeat of his earlier efforts. Where the respondent attempted to characterize Mr. Walser’s recommendations as a “Hail Mary,” the physiotherapist completely disagreed. He instead noted that he had changed his approach as of the 2017 plan to focus on movement-based exercises, not the mobilization treatment that he had used without success in 2014.

98I agree with Mr. Walser’s comments that it is impossible to characterize any physical treatment for the applicant as being a “Hail Mary” because she had not received much treatment of any sort in the past. This is an accurate summation of the situation, and another reason why I find that the applicant is entitled to this treatment plan, as well as the others in dispute.

99I place weight on the testimony of the applicant and her husband. Both spoke to the benefits of the ongoing virtual physiotherapy and yoga sessions that the applicant has been taking part in at home. They characterized them as a lifeline, given that the applicant is otherwise physically inactive and spends much of her time at home, and believe the applicant would benefit further from more of this sort of treatment.

100I accept Dr. Angel’s assessment that the applicant looked “physically fit and well conditioned” with “no atrophy or fasciculations in the upper and lower extremities”⁴³ as an example of these exercises being beneficial to the applicant. Although Dr. Angel does not connect the applicant’s level of fitness to her in-home physiotherapy and yoga sessions, it is logical to make such a correlation as the applicant is otherwise housebound with no exercise.

101I believe that it would be beneficial for the applicant to be granted the opportunity to expand upon her current regiment of in-home physiotherapy and yoga. I support the conclusion of medical experts from both parties, and also believe that she would benefit from the more thorough physical treatment plans in dispute.

102I note the applicant’s argument that the treatment plans here should be payable regardless of whether or not they are deemed to be reasonable and necessary, because of the “pay pending” provisions of the Schedule in effect at the time of the subject accident. I am not ruling on this matter, however, as a decision here is not needed due to my finding the treatment plans medically reasonable and necessary.

103As a result of the above, I find that the applicant is entitled to all six of the treatment plans in dispute, as they are medically reasonable and necessary, plus interest on any amounts incurred.

Award

104The applicant seeks an award under S. 10 of Reg. 664. Under S. 10, the Tribunal may award up to 50% of the total benefits payable if it determines that the insurer unreasonably withheld or delayed the payment of benefits. Conduct warranting an S. 10 award must rise above being an incorrect decision and be “excessive, imprudent, stubborn, inflexible, unyielding or immoderate.”⁴⁴

105The applicant argues that she is entitled to the award primarily because the respondent denied benefits for years following the reopening of her claim in 2015 based on an allegation that the current impairments had not been proven to be causally connected to the accident in 1994. The applicant argues that causation was never challenged by the respondent in 1994, and that log notes and medical records from 1994 through 1996 demonstrate that the respondent was aware of the applicant’s impairments at that time.

106The respondent takes the position that it handled this application in a fair manner and was unaware of developments with the applicant between 1994 and 2015, when the file was reopened. The respondent submitted that it followed the medical evidence, that the applicant had been working full time during most of the time between 1994 and 2015. The respondent summarized its position in closing arguments by saying that it should not be held to a “standard of perfection.”

Is the Applicant Entitled to An Award?

107I find that the applicant is entitled to an award with regard to the ACB issues in dispute, as there is evidence that the respondent unreasonably withheld and delayed payment of this benefit for years following the reopening of this claim in 2015.

108I find that the applicant is entitled to an award for the six treatment plans in dispute, as there is evidence that the respondent unreasonably withheld or delayed the payment of these benefits.

109I favour the applicant’s argument that causation was not a valid reason for the denial of the applicant’s claimed entitlements. I further agree with the applicant’s argument that the causation issue was not disputed in 1994-1995 during the initial handling of this file, and that this rationale was improperly used to withhold benefits from the applicant. The applicant demonstrated a consistent and continuous pattern of symptoms from 1994 to the time that she reopened her claim in 2015, evidence that should have been addressed in a much more comprehensive and timelier fashion than just denying on the basis of causation.

110I agree with the applicant’s argument that medical evidence from as early as April 20, 1995 connected the accident with “shaking spells” where she would “shake in a tremulous manner for a few seconds,” as well as experience “pain between her shoulder blades.”⁴⁵ This report from Dr. S. McLachlan, neurologist, at St. Joseph’s Hospital in Thunder Bay includes observations and a diagnosis that the applicant was experiencing functional tremors that should resolve, but that psychological counselling might be required.⁴⁶

111A follow-up report from Dr. John Hargadon on May 17, 1995 contained the same general observations.⁴⁷ He took note of the same symptoms as Dr. McLachlan, adding the applicant’s complaints that she was experiencing episodes of shaking that could last as long as 90 minutes.⁴⁸ This 1995 report includes observations about precisely the same symptoms that the applicant reported during her testimony in 2022.

112Log notes from Lumbermens Mutual Casualty Company⁴⁹ make it clear that the insurer was well aware of the situation in 1994 and 1995.⁵⁰ These log notes include notations about the applicant’s “shaking episodes”⁵¹ and review the treatment she was accorded by the insurer at that time.⁵² There is no indication in these log notes that the insurer questioned causation at any time between 1994 and 1996.

113Reliance on causation to deny benefits began with the first correspondence from the insurer to the applicant’s original counsel at the end of 2015.⁵³ In this letter, Melody Ashby, claims consultant, notes that “a significant amount of time has passed since the claim was initially [sic] and we must now find a causal link between your client’s current complaints and the injuries sustained in the accident.”⁵⁴

114A continued general reliance on causation is shown in correspondence from the insurer to the applicant throughout 2016.⁵⁵

115Causation is also used as a primary reason to deny each of the six treatment plans in dispute here from 2017 through 2021.⁵⁶ The insurer adds regular references to how long ago the accident occurred along with notations that there seems to be no causal link between the injuries from the subject accident and the recommended treatment plans.

116Firstly, I find that the insurer did not take into account the 1994-1996 medical records on this file when it was reopened in 2015. The applicant reported the same symptoms in 2015 that she reported in 1994, albeit to a worsening degree that had caused an impairment. The insurer did not contest that these 1994-1996 symptoms were caused by the accident at the time that this claim was first adjusted, as is shown in the Lumbermens log notes. As there was no basis for even this initial denial of the revived claim due to causation, this should have prompted a more proper investigation of the medical merits of the claim—not a new reason for denial that had never apparently been raised before.

117Secondly, I note that the insurer had at least four years to look into this file since it was reopened in 2015. It is inexcusable that the same causation argument was being made in 2020 that was made in 2015.

118I could excuse the insurer taking time to fully investigate all of the circumstances around the claim when it was first reopened in 2015. I accept that even at that time, this file was an old one and that it involved complicated issues. Also, the diagnosis of conversion disorder was not made until at least 2016. So, I can well understand the insurer requiring time to review the attendant care issue and treatment plans in dispute.

119But I cannot overlook how the insurance company took so many years to finally do away with the causation argument. The insurer’s continued reliance on causation in denial letter after denial letter from 2015 to 2020 speaks to more than just a need to take time to assess all of the issues, or even to an honest misunderstanding of the file’s complexities; it speaks to the insurer being excessive, imprudent, stubborn, inflexible, unyielding, and immoderate.

120As a result of all of the above, I find that the applicant is entitled to an award on the entirety of her claim regarding both the ACB issues and the treatment plans in dispute.

121Neither party made submissions on a percentage amount with regard to an award claim. Regardless, I am awarding the full percentage of 50% here due to the length of time that the respondent disputed the ACB issue and the treatment plans. That the insurer eventually began paying an ACB does not mitigate the impact of such an improper refusal on the applicant and her inability to seek proper care for years, a delay that may very well have exacerbated her impairments.

ORDER

122The applicant is entitled to a supervisory care level of attendant care. The specifics of which are:

i. 1,288 minutes per week of Level 1 attendant care services for routine personal care; and,

ii. 8,687 minutes per week of Level 2 attendant care services for basic supervisory functions; and,

iii. 105 minutes per week of Level 3 attendant care services for complex health care and hygiene functions.

123The monetary amount for attendant care is set at $3,000.00 per month, the maximum allowable in the Schedule, plus indexation as also specified in the Schedule. This results in a total of $5,054.64 per month for the remainder of 2022. This amount is to be recalculated on January 1 of each year going forward to account for indexation as specified in the Schedule.

124The applicant is entitled to $27,775.00 for past attendant care services from April 3, 2020 to December 31, 2020, an amount that includes indexation and interest.

125The applicant is entitled to $73,604.00 for past attendant care services from January 1, 2021 to December 31, 2021, an amount that includes indexation and interest.

126The applicant is entitled to $52,429.00 for past attendant care services from January 1, 2020 to November 20, 2022, an amount that includes indexation and interest.

127The applicant is entitled to all of the treatment plans in dispute, as I find that they are reasonable and necessary, plus interest as applicable:

i. $1,397.00 for physiotherapy treatment, recommended by Markus Walser/Walser & Associates Physiotherapy in a treatment plan submitted on November 3, 2017, plus interest if incurred;

ii. $1,600.00 for occupational therapy treatment, recommended by Karen Pontello/Partners in Rehab in a treatment plan submitted on January 27, 2020, plus interest if incurred;

iii. $3,620.00 for chiropractic treatment, recommended by Alexander Kipershlak/Mediwise Healthcare Centre in a treatment plan submitted on November 2, 2020, plus interest if incurred;

iv. $1,920.53 for social work treatment, recommended by Bruce Cook/Mediwise Healthcare Centre in a treatment plan submitted on November 10, 2020, plus interest if incurred;

v. $4,314.20 for psychological treatment, recommended by Bruce Cook/Mediwise Healthcare Centre in a treatment plan submitted on November 24, 2020, plus interest if incurred; and,

vi. $3,270.86 for chiropractic treatment, recommended by Alexander Kipershlak/Mediwise Healthcare Centre in a treatment plan submitted on March 30, 2021, plus interest if incurred.

128Pursuant to S. 10 of Reg. 664, the applicant is entitled to an award of 50% of the past amount awarded for attendant care services from April 3, 2020 to November 20, 2022, including indexation and interest, as the insurer has unreasonably withheld and delayed payments. The total amount of this award is $76,904.00 (half of the $153,808.00 ACB owing).

129Pursuant to S. 10 of Reg. 664, the applicant is entitled to an award of 50% of the six treatment plans in dispute, as the insurer has unreasonably withheld and delayed payments of these benefits. The total amount of this award is $8,061.30, plus interest.

Released: March 15, 2023

__________________________

Brett Todd

Vice-Chair

[APPENDIX A]

1This document was submitted by the applicant, with the consent of both parties, on November 25, 2022. Both parties agreed that the figures here accurately represent the past ACB amounts in dispute.

Footnotes

1. 1O. Reg. 776/93. (NOTE: As the subject accident occurred on July 29, 1994, all references to the Schedule in this decision are to the version of the Schedule in effect at that time.)
2. 2Applicant Hearing Brief, Tab 161 (Lumbermens Log Notes of Claim of Emma Shwaluk, 1994-1996).
3. 3Ibid., Tab 1, page 16 (Letter of Christopher Hacio to Royal & Sun Alliance, November 12, 2015). (NOTE: All citations refer to the page numbers of the PDF hearing briefs, not any internal numbering system within those documents.)
4. 4See Applicant Supplementary Schedule 2.0A, Emma Shwaluk Past ACB Owing – Scenario 1, included as Appendix A. (Note that the total specified on that form, however, is rounded up to $154,000.00. I am using the exact total of $153,808.00 calculated by adding the three past ACB periods in dispute).
5. 5O. Reg. 776/93 S. 47.
6. 6Ibid., S. 47(1).
7. 7Ibid.
8. 8Ibid., S. 47(2).
9. 9Ibid., S. 47(4).
10. 10Ibid., S. 47(5).
11. 11Ibid., S. 47(7).
12. 12Ibid., S. 50.1(1).
13. 13Ibid., S. 80(1).
14. 14Applicant Supplementary Schedule 2.0A, Emma Shwaluk Past ACB Owing – Scenario 1. (Included as Appendix A.)
15. 15Applicant Hearing Brief, Tab 008, pages 36ff. (Form 1 and accompanying cover letter of Karen Pontello, OT, Partners in Rehab, February 25, 2022).
16. 16Ibid., pages 38-43.
17. 17Ibid., page 41.
18. 18It should be noted that Ms. Pontello actually filed two Form 1s—one in error based on the Schedule in effect at the time that she completed on February 27, 2020 and a correct one backdated to the same date based on the Schedule in effect at the time of the subject accident in 1994. All references in this decision are to the latter, correct Form 1, also known as a Form for Assessment of Attendant Care Needs – Accidents After December 31, 1993 and Before November 1, 1996.
19. 19Applicant Hearing Brief, Tab 152 (Thunder Bay Police Collision Report, July 29-30, 1994).
20. 20Clinical notes and records (“CNRs”) covering these assessments can be found in the Applicant Hearing Brief at: CNRs of Dr. Gordon W. Milne, Tab 111; CNRs of Dr. Quentin Currie, Tab 111, pages 904-905; CNRs of Dr. Sam Cheung, Tab 111, pages 916-919; CNRs of Dr. S. McLachlan, Tab 111, page 889, 893-894; CNRs of Dr. John Hargadon, Tab 111, pages 895-897; CNRs of Dr. Maryjo Doiron, Tab 112; and CNRs of Dr. Gabriel Mapeso, Tab 112, page 978.
21. 21Applicant Hearing Brief, Tab 112, pages 979-988 (Chronic Pain Management Program Interdisciplinary Team Report).
22. 22Applicant Hearing Brief, Tab 112, pages 1005-1009 (CNRs of Dr. Lang, UHN, July 31, 2019).
23. 23Ibid., Tab 130, pages 1665-1685 (CNRs of UHN Movement Disorders Clinic).
24. 24Ibid., page 1673.
25. 25Ibid., Tab 89 (Ms. Pontello In-Home Assessment Report, April 9. 2020); Tab 8 (Form 1 of Ms. Pontello, February 27, 2020); and Tab 18 (OCF-18 of Ms. Pontello, January 27, 2020).
26. 26Ibid., Tab 91 (Psychiatric Assessment Report of Dr. Gnam, September 14, 2022).
27. 27Respondent Hearing Brief, Tab G and H (Psychiatry Assessment Report of Dr. Sivasubramanian, October 7, 2020, Psychiatry Addendum Report of Dr. Sivasubramanian).
28. 28Ibid., Tab E (Neurology Assessment Report of Dr. Angel, October 7, 2020).
29. 29Ibid., Tab F (Occupational Therapy In-Home Assessment Report of Ms. Valley, October 7, 2020).
30. 30Ibid., Tab E, page 259 (Neurology Assessment Report of Dr. Angel, October 7, 2020).
31. 31Ibid., Tab F, pages 273-275 (Occupational Therapy In-Home Assessment Report of Ms. Valley, October 7, 2020).
32. 32Ibid., Tab F, page 275.
33. 33Respondent Investigation Report, October 13, 2021.
34. 34This surveillance report was submitted during the hearing, long after the Respondent Hearing Brief was due. According to the respondent, the wrong surveillance report and video were submitted with these documents. I allowed the late submission of this surveillance report on the consent of the applicant, who had previously been able to review the document. I did not permit the introduction of the surveillance video, as the applicant objected to this due to not having not been able to view it in advance of the hearing.
35. 35O. Reg. 776/93, S. 47(2).
36. 36Applicant Hearing Brief, Tab 91, pages 336-337 (Psychiatric Assessment Report of Dr. Gnam, September 14, 2022).
37. 37Respondent Hearing Brief, Tab G, page 286 (Psychiatry Assessment Report of Dr. Sivasubramanian, October 7, 2020).
38. 38Respondent Hearing Brief, Tab G, page 286 (Psychiatry Assessment Report of Dr. Sivasubramanian, October 7, 2020).
39. 39Ibid., Tab E, page 257 (Neurology Assessment Report of Dr. Angel, October 7, 2020).
40. 40Applicant Hearing Brief, Tab 104, pages (CNRs of Walser & Associates Physiotherapists, July 29, 1991 – May 20, 2020).
41. 41Ibid., Tab 016 (OCF-18 submitted by Walser & Associates Physiotherapists, November 3, 2017).
42. 42Ibid., Tab 006 (OCF-3 submitted by Walser & Associates Physiotherapists, October 31, 2015).
43. 43Respondent Hearing Brief, Tab E, page 257 (Neurology Assessment Report of Dr. Angel, October 7, 2020).
44. 44Plowright v. Wellington Insurance Company (FSCO A-003985, October 29, 1993), page 17.
45. 45Applicant Hearing Brief, Tab 134, page 1738-1739 (Report of Dr. McLachlan, St. Joseph’s General Hospital, Thunder Bay, April 20, 1995).
46. 46Ibid.
47. 47Ibid., Tab 1, page 1920 (Report of Dr. Hargadon, May 17, 1995).
48. 48Ibid.
49. 49Lumbermens was the original insurance company to handle this file. As noted above, this firm was acquired by Royal & Sun Alliance in 2001, resulting in the latter being named in this application.
50. 50Ibid., Tab 161, pages 1983-2019 (Lumbermans Log Notes, 1994-1996).
51. 51Ibid., Tab 161, page 2005.
52. 52Ibid., Tab 161, pages 2014-2019.
53. 53Applicant Hearing Brief, Tab 061, page 215 (RSA Letter to Christopher Hacio, December 16, 2015).
54. 54Ibid.
55. 55Ibid., Tab 062, page 216 (RSA Letter to Chris Hacio, May 17, 2016); Tab 064, page 217 (RSA Letter to Chris Hacio, June 14, 2016)
56. 56On Walser OCF-18: Applicant Hearing Brief, Tab 027, page 131; on Pontello OCF-18: Respondent Hearing Brief, Tab F, page 192; on Kipershlak OCF-18: Applicant Hearing Brief, Tab 023, page 125; on Bruce Cook social work OCF-18: Respondent Hearing Brief, Tab S, page 224; on Bruce Cook psychological OCF-18: Respondent Hearing Brief, Tab R, page 220; and, on Mediwise OCF-18: Respondent Hearing Brief, Tab O, page 215.