ACCIDENT BENEFITS NEWSLETTER - AUGUST 2005

Catherine Zingg

Wawanesa Mutual Insurance Company (Applicant) and Kingsway General Insurance Company (Respondent), April 2005, Arbitrator G. Jones - Mr. Aygenim-Boateng and Elizabeth Mensah were passengers in a vehicle that was insured by Wawanesa when they were injured in an accident on May 15, 2003. Mr. Aygenim-Boateng was a taxi driver and had regular use of the taxi. Accordingly, he qualified as a named insured under s.66 of the SABS /96. Kingsway conceded that it was responsible to compensate Wawanesa for accident benefits paid to Mr. Aygenim-Boateng.

Spouse

A dispute arose as to whether Ms. Mensah was Mr. Aygenim-Boateng’s spouse with in the meaning of s.224 of the Insurance Act, which defines spouse as meaning either a man and a women who “are not married to each other and have cohabited continuously for a period of not less then three years, or have cohabited in a relationship of some permanence if the they are the natural or the adoptive parents of a child”. Ms. Mensah had moved from Montreal to Toronto in the spring of 2000. The arbitrator accepted that the couple lived together as boyfriend and girlfriend and shared household duties and expenses. However, he was not satisfied on the evidence that there was proof that the couple cohabited as early as May 15, 2000. Accordingly, Wawanesa was unable to recover any accident benefit payments made to or on behalf of Ms. Mensah.

Amounts Recoverable

Kingsway argued that it was not responsible for payment of the cost of the examinations and investigations. The sum of $7,773.18 had been paid out for examinations for Mr. Aygenim-Boateng and investigations cost $963.21. Kingsway agreed to reimburse Wawanesa for monies paid out for IRBs, medical benefits and housekeeping. Arbitrator Jones considered the decision of Arbitrator Malach in Certas Direct Insurance Company v. Allstate Insurance Company, November 10, 2004 which held that the cost of FSCO mediations and arbitrations incurred by the insurer were not recoverable in a priority dispute. Arbitrator Jones, however, did not share Arbitrator Malach's restrictive view of s. 268 of the Insurance Act. He also considered the decision of Arbitrator Brown in State Farm v. ING Insurance Company, February 16, 2005, in which the arbitrator held that such expenses were not recoverable. Arbitrator Jones remarked that there was a fundamental difference between loss transfer and priority disputes. (The State Farm v. ING decision was a loss transfer decision). In loss transfer, the paying insurer handles the file throughout, and the dispute is as to which Fault Determination Rules apply or whether the ordinary rules of law apply. In considering the issue, Arbitrator Jones stated:

IME's and DACs are, of course, specifically referred to, or allowed, under the Schedule and are used to confirm or deny the need for various benefits. They are certainly ancillary to the providing of benefits and as such should be recoverable. Surveillance, while not mentioned in the Schedule, is part of the normal cost of determining entitlement and should be recoverable (p.11).

Liberty Mutual Insurance Company of Canada (Appellant) and Areal (Respondent), P04-00034, July 5, 2005 - Director’s Delegate Makepeace allowed the insurer’s appeal and revoked the arbitrator’s Order. She replaced the Order with a finding that Ms. Areal was not an “insured person”, as defined in s.2(1)(a)(ii) of the SABS /96, for purposes of claiming benefits in relation to a physical injury sustained in caring for her son. Ms. Areal’s young son had suffered a catastrophic impairment in an automobile accident. She was awarded benefits for psychological injury that she had suffered as a result of the accident in which her son was involved. Section 2(1)(a)(ii) states that benefits may be awarded where “the named insured ... is not involved in an accident but suffers psychological or mental injury as a result of an accident ... that results in a physical injury to ... her child”, subject to satisfying the entitlement criteria under s.14 of the SABS /96. In her arguments, Ms. Areal relied on the decision in Correira and TTC Insurance Company, (P00-0061, July 16, 2001), which held that benefit claims with respect to secondary or downstream injuries are not excluded from coverage under the “direct causes” definition of “accident” in the SABS /96 if they were sustained “as a result of the accident”, as required in s.14 and the other entitlement provisions of the SABS (p.3). This argument was rejected with Director’s Delegate Makepeace finding that “the key operative words of the definition are “in respect of a particular motor vehicle liability policy”. In her conclusions, Director’s Delegate Makepeace stated:

The strength of Ms. Areal’s argument is that she is the mother of the insured person who was involved in the accident. That is the basis for her “insured person” status under s.2 (1)(a)(ii) of the SABS /96, as well as any claim that she may have under s.61 of the Family Law Act. This is the critical point, in my view. Mr. Areal does not claim benefits in relation to her son’s injury, but rather on her own behalf in respect of a new injury not involving an automobile. I am not persuaded that it was within the contemplation of the legislature that person described in s.2(1)(a)(ii) would be eligible for benefits beyond those related to the basis of coverage-psychological or mental injury as result of an accident that results in physical injury to a family member. Paragraph 2(1)(a)(ii) is itself an extended coverage provision. I am not persuaded it was intended to allow for the further extension argued by Ms. Areal, (pp. 10-11).

Mann and Allstate Insurance Company of Canada, A02-000462, June 29, 2005 - Following an accident on September 2, 2001, Mr. and Mrs. Mann applied for medical benefits, the cost of examinations, interest on overdue benefits and the expenses of the arbitration. Arbitrator Alves held that Mrs. Mann was entitled to receive medical benefits for 30 chiropractic treatments, 6 sessions of massage therapy, 16 sessions of a rehabilitation program and 5 acupuncture treatments . In her claim, Mrs. Mann had sought between 34 and 46 chiropractic treatments, 32 sessions of massage therapy, a rehabilitation strengthening and instruction on a home stretching program and 15 acupuncture treatments . It was held that Mr, and Mrs. Mann were not entitled to receive a benefit for the cost of mental health assessments. In considering the claim, Arbitrator Alves generally preferred the opinion offered by the medical and rehabilitation DAC assessors, based on the more detailed assessments of each modality of treatment, in contrast to the opinion offered by the applicant’s chiropractors at Centre City Health and by Dr. Paitich, an orthopaedic surgeon, who conducted a s.42 examination on behalf of Allstate (p.7).

With respect to the claim for massage treatments, the arbitrator noted that they did not provide her with pain relief or provide another benefit and was therefore not persuaded that it was reasonable for the clinic to continue the massage treatments. In awarding 5 acupuncture sessions at a rate of $40.00 per session,. Arbitrator Alves remarked that it was reasonable for Mrs. Mann to try a different type of treatment to see whether she could obtain relief. In considering the claim for chiropractic treatment, it was found that the number of treatments recommended by the clinic in a three month period, in conjunction with other treatments was excessive and therefore unreasonable. Accordingly, 18-30 treatments received at a rate of 3-5 treatments per week over 6 weeks was awarded instead of the 34-46 chiropractic treatments recommended by the chiropractors at Centre City Health.

Prior to the accident, Mr. Mann was 55 years old and self-employed fixing VCRs and television sets (p.11) In 1990 he had had a lumbar spine laminectomy/discotomy (p.11). He had suffered from low back pain periodically since that surgery. However, at the time of the car accident he was asymptomatic. The DAC found that the rehabilitation program and some of the passive treatment was reasonable and necessary, although the cost per session of the chiropractic and massage therapy was excessive and unreasonable (p.12). The arbitrator preferred the opinion offered by the medical and rehabilitation DAC assessors based on the more detailed assessments of each modality of treatment to the opinion offered by the applicant’s chiropractors at the Centre City Health. The arbitrator found that the reasonable cost per session of Mr. Mann’s chiropractic treatment was $40.00 per session of rehabilitation was $60.00; and per session of massage therapy was $42.00. Mr. Mann claimed 16 sessions of rehabilitation, strengthening and stretching program. This was found to be reasonable and was supported by the physiotherapist on the DAC assessment team. The cost was $960.00.

Mr. Mann claimed 32 massages in 2 treatment plans. He stated that he was 50% better overall at the time of the DAC assessment. The massage therapist at the DAC was of the opinion that 24 sessions of the massage therapy at a cost of $1,008.00 was reasonable and necessary treatment for Mr. Mann and that during the period in question, there was not enough improvement to warrant more of this particular intervention (p.13). The acupuncture trial was found to be reasonable and $200.00 was awarded with $40.00 paid for each session. With respect to the chiropractic treatments the arbitrator awarded 24 chiropractic treatments as opposed to the 34-46 chiropractic treatments recommended by Centre City Health. The reasonable cost was estimated to be $3,128.00 in total.

In denying the claims for a psychological assessment, the arbitrator found that the applicant dis not adduce evidence of the cost of the assessment and the claim failed for want of proof. In addition, the representative from Allstate testified that he was unable to obtain confirmation from the Ontario College of Psychologists that the author of the assessments was a registered psychologist (p.18). The arbitrator found it troubling that the manner in which Centre City Health arranged to have Mrs. Mann’s psychological impairments assessed prevented her from obtaining payment for an assessment and treatment, particularly where the physiotherapist at the DAC had indicated that such issues were interfering with her physical rehabilitation (p.19).

Mr. Mann claimed the cost of an in-home assessment in the amount of $1,147.00 under s.24. Allstate argued that it was not reasonable to conduct the assessment because it was done while the insurer was paying housekeeping benefits and while waiting for the report of an insurer’s examination (p.20). Mr. and Mrs. Mann were both assessed in their home and Allstate was billed $1,147.00 for each of the assessments (p.20). The insurer responded by paying one invoice, but refused to pay the other. The claim was denied with the arbitrator finding that in the absence of any evidence as to how the cost of the report was calculated the claim failed for want of proof (p.21).

Narain and ING Mangroo and ING, A03-001749; A03-001748, June 24, 2005 - Arbitrator Feldman awarded Mr. Narain weekly income replacement benefits in the amount of $197.25 a week until March 2, 2005, which was the last day of the hearing. Mr. Narain and Ms. Mangroo had been injured in a motor vehicle accident on April 10, 2003. The arbitrator remarked that it was crucial to understand that the nature of Mr. Narian’s pre-accident employment, which involved physical labour as a shipper receiver for CML. In deciding to award additional income replacement benefits, the arbitrator acknowledged that Mr. Narain may have exaggerated his symptoms and may have gotten some of his facts wrong from time to time (p.13). However, it was accepted that Mr. Narain had continued to have debilitating pain in his back and left knee that limited his ability to bend, kneel and lift objects weighing ten pounds or more repetitively and over an extended duration (p.13). Moreover, it was noted that in addition to his subjective complaint, there existed objective complaints of patellofemoral derangement of his left knee and a possible torn ligament in that knee (p.14). With respect to a treatment plan from the Accident Injury Rehabilitation Centre which proposed 12 sessions of rehabilitation (chiropractic treatment and physiotherapy ) 8 sessions of massage therapy and re-evaluation at the end of the treatment. The West Park DAC had found that the treatment plan dated June 4, 2003 was not reasonable and necessary. Mr. Narain testified that the therapy he received from April though October 2003 may have reduced his pain 30% for a duration of several hours for a maximum of 1 day (p.15). The arbitrator acknowledged that pain reduction or management may be a valid reason for undertaking therapy, but found that the proposed treatment was not reasonable and necessary (p.15). He observed that Mr. Narrian appeared to derive no long term benefit from the treatment that he had already received and he was able to obtain as much short term pain relief by taking some analgesics or by performing a few minutes of exercise. Accordingly, the claim was denied.

The claim for housekeeping was denied. Under cross examination, Mr. Narain admitted that he was physically able to cook again by late 2003 but stated “that he just didn’t feel like it” (p.18). A functional abilities evaluation determined that with pacing, Mr. Narrian was capable of performing all of these tasks without assistance (p.18). Accordingly, it was found that the applicant had failed to prove on a balance of probabilities that he sustained an impairment as a result of the accident that prevented him from preforming his usual housekeeping activities beyond early July 2003 (p.19). Therefore, the claims for additional amounts for housekeeping and home maintenance services was denied.

A claim for $750.00 for the cost of examination and report of Dr. Lawrence S. Chizen was awarded. Dr. Chan, an orthopaedic surgeon, testified that he found it reasonable for Mr. Narain to see Dr. Chizen in order to get a different perspective (that of a physiatrist) (p.19).

Prior to the accident Ms. Mangroo worked at a factory assembling foam mattresses and baby seats and putting pillow cases onto pillows (p.20). A functional abilities evaluation of Ms. Mangroo was conducted on June 26, 2003 (p.21). The results suggested inconsistent for submaximal effort on her part, for the most part the testing revealed a verifiable loss of range motion in her neck, lower back and shoulders (p.21). She was also examined by Dr. Lexier, an orthopaedic surgeon, who concluded that at the time of his examination of her she did not suffer a substantial inability to perform the essential tasks of her preaccident employment. The examination was conducted October 20, 2003. The arbitrator observed that when Ms. Mangroo was confronted on cross examination with prior inconsistent statements that she made to various medical professionals, she would state that she could not recall making those earlier statements (p.24). The doctors who supported Ms. Mangroo’s claims were found to have relied upon her complaints of pain. Accordingly, the arbitrator found that he could give little weight to the testimony of Ms. Mangroo or to the medical opinions of her doctors, who relied upon her veracity (p.26). Accordingly, it was found that she failed to prove, on a balance of probabilities, that she sustained an impairment as a result of the April 10, 2003 accident that, after November 27, 2003, rendered her substantially unable to perform the essential tasks of her pre-accident employment (p.26). A treatment plan dated June 6, 2003, from the Accident Injury Rehabilitation Centre proposed trial sessions of rehabilitation (chiropractic treatment and physiotherapy, 8 sessions of massage therapy and re-evaluation at the end of the treatment (p.26). The West Park Healthcare Centre DAC had found that the treatment plan was not reasonable and necessary as it was unlikely that Ms. Mangroo would derive any real benefit from the proposed treatment (p.26). The claim was denied with the arbitrator remarking that if Ms. Mangroo’s testimony was to be believed, she appeared to have derived no long term benefit from the treatment that she had already received (which included about 45 physiotherapy sessions and 24 massage therapy sessions) and she was able to obtain almost as much short term pain relief by taking some analgesics or by performing a few minutes of exercise (p.27).

Claims for additional housekeeping and home maintenance services was denied. The arbitrator found that Ms. Mangroo had failed to adduce credible evidence that she had incurred the housekeeping expenses claimed.