ACCIDENT BENEFITS NEWSLETTER - DECEMBER 2005

Catherine Zingg

Esterreicher and Non Marine Underwriters, Mbrs. of Lloyd’s, A04-001750, October 28, 2005 - A dispute arose as to Ms. Esterreicher’s entitlement to chiropractic treatment following a motor vehicle accident on December 23, 2000. The sum of $1,350.00 in incurred treatment expenses was to be the subject of an arbitration. Lloyd’s requested to call three expert witnesses, namely Dr. Hugh Cameron, orthopaedic surgeon, Dr. Tal Ora Gyenes, a physiatrist and Dr. Kim, a chiropractor. Arbitrator Renahan reviewed the decision of Judge Ferguson in Burgess v. Wu (2005) O.J. No.929 in which he noted that contested motions for leave to call more than three experts were rare, because the parties usually consent to calling more than three and the Courts consider this a significant factor in granting permission (p.3).

Ultimately, Arbitrator Renahan denied the motion for leave to call more than three experts. One of the issues that would be considered at the arbitration was whether a compressed vertebrae fracture, which was discovered some time after the accident was caused by the accident and whether chiropractic treatment was indicated for such an injury (p.7). Arbitrator Renahan felt that this issue could be addressed through expert reports and there was no need to call an expert to assist the arbitrator. He also stated that it was not clear why three experts were necessary to address the issues and how their testimony would help an arbitrator (p.7). With respect to the Burgess v. Wu (supra) decision, the arbitrator found that the public has an interest in maintaining a procedure which is less expensive and faster then Court system. Accordingly, the consent of the parties was not found to be a significant factor in determining whether the party should be allowed to call more then two expert witnesses. Finally, the arbitrator found that flying experts from Toronto to Thunder Bay for a dispute in which $1,350.00 was in dispute was totally out of proportion to the number of experts that the insurer wanted to call (p.8).

Warner and ING Insurance Company of Canada, A05-000781, October 14, 2005 - The applicant claimed $19,700.00 for a two year medical laboratory technologist course at CDI Institute. ING sought production of the applicant’s tax returns from 1997 to 2002, arguing that the hearing arbitrator should consider the potential income of a medical laboratory technologist to determine whether the claim for rehabilitation expenses is reasonable and necessary (p.3). ING cited Correal v. Jevco Insurance Company, A-001994, May 6, 1993. In that case the insured was denied payment for a course to become a commercial airline pilot when at the time of the accident he was a truck driver. Arbitrator Killoran distinguished the Correal decision because the applicant in that case had his income replacement benefits determined based on his pre-accident earnings.

Mr. Warner had received income replacement benefits on the basis of a written contract of employment between him and the High School Television Network Inc. Accordingly, he argued that his pre-accident earning history, as set out in tax returns or otherwise, had no application. The arbitrator reviewed s.15 of the Schedule which provides that the rehabilitation benefit “shall pay for reasonable and necessary measures undertaken by an insured person to reduce or eliminate the effect of any disability resulting from the impairment or to facilitate the insured person’s reintegration into his or her family, the rest of society and the labour market” (p.4).

In the circumstances, the arbitrator found that Mr. Warner’s income tax records were not relevant. As there was no retrospective consideration of his pre-accident earnings when his income replacement benefits were calculated, the insurer’s entitlement to disclosure was also restricted.

Garouspour and Pembridge Insurance Company, A03-000642, October 20, 2005 - Mrs. Garouspour sought $3,267.50 for treatment by Dr. Komeilinejad. She was awarded $598.00 for the first treatment plan of Dr. Komeilinejad and $75.00 for the second Treatment plan along with interest on the outstanding amounts at the rate of 2% per month. Her claims for housekeeping and the payment of a functional capacity evaluation were denied. At the time of the accident she had worked as a Senior Verification Officer at the Canadian Imperial Bank of Commerce and part-time as a salesperson at the Bay.

Arbitrator Sone questioned Mrs. Garouspour’s credibility. A letter dated December 25, 2001 was submitted which was allegedly from her representative to Pembridge stating that she was off work as of December 15, 2005. The arbitrator found that more likely than not that these letters were manufactured after the fact to bolster Mrs. Garouspour’s case at the hearing, and were never sent to Pembridge (p.7). With respect to Dr Komeilinejad’s Treatment plans Mrs. Garouspour testified that the treatment eased her pain so that she could work and she stopped treatment because Pembridge was no longer paying for it. The arbitrator noted that there was no evidence of the date that this occurred. A Med Rehab DAC concluded that the February 18, 2002 Treatment plan was only partially reasonable and necessary. The April 1, 2002 Treatment plan was found to be neither reasonable nor necessary. The arbitrator denied the claim for the cost of the functional capacity evaluation, finding that the recommendations had limited if any value. No reference was made to Dr. Komeilinejad in the report. The arbitrator also found 20 pages of the report to be of no value since it dealt with Mrs. Garouspour’s functional abilities compared to corresponding job levels when she had returned to both her full-time and part-time work approximately five months before the examination was conducted. Dr. Komeilinejad did not testify with respect to the third and fourth Treatment plans. The arbitrator preferred the evidence of the Med Rehab DAC which he found thoughtfully considered Mrs. Garouspour’s condition and found a weaning off of treatment was appropriate.

The arbitrator found that the applicant had failed to prove, on a balance of probabilities, with any specificity, that she needed or received any help from a housekeeper or family members other then what the insurer has already paid for (p.16). The arbitrator found that the applicant may have had more success if she had called her housekeeper or family members to testify.

Pereira and Kingsway General Insurance Company, A04-000161, October 14,2005 - On September 11, 2001 Mr. Pereira was ejected from his vehicle after it was struck from behind on Highway 400 and rolled over. At the time of the accident he was working in the construction industry as a general labourer. Kingsway terminated income replacement benefits on the basis of reports from a psychiatrist and psychologist which found that Mr. Pereira was not substantially disabled (p.6). Mr. Pereira claimed additional income replacement benefits from April 5, 2003 to May 4, 2004. Arbitrator Rogers did not find Mr. Pereira to be a credible witness. However, it was found that the only reasonable explanation as to why Mr. Pereira gave up a good living in exchange for weekly benefits of about one half his salary and then went without income for one year before returning to his job in construction, was that the depression and anxiety he suffered as a result of the motor vehicle accident prevented him from returning to work (p.10). Following the accident Mr. Pereira had stopped working, gone into debt, moved out of the family home and ended his marital relationship.

A functional capacity evaluation was conducted by Finch Weston Assessment Centre and an invoice for $1,070.00 was sent to Kingsway. Approval from the insurer had not been sought prior to the examination in accordance with s.38.2 of the Schedule and the claim was denied.

Coletti and Guarantee Company of North America, A04-002087, October 18, 2006 - Following a motor vehicle accident on October 26, 2003, Mr. Coletti received the Application for Accident Benefit forms on October 31, 2003. However, he did not submit them to Guarantee until February 2004. Guarantee had requested that the applicant attend an orthopaedic examination on February 5, 2004 for the purpose of determining his entitlement to housekeeping benefits. Arbitrator Rogers found that Mr. Coletti was not required to attend the examination as he had not made an application for housekeeping benefits at the time that Guarantee gave his notice to attend. Mr. Coletti’s failure to submit an application within 30 days of the accident was an issue that was left for the hearing arbitrator to consider.