ACCIDENT BENEFITS NEWSLETTER - SEPTEMBER 2005

Catherine Zingg

Msuya and Belair Insurance Company Inc., A04-000115, July 14, 2005 - The Applicant was injured in a pedestrian knock-down accident on October 7, 1999 when she was 14 years old. Arbitrator Muzzi held that Ms. Msuya was not entitled to receive a medical benefit for chiropractic and massage therapy. The appplicant was entitled to continued benefits for supervised weight training because such expenses were reasonable and necessary. She was also awarded $857.00 for the cost of Dr. Reesor’s assessment.

In considering the claim for chiropractic and massage treatment, the Arbitrator acknowledged that pain relief in and of itself can be a legitimate medical and rehabilitative goal following the reasoning in Violi and General Accident Assurance Company of Canada, A98-000670, August 20, 1999. It was noted, however, that in recent cases, while confirming that pain relief, even if only temporary, is a legitimate goal of therapy, Arbitrators have found that other factors such as frequency, duration and cost of treatment, efficacy of treatment and availability of other effective treatments, can outweigh the pain relief factor (p. 4).

Arbitrator Muzzi noted that none of the doctors, including the Applicant’ former treating chiropractor believed that chiropractic care was a good long term treatment option (p. 5). None of the doctors recommended that Ms. Msuya increase her use of chiropractic or massage treatment. In addition, the DAC assessors did not recommend long term chiropractic and massage treatment. The Arbitrator also found it significant that Ms. Msuya’s limitations were not evident to her employer, even though she claimed that she refused to do certain tasks at work (p. 7). The weight training was found to be reasonable in the circumstances and necessary to promote Ms. Msuya’s recovery (p.8). A psychological assessment by Dr. Reesor was found to be reasonable and necessary. The evidence showed that virtually all of the medical practitioners and assessors involved had at one time or another proposed some kind of psychological or behavioural intervention and treatment for Ms. Msuya (p. 9).

Paunova and Allstate Insurance Company of Canada, A02-001087, August 10, 2005 - On June 15, 2000, Ms. Paunova suffered injuries in a pedestrian knock-down accident. It was Allstate’s position that Ms. Paunova was an “actress” who had pulled the wool over the eyes of many of the persons who had assessed her over the years and she was not as disabled as she claimed. Arbitrator Muir held that Ms. Paunova was entitled to an income replacement benefit of $125.00 from February 6, 2000 to June 15, 2002 and $185.00 from June 15, 2002 to date and ongoing. In addition, Ms. Paunova was awarded a medical benefit for treatments provided by the ACT Health Group, as set out in a treatment plan dated May 20, 2001, pursuant to s. 14. The claims for treatment plans dated November 30, 2001 and February 19, 2002 were denied.

Prior to the accident, Ms. Paunova has started to work as a kitchen helper at Jimmy the Greek in the summer of 1999. She was also a housekeeper for her son and daughter-in-law whom she lived with after emigrating from Bulgaria. Her work was classified as moderate - heavy labour (p. 5). In addition, she worked at her son’s Pizza Pizza restaurant on Fridays. Her injuries included bruised knees, extensive abrasions, displaced fractures of the right second rib, fractures of the third and fifth rib, possible haemangioma to the liver, pain in her pelvic region, stress injury to the right sterno clavicular joint, lacerations to the tip of her tongue, her occipital scalp and haemotoma on the right frontal scalp. She struck her head, but the Glasgow Coma Scale was inconclusive because of the possibility that her language limitations may have been a factor in the initial assessment at the scene (p. 7)

. In January 2001 Ms. Paunova was complaining of neck and lower back pain, insomnia and depressed mood (p. 8). Allstate relied on the opinion of Dr. Wyndowe who acknowledged that Ms. Paunova suffered from a number of emotional and behavioural impairments as a result of the accident, but disagreed that the impairments were sufficient to prevent her from working (p. 12). The Arbitrator awarded benefits up to the two year mark, noting that the evidence of every assessor, except for Dr. Wyndowe and Dr. Yufe, was that Ms. Paunova continued to be unable to perform the essential tasks of her pre-accident employment at Jimmy the Greek (p. 25). With respect to entitlement after the 104 week post-accident mark, the Arbitrator accepted that Ms. Paunova’s presentation was a valid one. It was found that she suffered from chronic pain syndrome, and emotional and behavioural problems as evidenced by her extreme emotional lability, paranoia and inappropriate interactions (p. 26). In assessing the weight to be given to Dr. Wyndowe’s views with respect to Ms. Paunova’s credibility, the Arbitrator took into account his “bias towards skepticism” when conducting an examination for an insurer (p. 24). The Arbitrator found that the various difficulties that Ms. Paunova was experiencing prevented her from engaging in any competitive employment for which she was reasonably suited by reason of her education, training, and experience (p. 26).

Repayment of Benefits

Mr. Paunova’s employer testified that he made an error in recording her bi-weekly income on a form which requires a weekly amount (p. 28). In a letter December 6, 2001 Allstate stated that it had some concerns that an error had been made. The Arbitrator did not make a repayment order, finding that the letter was not notice as contemplated by s. 47 (2). In addition, the letter did not give notice of the amount that was required to be repaid as required by s. 47 (2)(a).

Medical Expenses

The Arbitrator found Ms. Paunova’s evidence to be unhelpful with respect to the treatment she received. Consistent with her tendency to exaggerate and catastrophise, Ms. Paunova, at various times, indicated that the treatment was helping her, and at other times suggested that it was not (p. 31). With respect to the later treatment plans Ms. Paunova submitted that they were not denied by Allstate and not referred to a DAC and therefore must be deemed to be accepted (p. 33). The Arbitrator remarked that an insurer who unreasonably delayed a benefit by failing to promptly respond to a claim or refer to a DAC as required may be liable to a special award pursuant to s. 282 (10) of the Insurance Act for such failures. However, it was found that Ms. Paunova had failed to establish entitlement to the benefit of the two latter treatment plans (p. 34).

Thangarasa and Gore Mutual Insurance Company, A02-001360, August 9, 2005 - The Applicant suffered injuries in a motor vehicle accident on March 31, 1998. He had immigrated to Canada in 1995 from Sri Lanka. Prior to the accident he had worked as a general labourer and had started a part-time business renting out videos. In an interim decision the Arbitrator had found that Mr. Thangarasa was not competitively employable and that his brother gave him work at the family video business as an act of compassion. At the resumption of the hearing the parties agreed that the amount of income replacement benefits outstanding as of April 1, 2005 was $64,177.00 and that interest was to be paid in the amount of $48,096.00.

At the special award hearing, the insurer argued that the amount of a special award should be minimal, as it was entitled to rely upon the opinions of experts, including members of the DAC teams, that Mr. Thangarasa was not entitled to benefits. Furthermore, it stated that it had no reason to suspect that Mr. Thangarasa’s employment in the video store following the accident amounted to a sheltered workshop and could not be considered as competitive employment (p. 5).

Arbitrator Wilson observed that a significant portion of the “clientele” claiming accident benefits is drawn from the less privileged portions of society (p. 8). He found that Mr. Thangarasa’s fragile economic roots and his position as a recent immigrant inevitably made him more vulnerable to arbitrary actions by his insurer (p. 8). It was found that Gore and its employees inexplicably ignored consistent, credible evidence that would support Mr. Thangarasa’s ongoing disability in favour of lesser evidence that would support termination of benefits (p. 12). The Arbitrator also found that a DAC report, however official, is just that - a report (p. 15). The conclusions of a DAC are not an interim order that would shield parties from all and any claims of interest, or claims for special awards (p. 15).

The Arbitrator found that there were patent flaws in the DAC that should have stimulated some inquiry by Gore. In finding that the special award should be in the upper end of the spectrum and ordering the sum of $39,295 to be paid, the Arbitrator stated:

Given my finding that the glossing over of difficulties in this file and the continuation of the relentless progress towards termination in the face of “red flags” in the form of information that contraindicated termination, constituted willful blindness, then Gore’s conduct should rightly be seen to merit the upper end of the scale of a special award as envisaged in Erikson and the Guarantee Company of North America, A-000560, June 2, 1992 (p. 16).

Kanareitsev and TTC Insurance Company Limited, A02-001225, July 7th, 2005 - On July 12, 2001 the Applicant was hit by a streetcar while riding his bicycle. The TTC submitted that his impairments were the result of an underlying condition, namely the natural progression of his polyneuropathy and subsequent falls rather than the accident (p. 5). He had been injured in an earlier bicycle accident in 1994, but his injuries from that accident resolved by 1997.

Arbitrator Killoran accepted the evidence of the Applicant and his witnesses that prior to the accident he was a very healthy, fit 69 year old man who rode his bicycle frequently and participated in a full, satisfying social life while living independently (p. 23). The Arbitrator accepted that Mr. Kanareitsev suffered serious injuries which deteriorated and worsened over time so that he relied on a walker and wheelchair for mobility (p. 24). It was found that the injuries materially contributed to the immediate disability and subsequent onset of chronic pain and deterioration of his polyneuropathy. It was found that he suffered a complete inability to carry on a normal life and therefore was entitled to the payment of non-earner benefits from January 21, 2002 and ongoing.

The sum of $4,500 was awarded for physiotherapy, which was found to be reasonable and necessary. The treatment brought pain relief to Mr. Kanareitsev and his care providers, including Dr. Marciniak, noted that the treatment improved his mobility, strength and balance at the time (p.30). The sum of $495 was awarded for accupuncture which was found to improve his mobility and decrease the pain in his right arm.

The sum of $5,580 was awarded for psychological treatment. On Oct. 29, /01 Dr. L. Reznek, a psychiatrist, conducted an insurer’s examination and found no evidence of depression, adjustment, post-traumatic stress or pain disorders(p.33). The arbitrator preferred the evidence of Dr. Thornton, whose practice had focussed on patients with chronic pain and victims of motor vehicle accidents since 1982. He did not support Dr. Reznek’s conclusions and testified that Mr. Kanareitsev looked thin and sad with fatigue and poor concentration. Dr. Thornton diagnosed a major depressive disorder, chronic pain syndrome with post-traumatic stress disorder and a driving phobia. He supported the necessity of psychological treatment into the forseeable future (p.38)

Attendant care in the amount of $2,215.93 and housekeeping at the rate of $100 a week from Nov. 9, /01 to July 12, /03 was ordered to be paid.. Mr. Kanareitsev had been assisted by various family members and friends following the accident. It was further ordered that all of the s.24 reports that Mr. Kanareitsev claimed were to be paid. In total the amount claimed for reports exceeded $15,000.00 The arbitrator noted that the reports advised the TTC of the detrimental effect that an insurer’s in-home assessment had on Mr. Kanareitsev. It was found to have caused a severe psychological setback, made him fearful and increased his pain. It was conducted from 10a.m. until 3:45p.m. without a break because Mr. Kanareitsev did not specifically request one.

Arbitrator Killoran ordered $10,000.00 to be paid as a special award, stating:

In the case before me, I have to consider not only the blameworthiness of the TTC’c conduct, that is, its refusal to consider the preponderance of the medical evidence and act accordingly. Mr. Kanareitsev was an extremely vulnerable, older person, not proficient in English, and living alone. The harm done to him by the TTC’s refusal to pay benefits was extremely grave. He became isolated in his apartment, unable to participate in life due to the lack of attendant care and non-earner benefits and limited medical benefits paid. There is a need for deterrence so that greater care is extended to considering the issue of entitlement to benefits for other vulnerable persons (p51).

Mitigating evidence was that there were some medical evidence, most notably the DAC medical and rehabilitation and attendant care needs assessment reports, which supported the TTC;s position. The amount of interest owing since 2001 was also taken into account.