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Evidence inconsistent and did not support insured's claim for non-earner benefit or attendant care

October 11, 2014, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Heard Before: Adjudicator J. R. Richards

Date of Decision: July 29, 2014

 

Issues:

 

Viktoriya Goncharik was hurt in a car accident on April 20, 2010.  She applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company. State Farm subsequently terminated those benefits and Ms. Goncharik applied for arbitration at the Financial Services Commission of Ontario.

 

The issues in this hearing are:

 

  1. Is Ms. Goncharik entitled to caregiver benefits at the rate of $250.00 per week from July 23, 2011 to April 19, 2012?

     

  2. Is Ms. Goncharik entitled to attendant care benefits at the rate of $469.39 per month from May 30, 2011 to April 19, 2012?

     

  3. Is Ms. Goncharik entitled to services at Human Health Clinic set out as follows:

    1. $1,360.68 for a treatment plan dated November 16, 2011;

    2. $330.54 for a treatment plan dated November 16, 2011;

    3. $573.60 for a treatment plan dated November 16, 2011;

    4. $1,032.03 for a treatment plan dated December 21, 2011?

 

  1. Is Ms. Goncharik entitled to services at Downsview Assessment set out as follows?

    1. $1,274.75 for a treatment plan dated May 6, 2011;

    2. $1,651.72 for a treatment plan dated January 20, 2011;

    3. $898.00 for a treatment plan dated May 6, 2011?

 

  1. Is Ms. Goncharik entitled to housekeeping and home maintenance expenses at the rate of $100.00 per week from July 23, 2011 to April 19, 2012

 

  1. Is State Farm liable to pay a special award because it unreasonably withheld or delayed payments to Ms. Goncharik?

 

  1. Is Ms. Goncharik entitled to interest for the overdue payment of benefits pursuant to subsection 46(2) of the Schedule?

 

  1. Is. Ms. Goncharik liable to pay State Farm’s expenses in respect of this arbitration under subsection 282(11) of the Insurance Act?

 

  1. Is State Farm liable to pay Ms. Goncharik’s expenses in respect of this arbitration under subsection 282(11) of the Insurance Act?

 

Result:

  1. Ms. Goncharik is not entitled to caregiver benefits at the rate of $250.00 per week from July 23, 2011 to April 19, 2012?

 

  1. Ms. Goncharik is not entitled to attendant care benefits at the rate of $469.39 per month from May 30, 2011 to April 19, 2012?
     

  2. Ms. Goncharik is entitled to services at Human Health Clinic set out as follows:

    1. Ms. Goncharik is entitled to $1,360.68 for a treatment plan dated November 16, 2011;

    2. Ms. Goncharik is entitled to $330.54 for a treatment plan dated November 16, 2011;

    3. Ms. Goncharik is not entitled to $573.60 for a treatment plan dated November 16, 2011;

    4. Ms. Goncharik is not entitled to $1,032.03 for a treatment plan dated December 21, 2011?

 

  1. Ms. Goncharik is not entitled to services at Downsview Assessment set out as follows:

    1. $1,274.75 for a treatment plan dated May 6, 2011;

    2. $1,651.72 for a treatment plan dated January 20, 2011;

    3. $898.00 for a treatment plan dated May 6, 2011?

       

  2. Ms. Goncharik is not entitled to housekeeping and home maintenance expenses at the rate of $100.00 per week from July 23, 2011 to April 19, 2012.

 

  1. Ms. Goncharik is not entitled to a Special Award.

 

  1. Ms. Goncharik is entitled to interest for the overdue payment of benefits pursuant to subsection 46(2) of the Schedule.

 

EVIDENCE AND ANALYSIS:

 

Caregiver Benefits

 

Economical is liable to pay Ms. Goncharik a caregiver benefit where she sustains an impairment, as a result of an accident, and suffers a substantial inability to engage in the caregiving activities in which she engaged at the time of the accident. Ms. Goncharik is required to have been living, at the time of the accident, with a person in need of care. She is also required to have been the primary caregiver for the person in need of care and did not receive any remuneration for engaging in caregiving activities prior to the motor vehicle accident.

 

Ms. Goncharik’s daughter was 14 years old at the time of the motor vehicle accident and Economical paid Ms. Goncharik a caregiver benefit from the date of the accident until July 22, 2011.

 

Analysis

 

The Arbitrator found that Ms. Goncharik was not substantially disabled from performing her caregiver duties at the time State Farm terminated the benefit. The Arbitrator found that Ms. Goncharik’s evidence on the caregiving she provided to her daughter to be inconsistent.

 

When assessed after the accident, Ms. Goncharik told assessors that she primarily drove her daughter to activities and supervised her. In giving evidence at this hearing Ms. Goncharik stated that her daughter has flat feet and scoliosis and has to do special exercises and eat a special diet. Ms. Goncharik stated that she massages her daughter to address her daughter’s physical needs.

 

Ms. Goncharik did not present any medical evidence at this hearing that substantiated her claims concerning her daughter’s condition or her daughter’s special needs. Ms. Goncharik did not report to any assessors that her daughter needed special care on a daily basis. When questioned in cross-examination about not revealing her daughter’s needs to assessors, Ms. Goncharik responded that she would have disclosed the needs had she been asked. Ms. Goncharik, in testimony, also claimed that service provider AK provided exercise, massage, diet, homework, fitness, and swimming assistance to her daughter after the accident. Service provider KT also testified at this hearing about Ms. Goncharik having to massage her daughter.

 

The Arbitrator found that Ms. Goncharik’s claims about her daughter’s needs are not supported by the evidence. The Arbitrator found it unlikely that Ms. Goncharik would not have mentioned her daughter’s special needs to medical assessors after the motor vehicle accident. The Arbitrator found Ms. Goncharik to be evasive in her testimony when asked about her caregiving activities and her daughter’s needs. Consequently, the Arbitrator found that Ms. Goncharik’s primary caregiver activities, prior to the motor vehicle accident, consisted of what she reported to her assessors, which is driving her daughter to activities and supervising her.

 

Both State Farm and Ms. Goncharik arranged for a number of medical professionals to perform assessments concerning Ms. Goncharik’s functioning.  The Arbitrator found Dr. T’s and Dr. D’s evidence persuasive in this case.

 

Dr.  T completed a report, dated March 23, 2011. Ms. Goncharik reported that prior to the motor vehicle accident she did most of the shopping, and most of her meal preparation, with her daughter helping. She claimed that post-accident, a friend helped her and she had to hire someone to clean. She noted her childcare responsibilities included driving her daughter around town.

 

On testing, Dr. T diagnosed Ms. Goncharik with WAD II cervical spine strain, lumbar spine strain and right hip pre-existing osteoarthritis. He found that from an orthopaedic point of view, Ms. Goncharik could return to her pre-accident duties.

 

Dr. R. Day’s report is dated June 30, 2011. Dr. D found that Ms. Goncharik’s responses suggested chronic fatigue, sadness, listlessness and sleep disturbance associated with pain. Ms. Goncharik rated above average for depression. He found Ms. Goncharik to be troubled by physical pain and health related issues that were having a negative effect on her life. Dr. D did not find that Ms. Goncharik met the criteria for major depressive episode or pain disorder. However, he found her at risk for developing a pain disorder.

 

Dr. D found that Ms. Goncharik met the criteria for adjustment disorder with mixed anxiety and depressed mood. The accident was deemed to have a major relationship to her psychological symptoms. Dr. D concluded that Ms. Goncharik’s impairments would be temporary and her symptoms were mild in severity and that she did not suffer a substantial disability in any major area of functioning. She continued to be regularly involved in positive social interactions and was attending school. Dr. D’s opinion was that Ms. Goncharik did not suffer from a psychological condition that would prevent her from engaging in her usual caregiving activities. Ms. Goncharik’s daughter was 14 years old at the time of the motor vehicle accident and was capable of self-care, preparing meals and cleaning. Ms. Goncharik’s daughter also independently used TTC to travel to and from school. In addition, Ms. Goncharik was able to drive her daughter to and from nearby extracurricular and recreational activities.

 

In addition to Drs. T and D, State Farm arranged for occupational therapist JG to assess Ms. Goncharik. Her report is dated April 12, 2011. On examination, JG found that Ms. Goncharik had full range of motion in her neck, but experienced pain. Ms. Goncharik also had full range of motion in her shoulders and trunk. She had full flexion in her elbows, arms, wrists and hands. JG appeared to question the results of Ms. Goncharik’s grip strength test. JG reported that the average combined grip strength for Ms. Goncharik’s gender and age is 61-65 kg. Ms. Goncharik demonstrated an average combined grip strength of 12 kg.

 

Ms. Goncharik reported to JG that after the motor vehicle accident she had not completed laundry, meal preparation or general cleaning for her daughter because of pain and discomfort. However, formal and informal observations during testing demonstrated that she had the physical ability to complete caregiving for her daughter. Ms. Goncharik demonstrated the ability to complete general cleaning activities, meal preparation and laundry and transportation activities for her daughter. She demonstrated sufficient strength, range of motion, postural tolerances as well as fine motor coordination to complete her caregiving tasks independently. JG concluded that no caregiving assistance was required.

 

Drs. T and Day and JG reach different conclusions than Drs. AO and Sl (who completed assessments on behalf of Ms. Goncharik).

 

Dr. AO supervised an In-Home Reassessment for Downsview Assessment Centre, completed December 6, 2010. Dr. AO found that Ms. Goncharik had moderate to extreme difficulty and was unable to perform many physical tasks associated with housekeeping and childcare duties. He found that she could engage in some tasks, but required support with more difficult tasks that required more strength and were repetitive. The assessor concluded that because of these symptoms and injuries, the duties that Ms. Goncharik used to do on a regular basis had been disrupted. He recommended 24.50 hours of childcare services per week for Ms. Goncharik.

 

Chiropractor SI completed a Disability Certificate on Ms. Goncharik’s behalf, dated January 20, 2011. He diagnosed whiplash, dislocation, sprain, strain of Ms. Goncharik’s ligaments and of her lumbar spine and pelvis. In addition, he diagnosed dizziness, giddiness, headache, and non-organic sleep disorders. He found that Ms. Goncharik suffered a substantial inability to engage in housekeeping. Interestingly, he found that she did not suffer a substantial inability to engage in caregiving.

 

The Arbitrator found Dr. T and Dr. AO’s diagnoses to be consistent in that both practitioners found that Ms. Goncharik suffered from impairments. However given Ms. Goncharik’s report of her caregiving duties prior to the motor vehicle accident, Dr. AO’s recommendations appear excessive. The Arbitrator accepted that Ms. Goncharik suffered from impairments, but found that those impairments did not prevent her from engaging in the caregiving duties that she told assessors she engaged in prior to the motor vehicle accident.

 

The Arbitrator also found Dr. D’s diagnosis convincing in that he found the accident had a major relationship to Ms. Goncharik’s current psychological symptoms. As happens often after motor vehicle accidents, Ms. Goncharik’s psychological symptoms impacted on her experience of pain. The Arbitrator agreed with Dr. D’s conclusion that Ms. Goncharik did not suffer from a psychological condition that would prevent her from engaging in her usual caregiving activities. Given Ms. Goncharik’s daughter’s age at the time of the motor vehicle accident and Ms. Goncharik’s report of her caregiver duties the Arbitrator found that Ms. Goncharik’s daughter was capable of self-care and a fair amount of independence.

 

The Arbitrator also found JG’s evidence persuasive. JG noted that both formal and informal observations during testing demonstrated that Ms. Goncharik had the physical ability to complete caregiving for her daughter. JG’s interaction with Ms. Goncharik suggests that Ms. Goncharik magnified her impairments to justify her benefit claims. The Arbitrator found that, in giving evidence at this hearing, Ms. Goncharik engaged in behaviour mirroring what JG observed during testing.

 

After State Farm terminated the caregiver benefit, Ms. Goncharik attended a number of assessments not arranged by State Farm.  Dr. MC completed an assessment and report on Ms. Goncharik, dated August 9, 2011. He advised Ms. Goncharik’s family doctor to refer her to a psychiatrist for management of her pain and functional weakness.

 

Dr. SB completed a chronic pain assessment and report on Ms. Goncharik, dated November 9, 2012.[9] Dr. SB found that Ms. Goncharik had a chronic pain disorder, as she had multiple areas of persistent pain two and a half years after the motor vehicle accident. He stated that the primary cause of the majority of Ms. Goncharik’s problems and diagnosis was related to trauma sustained in the motor vehicle accident. In his opinion, she was generally well or significantly better prior to the motor vehicle accident and the onset of problems was related to the accident. Her lumbar back problems after the accident became significantly worse and more debilitating. Her headaches were also worse. In his opinion, she had reached maximum medical recovery and he would not expect further recovery with the passage of time. He believed that her problems would persist into the long term and that she suffered a substantial inability to carry on her pre-accident activities.

 

It appears that there are a number of medical issues concerning Ms. Goncharik that require further investigation. Dr. MC advised Ms. Goncharik’s family doctor to refer her to a psychiatrist for management of her pain and functional weakness. However, it does not appear that this referral ever took place. An MRI report on file suggests further testing. This also appears never to have been completed.

 

Dr. SB’s diagnosis of chronic pain took place after the claim period for the caregiver benefit. It is possible that Ms. Goncharik’s issues require further investigation. However, the Arbitrator is not persuaded by the evidence that any of Ms. Goncharik’s impairments prevented her from engaging in the caregiving duties in which she engaged prior to the motor vehicle accident.

 

Ms. Goncharik also claimed at this hearing that she developed carpal tunnel syndrome that is related to the motor vehicle accident. Carpal tunnel syndrome was referenced in a number of reports put into evidence at this hearing. However, none of the reports claim or conclude that the carpal tunnel syndrome is related to the motor vehicle accident and the Arbitrator was not prepared to find that the carpal tunnel syndrome is related to the motor vehicle accident.

 

Attendant Care Benefits

The Schedule states that an insurer shall pay an insured person who sustains an impairment as a result of an accident an attendant care benefit. The benefit shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person for the services of an aide or attendant. The monthly amount of the benefit shall be determined in accordance with a Form 1.

 

Ms. Goncharik claims attendant care benefits at the rate of $469.39 per month from May 30, 2011 to April 19, 2012.  The Arbitrator found that Ms. Goncharik is not entitled to an attendant care benefit for the period claimed.

 

Ms. Goncharik gave little evidence at this hearing concerning her claim for attendant care benefits. In fact, she did not put into evidence a Form 1 or a report specifically addressing her attendant care claims and her activities of daily living. She claimed that after the motor vehicle accident, AK was responsible for bathing and shaving her, and cutting and washing her hair. Ms. Kovalenko did not testify at the hearing.

 

Ms. JG’s report references an in-home assessment report and Form 1 by chiropractor Dr. SH, from the Human Health Centre, dated May 3, 2010. Ostensibly the report addresses feeding and hygiene, dressing and undressing, and recommends an attendant care benefit of $469.39 per month. The report and Form 1 were not put into evidence.

 

State Farm terminated Ms. Goncharik’s attendant care benefits with JG’s report and Form 1, effective May 30, 2011. On assessment, JG found that Ms. Goncharik had full range of motion in her neck, with pain. She also had full range of motion in her shoulders. She had full range in her arms, elbows, hands, wrists and trunk, and her hips and legs.

 

JG reported that Ms. Goncharik was able to dress and undress independently. She could groom herself independently and her hands required no assistance. Ms. Goncharik’s shaving, cosmetics, hair brushing and combing, shampooing, fingernail and toenail care, feeding and mobility could all be done independently.  JG recommended that no attendant care assistance was necessary.

 

Dr. SE completed an orthopaedic report on behalf of Ms. Goncharik. It is dated May 9, 2011. It states that Ms. Goncharik had injuries to her lumbar and cervical spine as well as a zygapophyseal joint injury to her cervical and lumbar spine. Dr. SE also diagnosed chronic pain disorder, possible thoracic outlet syndrome to her right arm, and possible carpal tunnel syndrome in her right hand. Dr. SE gave opinions on Ms. Goncharik’s ability to do housekeeping, but does not address attendant care.

 

Dr. SB’s chronic pain assessment states that Ms. Goncharik demonstrated fairly good ranges of movement even in significantly symptomatic areas. He diagnosed a number of impairments, including what he termed a loss of function with regards to the activities of daily living. However, he only addressed housekeeping. He did not reference attendant care or administer the tests necessary to determine if attendant care was required.

 

AB’s very detailed functional capacity evaluation, dated August 10, 2012, also assesses Ms. Goncharik’s physical abilities. This report as well, however, does not examine Ms. Goncharik’s need for attendant care services.

 

Analysis

 

The Arbitrator found that Ms. Goncharik has not met the burden of proof to demonstrate that she required attendant care services for the period claimed. She has not presented documentary evidence to support her claims for attendant care. Nor has she called witnesses at this hearing who would be able to address what her attendant care needs might have been for the period claimed. Drs. SE and SB and AB do not reference any attendant care tests, nor do they state what personal care Ms. Goncharik would require to complete her activities of daily living.

 

The strongest evidence presented concerning attendant care is JG’s report, which goes into detail about Ms. Goncharik’s activities of daily living. JG’s report states that Ms. Goncharik was independent in self-care and recommends that no attendant care benefit is necessary. Consequently, the Arbitrator found that Ms. Goncharik is not entitled to an attendant care benefit for the period claimed.

 

Housekeeping

 

Ms. Goncharik claims housekeeping and home maintenance expenses at the rate of $100.00 per week from July 23, 2011 to April 19, 2012.  Ms. Goncharik must satisfy three elements in order to prove entitlement to housekeeping and home maintenance benefits. She must have performed housekeeping and home maintenance services before the accident. She must suffer a substantial inability to perform those housekeeping and home maintenance services, as a result of an accident-related impairment. She must also have incurred additional expenses for someone else to perform those services.

 

The Arbitrator found that Ms. Goncharik does not suffer a substantial inability to perform her housekeeping and home maintenance services.  KT testified on Ms. Goncharik’s behalf. He stated that he began assisting Ms. Goncharik one week after the motor vehicle accident, primarily through driving, grocery shopping, cooking and cleaning. He states that he lost some time from work and expected to be paid for his services.

 

The assessor at Downsview Assessment Centre, upon completing an in-home assessment, found that Ms. Goncharik experienced neck, right hip, upper back, and low back pain, as well as dizziness and headaches. The conclusion was that because of these symptoms and injuries, the duties that Ms. Goncharik used to do on a regular basis had been disrupted. Due to her diminished functional capacity, the assessor recommended 15.5 hours per week of housekeeping assistance.

 

In January 2011, chiropractor SI recommended a further 5-8 weeks of housekeeping assistance.  Dr. JT, in his March 7, 2011 report, was of the opinion that from an orthopaedic point of view, Ms. Goncharik could return to her pre-accident duties.

 

JG, in her March 29, 2011 report, stated that Ms. Goncharik engaged in meal preparation, vacuuming, sweeping, mopping, dusting, bed making, and bathroom cleaning. She declined to perform laundry activities as she claimed it caused her pain. However, Ms. Goncharik demonstrated sufficient strength, range of motion, postural tolerances as well as fine motor coordination to complete her housekeeping and home maintenance tasks independently with pacing and load splitting techniques. JG concluded that no housekeeping assistance was required.

 

In addition, Dr. RD stated that Ms. Goncharik did not currently suffer a substantial disability in any major area of functioning. She continued to be regularly involved in positive social interactions and was attending school.

 

Following State Farm’s termination of Ms. Goncharik’s housekeeping benefits, AB completed his functional capacity evaluation. He determined that Ms. Goncharik’s functional performance was consistent with the presence of physical impairments that led to functional limitations. His opinion was that her physical impairments, primarily of the neck, shoulder and upper extremity regions, negatively affect her work tolerance. Ms. Goncharik’s poor positional and work tolerances indicate that she would have difficulty performing prolonged and/or sustained work even if the work involved components of negligible weight. Her current functional capacities were consistent with meeting the physical demands of sedentary work with difficulty. He concluded that her capacities were not consistent with meeting the physical demands of medium work and so were not consistent with meeting the physical demands of her housekeeping tasks.

 

Dr. SB, in his chronic pain assessment, concluded that Ms. Goncharik demonstrated fairly good ranges of movement even in significantly symptomatic areas. He diagnosed her with a number of impairments, including chronic pain disorder. He was of the opinion that her problems will persist into the long term and that she needs assistance with heavier housekeeping duties.

 

The Arbitrator found that Ms. Goncharik was responsible for the housekeeping duties in her home prior to the motor vehicle accident. However, he found that Ms. Goncharik does not suffer a substantial inability to engage in her housekeeping and home maintenance tasks because of the motor vehicle accident. As with her attendant care claim, only Ms. Goncharik and KT gave evidence about her housekeeping duties. Neither witness gave an account that persuaded the Arbitrator that Ms. Goncharik suffered a substantial inability to do her housekeeping. Ms. Goncharik spoke about not being able to use her right hand as she did prior to the motor vehicle accident. KT did not mention any issues with Ms. Goncharik’s right hand. The Arbitrator accepted that Ms. Goncharik has issues with her right hand. However, he was not convinced that those issues led to a substantial inability for her to do her housekeeping.

 

The Arbitrator preferred the evidence of Drs. RD and T and occuapational therapist JG. They all concluded that despite some impairments, Ms. Goncharik could complete her housekeeping tasks. In particular, the Arbitrator noted that the majority of assessors concluded that Ms. Goncharik’s range of motion was within normal range. In fact, in January 2011, Dr. SI suggested only a further 5-8 weeks of housekeeping assistance. State Farm terminated the benefits in May 2011.

 

AB’s and Dr. SB’s evidence suggests that Ms. Goncharik has impairments that require further investigation. However, in considering the totality of the oral and documentary evidence in this case, the Arbitrator found that Ms. Goncharik does not suffer a substantial inability to do her housekeeping and home maintenance tasks.

 

Medical Benefits

 

An insurer shall pay an insured person who sustains an impairment as a result of an accident a medical benefit. The medical benefit shall pay for all reasonable and necessary expenses, incurred by or on behalf of the insured person as a result of the accident.  An insurer shall also pay reasonable fees charged by a health practitioner for conducting an assessment or examination.

 

Ms. Goncharik claims entitlement to the following services.
 

  1. Services at Human Health Clinic.

    1. $1,360.68 for a treatment plan dated November 16, 2011.

 

This treatment plan recommends chiropractic treatment and heat therapy. State Farm, in its supplementary closing submissions at this hearing, states that it addressed this treatment plan and denied it based on an assessment dated September 27, 2011. Ms. Goncharik did not clarify whether the cost of this treatment plan was incurred by her. In addition, the treatment plan itself states that Wrobel Medical Analysis Inc. is the service provider and not Human Health Clinic.

 

Regardless of who recommended the services or whether they were incurred, State Farm admits to having received this treatment plan. The Arbitrator found that the treatment recommended in the plan is reasonable and necessary. The recommended treatment appears appropriate to the goals sought in Ms. Goncharik’s recovery. The Arbitrator also found that the frequency, cost and duration of the treatment are reasonable. Both State Farm’s and Ms. Goncharik’s own assessors agree that Ms. Goncharik suffered impairments as a result of the motor vehicle accident. At the time State Farm terminated Ms. Goncharik’s benefits she had not fully recovered. While her impairments did not lead to a substantial inability to engage in caregiving, housekeeping or to do her attendant care, the Arbitrator found that Ms. Goncharik would still have benefited from medical treatments to assist her in addressing her accident-related impairments.

 

  1. $330.54 for a treatment plan dated November 16, 2011.

 

This treatment plan purports to provide multiple regions therapy and back muscle release. The Arbitrator also found that this treatment plan is reasonable and necessary. The Arbitrator found that the medical treatment recommended under this treatment plan is appropriate to the goals sought in Ms. Goncharik’s recovery and would have assisted her.

 

  1. $573.60 for a treatment plan dated November 16, 2011

 

This treatment plan purports to provide multiple regions therapy and multiple regions exercise. The Arbitrator found that this treatment plan is not reasonable and necessary as it is vague about its purpose. Ms. Goncharik offered no evidence on this treatment plan that assisted in clarifying the plan’s aims.

 

  1. $1,032.03 for a treatment plan dated December 21, 2011

 

This treatment plan recommends a follow-up in-home assessment. The Arbitrator found that this proposed assessment is not necessary. Ms. Goncahryk was assessed in-home by an assessor of her choosing on December 6, 2010. State Farm terminated some of her benefits based on an in-home assessment that it requested take place on March 29, 2011. Both Ms. Goncharik’s and State Farm’s assessments were put into evidence at this hearing. The Arbitrator found that a further in-home assessment would not have assisted Ms. Goncharik in determining whether she required assistance or a different course of treatment.

 

2.              Services at Downsview Assessment set out as follows:

 

  1. $1,274.75 for a treatment plan dated May 6, 2011

 

This treatment plan recommends a functional abilities assessment. The Arbitrator found that this proposed assessment is not necessary. Ms. Goncharik was assessed specifically for the benefits she is claiming in December 2010. A functional abilities evaluation can be used to assess housekeeping, attendant care and caregiving. However, in this case, appropriate in-home assessments were arranged by both Ms. Goncharik and State Farm, prior to State Farm’s termination of benefits.

 

  1. $1,651.72 for a treatment plan dated January 20, 2011

     

    The Arbitrator did not find that this proposed assessment is reasonable. While undergoing several assessments Ms. Goncharik reported some issues with driving and the Arbitrator is not convinced as to the usefulness of a further assessment of her driving capabilities.

 

  1. $898.00 for a treatment plan dated May 6, 2014

 

This treatment plan proposes an in-home assessment. It is not reasonable. Ms. Goncharik was assessed in-home by an assessor of her choosing in December 2010.

 

 SPECIAL AWARD

 

If an arbitrator finds that an insurer has unreasonably withheld or delayed payments, the arbitrator, in addition to awarding the benefits and interest to which an insured person is entitled under the Schedule, shall award a lump sum of up to 50% of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2% per month, compounded monthly, from the time the benefits first became payable under the Schedule.

 

Ms. Goncharik has not presented evidence that State Farm improperly terminated her benefits or did not properly assess her claims for benefits. Therefore, a special award is not warranted in this case.

Posted under Accident Benefit News, Automobile Accident Benefits, Car Accidents, Chronic Pain, Disability Insurance, Fractures, Pain and Suffering, Treatment

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About Deutschmann Law

Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us toll-free at 1-866-414-4878.

It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.

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