Insurer did not bring experts to testify at FSCO hearing.

July 11, 2015, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Heard Before: Adjudicator Knox Henry

Date of Decision: December 9, 2014

 

REASONS FOR DECISION

 

Mr. David Jazey was injured in a car accident on September 9, 2008 when he was stopped at a red light. His vehicle was rear-ended in a chain-reaction accident.  He applied for and received some statutory accident benefits from State Farm, but State Farm refused to pay other benefits sought by Mr. Jazey.  The parties were unable to resolve their disputes through mediation and Mr. Jazey applied for arbitration at the Financial Services Commission of Ontario.

 

The issues in this Hearing are:

 

  1. Is Mr. Jazey entitled to attendant care benefits in the amount of $4,027.21 for attendant care services from October 20, 2009 to December 31, 2009?

  2. Is Mr. Jazey entitled to receive the following medical and rehabilitation benefits pursuant to the Schedule:

    1. $15,931.90 for the purchase and installation of a hot tub, pursuant to an OCF-18 dated January 24, 2011;

    2. $1,500.64 and ongoing incurred sums for massage therapy pursuant to an OCF-18 dated February 14, 2012, subject to a deduction for Mr. Jazey’s wife’s workplace extended heath benefit plan;

    3. $1,008.70 representing the outstanding balance for psychological counseling, pursuant to an OCF-18 dated November 30, 2011,

    4. $38,176.10 for occupational therapy treatment and the current cost of ergonomic equipment pursuant to an OCF-18 dated May 26, 2011, and prepared by Nancy Gowan, Occupational Therapist (“OT”)?

  3. Is Mr. Jazey entitled to interest for the overdue payment of benefits pursuant to s. 46(2) of the Schedule?

  4. Is State Farm liable to pay a special award pursuant to the Insurance Act because it unreasonably withheld or delayed payments to Mr. Jazey?

 

Result:

 

  1. Mr. Jazey is entitled to attendant care benefits in the amount of $4,027.21 for attendant care services from October 20, 2009 to December 31, 2009.

  2. Mr. Jazey is entitled to receive the following medical and rehabilitation benefits pursuant to the Schedule:

    1. $15,931.90 for purchase and installation of a hot tub, pursuant to an OCF-18 dated January 24, 2011;

    2. $1,500.64 and ongoing incurred sums for massage therapy pursuant to an OCF-18 dated February 14, 2012, subject to a deduction for Mr. Jazey’s wife’s workplace extended heath benefit plan;

    3. $1,008.70 representing the outstanding balance for psychological counseling, pursuant to an OCF-18 dated November 30, 2011

    4. $38,176.10 for occupational therapy treatment and the current cost of ergonomic equipment pursuant to an OCF-18 dated May 26, 2011

  3. Mr. Jazey is entitled to interest for the overdue payment of benefits pursuant to s. 46(2) of the Schedule.

  4. State Farm is liable to pay a special award in the amount of $32,852.07 pursuant to the Insurance Act because it unreasonably withheld or delayed payments to Mr. Jazey.

 

EVIDENCE AND ANALYSIS:

 

The severity of the impact on the rear of Mr. Jazey’s vehicle caused him to be thrown forward and then backwards, in spite of the fact that he was wearing his seatbelt. Mr. Jazey testified that prior to this September 9, 2008 accident, he was a successful, self-employed manufacturer of custom jewelry pieces that were primarily made from gold and gems.  He has operated Jazey Custom Jewellery for some 20 years and had built an excellent reputation for designing and creating custom engagement and wedding rings, wax carvings, complex stone settings as well as undertaking jewelry repair work.  He thoroughly enjoyed his work and thought nothing of spending 12 hours a day or more at his workbench.  He has a couple of rooms in his home that are devoted to his business. He was an active family man and maintained his own yard. Mr. Jazey testified that prior to the accident, he had no serious medical injuries, issues, or limitations.  He had taken some medication for stiffness in his neck.

 

Following the accident, Mr. Jazey was able to exit his vehicle without assistance.   Within a few hours of the accident, he went to his doctor as he was suffering from stiffness and pain in the neck. His physician prescribed anti-inflammatories and referred him for some physiotherapy.  However, neither treatment was successful in reducing the pain and stiffness.  Over the next few weeks and months, his condition progressively deteriorated. His pain, stiffness and fatigue severely affected his ability to function in several areas of his life, including his competence as a jeweler, his social life, his physical intimacy with his wife, his ability to do household chores and yard work and his running and excercising.

 

On December 11, 2008 an MRI revealed a large right-sided disc protrusion with spinal stenosis and significant narrowing of both foramen. The MRI also revealed compression and interference of the spinal cord, this was not initially noticed until later observed by his orthopedic surgeon. As a result, Mr. Jazey was diagnosed a spinal cord injury with disc herniation.  Because of the severity of the injuries, Mr. Jazey was placed on an urgent patient list for surgery as Dr. Bailey was very concerned that Mr. Jazey’s condition would continue to deteriorate very rapidly. On October 16, 2009, Dr. Bailey operated on Mr. Jazey, performing an anterior cervical decompression at C4-C5 and C6-C7.  He also performed some bone grafting and fusion, using segments of bone from Mr. Jazey’s hip.  The procedure was completed using various hardware, plates, and screws. The surgery was considered successful.

 

Both Mr. Jazey’s wife and mother testified that in the first two to three weeks following his surgery, Mr. Jazey needed everything done for him as he was heavily medicated and immobile.   They were providing attendant care 24 hours a day, seven days a week.  Mr. Jazey testified that the Community Care Access Centre (“CCAC”) also provided 30 minutes’ care each day for the first two weeks after he came home, then once a week until the end of December 2009.  On January 4, 2010, Mr. Jazey saw his physician for a follow-up examination.  Mr. Jazey testified that at that time he was still requiring attendant-care assistance.

 

An Occupational Therapist (“OT”), prepared and submitted a retroactive attendant care assessment report dated May 30, 2011 for the attendant care services that were provided to Mr. Jazey for the period of October 20, 2009 through December 31, 2009.  The OT submitted three OCF-6 forms to State Farm for three distinct time periods between October 20, 2009 and December 31, 2009, and testified that these Form 1s were an estimation of the attendant care required by Mr. Jazey.  The three OCF-6s represent a total claim for Attendant Care Benefits due to Mr. Jazey of $4,021.21.

 

State Farm submits that a valid Form 1 is a prerequisite for the payment of Attendant Care Benefits and referred to section 39(1) of the Schedule. Mr. Jazey’s counsel brought to my attention a decision released by FSCO on August 7, 2014 (Kelly v. Guarantee Company of North America). Mr. Jazey submitted that a Form 1 for Attendant Care Benefits need not be submitted to an Insurer before he incurred attendant care expenses.  He submitted that the evidence submitted to State Farm prior to its receipt of the Form 1 reflected the assessment contained in the Form 1 that was prepared and issued by the OT.

 

The Arbitrator reviewed the case law and the Schedule and found there is no requirement in the Schedule stipulating that an application for Attendant Care Benefits must be submitted to an Insurer before an insured can incur any Attendant Care Benefits.  A Form 1 must be submitted to an Insurer before the Insurer is liable to pay any Attendant Care Benefits.  State Farm did not obtain and provide its own experts’ opinion to indicate that the Attendant Care Benefits sought by Mr. Jazey were unreasonable.  State Farm had already paid for assistive devices which Mr. Jazey required for mobility and safety after his operation, yet it denied the requested Attendant Care Benefits.  The Arbitrator found this contradiction in State Farm’s actions unfathomable. The Arbitrator found the attendant Care Benefits reasonable and necessary and should be paid by State Farm, subject to a deduction for Mr. Jazey’s wife’s workplace extended heath benefit plan.

 

Mr. Jazey’s testfied that since his recovery from the neck surgery and in spite of his vigorous rehabilitation treatments, he is still unable to work the long 12-hour days that he regularly worked before the accident and he is earning less than 50% of his pre-accident income.

 

Mr. Jazey seeks entitlement to $38,176.10 for occupational therapy treatment and the current cost of ergonomic equipment pursuant to an OCF-18 dated May 26, 2011, and prepared by the OT. Mr. Jazey testified that prior to the accident and his operation, he considered his work environment – his jewelry manufacturing bench and equipment, etc. – satisfactory for the past 20 years.  However, since the accident and the operation, he finds that his work environment is now a “hindrance and is painful.  He now finds that he must subcontract much of the custom work that is offered to him to outside shops for completion. The OT recommended specialized equipment to allow Mr. Jazey to return to doing his own work. State Farm denied the treatment plan for the occupational therapy and ergonomic equipment on July 1, 2011.

 

 In its documentation, State Farm provided a report by an occupational therapist who had conducted an Insurer’s examination to determine the reasonableness of Ms. Gowan’s occupational therapy and ergonomic treatment plan.  The evidence indicated that that State Farm’s OT reviewed an incomplete list of medical records and apparently spent slightly over an hour undertaking her assessment. In her conclusion, she stated that there is little medical evidence to confirm the etiology (the cause) of any motor vehicle accident-related neurological impairments.  She opined that she needed greater confirmation of any link between the accident and the alleged impairments.  However, State Farm did not bring the OT as a witness to elucidate about what information she felt was lacking.

 

A neurologist, completed an insurer’s examination in October 2011 for State Farm, in which he concluded it is unlikely that such an extensive purchase of equipment and occupational therapy intervention 3 years after a minor accident, and 2 years after neck fusion would be improving his neurological status and it is not required from a neurological point of view. The Arbitrator found the opinion unsubstantiated.  The neurologist was not present at the Hearing to explain why he should be considered as an expert in the implications of motor vehicle accident injuries upon an individual’s body. The Arbitrator ordered that Mr. Jazey be reimbursed by State Farm in the amount of $38,176.10 for occupational therapy treatment and the current cost of ergonomic equipment pursuant to an OCF-18 dated May 26, 2011.

 

Mr. Jazey testified that following the accident he found the therapeutic hot tub quite effective in relieving the severity of his tension headaches and improving his sleep.  He discussed the purchase of a hot tub with his wife and subsequently his physiotherapist, and his orthopedic surgeon.  All were supportive of his plan.  It has helped to soothe his sore, knotted muscles, relieved some of the tension headaches and migraines from which he suffers, and relieves his muscle tension and dizziness.  As a result, he is able to work longer hours at his jewelry bench and enjoys better sleep.

 

Mr. Jazey testified that State Farm denied the hot tub treatment plan on June 17, 2011 based on their orthopaedic report. The physician did not appear to testify, and the Arbitrator preferred the oral testimony heard to written untested written reports. The Arbitrator found the hot tub cost is reasonable and should be reimbursed by State Farm to Mr. Jazey.

 

The Arbitrator was quite unimpressed that State Farm felt it was not necessary to bring any of its experts to the Hearing.  He found Mr. Jazey to be a very credible witness.  While State Farm in its submissions suggested that Mr. Jazey’s memory and recollection was sometimes inconsistent, on a balance of probabilities, the Arbitrator preferred Mr. Jazey’s evidence as opposed to the untested evidence of State Farm’s “experts”.  On a balance of probabilities, the Arbitrator found Mr. Jazey has benefited from the massage treatment sessions, that they are reasonable and necessary pursuant to section 15 of the Schedule, and that he is entitled to receive the $1,500.64 and ongoing incurred sums for massage therapy pursuant to the OCF-18 dated February 14, 2012 less any deduction for benefits received from Mr. Jazey’s wife’s workplace extended heath benefit plan.

 

Mr. Jazey seeks a payment of $1,008.70 representing the outstanding balance for psychological counselling pursuant to an OCF-18 dated November 30, 2011. After reviewing the evidence and testimony the Arbitrator found that they are reasonable and necessary pursuant to section 15 of the Schedule, and ordered a payment of $1,008.70, representing the outstanding balance for psychological counselling pursuant to an OCF-18 dated November 30, 2011.

 

The Arbitrator ordered State Farm to pay 2% per month on all outstanding benefit payments, and found that State Farm has unreasonably withheld or delayed payments to Mr. Jazey in denying treatments and withholding payments; State Farm accepted the opinions of its medical advisors to support its routine denials of benefits; and it should have been aware that these denials would cause Mr. Jazey undue stress and financial hardship and reduce the opportunity for him to recover from his injuries. In this matter, because State Farm has provided some benefits to Mr. Jazey and Mr. Jazey has been able to return to his self-employment, albeit to a limited degree compared to his pre-accident ability, and Mr. Jazey has failed to provide some specific documentation to State Farm, the Arbitrator fixed the special award at 25% of the amount to which he claims entitlement.

Posted under Accident Benefit News, Automobile Accident Benefits, Car Accidents, Chronic Pain, Disability Insurance, Fractures, Pain and Suffering, Physical Therapy, Spinal Cord Injury, 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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