A lot has changed for Mary Forrest since her husband and daughter dropped her off at a street corner near Lawrence West subway station almost seven years ago.
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Did Canada’s pot panel give stoned drivers a pass?
Dr. Mark Ware, vice-chair of the federal task force on cannabis legalization, confirmed the obvious on Tuesday: pot-impaired driving was one of the most vexing issues the panel faced. How much is too much? How can we measure it? How can we prove impairment in court? These were confounding questions long before the Trudeau government promised to greenlight recreational marijuana use.
http://www.macleans.ca/news/
Woman’s motorised chair damaged, says insurance won’t replace it
Cheryl Tedford lives with a severe form of Muscular Dystrophy. She can no longer walk – and if not for this motorized chair would be completely bed-ridden.
http://www.ckwstv.com/2016/12/
We Need To Reinvent The Way We Address Poverty In Canada
I’m old enough to remember a time when it was considered a good idea, in southwestern Ontario in the late 1980s and early 1990s, for my schoolmates to leave high school early and take a job in one of the factories feeding car parts to the auto plants on both sides of the border.
http://www.huffingtonpost.ca/
Bobeta and Aviva 2016-10-31, Arbitration, Expenses, FSCO 5049
Aviva relies on the evidence of its assessors set out above as well as on the Applicant’s achievements despite her impairments in successfully completing high school, in being accepted at two universities, in having several friends and extracurricular activities, and in her maintaining a close relationship with her family. I am not persuaded by Dr. Valentin’s reports or the others prepared by Centric Health Medical Assessments that the Applicant does not suffer a complete inability to carry on a normal life. I note that, despite the frequent references in the body of Dr. Valentin’s Psychology Report to the Applicant’s tearfulness and anxiety, Dr. Valentin’s conclusions on the non-earner benefits make not a single reference to the Adjustment Disorder with Anxiety which she diagnosed, but instead she included references to physical conditions (not psychological) and the Applicant’s use of Advil for headaches. Her observations of the Applicant’s emotional stress are consistent with the observations of the treating therapists made during the same time period as this assessment, as well as the evidence of the family and the Applicant. I find that the Applicant was well aware at least by Grade 11 that she could not process the information in class or in her self-study as quickly as her peers, and that she could not meet the expectations of her teachers and her parents as to the workload and speed that she could work at. I find that this caused her considerable stress and confusion, and the Adjustment Disorder and Anxiety diagnosed by Dr. Rathbone. More weight should have been given and further analysis provided regarding the interrelationship between her impairments and her activities.
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The Applicant’s trajectory of life, both in its path over the past five years and in its direction in the future, has been significantly altered, and it is not yet clear that the Applicant will have a successful university experience or work career. The opinions of Dr. Rathbone and Dr. Gates have been confirmed in the Applicant’s work experience since graduating from high school, and I prefer their evidence to that of Dr. Valentin. The accomplishments relied on by Aviva are only a cover that hides the significant impact on the functioning of this person, who struggles with the symptoms of Adjustment Disorder and Anxiety and the cognitive deficiencies identified by Dr. Gates and Dr. Rathbone.
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I am satisfied on the evidence that the denial of the non-earner benefits in November 2013 was not properly supported by the assessments relied on by Aviva, and that the Applicant did suffer a complete inability to lead a normal life as defined in her life. Her impairments are a significant restriction on her participation in the significant activities and relationships in her life. Throughout high school, the manner in which she participated in school and the quality of the performance, not just the grades she achieved, but the way she achieved those results, is such that she was substantially unable to live a normal life as defined by her pre-accident life. She required significant increases in time to accomplish tasks post-accident. She required significant support from her family, MM, and her therapists. Time constraints and supports were required that her trajectory would never have contemplated but for the accident. She has been left behind by her school friends. She contends with an Adjustment Disorder and Anxiety and cognitive deficiencies which are well-documented in the evidence.
McGann and Aviva 2016-10-31,Arbitration, Final Decision, FSCO 5039
With respect to the orthopaedic assessment, the support for this is in the OCF-18 by Dr. Ogilvie-Harris and his supporting assessment. Aviva submits that this report should not be relied on because of:
1. Factual errors related to the Applicant’s absence from work both before and after the accident, indicating that the Applicant had a history of work absenteeism unrelated to injuries of any kind;
2. The poorly-founded opinion of Dr. Ogilvie-Harris, an orthopaedic surgeon, on the Applicant’s mental health status when there is other convincing evidence from a qualified person as to her mental health; and
3. The misquoting of the psychology report of Dr. Lawson by Dr. Ogilvie-Harris, which misunderstanding may have led him to an unsupported conclusion.
Shanmuganathan and State Farm 2016-10-17 Arbitration, Final Decision, FSCO 5034
Drs. Kavanaugh and Caterer provided reports following their assessments. They also gave evidence. A large part of their income is derived from insurance company assessments. Both do not treat for pain alone. They look for “objective” signs of impairment and try to improve function. Dr. Caterer says that chiropractors who treat pain alone without any “objective” signs of injury are not behaving properly. Treatment for pain alone is not reasonable and necessary. Dr. Kavanaugh says that you don’t get stronger by rubbing body parts, suggesting that massage and physiotherapy are not of much value. These reports do not yield much assistance to the diagnosis of chronic pain by Dr. Wong.[10] I believe the 3 rehabilitation plans are reasonable and necessary.
In Nova Scotia v. Martin, a decision of the Supreme Court of Canada, Gonthier J., writing for the Court, stated:[11]
Chronic pain syndrome and related medical conditions have emerged in recent years as one of the most difficult problems facing workers’ compensation schemes in Canada and around the world. There is no authoritative definition of chronic pain. It is, however, generally considered to be pain that persists beyond the normal healing time for the underlying injury or is disproportionate to such injury, and whose existence is not supported by objective findings at the site of the injury under current medical techniques. Despite this lack of objective findings, there is no doubt that chronic pain patients are suffering and in distress, and that the disability they experience is real. While there is at this time no clear explanation for chronic pain, recent work on the nervous system suggests that it may result from pathological changes in the nervous mechanisms that result in pain continuing and non-painful stimuli being perceived as painful. These changes, it is believed, may be precipitated by peripheral events, such as an accident, but may persist well beyond the normal recovery time for the precipitating event. Despite this reality, since chronic pain sufferers are impaired by a condition that cannot be supported by objective findings, they have been subjected to persistent suspicions of malingering on the part of employers, compensation officials and even physicians.
Federico and State Farm 2016-10-17 Arbitration, Final Decision, FSCO 5029
Turning now to the merits of the case at hand, I find that these two treatment plans were not assessed in an appropriate manner by the Insurer’s assessor, Angela Bertolo of D & D Disability Management. Without belabouring the point, State Farm’s assessor admitted on cross-examination that if she had been given all of the available information and had more carefully considered the O.T. in-home assessment report dated July 16, 2015 prepared by Theresa Rector and provided by Ms. Federico to State Farm, AND/OR if she had been informed by State Farm that Ms. Federico had not received any occupational therapy modalities whatsoever prior to submitting these two treatment plans in 2015, then her decision and recommendation(s) may/ would have been different. More telling than this, however, was the admission by State Farm in its final submissions that it conceded that the assessments were of no great value and that they would not be relying upon them.
This leaves me with very little more to decide. It is clear from the foregoing that the two OCF-18’s provided by Natalie Zaraska, O.T., dated February 23, 2015 and September 24, 2015 respectively, were reasonable and necessary.
Special Award:
Based upon the evidence received concerning the failure by State Farm to provide its O.T. Assessor with even the basic and obvious information required for her to determine that the Applicant had not, in fact, received any of the type of care set out in these treatment plans, it is clear that the two treatment plans subject to this arbitration were not properly denied or assessed. Therefore, I find that these two denials were unreasonable and the withholding of payment for these services was improper under the Schedule. Accordingly, I order a special award in the amount of $5,500.00, inclusive of interest, payable to the date of this order. This award is based upon the simple mathematics suggested by the Applicant’s counsel (and not specifically challenged by State Farm) which in my opinion results in an entirely appropriate calculation and avoids the delay inherent in the more usual approach of leaving the interest calculation to be determined after the fact by the Insurer’s accounting system. The calculation is as follows (for the rate of interest applied see below):
Colandrea and Wawanesa 2016-10-13Arbitration, Expenses, FSCO 5028
The parties each made allegations about the other’s conduct, but did not support them with sufficient evidence for me to make a determination.
For example, Mrs. Colandrea argued that Wawanesa’s failure to revisit its Minor Injury Guideline (“MIG”) determination prolonged the proceedings. However, she did not support this argument with sufficient evidence for me to assess its validity.
Similarly, Wawanesa argued that Mrs. Colandrea’s refusal to talk settlement for five months prolonged the proceedings. While Wawanesa acknowledged that Mrs. Colandrea was undergoing medical assessments during those five months to support her removal from the MIG, it argued that Mrs. Colandrea could have asked Wawanesa if it had changed its MIG position during that time. Yet, Wawanesa did not disclose what its MIG position actually was during those five months. Furthermore, neither party provided detail about the medical evidence. For these reasons, I have insufficient evidence to assess the reasonableness of Mrs. Colandrea’s decision to postpone settlement discussion
In addition, Wawanesa argued that Mrs. Colandrea’s “accumulation of expert reports” was “entirely unnecessary” to the proceedings. It argued that the cost of those reports was “grossly disproportionate” to the value of the issues in dispute, but did not include in its valuation of the issues the removal of Mrs. Colandrea from the MIG. Taking her removal from the MIG into consideration, I do not find the cost of the reports to be “grossly disproportionate.”
Lastly, Wawanesa alleged that the Applicant used her medical reports in the tort claim. However, it did not support this allegation with evidence. Furthermore, Wawanesa did not say whether the Applicant was reimbursed for those reports in the other proceeding. In any event, this argument is irrelevant to the question of whether the reports were necessary for these arbitration proceedings. Absent evidence about the relevance of the Applicant’s expert reports to these proceedings, the insurance company’s argument that they were “entirely unnecessary” is unsubstantiated.
The Legal Conundrum for Seriously Injured Auto Accident Victims
Unless a client is injured enough to be potentially eligible for an insurance CAT designation, too many lawyers aren’t interested in taking on lesser degrees of seriously injured claimants, particularly the larger firms, because the financial rewards are not nearly as high for them. However, it is the larger firms that have more litigation experience and thus more experience in dealing with the well-paid legal sharks insurers hire. Non catastrophic claimants often struggle to find legal representation and could end up with lawyers, who may be well-intentioned, but lack experience and the financial resources to carry the client for the years it takes to settle auto insurer accident cases.