This is the FSCO decision in the case of Jazey and State Farm, provided to
Insurance Business from Rhona DesRoches of FAIR:
Jazey and State Farm [+] Arbitration, 2014-12-09, Reg 403/96. Final Decision FSCO 4330.
https://www5.fsco.gov.on.ca/AD/4330
State Farm denied Ms. Gowan’s treatment plan for the occupational therapy and ergonomic equipment on July 1, 2011. In its documentation, State Farm provided a report by
Ms. Leslie Hisey, 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
Ms. Hisey 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 Ms. Hisey as a witness to elucidate about what information she felt was lacking.
Following up on Ms. Hisey’s request, Dr. Andrew Kertesz, a neurologist, completed an Insurer’s assessment in October 2011 for State Farm, in which he concluded:
His condition is likely related to pre-existing cervical spondylosis, which became symptomatic after the accident.
The abnormalities on the MRI are related to pre-existing, documented cervical spondylosis. It is unlikely that a minor rear-end collision would produce such abnormalities. The fact that he became symptomatic after the MVA suggests some contribution but not causation by the whiplash.
No, from the neurological point of view the Treatment and Assessment Plan dated May 26, 2011 for $26,628.75 is not consistent with the impairment or the severity of Jazey’s injury sustained in the subject accident. 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.
I find Dr. Kertesz’s opinion unsubstantiated. He 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.
State Farm’s decision not to bring any of its experts to the Hearing meant that their opinions could not be cross-examined. Thus, I find that State Farm failed to provide a reasonable challenge to Mr. Jazey’s evidence respecting the proposed occupational therapy treatment plan and ergonomic equipment as recommended by Ms. Gowan. (continued.)
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Mr. Jazey testified that State Farm denied the hot tub treatment plan on June 17, 2011. He stated that State Farm based their decision on the opinion of
Dr. Garson Conn, an orthopedic surgeon, who had completed an insurer’s examination on June 7, 2011, and stated in his report:
He (Jazey) continues to find this (the hot tub) to be helpful. However, from a strictly orthopedic perspective, the installation of a hot tub would not, in my opinion, be considered reasonable and necessary.
That is not to say that Jazey should not use a hot tub if he finds this to be comfortable, but I would think that a warm bath would be satisfactory or very helpful in that regard as well, and I think the necessity of a hot tub, on the basis of what would appear to have been a very successful surgical procedure and given the fact that Jazey had some compromise evident prior to the accident in question, which likely aggravated the symptomatology, is not, in my opinion, an orthopedic requirement and, therefore, I would consider the Treatment Plan not to be reasonable and necessary, as I have already outlined.
Dr. Conn was not called as a witness by State Farm and thus his credentials and statements were not tested by cross-examination. I attach more weight to oral testimony than to untested written reports.
Dr. Christopher Bailey is an orthopedic surgeon specializing in spinal injuries, the Director of Spine Research at Victoria hospital, and an Associate Professor at Western University. In his testimony,
Dr. Bailey respectfully pointed out that Dr. Conn, while an orthopedic surgeon, is not a specialist in spinal orthopedics and spinal rehabilitation.
Dr. Keith Siqueira is an expert in physical medicine and rehabilitation (physiatry). He testified that he disagrees with Dr. Conn and, in his opinion, the hot tub is a significant and necessary aid to assist in pain management and enhanced functionality, thereby allowing Mr. Jazey to continue to work and remain active. He testified that he has often prescribed hot tubs for his spinal cord injury patients.
When questioned about Dr. Conn’s statement, Dr. Siqueira stated:
So, Dr. Conn essentially notes that the hot tub is not an orthopedic requirement. He notes that from an orthopedic perspective the hot tub would not be considered reasonable and necessary. So, a hot tub is not going to fix his bones, all right. So, from an orthopedic requirement perspective, Dr. Conn is correct.
But again it misses the point of this. (It’s) a treatment modality that’s helping this gentleman. It’s reducing his pain. It’s helping him more considerably than a hot bath would or a hot shower would. He was using it consistently and it was allowing him to maintain work and function (
sic).
In my opinion, the hot tub is absolutely reasonable and necessary given the severity of his injuries. (continued.)
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State Farm did not avail itself of the opportunity to bring any of its experts to the Hearing that would enable their opinions to be cross-examined, and thereby challenge Mr. Jazey’s evidence that the cost of the hot tub is reasonable and necessary to assist him in achieving a reasonable degree of mobility and reduction in his pain.
I was quite unimpressed that State Farm felt it was not necessary to bring any of its experts to the Hearing. Presentation of these experts would have enabled their opinions to be cross-examined and thereby challenge Mr. Jazey’s evidence that the cost of the massage is reasonable therapy and necessary to assist him in achieving a reasonable degree of mobility and reduction in his pain.
I 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, I find that I prefer Mr. Jazey’s evidence as opposed to the untested evidence of State Farm’s “experts”. I am willing to give Mr. Jazey the benefit of the doubt that some of the inconsistencies in his testimony that were pointed out by State Farm may be the direct result of the stress and frustration that he is experiencing. However, I make no finding on this latter point.
Special Award
If the 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
Statutory Accident Benefits 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 cent per month, compounded monthly, from the time the benefits first became payable under the
Schedule.
Pursuant to section 282(10) of the
Insurance Act, I find 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 paragraphs 203 to 221 and Schedules C and D of Mr. Jazey’s closing submissions, Mr. Jazey has detailed the particulars of his claim for a special award in the amount of $131,408.27, representing 50% of the benefits and interest to which he claims entitlement. (continued.)
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State Farm vigorously opposes Mr. Jazey’s entitlement to a special award. State Farm submits that Mr. Jazey “has failed to provide any records or evidence outlining the professional attendant care services provided by the CCAC for the period that the Applicant (Mr. Jazey) required attendant care. This information would provide a professional perspective in detail what attendant care was required, the specified period for which attendant care was required, and what ongoing attendant care may be required.”
State Farm also “submits that the evidence led by the Applicant provides no definitive insight into what services, if any, were required in addition to those professional services provided by the CCAC.”
Considering all the relevant factors in this matter, I agree with Mr. Jazey’s contention that State Farm has acted unreasonably and Mr. Jazey is entitled to a special award.
The
Insurance Act states that an Arbitrator shall award a lump sum of up to 50% of the amount to which the person was entitled, etc. It does not set a quantum but leaves it to the Arbitrator to determine whether that amount should be one dollar or the maximum of 50%. 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, I am fixing the special award at 25% of the amount to which he claims entitlement.
I hereby order that State Farm shall pay a lump sum to Mr. Jazey of 25% of the amount to which he is entitled, which amount shall be $32,852.07.
