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.

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.

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.

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):