Neutral Citation: 1992 ONICDRG 34

File No. A-000078

ONTARIO INSURANCE COMMISSION

BETWEEN:

SHARON LEE

Applicant

and

UNIFUND ASSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Sharon Lee, was injured in a motor vehicle accident on July 20, 1990. She applied for and received from the Insurer, Unifund Assurance Company, accident benefits payable under Regulation 273/90 (the "No-Fault Benefits Schedule"), under the Ontario Insurance Act, R.S.O. 1990, c. I.8. Every motor vehicle policy provides for the no-fault benefits set out in the No-Fault Benefits Schedule.

The Applicant received weekly benefits, including childcare benefits, under the policy until September 26, 1990. She disputed the termination of her benefits and, following mediation, her benefits were reinstated up to December 1, 1990. The Applicant believed that she was entitled to benefits beyond that date. The Applicant also claimed payment for certain supplementary medical and rehabilitation expenses.

The Applicant again applied for mediation of her dispute with the Insurer. The mediation was unsuccessful, and the Applicant subsequently applied for the appointment of an arbitrator.

The issues to be determined at the arbitration hearing were:

(1) Is the Applicant entitled to weekly benefits from December 1, 1990 onwards?

(2) Is the Applicant entitled to be paid for her supplementary medical and rehabilitation expenses, including the costs of various medical and rehabilitation reports?

(3) Is the Applicant entitled to a special award under section 282(10) of the Insurance Act, on the basis that her benefits were unreasonably withheld or terminated?

The Applicant also claimed interest on any outstanding amounts and her costs of the hearing.

Result:

The decision is:

1. The Applicant is not entitled to weekly benefits from December 1, 1990 onwards.

2. The Applicant is entitled to her expenses claimed for supplementary medical and rehabilitation benefits, with the exception of her claim for the report of Dr. Kachooie. I remain seized of this issue pending further submissions from the parties.

3. The Applicant is not entitled to a special award under section 282(10) of the Insurance Act.

Hearing:

A hearing was held at Toronto, Ontario, on March 23, 24 and 25, 1992, before me, Frederika Rotter, Senior Arbitrator.

Present at the hearing were:

Applicant:

Sharon Lee

Applicant's Representatives:

Leonard Kunka, Barrister & Solicitor

Joe Pileggi, Legal Assistant

Insurer's Representative:

John Scott

Barrister & Solicitor

Witnesses:

Sharon Lee, Applicant

Sharron Rochford, Insurance Adjuster,

Mercer & Myers Insurance Adjusters Ltd.

Louise Koepfler, Ph.D., C. Psych.

Clinical Psychologist

Documents before the Arbitrator:

Application for Appointment of an Arbitrator in Form 4, dated May 6, 1991

Response in Form 5, dated June 3, 1991

Report of Mediator, dated January 8, 1991

Exhibits:

Exhibit 1

Medical Documentation, Tabs 1 to 11

Exhibit 2

Report of John Zeldin, M.D., F.R.C.S.(C), F.A.C.S., dated January 30, 1991

Exhibit 3

Motor Vehicle Accident Report

Exhibit 4

Summary of Applicant's financial claims

Exhibit 5

Memorandum from Sharron Rochford to Applicant, dated October 26, 1990

Exhibit 6

Claim documentation for Supplementary Medical and Rehabilitation Benefits,

Exhibit 7

Ontario Automobile Policy

Exhibit 8

Mercer & Myers Insurance Adjusters File

Exhibit 9

Letter from Joseph Pileggi, Legal Assistant, to Unifund, dated July 22, 1991

Exhibit 10

Curriculum Vitae, Dr. Louise E. Koepfler

Cases referred to:

MacDonald v. Travelers Indemnity Company of Canada [1987] I.L.R. 8575

Morgan v. Dominion Insurance Corp., [1981] I.L.R. 81

Thompson v. Zurich Insurance Company, unreported S.C.O. April 10, 1984

Norman Downs v. Allstate Insurance Company, O.I.C. File No. A-000064, July 18, 1991, Arbitrator S. Naylor

Ralph McCormick v. Economical Mutual Insurance Company, O.I.C. File No. A-000139, October 2, 1991, Arbitrator S. Naylor

Evidence:

The Applicant, Sharon Lee, gave evidence under oath. She testified that she is the mother of two young children, currently aged 5 and 3. Nathan was born March 2, 1987 and Danielle was born September 19, 1988. The Applicant is a home-maker and has no outside employment.

The Applicant was injured in a motor accident on July 20, 1990. Prior to the accident, she had been in good heath and had no physical complaints.

At the time of the accident, the Applicant's two children were toddlers, requiring constant care and supervision. The older child was toilet-trained, but the younger one was still in diapers. The Applicant lived with her husband and children in a three-level townhouse. The lower level was a basement, unfinished at the time of the accident. The ground floor consisted of a kitchen, and an L-shaped living-dining area. Two bedrooms and a bathroom were located on the second floor. The Applicant was normally responsible for all the housework and childcare.

In her testimony, the Applicant described in detail her daily activities caring for the children, and her other daily tasks, including meal preparation, shopping, cleaning, laundry and occasional outside chores, such as cutting the grass. From her evidence, it is clear that the Applicant is an extremely conscientious and dedicated mother and home-maker. She normally spent many hours playing with and attending to the needs of her children. She otherwise occupied herself with her housework, and maintained an impeccably tidy household.

The Applicant did not own a dishwasher and did all her dishes by hand. The Applicant did not own a washer and dryer, and did her laundry at the local laundromat every second day. She would iron the laundry in the evenings.

The Applicant's normal cleaning chores included tidying the home daily: clearing away toys, washing the floors and vacuuming the area rugs, cleaning the bathroom, washing the dishes, and making the beds. She prepared all the food and, since her husband was employed in shift work, this sometimes entailed getting four meals a day to accommodate her husband's work schedule. She shopped for smaller items of groceries daily -- she also shopped with her husband on weekends. The Applicant testified that, prior to the accident, her husband normally did no household chores, apart from the shopping, sometimes taking out the garbage, barbecuing, and occasionally helping out in the garden.

The motor vehicle accident occurred on Friday, July 20, 1990. The Applicant testified that she was not at first seriously affected by the accident, feeling a tingling in her arms, and some pain in her right shoulder. By Sunday, July 22nd, she had headaches and ringing in her ears, and also found that the right side of her neck and her right shoulder were stiff and sore. She had numbness and tingling in her right arm. By Sunday evening, she was experiencing pain and stiffness in her back.

In the next few days, she began to experience pain in her right buttock, which moved down the back of her right thigh. This caused her problems in sitting.

The Applicant saw her family doctor, Dr. Rockman, on the Monday morning following the accident. After examining her, Dr. Rockman recommended that the Applicant take aspirin for her pain.

The Applicant testified that her injuries affected the performance of her daily activities. She found that it was painful to perform tasks such as cleaning the floors, washing the dishes, and doing the laundry. Her pain also made her moody and irritable with the children.

The Applicant found that she was unable to cope with many of her chores and sometimes left the beds unmade, or failed to clean the bathroom. The Applicant and her husband sometimes had arguments about the messy condition of the home. The Applicant testified that she would try to keep the main floor of the home in order, but sometimes let the dishes and laundry pile up. She testified that her husband would do some of the chores, or she herself would do them when she felt better.

The Applicant testified that her condition had not improved by September 30, 1990.

She testified that in October 1990 she could not do chores like vacuuming, mopping, dusting and the laundry. She could not do the ironing. Her husband sometimes had to get his own meals.

She stated that she had problems caring for her children -- she found it difficult to lift them in and out of the bathtub. The Applicant estimated that in October 1990 she was capable of doing about 30% of the housework and about 40% of her childcare duties.

The Applicant gave evidence about her dealings with Sharron Rochford, the adjuster representing the Insurer. She testified that the adjuster assisted her in filling out the no-fault benefit claim forms, but did not provide her with a copy of the insurance policy. She did not specifically request a copy of the policy from the adjuster.

The Applicant testified that she asked the adjuster whether home-maker and babysitter services were available. The adjuster advised her that home-maker services would be paid for if they represented "a reasonable expense". The adjuster's view was that babysitting was covered by the childcare benefits received by the Applicant.

The Applicant was advised by a representative of the Insurer that her benefits were to be terminated as of October 1, 1990, based on a report by Dr. Rockman, her family doctor. The Applicant felt that this was not right, since her physical condition had not improved.

The Applicant testified that, during this time, she was seeing Dr. Rockman approximately every two weeks. She was taking aspirin and Tylenol 3 for her pain. In August 1990, she had started seeing a chiropractor, Dr. Viscomi, who manipulated and adjusted her neck and back. The chiropractor advised the Applicant not to do heavy chores requiring bending and lifting, at all.

The Applicant testified that her chiropractor wrote to the adjuster on her behalf, requesting that the Insurer provide the Applicant with some help at home. The Applicant testified that this request was ignored.

The Applicant testified that her benefits were initially suspended on October 1, 1990. Some time in the middle of October 1990, the adjuster attended at the Applicant's house, unannounced, and requested that the Applicant sign medical release forms, in connection with the dispute about weekly benefits which was then being mediated. The Applicant testified that she signed the forms, but otherwise did not discuss her situation with the adjuster. The adjuster did not ask her about her injuries or her ability to work.

The Applicant's benefits were reinstated until December 1, 1990. The Applicant testified that, after this date, her condition remained about the same, although sometimes she had days when she could cope better. The Applicant had ongoing problems with headaches and ringing in her ears. She still found it difficult to lift and bend, and walking was still uncomfortable. She considered that her ability to do her essential tasks remained unchanged: she stated that she was still doing only approximately 30% of her housework and 40% of her childcare duties.

The Applicant was seen by Dr. Kachooie, a physiatrist, who recommended physiotherapy treatments, and also recommended that she limit bending, and lifting the children. The Applicant attended physiotherapy and tried to follow Dr. Kachooie's other recommendations.

On January 31, 1991, the Applicant saw Dr. Zeldin, an independent orthopaedic specialist, at the request of the Insurer. She testified that Dr. Zeldin did not question her about her essential tasks as a mother or as a housekeeper.

The Applicant testified that she has continued to be responsible for doing the housework, and has done it even though it is painful. She does the dishes, the ironing and the vacuuming. Sometimes she leaves the beds unmade. She now cleans the bathroom only once a week - previously, she cleaned it twice a week. She tidies the kitchen at night and picks up the children's toys. She tends to avoid some tasks, like laundry, or cleaning the oven and refrigerator, but eventually manages these chores.

The Applicant's testimony was that doing her housework is painful and leaves her exhausted, irritable and depressed.

The Applicant testified that in January 1991 she did tasks such as vacuuming, dusting, mopping the floors and making beds with pain, or not at all.

On March 1, 1991, the Applicant was involved in another automobile accident which she reported to the Insurer. She did not report having sustained any new injuries, because, she testified, her condition did not change. However, at the hearing, she testified that she felt that her injuries could have been aggravated by the second accident. Her income benefits were not reinstated as a result of the second accident and the Insurer did not schedule a new medical examination.

The Applicant testified that, as of the date of the hearing, her condition has improved. She no longer suffers from headaches, but her neck is still stiff. Bending her neck down and to the right is bothersome. She still occasionally has ringing in her right ear. She still has some trouble with her right shoulder, and her hand and arm occasionally still go numb from lifting. Her upper back is still tender and lifting and bending causes pain.

The Applicant's middle and lower back have improved somewhat. However, she still has pain in the area of the right buttock, extending down the right leg. She now can walk longer than she could before. She still has problems sitting for an extended time. The Applicant testified that she was obliged to hire a babysitter to look after her children during her physiotherapy and rehabilitation sessions. These babysitting expenses are part of her claim for supplementary benefits.

The Applicant gave evidence about her expenses for certain supplementary medical and rehabilitation items which she had submitted to the insurer. Her claims in this regard are summarized in Exhibit 4.

The Applicant confirmed that she considered that all her childcare duties were essential tasks, and that she continued to perform these tasks despite her pain. She confirmed that, if she were physically unable to look after her children, she would have hired someone else to do it.

The Applicant indicated that she did not agree with Dr. Zeldin's report, Exhibit 2, which states that she could continue with her regular activities. The Applicant stated that she continued her regular activities, but with pain. Also, she was not able to do some things.

The Applicant testified that, after the accident, she never hired anyone to look after the children or do the housework. Her sister-in-law occasionally came over to help out, but was not often available because she worked. The Applicant's husband sometimes helped occupy the children and took the garbage out. Otherwise, the Applicant testified, she did what she could. She started a rehabilitation program in February 1992 and her children were looked after by a babysitter while she was in the program.

Sharron Rochford gave evidence under oath on behalf of the Applicant. She is employed as an insurance adjuster by the adjusting firm of Mercer & Myers Insurance Adjusters Ltd. Mercer & Myers was retained by the Insurer to deal with the case of the Applicant. At the time of the accident, the adjuster had two years' experience in the insurance industry. This was her first case under the No-Fault Benefits Schedule.

The adjuster testified that prior to the coming into effect of the No-Fault Benefits Schedule and amendments to the Insurance Act, she received a six-week training program, as did other insurance adjusters. She felt that she was in the same position as any other adjuster in dealing with no-fault claims.

She also testified that, when she assumed responsibility for the Applicant's file, she was a probationary employee, and all her work on the file was reviewed by a senior person.

The adjuster testified that she made recommendations about the Applicant's case, but that the Insurer, Unifund, made the final decisions about what should be done.

The adjuster testified that, after learning of the details of the accident, she sent the Applicant an accident benefits package, and explained, to the best of her ability, what benefits were available to the Applicant. Then she waited to receive the Applicant's application for benefits and expense claims.

The adjuster testified that she got along well with the Applicant. She stated that, after first meeting with the Applicant, she told the Applicant to call her if she had any questions about her claim. She testified that she also advised the Applicant to submit claims for any reasonable expenses arising as a result of the accident.

The adjuster confirmed that she discussed with the Applicant the possibility of hiring someone to help with the housework. However, she denied that the Applicant had ever made a formal request for housekeeping services, and indicated that she had never received a receipt or expense claim for such services. She denied refusing a claim for such services. She advised the Applicant that the Insurer would consider a "reasonable" expense claim. However, she never instructed or advised the Applicant to go ahead and make arrangements for housekeeping services, since she did not feel that she had the authority to commit the Insurer, in advance, to pay for such services. She did not feel that the Insurer had an obligation to organize or arrange for housekeeping services for the Applicant, in the absence of a direct claim for such services by the Applicant.

The adjuster testified that the Applicant's benefits were held up in the early part of September, while the Insurer was awaiting a medical report. A cheque went out on September 14, which paid the Applicant's benefits through to September 28, 1991.

The adjuster confirmed that she asked the Applicant to sign authorizations for the release of medical information pertaining to her injuries. She also arranged for the Applicant to be examined by Dr. Zeldin.

The adjuster testified that the Applicant's benefits were terminated effective September 28, based on a telephone conversation with Dr. Rockman, on September 20, and Dr. Rockman's medical report dated October 1, 1990 (received by the Insurer on October 4, 1990).

When questioned about the conversation with Dr. Rockman, the adjuster suggested that Dr. Rockman felt "on the spot". Dr. Rockman indicated to the adjuster that the Applicant had been a good patient of his for some time, and he was reluctant to put any negative comments about the Applicant in writing. Dr. Rockman suggested that the Insurer obtain an independent medical examination. He thought there was no medical reason for the Applicant's disability and that 99 per cent of her distress arose from what he called "functional overlay". The adjuster's notes of her conversation with Dr. Rockman were identified in Exhibit 8.

The adjuster testified that she visited the Applicant at her home on three occasions. The first time was July 24, 1990, just four days after the accident. The adjuster met the Applicant and her two children. The children appeared fine. The adjuster stated that the home was spotless. The Applicant kept rubbing and massaging her right side.

On the second occasion, the adjuster made an unannounced visit, or "cold call". She indicated that this was a normal insurance practice, done for the purpose of checking or verifying the status of an insured. She testified that on the day of the "cold call", she delivered a cheque to the Applicant, and stayed about 15 minutes, as the Applicant and her children were on their way out.

The adjuster testified that again, the Applicant's home was very tidy and appeared well cared for. The children also appeared well cared for, and the Applicant herself was neatly and appropriately dressed and groomed.

The adjuster saw the Applicant a third time on March 5, 1991, following the accident of March 1, 1991. She testified that the children were again present, and appeared fine, and well cared for. The adjuster sat with the Applicant in her kitchen. She testified that the Applicant's home was again spotless.

The adjuster testified that she prepared a statement which the Applicant signed, indicating that she had not sustained any injuries as a result of the accident of March 1, 1991. She testified that she felt it would have been unreasonable to provide the Applicant with an accident benefits claim package at that time, in light of the Applicant's statement that she had sustained no injuries. She stated that she was not concerned that further benefits might have been payable had the Applicant actually been injured.

The adjuster testified that neither the accounts of Dr. Kachooie nor Dr. Koepfler had been submitted to her for payment. She had no knowledge that the Applicant had gone to see the physiatrist. She did not recall ever having seen Dr. Kachooie's report. Dr. Koepfler's report was not in her file either.

The Applicant was questioned about the wording of her letter to the independent medical examiner, Dr. Zeldin (Exhibit 8-13). It was put to her that her request for an opinion from Dr. Zeldin did not accurately set out the test for disability enunciated in the No-Fault Benefits Schedule, a proposition that she did not deny.

Dr. Louise Koepfler gave evidence on behalf of the Applicant. She has a Ph.D. in psychology and is a registered psychologist in Ontario. She has been employed at the Health Recovery Clinic, a private rehabilitation clinic for chronic pain sufferers, since 1987. The clinic employs a variety of staff to assist in the rehabilitation of clients.

The psychologist testified that she was retained to perform an assessment of the Applicant's condition. The Applicant was seen by a physiotherapist from the clinic on July 19, 1991. A behaviour therapist later visited the Applicant at her home, in order to assess the Applicant's problems with housework in the context of her particular physical setting. The Applicant was also mailed a "psychological questionnaire", which she completed, and the psychologist subsequently conducted a structured interview with the Applicant to assess her psychological condition. The psychologist also obtained the Applicant's medical history and the history of the accident.

The psychologist indicated that the Applicant's main complaints were of constant soreness on the right side of her neck, headaches, and ringing in her right ear. She felt that her household activities aggravated her neck pain. She had been pain-free prior to the motor vehicle accident of July 20, 1990.

The Applicant reported that she was able to do her housework, but fatigued easily. She usually had to stop and rest half way through a job, before finishing it. She relied on her husband to help her with the childcare, and with some of the housework.

The psychologist reported that the psychological tests showed that the Applicant was "moderately depressed". She was anxious, nervous, frustrated and lethargic. The psychologist testified that the Applicant presented herself as someone who was experiencing a reactive depression. That is, the Applicant was depressed in reaction to her situation, and not because her character is normally that of a depressed individual.

The physical assessment performed by a registered physiotherapist showed that the Applicant's range of movement was minimally limited. Her strength was also limited, and the physiotherapist felt that the Applicant required an intensive exercise program.

A behaviour therapist observed the Applicant in her home and found that the Applicant was able to perform her household tasks, and continued to perform these activities, even though she was in pain.

She ironed three shirts in 32 minutes. She cleaned the kitchen, although she complained of pain after 9 minutes.

The Applicant rested on her couch for 15 minutes, as she was complaining of fatigue. She then proceeded to clean the bathroom. After 22 minutes, she lay down to rest for 2 minutes, and then returned to the cleaning.

The Applicant performed all the activities in a normal fashion, without any avoidance or guarding behaviour. She was able to squat and bend. However, after 57 minutes, she was very fatigued and all her pain levels were elevated.

The psychologist testified that she felt that the Applicant was not specifically disabled from performing any aspect of her household duties. However, her ability and endurance was limited and she had to pace herself, as she worked herself to the point of fatigue.

Submissions:

Submissions of Applicant:

The Applicant's counsel submitted that the Applicant is a credible and straightforward witness, and that her evidence shows that she was not treated fairly by the Insurer. He submitted that the Insurer did not provide evidence to justify the initial termination of the Applicant's benefits on October 1, 1990.

He submitted that the Insurer was obliged to review and update the Applicant's situation after receiving Dr. Kachooie's report of January 31, 1991. He referred to the case of Morgan v. Dominion Insurance Corp., [1981] I.L.R. 81, which discusses the Insurer's ongoing obligation.

Counsel submitted that the independent adjuster, Sharron Rochford, did not have extensive experience or training in the no-fault system. He submitted that she should have played a more active role in the Applicant's rehabilitation. He cited her failure to provide the Applicant with a copy of the insurance policy. He also suggested that the adjuster's misstatement of the report for disability in her referral letter to Dr. Zeldin might have been a deliberate attempt to "cook" the evidence.

Counsel submitted that Dr. Zeldin's report cannot be relied on because he did not review the Applicant's essential tasks and duties. Counsel submitted that the Insurer deliberately used Dr. Zeldin because it knew that the doctor would produce a report that would suggest that the Applicant's benefits should be terminated.

Counsel referred to the Applicant's claim for supplementary medical and rehabilitation benefits, documented in Exhibit 4. He submitted that all of the expenses claimed are reasonable. He also submitted that the Applicant had requested help with her housework, and this request was supported by her chiropractor. The Insurer failed to respond to the request. He submitted that the Insurer should have provided housekeeping assistance to the Applicant, and that the No-Fault Benefits Schedule does not require an expense actually be incurred before payment is made. He cited MacDonald v. Travelers Indemnity Company of Canada [1987] I.L.R. 8575, as authority for this proposition.

Counsel submitted that, in effect, the Applicant's benefits were unreasonably withheld and that therefore a special award is payable. Further, counsel submitted that the Insurer's failure to promptly pay the supplementary medical and rehabilitation benefits claimed is also conduct that merits a punitive award. Counsel referred to Thompson v. Zurich Insurance Company, unreported S.C.O. April 10, 1984, which, he submitted, set out the test for the Insurer's conduct.

Submissions of Insurer:

Regarding the issue of the Applicant's entitlement to a weekly benefit, Counsel submitted that none of the medical evidence establishes that the Applicant suffered a substantial inability to perform her essential tasks. Dr. Koepfler's evidence indicates that the Applicant's abilities are limited, but does not state that she suffers any disability.

Counsel submitted that, throughout the period that the Applicant was receiving a weekly benefit, she continued to do her housework. The Applicant did not use her weekly benefits to hire babysitting or household help. Counsel submitted that the Applicant continued to perform her essential tasks despite her pain and difficulties. However, her pain did not produce a disability which meets the test set out in the legislation. Counsel cited the case of Norman Downs v. Allstate Insurance Company (O.I.C. File No. A-000064, July 18, 1991, Sr. Arbitrator S. Naylor), and submitted that the present case is analogous to the situation in Downs.

With respect to the question of supplementary medical and rehabilitation benefits, counsel indicated that the Insurer was prepared to pay for all the expenses itemized in Exhibit 4, with the exception of Dr. Kachooie's report. The Insurer submitted that Dr. Kachooie's account of $834.60 was unreasonable and that the Insurer was prepared to pay a maximum of $400 to $500. The Insurer indicated it would pay for Dr. Koepfler's report.

Counsel for the Insurer submitted that, in granting a special award, the issue is whether or not payments were unreasonably withheld by the Insurer. He submitted that the conduct and training of the adjuster is not relevant to this issue: nothing turns on whether the adjuster provided or failed to provide a copy of the insurance policy to the Applicant.

Counsel also submitted that the fact that the adjuster did not correctly formulate her question to Dr. Zeldin is also irrelevant to the issues in dispute in this case. Although the question posed was not correct, Dr. Zeldin's evidence that the Applicant can resume her former activities is clear and straightforward.

Counsel submitted that the Insurer's conduct in initially suspending the Applicant's weekly benefits was reasonable, since it was based on the telephone report from the Applicant's own family doctor, who opined that she could do her housework. In any event, the Applicant's benefits were reinstated up to December 1, 1991, following mediation. Therefore, he submitted, no weekly benefits have been unreasonably withheld by the Insurer.

Further, the evidence shows that the Applicant never submitted any specific claims for housekeeping expenses. She submitted no receipts or even proposals for housekeeping expenses. The adjuster advised the Applicant to submit her claims and the Applicant took no action. Therefore, it cannot be found that the Insurer unreasonably withheld any payments in this regard, and no special award should be ordered.

Finally, the Insurer submitted that, in the circumstances of this case, the Applicant should not be awarded her expenses.

Findings:

Weekly Benefits:

Weekly benefits are available under section 13 of the No-Fault Benefits Schedule, which provides as follows:

Section 13

(1) The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident, a weekly benefit during the period in which the insured person suffers substantial inability to perform the essential tasks in which he or she would normally engage if he or she meets the qualifications set out in subsection (2).

Weekly benefits are payable therefore, "during the period in which the insured person suffers substantial inability to perform the essential tasks in which...she would normally engage".

In this case, the Applicant gave extensive evidence about her essential tasks as a home-maker and mother of small children. Her evidence was that she was solely responsible for the full-time care of her small children, and for all the housekeeping tasks required to maintain her home and family. Her husband's participation in the housework was minimal. She employed no one to assist her, prior to the accident.

The Applicant stated that, after the accident, and specifically after December 1, 1990, the period for which benefits are claimed, she was only able to do about 40% of her childcare tasks and 30% of her other housework.

However, she also indicated that she had good days and bad days. She testified that throughout the period of her disability she had no assistance with the housework and childcare. She stated that she sometimes let the laundry and dishes pile up, left the beds unmade, and cleaned the bathroom only once a week rather than twice a week. She did other heavy cleaning chores, such as cleaning the appliances, less frequently than before.

Her evidence was that doing the housework was painful, and left her exhausted and irritable.

I have every sympathy for the Applicant in her predicament. I found the Applicant to be a pleasant and entirely credible witness. I have no doubt that she experienced pain as the result of the injuries from her accident, and I am equally convinced that the pain adversely affected her ability to function as a mother and home-maker. I accept that the Applicant's abilities to do her housework and childcare tasks were limited as a result of the accident, and that many of the tasks that she used to perform easily are now painful and difficult for her.

Nevertheless, I cannot find that the Applicant has suffered a substantial inability to do her essential tasks. On the contrary, the Applicant's evidence is that she continued to perform her essential tasks, albeit with pain and difficulty.

The Applicant continued to care for and supervise her children. She did not enrol them in day care or engage a caregiver.

The Applicant continued to shop for, prepare and clean up after the family meals, although she sometimes let the dishes accumulate. She continued to be responsible for cleaning and maintaining her home, doing the laundry and ironing. The Applicant's evidence is that she did all her former chores, although not as frequently or efficiently. However, she did not obtain outside assistance for housework or meal preparation, according to her own evidence.

The medical evidence supports this finding. The Applicant's family physician, Dr. Rockman, on November 27, 1990, indicated that he felt that the Applicant had "recovered to some extent" from her injuries, that she still had "'good days' and 'bad days', but more good than bad". The evidence of the Insurer is that Dr. Rockman was unwilling to provide a negative report in writing about his patient, and he suggested that the Insurer obtain an independent medical report.

The medical reports filed show that Dr. Rockman referred the Applicant to Dr. Malcolm, an orthopaedic specialist, and Dr. Moddel, a neurologist. The reports of both specialists (Dr. Malcolm - Exhibit 1-5; Dr. Moddel - Exhibit 1-6) verify that the Applicant complained of pain and recommend conservative treatment. Neither report indicates that the Applicant was substantially disabled.

Dr. Viscomi, the chiropractor, in his report dated January 8, 1991, stated that the Applicant's injuries were "severe enough to hamper her in her daily activities especially her housework". (emphasis added). He stated that she was unable to do moderate to heavy lifting.

Dr. Zeldin, the independent orthopaedic consultant retained by the Insurer, reported on January 30, 1991 (Exhibit 2) that the Applicant was still experiencing some residual discomfort as a result of the accident. He stated, "This is giving her some bother but not I would think significant impairment or incapacity." He stated that she could continue with her regular activity.

Similarly, Dr. Kachooie (June 25, 1991) found the Applicant to be "significantly limited and disabled" and, later on, his report said the Applicant is "quite limited" and would benefit by obtaining a bench for the bathtub or perhaps a home-maker once or twice weekly.

Finally, an extensive evaluation and assessment of the Applicant's abilities performed by Dr. Koepfler and her team, at the request of the Applicant, found that she was "substantially limited in her abilities to perform household and childcare duties due to fatigue and pain."

The report indicates that the Applicant's endurance for prolonged activities is greatly reduced, and all activities take much longer.

In short, the medical evidence confirms that the Applicant's ability to do her essential tasks was "limited" or "hampered". However, to receive weekly benefits, the Applicant must show a "substantial inability" to do her essential tasks, and not simply that she could have performed those tasks more easily and efficiently but for the accident. Therefore, the Applicant has failed to establish that she is entitled to ongoing weekly benefits as a result of her injuries.

Supplementary Medical & Rehabilitation Expenses:

The Applicant has claimed payment for certain supplementary medical and rehabilitation expenses under section 6(1) of the No-Fault Benefits Schedule. The Applicant's expenses were set out in Exhibit 4. During the course of the hearing, the Insurer agreed to pay for all the items claimed, with the exception of an invoice of $834.60 from the physiatrist, Dr. Kachooie. The Insurer submitted that $834.60 was an unreasonable charge for a medical report.

However, the medical documentation filed includes two reports from Dr. Kachooie (Exhibits 1-9, June 25, 1991, and 1-10, February 14, 1992). It is not clear from the evidence or the submissions whether the $834.60 charge refers to one or both reports. Therefore, I remain seized of this matter, and will issue an order after allowing both parties to make further submissions in this regard.

Special Award:

The Applicant claimed a special award under section 282(10) of the Insurance Act, which provides as follows:

(10) 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 No-Fault Benefits Schedule, shall award a lump sum of up to 50 per cent 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.

Since I have found that the Applicant was not entitled to weekly benefits subsequent to December 1, 1990, it follows that no such benefits were unreasonably withheld after this date, and therefore the Applicant is not entitled to a special award on this account.

The Applicant's benefits had been previously terminated on September 26, 1990, based on the Insurer's information from Dr. Rockman. Mediation took place, and benefits were reinstated up to December 1, 1990 as a result.

On the evidence before me, I do not find that the Insurer's conduct in terminating and then reinstating the Applicant's weekly benefits amounts to an unreasonable withholding of benefits under section 282(10).

Finally, the Applicant argued that she should have been provided with housekeeping assistance, and that the Insurer's failure to take action so as to provide such a benefit can be viewed as an unreasonable withholding of a benefit under section 282(10).

While I do not question that the Applicant might well have benefitted from housekeeping assistance, I cannot find that the Insurer unreasonably withheld any benefit to the Applicant. The evidence is that the Applicant made some enquiries about housekeeping services, but did not claim any expenses in this regard. She did not engage or even propose to engage a housekeeper, and submitted no specific request or plan for housekeeping assistance.

The Applicant argued that an expense does not need to have been incurred for it to be payable under the No-Fault Benefits Schedule.

While this may be so, an expense must still be claimed and reasonably ascertainable before it can be found that payment was unreasonably refused or withheld. In the case of MacDonald v. Travelers Indemnity Company of Canada (supra) referred to by the Applicant, Osler J stated:

...It seems to me that if a reasonable necessity for the item claimed is established and the cost of obtaining such a service or product is shown, ...the obligation to pay...must then be assumed...

Although an insurer is obliged to co-operate with its insured to provide medical and rehabilitation benefits as necessary, its obligations do not extend so far as organizing or providing benefits for its insured in the absence of a specific request for such benefits.

Finally, I note that I have considered the criteria for assessing a special award under section 282(10) in the case of Larry Erickson v. The Guarantee Company of North America (O.I.C. File No. A-000560). In that case, I indicated that in my view a special award is not awarded on the same basis as aggravated or punitive damages in tort or contract cases. Therefore, Thompson v. Zurich Insurance Company (supra), cited by counsel for the Applicant, is not relevant to my assessment of this issue.

Expenses:

The Insurer submitted that, in the circumstances of this case, the Applicant should not be awarded her expenses.

In the case of Ralph McCormick v. Economical Mutual Insurance Company, (O.I.C. File No. A-000139, October 2, 1991), Senior Arbitrator S. Naylor stated

It is appropriate to award an applicant his or her expenses, unless, in the circumstances of the particular case, it is determined that the application for appointment of an arbitrator was manifestly frivolous or vexatious, or that the applicant's conduct unreasonably prolonged the proceedings.

I agree with this view. I received no submissions from the Insurer to the effect that these criteria are inappropriate or otherwise inapplicable in this case.

I do not find, in this case, that the Applicant's application for the appointment of an arbitrator was manifestly frivolous or vexatious. Neither did her conduct in any way impede or hinder the hearing process. On the contrary, I find that the Applicant's conduct in applying to have her dispute arbitrated, and throughout the course of the arbitration hearing, was entirely reasonable and appropriate.

The Applicant is entitled to have her dispute with the Insurer fairly adjudicated. The arbitration system was designed to facilitate the resolution of disputes about no-fault benefits, in a manner that is relatively speedy, informal and inexpensive, having regard to the disparity of resources on both sides.

The Applicant is therefore entitled to her expenses incurred in the arbitration hearing, in accordance with the provisions of Ontario Regulation 275/90.

Order:

1. The Applicant is not entitled to weekly benefits from December 1, 1990 onwards.

2. The Applicant is entitled to her expenses claimed for supplementary medical and rehabilitation benefits, with the exception of her claim for the report of Dr. Kachooie. I remain seized of this issue pending further submissions from the parties.

3. The Applicant is not entitled to a special award under section 282(10) of the Insurance Act.

4. The Applicant is entitled to the expenses that she has incurred in respect of this arbitration hearing, in accordance with Schedule 1 of Regulation 275/90.

August 28, 1992

Frederika M. Rotter

Senior Arbitrator

Date