Neutral Citation: 1993 ONICDRG 2

File No. A-001403

ONTARIO INSURANCE COMMISSION

BETWEEN:

THERESA WALICKI

Applicant

and

SECURITY NATIONAL INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Theresa Walicki, was injured in a motor vehicle accident on December 22, 1990. She was insured under a standard automobile owner's policy issued by the Insurer. She applied for accident benefits, payable under Regulation 273/90 (the "No-Fault Benefits Schedule"), enacted under the Insurance Act, R.S.O. 1990, c. I.8. Every motor vehicle policy provides the benefits set out in the No-Fault Benefits Schedule.

The Applicant received weekly income benefits until April 4, 1991. Thereafter, the Insurer refused to pay further weekly income benefits, alleging that the Applicant no longer qualified for them.

Following the denial of the claim for accident benefits, the Applicant applied for mediation. Mediation failed to resolve this issue. The Applicant then applied for the appointment of an Arbitrator to decide the dispute.

The issues before me in the arbitration were as follows:

1. Is the Applicant entitled to weekly income benefits from April 5, 1991, onwards?

2. Is the Applicant entitled to childcare benefits under the provisions of section 13 of the No-Fault Benefits Schedule? If so, for what period of time?

3. Is the Applicant entitled to various supplementary medical and rehabilitation expenses which she is claiming?

The Applicant also claims interest on any amount found to be owing to her, and for her expenses of this hearing.

Result:

1. The Applicant is not entitled to further weekly income benefits after April 5, 1991.

2. The Applicant is not entitled to childcare benefits under section 13 of the No-Fault Benefits Schedule.

3. The Applicant is not entitled to the supplementary medical and rehabilitation expenses which she claims.

Hearing:

An arbitration hearing was held at Kincardine, Ontario, on December 10, 1992, before me, K. Julaine Palmer, Arbitrator.

Present at the Hearing were:

Applicant:

Theresa Walicki

Applicant's Representative:

John Gilbert Barrister & Solicitor

Insurer's Representative:

Alexander M. Voudouris Barrister & Solicitor

The following gave oral evidence under oath at the hearing:

Theresa Walicki

William H. Knox, M.D.

Karen Rapley, D.C.

The parties filed a medical brief and six other exhibits totalling more than 200 pages.

The proceedings were recorded by Dana Moore, certified Court Reporter.

Evidence:

The Applicant is a 43-year old married woman who has two teenage children: Ryan, born September 12, 1978, and Nadine, born April 17, 1975, as well as an older daughter, Tracey, now age 23. She lives in the small town of Kincardine, on Lake Huron, where she maintains the family's home.

From March 1989 to December 21, 1990, the Applicant worked as a newspaper carrier for the Owen Sound Sun Times. She took over this newspaper route from her children. The number of subscribers on the route varied between 35 and 52. The Applicant was paid eleven cents per day to deliver each newspaper, six days per week. Thus, her gross pay was between $23.10 and $34.32 per week. Her route took one and a half to two hours to complete, depending on the weather. Each newspaper was approximately 1/2" thick or less. Since the accident of December 22, 1990, she has not returned to this employment.

The Applicant testified that, after the accident of December 1990, she suffered from extreme back pain, which she described as a crippling, burning pain down into the back of her legs. She testified that she is in constant pain: going up and down stairs increases her pain, if she does this more than three or four times daily. Standing, sitting, or driving, for any length of time also increases her pain. She described a severe episode of pain as "like having a terrible 'flu, without vomiting". She stated that she cannot see, her eyes become very small, and she must take a taxi to the doctor or have a neighbour drive her. Apart from her back pain, the Applicant testified that her hands get numb and tingly.

The Applicant estimated the furthest she could drive was the distance between Kincardine and Walkerton, a drive lasting about 30 minutes. She stated she can only do one or two fast dances if she attends a dance, then she must stop. The Applicant attends fewer social functions now because she cannot sit for the required length of time.

The Applicant testified that, since the accident, she has never had a whole week when she has been pain-free. By way of example, she testified that in the week before the hearing, from Wednesday till Friday, her health seemed fine. However, Saturday she had to spend the day in bed. On Sunday, she was completely disabled by pain. She improved on Monday and Tuesday, but by Wednesday she was feeling terrible again. She went to her doctor for medication. She testified that he wanted to put her in the hospital.

The Applicant testified that treatment of her condition is aggravated by the fact that she is very sensitive to medication.

The Applicant testified that her physical condition deteriorated gradually after the accident. For a time she thought she could deal with the symptoms on her own. She saw Dr. Knox, her family doctor, immediately after the accident, but then not for a while. She testified that her symptoms became progressively worse.

At the request of the Insurer, the Applicant was examined on June 18, 1992, by Dr. G.A. McCain, a rheumatologist then practising in London, Ontario. He diagnosed her as suffering from fibromyalgia syndrome. The Applicant stated her understanding that fibromyalgia was related to chronic fatigue syndrome. She testified that Dr. McCain told her that she could no longer deliver papers and that there is no recovery from this disease. She stated he recommended she use a whirlpool or a hot tub, that she judge for herself what activities she could stand, and that she be very careful. He recommended that she enter University Hospital, London, for its fibromyalgia treatment program. This will likely occur in 1993 because of a one-year waiting list. The program lasts four weeks.

Cross-examination of the Applicant focused on her long history of chronic back problems, prior to the 1990 motor vehicle accident. The Applicant freely admitted that she had been injured in two previous motor vehicle accidents in May 1984, and January 1987. She admitted injuring her low back in 1983, after tobogganing. She testified that between 1987 and 1990 she had recovered to 99.9% of her previous condition. From time to time she had some ongoing pain -especially neck and back pain - but this was minimal. She claimed that the previous injuries had almost no effect on her life. She had headaches, backaches and neck pain but these did not stop her from doing anything: going dancing, attending bingo, sliding with the children, housework, her job - there was nothing that she wanted to do that she could not do.

The Applicant admitted that she had visited Dr. Karen Rapley, her chiropractor, in the autumn before the 1990 accident. She testified that in September 1990, while delivering newspapers, she fell on some ice and injured herself. She saw both Dr. Knox and Dr. Rapley. The Applicant testified she was not able to work between September 1990 and November 1990 because of her injuries.

The Applicant admitted that she frequently had trouble sleeping, even before the December 1990 accident, because of pain from the previous car accident.

Supplementary Medical and Rehabilitation Expenses:

The Applicant described her claims for supplementary expenses.

1. Dry Cleaning Expenses:

The Applicant stated that she could no longer iron, so it was necessary for her to have some items of family clothing pressed at the local dry cleaners. She did not differentiate as to whose clothes were actually being pressed.

2. Hairdressing Expenses:

The Applicant testified she can no longer use a curling iron on her own hair, and claims the expense of having a hairdresser use a curling iron on her hair once a week.

3. Taxi Expenses:

The Applicant claims the cost of taxi fares to doctors' appointments, transporting her son to hockey, and her daughter to dancing lessons when she cannot drive.

4. New Life Vitamins:

The Applicant is claiming the cost of these vitamins, which, she testified, seem to be beneficial to her. She asked Dr. Knox about these vitamins because she was not reacting well to drugs. She discontinued them because she could no longer afford them.

5. Whirlpool Bath:

The Applicant testified that Dr. Knox recommended a whirlpool or a hot tub. The Applicant testified that on occasion she would go to the Governor's Inn, a local motel, for a whirlpool bath. She has not purchased a whirlpool, but would if she were financially able to.

6. An Ultra-matic Bed:

The Applicant saw this on television and talked to her doctor about it. She has had trouble getting in and out of bed. The Applicant testified that Dr. Knox told her that she needed a good mattress and that she should get herself one.

7. Housekeeping Expenses:

The Applicant claims the cost of housekeeping expense after April 1991. She testified she is unable to vacuum, scrub floors, or dust, nor to clean lamps, light fixtures, or bathrooms. Prior to the accident in 1990, she testified she did all of the house-cleaning and none of her family helped her; since 1990, they have been more helpful.

The Applicant stated that particulars of these expenses had been given to the Insurer in correspondence.

Dr. William Knox:

Dr. William Knox testified under summons from the Insurer. He has been the Applicant's family doctor for 15 years. Dr. Knox reviewed Mrs. Walicki's pre-1990 chart in great detail. It was Dr. Knox's opinion that by April 8, 1991 her symptoms had improved to a pre- injury state. Dr. Knox stated that the Applicant has a "multiplicity of myalgic problems...hard to sort out what is caused by what...it has a theme of chronicity to it". At the hearing, Dr. Knox testified that the Applicant's fibromyalgia was not diagnosed prior to the December 22, 1990 motor vehicle accident, but the pattern fits. In his view, fibromyalgia is a diagnosis of exclusion. Dr. Knox stated that he relies on a rheumatologist to diagnose this disease because of the long-term care problems associated with it.

Dr. Knox suggested that Mrs. Walicki did not suffer from the fatigue often associated with fibromyalgia until after the 1990 accident. He testified that trauma or accident exacerbates fibromyalgia.

Dr. Karen Rapley:

Dr. Karen Rapley, Chiropractor, testified she has treated the Applicant off and on since 1985. She was examined in chief by the Insurer's representative, who reviewed the clinical chart of the Applicant, both before and after the 1990 accident. In Dr. Rapley's opinion, Theresa Walicki has returned to her pre-1990 physical condition, and the major exacerbations have subsided. Dr. Rapley found it difficult to say when the Applicant returned to this state, but testified that her notes indicate that in approximately April or May of 1991 Mrs. Walicki was saying that she felt a little better. Dr. Rapley agreed that Mrs. Walicki could drive, walk from the road to a house and back, and carry a single newspaper. However, she did not know whether Mrs. Walicki could do this repeatedly over an hour's time and deliver over 30 newspapers.

Medical Evidence Filed:

Extensive medical information was filed with respect to this hearing. The Applicant's medical brief consisted of 6 narrative reports of the Applicant's family doctor, Dr. W.H. Knox, beginning January 28, 1991, and ending April 30, 1992. The Applicant's brief also contained a report of Dr. Karen E. Rapley, dated February 11, 1991, and the report of Dr. G.A. McCain, rheumatologist, dated June 19, 1992. A report from the Canadian Back Institute, London, Ontario, dated February 11, 1992, was also filed.

The Insurer submitted the report of Dr. Fred Langer, orthopaedic surgeon, dated December 4, 1992, together with his Curriculum Vitae. A Form 4 report by Dr. Karen Rapley, dated February 4, 1991, and 30 closely-written pages of her clinical notes and records concerning Theresa Walicki from May 31, 1985 to November 9, 1992, were also filed. Records obtained from Seaboard Life Insurance Company, which paid the Applicant collateral disability benefits of $25.00 per week, were also filed. These records included documents from St. Joseph's Health Care Centre in London from 1986 to 1989.

I also reviewed the clinical notes and records of Dr. William H. Knox and his other partners of the Kin-Huron Medical Centre, from December 21, 1982 to November 10, 1992 - 70 pages of closely-written clinical notes, and an additional 70 pages of consultation notes, formal narrative reports, and typewritten hospital discharge notes. Some diagnostic testing results and some correspondence from Insurers was also included.

These records documented the Applicant's hospitalization in November 1984, due to acute anxiety and nausea. They indicated she was subsequently referred to an Owen Sound psychiatrist, and later to a London cardiologist and neurologist, following persistent complaints after the 1984 motor vehicle accident.

The records document the Applicant's treatment at St. Joseph's Health Care Centre and the therapy that she received there in 1986, including occipital nerve blocks. They show she was hospitalized in Kincardine for much of the months of April and May 1987, with a diagnosis of "generalized myalgia". She was hospitalized at St. Joseph's Health Care Centre, at its chronic pain clinic from May 25 to July 3, 1987. She received further treatment for pain control with Dr. Michael MacDonald, psychologist.

The records describe the circumstances leading to the Applicant's hysterectomy on April 2, 1990. They also document an acute attack of right lower quadrant abdominal pain in January 1991, and subsequent investigation by an expert urologist. An investigation of a small lesion on the Applicant's face was also carried out by a Toronto dermatologist in September 1992.

The exhibits refer to three motor vehicle accidents in which the Applicant suffered injury: April 5, 1979, May 6, 1984, and January 8, 1987, as well as a tobogganing accident of January 1983.

The report of Dr. Fred Langer, orthopaedic surgeon, dated December 4, 1992, was filed as part of the Insurer's case. Dr. Langer did not personally examine Mrs. Walicki, but based his report on the medical file of the Applicant, which had been sent to him by the Insurer's solicitor and "my personal experience with the so-called condition of fibromyalgia-fibrositis, an intensive review of the current literature, my lengthy experience in managing patients following motor vehicle accidents, and the information available from the report of Dr. G.A. McCain (June 19, 1992)." Dr. Langer is not a "believer" in the existence of fibromyalgia as a valid clinical syndrome. In his view, "it is a means attempting to authenticate exaggerated physical distress in the absence of any physical explanation. It is simple, medical-sophistry".

Dr. Langer was not called to give oral testimony at the hearing. Neither was Dr. G.A. McCain, the rheumatologist who had made the diagnosis of fibromyalgia. In the case of Dr. McCain, however, I understand he has moved to the Southern United States and had not responded to any letters which had been sent to him with respect to this case.

Submissions:

The Applicant's solicitor submitted that Dr. McCain, the Insurer's own medical expert, concluded the Applicant was unable to perform the essential tasks of her occupation. Dr. McCain diagnosed the Applicant as suffering from fibromyalgia as a result of the accident. The Applicant's solicitor submitted that no objective medical evidence suggests that the Applicant suffered from this condition prior to the accident of December 22, 1990. He submitted that the Applicant is eligible for ongoing weekly income benefits.

With respect to the childcare benefits, the Applicant's solicitor referred to the case of Trinidad Chamale v. Wellington Insurance Company, (O.I.C. File No. A-000849, dated September 25, 1992) [under appeal].

With respect to Supplementary Medical and Rehabilitation Benefits, the Applicant's solicitor submitted that all of the expenses claimed qualify under section 6(1) (f) of the No-Fault Benefits Schedule. He submitted that these expenses are a natural consequence of the injury and that this remedial legislation requires a liberal interpretation.

The Insurer's solicitor submitted that the Applicant has been paid, according to the law, under section 12 of the No Fault Benefits Schedule, until both her doctor and chiropractor said that she had returned to her pre-accident condition. He submitted that the evidence shows clearly that the Applicant has suffered since 1984, or at the very least, since 1990, from a variety of ailments.

The Insurer's solicitor submitted that section 13(1) childcare benefits are mutually exclusive to section 12 benefits - the Applicant cannot be entitled to both sections 12 and 13 benefits. Regarding the Supplementary Medical expenses, he conceded the taxi fare to the doctor's appointments is covered; however, he submitted that expenses for "aesthetics" such as hairdressing are not covered. He submitted that the Applicant's husband and children can help clean the house.

With respect to Weekly Income Benefits, the Insurer's counsel submitted that Dr. Langer's report suggests no real disease exists. Both Dr. Rapley and Dr. Knox believe in fibromyalgia, but they date this condition in the Applicant from the mid-1980's.

Findings:

1. Entitlement to On-going Weekly Income Benefits From April 5, 1991:

The Applicant in this case suffers from a complex disease or syndrome known as fibromyalgia. It is important here to determine if this condition was caused by the motor vehicle accident of December 22, 1990 or if it pre-dated the accident. It is also critical to determine if after April 5, 1991 because of the effects of this disease, the Applicant suffered from a substantial inability to perform the essential tasks of her employment as a newspaper carrier.

I have reviewed the report of Dr. G.A. McCain, rheumatologist, which concludes that the Applicant suffers from fibromyalgia, as a result of the motor vehicle accident of December 22, 1990. This diagnosis was, at least in part, based upon a history which was provided to him orally, when he interviewed the Applicant on one occasion: June 18, 1992. The Applicant had been sent to Dr. McCain by the Insurer for an examination and detailed medical report. Unfortunately, Dr. McCain was not compellable as a witness to give oral testimony at the hearing.

At least one portion of the Applicant's history, as recounted by Dr. McCain, must be discounted. This fact may be critical. He states in his report that "she was quite clear about the fact that she was asymptomatic for at least one and a half to two years prior to her motor vehicle accident on December 22, 1990." He reports this after writing about the Applicant's reactions to the 1984 and 1987 accidents.

After a careful review of the clinical notes and records of the Kin-Huron Medical Group and her doctor's reports, I find that this is not an accurate statement of Mrs. Walicki's pre-1990 history.

In the period from July 1989 to December 22, 1990, Mrs. Walicki was seen on 93 occasions by Dr. Knox or his partners. Although Dr. McCain's report states she claimed to be symptom-free from back pain prior to the accident of December 22, 1990, for some one and a half years at least, I have found that on at least eighteen occasions, from July 5, 1989 to November 15, 1990, she complained of back pain. She complained at least once a month from July 1989, until December 1989, then again in March, May, October and November 1990. I do note that she appears to have been free from reported back discomfort in January and February 1990, then again from June to September 1990.

Although Dr. Knox testified at the hearing that the Applicant's fibromyalgia was not diagnosed prior to the December 22, 1990 accident, I find that he did refer to his diagnosis of this disease, in at least a tentative way, in a letter of February 11, 1991 in which he stated:

This patient does not have rheumatoid disease nor does she have degenerative arthritis. She does, however, have fibromyositis, which is a difficult diagnosis both to make and to treat.

This patient's request for a new mattress and heating pad would be a benefit to her general overall fibromyositis which seems to be exacerbated by the recent injury.

Thus, to whatever extent Dr. McCain relied on claims of a recent symptom-free history of the Applicant to draw conclusions with respect to the origin of the Applicant's condition, this part of his hypothesis was in error.

I accept, based on Dr. Langer's report, that some orthopaedic surgeons do not credit fibromyalgia as a proper diagnosis of any condition. Dr. Knox, on the other hand, states that he has many patients who suffer from this malady, among them the Applicant.

Both Dr. Knox and Dr. Rapley have had the opportunity of caring for the Applicant over a period of years: Dr. Knox from 1979, and Dr. Rapley from 1985.

Both of these health care professionals have examined the Applicant on many occasions, both before and after the motor vehicle accident of December 22, 1990. Both have written several thoughtful reports about the Applicant's condition. Both have concluded that, by the late spring of 1991, the Applicant had returned to a state of health which resembled her pre-accident condition.

After examining their clinical notes, reading the reports, reflecting upon their evidence, and taking into account the testimony of the Applicant, I find that I am in agreement with Dr. Knox and Dr. Rapley that at least as of April 5, 1991, Theresa Walicki had largely returned to her pre-accident state of health and no longer suffered a substantial inability to perform the essential tasks of her occupation as a newspaper carrier.

It may well be that Theresa Walicki has suffered from fibromyalgia since at least the mid-1980's. If so, the accidents of 1984, 1987, and 1990 all caused aggravations of this condition with each accident producing its own unique symptomatology as well. Based on all of the evidence, I cannot conclude that prior to the December 22, 1990 accident the Applicant enjoyed "good health". In my view, the Applicant has the misfortune to suffer from a chronic condition, the symptoms of which increase and decrease over time, both prior to and after the December 22, 1990 accident.

Thus, the December 1990 accident may be seen as having aggravated a pre-existing condition suffered by the Applicant, rather than as causing her new injury. Because of this aggravation, she suffered substantial inability to perform her job and thus qualified for weekly income benefits under the provisions of the No-Fault Benefits Schedule until early April 1991. Thereafter, I have concluded, her health returned to, basically, her pre-accident state.

2. Child Care Expenses, Section 6(1) (f) and Section 13 of the "No-Fault Benefits Schedule:

Although I was asked to make a finding with respect to this issue, no evidence was called with respect to Mrs. Walicki's expenses for child care. I did learn, however, that her son, Ryan, would have been about 12 years old at the time of the accident, and her daughter, Nadine, about 15-1/2 years old. Accordingly, both children would qualify as persons who at the time of the accident were residing with the Applicant (section 13(4)). I also heard that Mrs. Walicki was a home-maker, who had a regular part-time job as a newspaper carrier, a job which, indeed, had previously been that of her son, then her daughter. It was implicit in her testimony that the Applicant was Ryan and Nadine's "primary caregiver".

At the outset of this hearing, I queried both solicitors as to whether this Applicant's claim should properly be dealt with under section 13, or whether because the minimal amount of her employment income - between $23.10 and $34.32 per week - she should claim under section 12. I heard no argument from either counsel as to whether the Applicant's small employment income might be considered "income from self-employment from work in her home", under the provisions of section 13(2). Both solicitors submitted this claim should be treated as a section 12 claim.

On the basis of the evidence which I heard, it is my view that the Applicant was first and foremost a home-maker. She had a regular part-time job as a newspaper carrier, which on the scale of remunerative employment, must be considered at the extreme low end of the spectrum, as far as hours of work (9-12 hours per week) and remuneration ($23.00-$34.00 per week) are concerned. This claim was not presented under section 13 and so I have not considered the question of the point at which the Applicant was capable of performing the essential tasks in which she normally engaged. I have discussed my reasoning with respect to her ability to perform her essential employment tasks above.

The Applicant is not entitled to weekly income benefits under both section 12 and section 13 at the same time, according to the provisions of section 13(7), which reads as follows:

A person cannot receive benefits under this section and section 12 at the same time.

The Applicant has submitted no evidence to support any claim for childcare expenses. The case of Chamale v. Wellington Insurance, cited above, is easily distinguished: in that case, Mr. Chamale claimed under section 13 and had expended $175.00 per week for housekeeping and babysitting services.

For all of these reasons, then, the Applicant is not entitled to childcare benefits or expenses. 3.Supplementary Medical and Rehabilitation Expenses:

The Applicant claims a number of supplementary medical and rehabilitation expenses. These claims, although they amount to significant amounts of money in some instances, were barely touched upon in evidence at the hearing, and were only substantiated by a small clutch of notes and receipts. I shall deal with these items as they were claimed by the Applicant:

Dry Cleaning Expense:

The Applicant claims $225.68 in dry cleaning expenses under section 6(1) (f) of the No-Fault Benefits Schedule. Section 6(1)(f) reads as follows:

(1) The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident all reasonable expenses resulting from the accident within the benefit period set out in subsection (3) for,

(f) other goods and services, whether medical or non-medical in nature, which the insured person requires because of the accident;

With respect to this item, the Applicant presented only two receipts, one dated August 6, 1992 for $15.51, relating to the pressing of six shirts and one dress, and $26.75 for the dry cleaning of two 2-piece suits, one grey and one navy, on August 6, 1992.

The Applicant stated at the hearing that she believed that such expenses would be dealt with in a lump sum payment from the Insurer, and, as a result, did not keep receipts related to these items. She gave no evidence of any effort to obtain duplicate records from Bruce Cleaners, once her obligation to prove such expenses was made known.

Although there could certainly well have been a point in time when the Applicant was incapable of pressing her own clothes as a result of the injuries she received in the accident, without evidence I am unable to assess what amount of her own personal clothing might have required pressing between December 22, 1990 and April 4, 1991.

As I have stated before, in the case of Carlos Ferreyra and Blanca Ferreyra v. Royal Insurance Company of Canada (O.I.C. File No. A-000301, A-000325 and A-000384), the focus of the No-Fault Benefits Schedule is on the person who has been injured in the motor vehicle accident, not on the services she formerly provided. Accordingly, then, no expense for pressing clothing belonging to other family members is recoverable here. I am further unable to assess what amount of pressing might have been required for the Applicant's clothing and which might have been recoverable under section 6(1)(f). The Applicant has failed in her efforts to prove these expenses, let alone her entitlement to their payment.

Hairdressing Expense:

The Applicant testified that she cannot use a curling iron on her hair. The Applicant did not describe in any detail the reasons for which she could not use a curling iron, but she did testify early in the hearing that her hands go numb and become tingly from the back of her shoulders down to her hands and fingers. The Applicant provided very little foundation for the claim for payment of this expense, which totalled $800.00, at approximately $6.00 per week from December 28, 1990, to September 25, 1992.

I have no hesitation in stating that in a proper case, a claim for reasonable hairdressing expenses might well be properly advanced under the provisions of section 6(1) (f) of the No-Fault Benefits Schedule. However, in this case, owing to the paucity of evidence with respect to this subject, I cannot award such expenses to the Applicant.

In my view, in order to qualify such amounts for payment, I would have required some evidence from the Applicant, or others, with respect to her inability to hold her arms in the position required to manipulate a curling iron, such that she has been prevented from performing this task for herself since the accident. I would also have wished to have the comments of Dr. Knox with respect to such a service as a necessary part of the Applicant's rehabilitation or treatment, as outlined at section 6(4) of the No-Fault Benefits Schedule.

Taxi Expenses:

Three taxi receipts totalling $16.45, dated April 14, 1992, May 14, 1992, and November 30, 1992, were filed by the Applicant. The first receipt relates to a drug delivery from the IDA Drug Store. The next receipt relates to travel from Kin-Huron Medical Centre to the Applicant's house. The third receipt relates to return travel from the Applicant's house to her doctor's office at Kin-Huron Medical Clinic.

The Applicant also claimed expenses relating to providing alternate transportation for her son to hockey and her daughter to dancing lessons. Even had receipts been presented, I would not have allowed such expenses, for the reasons set out in the Ferreyra decision, cited above.

I have found that as of April, 1991 the Applicant's condition had basically returned to her pre-accident state. Accordingly, since I heard no evidence with respect to a "flare-up" of the Applicant's symptoms which could be reasonably attributed to the accident, I cannot find the Insurer responsible for the payment of these supplementary expenses - all incurred after April 4, 1991. Without any evidence, I cannot link these expenses to the injuries the Applicant suffered in the accident of December 22, 1990.

Vitamins:

I heard no evidence as to why the cost of these vitamins ought to be paid by the Insurer. Dr. Knox was not questioned with respect to his recommendation about vitamins. The claim is not allowed.

Whirlpool Tub:

Both Dr. Knox and Dr. McCain have commented in their reports, and Dr. Knox at the hearing, on the advisability of the Applicant taking treatments in a whirlpool. The underlying implication of this evidence was that the Applicant would purchase such an appliance, presumably because of the convenience of having a whirlpool available in her own home. The Applicant did testify that she had attended at a motel in Kincardine to use the whirlpool there.

Dr. McCain wrote in his report of June 19, 1992:

"Her family doctor has recommended an Ultra-matic bed and whirlpool. This was primarily recommended as an adjunct to the physiotherapy, which she had been attending in Kincardine. ... I did not feel that the Ultramatic bed was absolutely essential for her treatment, but could be prescribed optionally. Perhaps because of its great cost, the benefit would not be significant enough to warrant it. A small whirlpool, however, would be reasonable, as symptomatic treatment. Again, this would not be curative and is only relatively indicated at this time."

Dr. Knox wrote in his report of March 9, 1992 the following:

...This patient was involved in a motor vehicle accident on December 22nd, 1990. Subsequent to this, she has had ongoing back pain and has had difficulty continuing with her housework because of it. She needs ongoing massage, an orthopaedic mattress, and whirlpool for long-term relief of her discomfort. She requires house-cleaning services to cope with the routine housework. She has been assessed by the Canadian Back Institute on February 11th, 1992 who feel that she has mechanical low back pain. As a result of this, she is substantially disabled to perform her household chores.

I express no opinion here as to whether the purchase of a personal whirlpool could be warranted in the appropriate case. However, on the facts of this case, I do not find that it would be a "reasonable expense resulting from the accident" because, as of April 1991, I have found the Applicant substantially recovered from the injuries she received in the accident of December 22, 1990.

The only indication that I have with respect to the cost of either a whirlpool or an Ultra-matic bed is found in the report of the mediator, which sets out the respective costs at $3,000.00 and $3,500.00. I heard no evidence, whatsoever, at the hearing regarding the merits of these devices, nor their cost. Dr. Knox did make a note on a prescription pad for Mrs. Walicki on January 10, 1991, for a new mattress for a Queen bed and a heating pad. He made a similar note on January 24, 1991, for an Ultra-matic, electric, adjustable bed.

At the hearing, Dr. Knox commented that the devices would be worthwhile conservative modalities to which he had no objection. He stated that he could not offer any medications that would work with Mrs. Walicki's pain and that such devices were not out of line. He agreed that they were reasonable devices to attempt to find comfort through.

During the period January to April, 1991, then, it might have well have been reasonable for the Applicant to have ready access to a whirlpool bath and to either an orthopaedic mattress or an adjustable bed. However, based on the evidence that I heard in this case, I cannot now find that these items should reasonably be provided by the Insurer as the result of the accident of December 22, 1990. As I have stated above, it is my view that as of April 1991 the Applicant has returned, basically, to the same state of health as prior to the motor vehicle accident.

Housekeeping:

The Applicant is claiming the cost of housekeeping expenses after April 1991. A contract proposal, dated February 27, 1992, for $40.00 per week plus G.S.T. by "Every Nook and Cranny" cleaning was filed as an exhibit. I have found that as of April, 1991 the Applicant's condition had basically returned to her pre-accident state. Accordingly, since I heard no evidence with respect to a "flare-up" of the Applicant's symptoms which could be reasonably attributed to the accident, I cannot find the Insurer responsible for the payment of these supplementary expenses - all incurred after April 4, 1991. Without any evidence, I cannot link these expenses to the injuries the Applicant suffered in the accident of December 22, 1990.

Expenses:

The Applicant seeks an award of the expenses she has incurred in this arbitration. An award for expenses may be made under section 282(11) of the Insurance Act, which provides as follows:

The arbitrator may award to the insured person such expenses incurred in respect of an arbitration proceeding as may be prescribed in the regulations to the maximum set out in the regulations.

The prescribed expenses and amounts are set out in Schedule 1 of the Dispute Resolution Practice Code and in Ontario Regulation 275/90 "Schedule".

In the Ralph McCormick v. Economical Mutual Insurance Company case (O.I.C. File No. A-000139), Arbitrator Susan Naylor made the following comments about expenses, with which I agree:

The discretion to award expenses should be exercised, having regard to the intent and purpose of the legislative scheme. The arbitration process has been established under the Insurance Act, as amended, in order to facilitate applicants' access to relatively inexpensive, speedy and informal adjudication of disputes regarding no-fault benefits. The discretion to award expenses should be exercised in accordance with this objective, having regard to the individual circumstances of each case.

Accordingly, 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.

The Applicant is entitled to her expenses as set out in Schedule 1 of the Dispute Resolution Practice Code. In the event that the parties cannot agree as to the total amount of expenses, I remain seized of this matter and a party may apply for assessment of the expenses before me.

Order:

1. The Applicant is not entitled to further weekly income benefits after April 5, 1991.

2. The Applicant is not entitled to childcare benefits under section 13 of the No-Fault Benefits Schedule.

3. The Applicant is not entitled to the supplementary medical and rehabilitation expenses which she claims.

4. The Applicant is entitled to her expenses incurred for the arbitration.

January 27, 1993

K. Julaine Palmer Arbitrator

Date