Neutral Citation: 1993 ONICDRG 40

File No. A-001707

ONTARIO INSURANCE COMMISSION

BETWEEN:

BARBARA EDWARDS

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Barbara Edwards, was injured in a motor vehicle accident on October 17, 1990. She applied for and received accident benefits from the Insurer, payable under Ontario Regulation 672 (the "No-Fault Benefits Schedule"), enacted under the Insurance Act, R.S.O. 1990, c. I.2.

Weekly income benefits in the amount of $461.54 were paid until April 4, 1991, at which time they were terminated by the Insurer. The Applicant disputed the Insurer's termination of benefits and applied to the Ontario Insurance Commission (the "Commission") for mediation of the dispute in April 1992. Mediation was unsuccessful in resolving the dispute between the Applicant and the Insurer, and the Applicant applied for arbitration under the Insurance Act in July 1992.

The issues in this hearing are:

1. Is the Applicant entitled to weekly income benefits under section 12 of the No-Fault Benefits Schedule, in the amount of $461.54, from the date benefits were terminated on April 4, 1991 and thereafter on an ongoing basis?

2. the Applicant entitled to reimbursement, under sections 6 and 7 of the No-Fault Benefits Schedule, of physiotherapy, massage, chiropractic, injection and other treatment expenses; along with babysitting and transportation expenses; as set out in Exhibit 13?

3. Is the Applicant entitled to her expenses incurred in respect of this arbitration as prescribed in Ontario Regulation 664, R.R.O. 1990, and as claimed in Exhibit 13?

The Applicant also claims interest on all overdue payments at the rate of two per cent per month pursuant to section 24 of the No-Fault Benefits Schedule.

Result:

1. The Applicant is entitled to weekly income benefits under section 12 of the No-Fault Benefits Schedule, in the amount of $461.54, from April 4, 1991 to August 14, 1992.

2. Applicant is entitled to reimbursement, under sections 6 and 7 of the No-Fault Benefits Schedule, of some of the expenses claimed in Exhibit 13 as specifically allowed in this decision.

3. The Applicant is entitled to payment of her expenses incurred in relation to this arbitration as prescribed in Ontario Regulation 664, R.R.O. 1990, including some of the expenses claimed in Exhibit 13, as specifically allowed in this decision.

4. The Applicant is entitled to receive interest on overdue payments at the rate of 2 per cent per month under section 24 of the No-Fault Benefits Schedule

Hearing:

The hearing was held before me, Janice Mackintosh, Arbitrator, in Brantfordj Ontario, on December 2 and 3, 1992, and February 4, 1993. Written submissions and reply were filed by counsel by March 19, 1993.

Present at the Hearing:

Applicant:

Barbara Edwards

Applicant's Representative:

Mr. James G. Ion Barrister and Solicitor

Insurer's Representative:

Mr. Wayne F. McCormick Barrister and Solicitor

Witnesses:

David J. Brunarski, Doctor of Chiropractic;

Dr. Lawrence Fredrick Joseph Werboski, Anaesthetist, pain management;

Dr. Renato Brun del Re, Family Physician;

Dr. Michael Clement Hall, Orthopaedic Surgeon;

Alexandra Warne, Physiotherapist;

Dr. F. Wayne Furlong, Psychiatrist;

Ron Vida, Claims Superintendent for State Farm Insurance.

The proceedings were transcribed by Sandra Larette and Pam Dumoulin of "Cindy Jones" Verbatim Reporting Services, Brantford Ontario.

Documents before the Arbitrator:

There were 15 exhibits marked during this hearing. These included a medical brief marked as Exhibit 1 prepared on behalf of the Applicant containing 9 reports, and a medical brief marked as Exhibit 2 prepared on behalf of the Insurer containing 5 reports. A complete list of exhibits is contained in Appendix A.

Evidence and Findings:

Weekly Income benefits:

The Applicant claims continuing weekly income benefits under section 12 of the No-Fault Benefits Schedule. The relevant part of section 12(1) provides:

(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 income benefit during the period in which the insured person suffers substantial inability to perform the essential tasks of his or her occupation or employment if the insured person meets the qualifications set out in subsection (2) or (3).

To establish her claim, the Applicant must prove, on a balance of probabilities, that:

1. she sustained physical, psychological or mental injury;

2. the injury was sustained as a result of the motor vehicle accident of October 17, 1990;

3. the injury renders her substantially unable to perform the essential tasks of her occupation or employment;

4. the period of substantial disability continues beyond April 4, 1991 and is ongoing.

Physical, psychological or mental injury:

Mrs. Edwards was involved in a motor vehicle accident on Wednesday, October 17, 1990, while driving home from the third day of her new job as Laboratory Manager with Retek Resource Recovery Inc. After the accident, she was driven to the hospital by her husband, where she was treated with Tylenol #3, provided with a cervical collar, and released. The Applicant described her symptoms following the accident as pain from the back of her neck to her left ear and then to the centre of her throat, and pain down her left arm. The next day, the Applicant did not go into work, but rested and visited her family doctor.

Dr. Renato Brun del Re has been the Applicant's family doctor since June 1923. Dr. Brun del Re gave oral testimony during the hearing and referred to his clinical notes and records to refresh his memory of events. Following the accident, he diagnosed the Applicant's condition as a flexion-extension neck injury. He arranged physiotherapy for the Applicant, and prescribed pain medication and rest. He advised the Applicant to stay home from work and scheduled a further appointment for the following week.

The Applicant was anxious to return to work as soon as possible because it was a new job that represented an advancement in her career. The Applicant had been away from full-time employment since 1927. The Applicant's husband was out of work due to a strike at Stelco and the Applicant needed the income from her new employment to maintain her family. Contrary to her family doctor's urging, the Applicant returned to work on Tuesday, October 23, 1990, six days after the accident. She felt unable to continue to work and returned to her family doctor on October 24, 1990. At that time, she complained of numbness on the left side of her face, numbness associated with neck pain, and difficulty in swallowing. Dr. Brun del Re expressed concern that the Applicant may have been experiencing neurological complications (Exhibit 1, Tab 2). He therefore referred her to Dr. Raymond C. Lo, a specialist in neurology.

In his report dated November 30, 1990 (Exhibit 1, Tab 1), Dr. Lo noted a mild degree of muscle spasm and tenderness which limited the Applicant's lateral flexion, extension and lateral rotation of the neck to about 30 degrees. Dr. Lo concluded:

This patient had soft tissue injuries to the neck and the shoulders mainly on the left side causing muscle spasm and tenderness. I do not find any focal neurological signs such as numbness, reflex changes or weakness to suggest any nerve root injuries. She should continue physiotherapy and maybe chiropractic manipulation and the muscle pain is probably going to take six to twelve months to subside.

The Applicant's evidence was that by the second full week after her accident she had returned to work on a part-time basis, slowly working up to between 4 to 6 hours per day. Over the next weeks, she continued to see her family doctor approximately every five to ten days, attended physiotherapy three mornings a week, attended massage therapy approximately once a week, and on November 3, 1990 she began to see her chiropractor, David J. Brunarski, approximately once a month.

The Applicant's family doctor testified that by November 12, 1990 he reluctantly accepted the Applicant's decision to return to work, but cautioned her against driving. The Applicant's husband drove her to work until the end of the strike at Stelco in mid to late November 1990. The Insurer paid taxi fare to and from the Applicant's workplace; however, the Applicant began to drive herself to work on December 4, 1990. The Applicant continued this routine throughout December 1990. During the medical examination with Dr. Lo (which occurred sometime before November 30, 1990, the date of his report), the Applicant informed him that she planned to return to full-time work the following week (Exhibit 1, Tab 1). The Applicant testified that by January 1991 she suffered controllable pain at work, although she was exhausted by the end of her day. She continued to suffer neck and left arm pain, stiffness, and disturbed sleep.

The Applicant testified that on Tuesday, January 22, 1991, while driving herself to work, she was startled by a car to her left, which unexpectedly pulled out of an intersection. The Applicant quickly twisted her head to the left and instantly experienced severe pain in her neck and left arm. The Applicant testified that during this incident there was no contact between her car and the other car, there was no slamming of brakes, no swerving from side to side, and no contact by her body against the inside of her car. There was no change in the direction or speed at which she had been travelling. Later that morning, the Applicant left work due to pain.

On Thursday, January 24, 1991, the Applicant went to her family doctor. The Applicant recalled her conversation with Dr. Brun del Re. He stated that she had been pushing herself too hard, against his advice, and that such a relapse was just waiting to happen. The oral testimony of Dr. Brun del Re and his report dated February 19, 1991 (Exhibit 1, Tab 2) reflect this view. On the advice of her family doctor, the Applicant arranged a leave of absence from her employment commencing on January 25, 1991. I find that at this time the Applicant felt free to follow the advice of her family doctor and remain at home from work because she had been relieved of the financial pressure of supporting her family. Her husband had returned to work. Unfortunately, the Applicant has not returned to work since this date.

Following the second incident on January 22, 1991, the Applicant continued her routine of regular visits to her family doctor; physiotherapy three times a week using passive modalities, such as applications of heat or ice and electrotherapy; massage therapy once a week, and relatively frequent visits to her chiropractor. On the advice of her family doctor, she gave up driving and refrained from movements or activities that aggravated her neck pain. On the advice of her chiropractor, she wore her cervical collar and avoided driving and activities that required her head to be flexed for extended periods. Despite the Applicant's efforts, both her family doctor and her chiropractor noted that her sensitivity to pain and pain levels did not decrease, while the mobility in her neck increased only slightly.

In oral evidence, the chiropractor noted that during the course of ten visits between the period of November 3, 1990 to February 22, 1991, he had opportunities to examine the Applicant's neck. Upon physical examination, he noted tense muscles, and jumping, twitching muscles which, in his opinion, reflected an underlying disturbance.

On February 27, 1991, the Insurer arranged for the Applicant to be examined by Dr. Michael C. Hall, an orthopaedic specialist. Dr. Hall has extensive experience in matters concerned with the preservation and restoration of the function of the skeletal system, its articulations and associated structures, dating back to 1952. He was called to give evidence at the hearing on behalf of the Insurer.

During oral testimony, Dr. Hall stated that the Applicant had suffered a soft tissue injury of a minor nature resulting in muscle strain and muscle soreness. He explained that the usual time framework for the resolution of such injuries was three months. He opined that it was highly unusual for a person to be significantly disabled for more than three months unless a more serious undiagnosed condition existed or emotional factors intervened.

He concluded that there were no positive objective findings to support the Applicant's continuing disability.

The only anomaly observed by Dr. Hall was the Applicant's inability to move her neck more than fractionally in any direction during his specific examination of her neck, while at the same time exhibiting an ability to move her neck quite normally during other parts of his examination. At page 5 of his report dated February 27, 1991 (Exhibit 2, Tab 2), Dr. Hall opines: "I think therefore the taking of a job, and the not continuing with her job is heavily interwoven with her social problems." At page 7 of the report, he concludes:

She is having extremely extensive treatment, from a chiropractor, from a massage therapist, and from physiotherapy. I really do not think any of this treatment is presently indicated and I think the best activity for her would be a resumption of her normal work and her normal activities of daily living.

During his second examination of the Applicant on October 28, 1992, Dr. Hall concluded that the Applicant was, "consciously and deliberately misrepresenting herself, she knows that she has free movement of her neck, yet she would have me believe that she has restricted movement of her neck." (Exhibit 2, Tab 3)

Upon cross-examination, Dr. Hall described his general method of examination in an assessment context as a "no-touch" technique. He agreed that his examinations of the Applicant were essentially visual. He occasionally used a finger under the Applicant's chin to guide her head, but he did not conduct a systematic search by palpation for sensitive sites from which pain arises.

The conclusions of Dr. Hall must be contrasted with those of Dr. Raymond Lo, the neurologist, who examined the Applicant for a second time on or before March 26, 1991, approximately one month after Dr. Hall's examination. In his report dated March 26, 1991 (Exhibit 1, Tab 3), Dr. Lo concludes:

She still has a moderate degree of muscle spasm and tenderness in the base of the neck on the left side as well as the shoulders. It was tender to the touch and limited her neck movement to about 20 degrees....This patient had re-exacerbation of her neck muscle spasm. She should avoid aggressive physiotherapy and let her muscle spasm settle down first for a few months. For now passive exercise, local heat and maybe a TENS machine may be more useful.

Over time, Dr. Brun del Re, the Applicant's family doctor, noted improvement in the range of motion in her neck and left arm, but her complaints of pain seemed to increase and diversify to include increasingly severe headaches, and left shoulder and chest pain. In May 1991, the Applicant's family doctor referred her to Dr. Lawrence F. J. Werboski, a general practitioner who practices in the area of pain management.

Dr. Werboski provided a report as well as oral evidence based upon his clinical notes and records, on behalf of the Applicant. Dr. Werboski described his role in the Applicant's overall care as providing pain control. He offered no long-term cure nor did he work on regaining muscle function; rather, he attempted to temporarily relieve the Applicant's pain by a series of occipital nerve block and trigger point injections, stretch and spray techniques, and massage therapy.

During his testimony, Dr. Werboski explained that the temporary relief of pain reduces the stress and tension associated with pain. This reduction of stress and tension, in turn, results in a loosening of tightened muscles and contributes to the breaking up of muscle spasm and painful trigger points. Dr. Werboski described trigger points as small circumscribed, hypersensitive regions in muscles or connective tissue. During periods of relief from pain, the patient can work toward regaining muscle function and general strength.

Along with the injection therapy, Dr. Werboski recommended:

...restriction of physical activity initially, until muscle hyperirritability has decreased significantly, with gradual return to light physical activities. (Exhibit 1, Tab 6, page 2).

During the period May 21, 1991 to December 3, 1992, Dr. Werboski stated he treated the Applicant over thirty times. Dr. Werboski reviewed his clinical notes for the period following the Applicant's first visit of May 21, 1991, which stated:

...the patient notes that after the initial 5 days of post injection pain she had about 10 days of excellent pain relief followed by a persistent although not as great reduction in pain over the next month.

In oral testimony, Dr. Werboski described his examination technique in detail and referred to an article entitled "Myofascial Pain Syndrome", by Anders E. Sola and John J. Bonica, to assist him in describing his systematic technique of palpation to determine the presence and location of trigger points of pain and tenderness. Using this method of examination, Dr. Werboski noted:

...obvious generalized trapezi and sternocleidomastoid muscle spasm...Multiple myofascial trigger points were noted in both trapezi, the left supraspinatous and left serratous anterior muscle that all elicited marked jump responses when palpated. (Exhibit 1, Tab 6, page 1)

Dr. Werboski was of the opinion that the Applicant exhibited obvious symptoms of myofascial pain syndrome, which included trigger points, bands of tightened muscle, local twitch or jump responses. Dr. Werboski testified that such symptoms could not be determined by a no-touch, visual examination technique as described by Dr. Hall. In his report dated November 5, 1991 (Exhibit 1, Tab 6, page 3), Dr. Werboski concluded:

It is my impression that this patient will be left with a permanent partial disability as the best outcome and in fact may be even more activity limited. I am not certain that this patient will be able to return to her previous job and further treatment and evaluation will be required in order to provide a definitive answer. Certainly, this patient has a very severe chronic pain problem that will likely be ongoing and possibly present for many years.

Dr. Werboski concluded that the Applicant suffered from a chronic pain condition known as myofascial pain syndrome which he described as inflammation of muscle and its fascia, particularly of the fascial insertion of muscle to bone. He stated that the condition was physiologically based "and does not have any primary basis in behaviour or psychological disturbances".

The Applicant's family doctor then referred her to Dr. Gary L. Craig, a specialist in rheumatology (dealing with disorders marked by inflammation, degeneration, or metabolic derangement of the connective tissue structures of the body, especially the joints, muscles, bursae, tendons and fibrous tissue). By letter dated June 6, 1991, Dr. Craig reported his findings to the Applicant's family doctor (Exhibit 1, Tab 5). His examination took place during the period of significant pain relief reported by the Applicant following Dr. Werboski's initial injection therapy.

Unlike Dr. Werboski, Dr. Craig noted:

...no tenderness to palpation of any of the bony masses of the neck. The left trapezius muscle was really the only muscle of the neck that was tender, and there was no objective evidence of spasm of this muscle There wasn't any tenderness over typical fibrositic tender points. (Exhibit 2, Tab 1, page 5 of Data Base)

Dr. Craig found no present organic basis for the Applicant's complaints of diffuse shoulder and chest pain. Dr. Craig was not called to give oral evidence at this hearing. Therefore, I do not have the benefit of his opinion concerning the relationship, if any, between the relief from pain reported by the Applicant following the nerve block therapy administered by Dr. Werboski on May 21, and Dr. Craig's finding of no painful trigger points in the Applicant's neck during his examination in June. I have only the evidence of Dr. Werboski on this point. Dr. Craig did note that the Applicant clearly protected neck movements throughout the examination.

Dr. Craig concluded that the Applicant's original neck pain was caused by a comparatively mild musculoligamentous injury. He noted that in the normal course of such an injury, the worst symptoms usually disappear over a period of 6 to 8 months, followed by decreasingly severe and progressively shorter episodes of neck pain.

In light of his findings, Dr. Craig opined:

To complicate things further, when I saw Mrs. Edwards, I thought that her symptoms were considerably out of proportion to the physical findings. This suggested to me that she was starting to develop a chronic pain syndrome In this sort of situation, there are usually significant psychological factors contributing to the development of the chronic pain syndrome.

The development of such a chronic pain syndrome alters significantly, in my experience, the prognosis for recovery...I think in this situation, it is most important to stress to the patient that there is a component of a chronic pain syndrome, and that without a major stress being put on returning to as normal levels of function as possible – despite ongoing symptoms of pain – the level of disability from this sort of thing will only worsen. (Exhibit 2, Tab 1, page 3 of Report)

On July 2, 1991, the Applicant's family physician referred her to Dr. Deathe, a specialist in physical medicine and rehabilitation. In his report dated January 28, 1992 (Exhibit 1, Tab 7),

Dr. Deathe reviewed his findings from his three examinations of the Applicant over the period July 2, 1991 to December 18, 1991. On examination of the Applicant, Dr. Deathe found generalized tenderness of cervical spine soft tissue on palpation, and a considerable amount of muscle tension when attempting to passively turn the Applicant's head beyond A5 degrees to the right or left. He found the Applicant "very vulnerable to ballistic or rapid movements" and observed that the Applicant exhibited a semi-frozen neck. He concluded at page A of the report:

I am of the opinion that Mrs. Edwards' injuries on October 17, 1990 and January 22, 1991 interfered with her ability to work, in particular, the injury of January 22, 1991 was a major decompensation of the mechanical sprain of the cervical spine and thus prevented her from returning to her sedentary job as a laboratory manager on a temporary basis.

Although Mrs. Edwards' range of motion has improved she is still highly susceptible to recurrent acute flares of neck pain as documented. I believe she still continues to be disabled from returning competitively to the market place.

Dr. Deathe applied a trial of vertical traction, recommended cervical stretch techniques, a cervical pillow, anti-inflammatories and other passive modalities of treatment.

At this point, the Applicant was faced with two radically different approaches to the treatment of her chronic pain. Dr. Brun del Re, Dr. Werboski, and David J. Brunarski, chiropractor, supported by the specialist opinions of Dr. Lo and Dr. Deathe, recommended a passive treatment regime. Dr. Hall and Dr. Craig both recommended a more active, return to work approach. Not surprisingly, the Applicant chose to follow the approach recommended by the doctors who provided her ongoing treatment and with whom she had a continuing relationship rather than the more aggressive approach of the doctors who she saw rarely.

At the request of the Insurer, the Applicant participated in a comprehensive rehabilitation assessment conducted at the Canadian Back Institute ("C.B.I.") on October 8, 1992. At that assessment, the Applicant reported "her cervical range of motion has improved, however her pain is unchanged and she finds her overall strength is decreasing." (Exhibit 1 Tab 8 page 2). At page 5, the C.B.I. report sets out the following diagnosis:

1. Mechanical neck pain arising from disc irritation.

2. Chronic pain causing a significant restriction in life style.

3. Deconditioning.

At page 6, the C.B.I. report concludes:

The passive treatment that Mrs. Edwards has received in the past has been of no lasting benefit. She needs to begin an activity based program focusing initially on symptom control and progressing towards recovery of function...There is no question that being of [sic] work for nearly two years has caused Mrs. Edwards to become deconditioned, this needs to be addressed prior to her returning to work.

On November 19 and 20, 1992, the Applicant re-attended at the C.B.I. for a functional capacity evaluation, at the request of the Insurer. In a report dated November 24, 1992 (Exhibit 2, Tab 5, page 11), the C.B.I. concluded:

It appears that she is well entrenched in Chronic Pain Syndrome and has a very disabled picture of herself. Mrs. Edwards also presents herself as being deconditioned.

Ms. Alexandra Warne, a registered physiotherapist working with the C.B.I., gave oral evidence at the hearing on behalf of the Insurer. She attributed the Applicant's chronic pain primarily to an emotional/behavioural disorder where the pain itself is the primary factor and the physical basis for the pain is secondary.

She observed that, in her experience, it is the pain rather than the conscious mind that directs the behaviour of an individual entrenched in chronic pain.

Shortly after her assessment at the C.B.I., the Applicant's family doctor referred her to a second specialist in physical medicine and rehabilitation, Dr. Kenneth Bowler. Dr. Bowler examined the Applicant on October 29, 1992 and reported (Exhibit 10, pages A and 5):

This lady has evidence of a regional myofascial pain syndrome involving the neck predominantly...she still seems very debilitated, disproportionately so from the clinical findings and I suspect a lot of it is anxiety related to the pain.

Dr. Werboski, Dr. Craig, the C.B.I. and Dr. Bowler concluded that the Applicant was exhibiting symptoms of chronic pain. Dr. Werboski and Dr. Bowler attributed the chronic pain to the physiological condition of myofascial pain syndrome. Dr. Werboski ruled out emotional and psychological factors, whereas Dr. Bowler saw them as contributing factors to explain the extent of the Applicant's pain.

On the other hand, Dr. Craig ruled out physiological factors and attributed the chronic pain primarily to psychological factors. Ms. Warne of the C.B.I. attributed the chronic pain primarily to an emotional/behavioural disorder.

I have placed little reliance upon the diagnosis of the Applicant's chiropractor, David Brunarski, contained in his report dated November 19, 1992 (Exhibit 1, Tab 9). Although Dr. Brunarski supports the view that the Applicant suffers chronic pain, he is alone in his view that the Applicant's "nervous system has been severely compromised and cannot recover at this late date". Dr. Lo, the neurological specialist, along with all the other doctors who examined the Applicant, found no neurological impairment.

Dr. Hall reached a different conclusion on the issue of chronic pain. At page 12 of his report dated October 28, 1992 (Exhibit 2, Tab 3), he concludes:

I do not agree that she has major psychological problems. I think this is a quite conscious presentation of an assumed disability, and I do not think there is a chronic pain syndrome or deep psychological problems underlying it.

At the request of the Insurer, the Applicant was examined on November 19, 1992 by Dr. F. W. Furlong, a specialist in psychiatry. Dr. Furlong prepared a report (Exhibit 2, Tab A) and provided oral testimony at the hearing on behalf of the Insurer. Dr. Furlong observed that the Applicant presented herself in an alert, bright, good humoured and energetic manner, during his 95 minute examination. She showed no memory or thought disorders, no depression, no difficulty in concentration.

At page 15 of his report, Dr. Furlong writes:

Basically Dr. Craig and Dr. Hall do not merely find nothing but find things on examination which are inconsistent with what is reasonable anatomically and physiologically and inconsistent with observations at other points.

Dr. Werboski's findings are apparently at marked variance with that.

If the findings of Dr. Craig and Dr. Hall are correct they would point towards either a Somatoform Disorder or conscious exaggeration of pain complaints... I find no reason to think that there is conversion, dissociation or splitting involved a Somatoform Disorder, and hence conscious exaggeration would seem the most reasonable conclusion...

There are some items within the examination which do point to conscious exaggeration and a few others which would point away.

And at page 20 of the Report:

Firstly exaggeration should not be seen as 100 percent or 0 percent but rather as degrees and shadings. There is probably some discomfort, enough to justify the injections and there are substantial rewards in terms of lifestyle to focus upon what discomfort there is and to continue to "prove" as she puts it that she is so disabled as not to be able to work. Simply looking at the videos alone would suggest that if she felt she had to she would work On balance it is my view that somewhere between 2/3s and 3/Ath of the professed picture amounts to conscious exaggeration. It is not due to a psychiatric disorder.

The Diagnostic and Statistical Manual of Mental Disorders (Third Edition Revised) "DSM III" to which Dr. Furlong referred in his report and oral testimony describes somatoform pain disorder as follows:

307.80 Somatoform Pain Disorder

The essential feature of this disorder is preoccupation with pain in the absence of adequate physical findings to account for the pain or its intensity.

The pain symptom either is inconsistent with the anatomical distribution of the nervous system or, if it mimics a known disease entity (as in angina or sciatica), cannot, after extensive diagnostic evaluation, be adequately accounted for by organic pathology. Similarly, no pathophysiologic mechanism accounts for the pain, as in tension headaches caused by muscle spasm.

Differential diagnosis. The dramatic presentation of organic pain, which may seem excessive to an observer because of minimal physical findings, is not sufficient for diagnosing this disorder, and may be only a function of histrionic personality traits or a culturally-determined style of communication.

In Malingering, the symptoms are intentionally produced in pursuit of a goal that is obviously recognizable, given the person's environmental circumstances...

At several points in his report, Dr. Furlong appears to place great emphasis upon the stated goal of the Applicant "to 'prove' as she puts it that she is so disabled as not to be able to work". Dr. Furlong relies upon this stated goal as "tending to point towards a mental state of an intent to consciously exaggerate". I do not share this view. In the context of the Applicant's acknowledged intelligence, her involvement in a dispute with her insurer, her understanding of the issues as enunciated by her lawyer, and in response to Dr. Furlong's questioning about, "what the current issues are now", I find the Applicant's replies to be responsive to the questions and in keeping with the attitude of a person who truly believes herself to be disabled.

Dr. Furlong's analysis relies heavily upon the findings of Dr. Hall and Dr. Craig, to arrive at the conclusion that the Applicant is consciously exaggerating her pain and is malingering.

Dr. Furlong dismisses the positive physiological findings of Dr. Werboski because they appear to be at marked variance with the findings of Dr. Hall and Dr. Craig. Dr. Furlong makes no reference to the physical findings and diagnosis of regional myofascial pain syndrome made by Dr. Bowler in October 1992, which essentially agrees with that of Dr. Werboski. Nor does Dr. Furlong acknowledge that Dr. Lo found evidence of muscle spasm and tenderness approximately one month following the examination of Dr. Hall. Dr. Furlong does not comment on the fact that every medical practitioner who examined the Applicant, other than Dr. Hall, used the touch method of palpation to determine the presence or absence of muscle tension, spasm, and trigger points. Nor does he consider that Dr. Craig examined the Applicant during the period of significant pain relief reported by the Applicant following the initial occipital nerve block trigger point injections administered by Dr. Werboski.

At page 11 of his report (Exhibit 2, Tab 4, page 11), Dr. Furlong notes inconsistencies in the Applicant's reporting of symptoms to Dr. Hall and Dr. Craig with respect to her complaint of headaches. However, a closer review of Dr. Hall's initial report indicates that the Applicant reported headaches at work following the accident and headaches in response to physiotherapy (Exhibit 2, Tab 2, page 2). The Data Base prepared by Dr. Craig as part of his report (Exhibit 2, Tab 1, page 3 of the Data Base) also records that the Applicant complained of headaches following the October 1990 accident, which were helped by pain medication and Dr. Werboski's nerve blocks. I do not find the degree of inconsistency in the Applicant's reporting of symptoms as suggested by Dr. Furlong.

Dr. Furlong also refers to inconsistencies between the Applicant's abilities as reported to various doctors during medical examinations and her observed abilities contained in video surveillance of the Applicant conducted at the request of the Insurer (Exhibit 8, videos a, b, and c). In his report, Dr. Furlong reviews Dr. Hall's report of the Applicant's second examination in October 1992. Dr. Furlong comments upon Dr. Hall's note, "she cannot tolerate driving on the road." (Exhibit 2, Tab 4, page 18). He compares this statement to videos of the Applicant taken during the summer of 1992 which show her driving in various situations. This apparent discrepancy is somewhat dispelled by a closer look at Dr. Hall's report, which also contains the note, "she drives as needed" (Exhibit 2, Tab 3, page 4), which appears to have been overlooked by Dr. Furlong.

In his own interview with the Applicant, Dr. Furlong notes her response, "It [the pain] is very limiting... any sort of activity when I move around...", and compares it to surveillance videos which show the Applicant engaged in varied activities including, walking, pushing her daughter in a stroller, lifting and carrying her daughter from the stroller and the car, grocery shopping. In contrast, the surveillance videos of the Applicant taken on November 19 and 20, 1992 (Exhibit 8, video c) show the Applicant's movements as protected, laboured and hesitant.

In my view, the discrepancy between the Applicant's stated impression of her abilities and the observed level of her function in some of the videos can be explained by the results of the Oswestry Profile which was administered to the Applicant by the C.B.I. in November 1992, during their extensive Functional Capacity Evaluation. In the report dated November 24, 1992 (Exhibit 2, Tab 5, page 4), the Oswestry Profile is described as:

... a behavioral screen designed to measure an individual's perception of their disability.

Mrs. Edwards scored 48 percent on the Oswestry Profile, which places her in the severe disability category. Individuals who perceive themselves to be severely disabled are often pain focused and experience difficulty with normal daily activity.

I agree with the observation of Dr. Furlong that there are elements of the Applicant's case which tend to point to conscious exaggeration and others which tend to confirm the existence of chronic pain.

On balance, I am satisfied that the Applicant is a credible witness and that in large part her pain is genuine and her resulting behaviour is primarily beyond her conscious control.

In reaching this conclusion, I have relied, in part, on the assessment of the Applicant's family physician developed over a ten-year period. In oral testimony, Dr. Brun del Re described the Applicant as open, honest, sincere and stoical. She had not exhibited a tendency towards histrionics or malingering in the past. She actively pursued treatment from the outset of her injury and appeared committed to recovery. Dr. Brun del Re's assessment of his patient's character is confirmed by his somewhat protective approach to the Applicant's treatment and rehabilitation. During his testimony, Dr. Brun del Re expressed the concern that, if anything, he felt the Applicant was trying too hard to overcome her injuries, thereby causing herself further harm.

I have also relied upon the preponderance of the medical opinion before me to reach the conclusion that the Applicant is presently suffering from chronic pain. There is a diversity of medical opinion whether her chronic pain is rooted in physiological, psychological or behavioural conditions, or some combination thereof. In my view, it is not necessary for me to determine the precise contribution of each of these factors to the Applicant's chronic pain condition.

In written submissions, counsel for the Insurer argued that chronic pain attributed primarily to an emotional/behavioural disorder does not fall within the parameters of section 12(1) of the No-Fault Benefits Schedule, in that it is not, strictly speaking, a physical, psychological or mental injury.

I do not accept this argument. Dorland's Illustrated Medical Dictionary, 27th Edition, published by W.B. Saunders Company, defines psychological as: "pertaining to psychology". Psychology is defined as:

that branch of science which deals with the mind and mental processes, especially in relation to human and animal behaviour.

Following this general definition are definitions for specific areas of psychology, including abnormal psychology, clinical psychology, and social psychology. All these further definitions contain references to the study of behaviour. Behaviour and behavioural problems are integral to psychology and consequently fall within the terminology used in section 12 of the Schedule.

Nexus between motor vehicle accident of October 17, 1990 and chronic pain condition:

Counsel for the Insurer argued that the Applicant's current pain is no longer attributable to the motor vehicle accident of October 17, 1990 or even the second incident in the car, which occurred on January 22, 1991. Counsel argued that the Applicant suffered a series of recurrent minor sprains to her neck, including incidents in September 1991 when she jerked her head, and slip and fall incidents in November and December 1991 which she described to Dr. Deathe. Counsel for the Insurer submitted an interpretation of the Report of Dr. Deathe (Exhibit 1, Tab 7, pages 3 and 4) to support his contention that the slip and fall accidents were intervening factors which broke the causal connection between the initial motor vehicle accident and the Applicant's current level of pain. I do not accept counsel's interpretation of Dr. Deathe's report.

The preponderance of the medical opinion before me attributes the Applicant's current condition to neck injuries sustained by her in the motor vehicle accident of October 17, 1990, which were exacerbated by the incident of January 22, 1991, and thereafter aggravated by various recurrent strains perceived by the Applicant. These various minor strains, filtered through the Applicant's personal perception of pain, undoubtedly had a cumulative effect upon the Applicant. However, her ultimate condition of chronic pain appears to be rooted in the initial motor vehicle injury.

In my view, the motor vehicle accident need not be the sole or exclusive cause of the resulting injury. It is sufficient that the motor vehicle accident made a significant contribution to the development of the Applicant's present chronic pain. I am not convinced that the various minor strains and mishaps described by the Applicant following the motor vehicle accident are so significant as to overshadow the role of the original injury in the development of her chronic pain.

Essential tasks of the Applicant's occupation:

Not every activity performed by the Applicant in the course of her employment prior to the motor vehicle accident will meet the criteria of essential tasks of her occupation or employment set out in section 12(1) of the Schedule. The definition of the terms "essential" and "tasks" were set out in my earlier case of Edgar Cowie and The Non-Marine Underwriters, Members of LLoyd's, Commission File No. A-001159 (under appeal)

The Applicant described her position at Retek Resources Recovery Inc. as laboratory manager and her duties as:

...supervising personnel, investigating and improving laboratory procedures, purchasing supplies, aiding technicians with techniques, ensuring proper WHIMIS training, and aiding in the development of a Quality Assurance and Quality Control system at Retek. (Exhibit 3)

Her duties were further defined in Exhibit 4, which sets out a description of the Applicant's chief responsibilities as laboratory manager contrasted to the job duties of the technical supervisor, who directly reported to her. It was the technical supervisor's responsibility to: provide technical support to the lab technicians, service and maintain laboratory equipment, train new laboratory technicians, and demonstrate new laboratory methods. The Applicant's responsibilities were primarily those of: performance evaluation and supervision of personnel, development of new programs and analytical methods, purchasing, monitoring records, and client and staff relations.

I find that the physical requirements of the Applicant's job were minimal. From a physical perspective, the Applicant needed to be able to drive to work, walk around the workplace when she got there, sit at a desk, occasionally lift, read, write and communicate. The Applicant could choose the order in which to perform her various tasks and enjoyed some flexibility and variety in the length of time and the nature of these tasks. The technical supervisor, who was her subordinate, was largely responsible for the physical tasks around the laboratory and was available to assist her.

The physical aspects of the Applicant's employment were less significant than the intellectual requirements. Her abilities to think rationally, to assimilate information and communicate ideas effectively, were more critical to the satisfactory performance of her job than her ability to hold a test tube containing a lab sample, for a particular length of time.

Substantial inability to perform:

Following the first accident in October 1990, the Applicant described her difficulties at work. She was unstable while walking, she had difficulty lifting her head, she couldn't see where she was walking, she couldn't drive herself, she couldn't rotate her neck.

Following the second incident in January 1991, the Applicant described her limitations as extreme weakness in her left arm, inability to drive, and a frozen neck. In his testimony, Dr. Brun del Re summarized that by the end of 1991 the Applicant suffered "significant limitations of function, she couldn't lift her daughter, minimal movements were painful, no fluid neck movement, not safe to drive herself."

At present, the Applicant's chief complaints are of pain, fatigue and generalized deconditioning resulting from a reduced level of activity.

The consensus of medical opinion and the Applicant's own evidence indicate that the Applicant's mobility has significantly improved since Dr. Brun del Re's clinical observations at the end of 1991. A review of the surveillance videos marked as Exhibit 8a, 8b and 8c, taken in July, August and November 1992, show the Applicant engaged in a variety of activities including: driving her car, walking, turning her head, lifting groceries including a case of soft drinks, carrying her three year old daughter while walking, chatting, and interacting with her children.

The surveillance video taken in November 1992 (Exhibit 8c) shows the Applicant resting, and walking with assistance. However, the Applicant testified that this video sequence was taken during a major flare-up of pain following an intensive two-day functional capacity evaluation conducted by the C.B.I. By the evening of the next day, the videotape records the Applicant setting things out for dinner for the family, an activity that the Applicant described as her responsibility within the family unit.

Evidence of the Applicant's ability to perform miscellaneous household and childcare activities is relevant to the extent that such activities shed light upon her ability to substantially perform the essential tasks of her employment.

The presence of chronic pain does not necessarily result in an inability to carry on gainful employment. During his testimony, Dr. Werboski noted that his pain clinic serves many patients who suffer chronic pain and seek his therapy, while continuing to work.

As noted by Senior Arbitrator Naylor, at page 23 of her decision Norman Downs and Allstate Insurance Company of Canada, Commission File No. A-000064:

Pain and suffering which is experienced as a result of injuries sustained in an automobile accident are not, per se, compensable under section 13, unless the experience of pain causes an insured to be substantially disabled, within the meaning of the section.

This observation also applies to claims under section 12 of the Schedule.

As noted in Lily Steele and Zurich Insurance Company, Commission File No. A-001024 dated December 3, 1992 at page 32:

...it is not some inability to perform key tasks, but a sizable inability which is compensable.

Having regard to the purely physical aspects of the Applicant's employment, I am satisfied that by August 14, 1992 (Exhibit 8, Videos) the Applicant no longer suffered a substantial inability to perform the purely physical tasks associated with her employment. In addition, I am relying upon the extensive functional capacity assessment conducted by the C.B.I. on November 19 and 20, 1992, which confirms that the Applicant is capable of performing the tasks of a laboratory technician or bench chemist, on a task-by-task basis, which are more physically onerous than the essentially sedentary and managerial tasks of a laboratory manager.

The medical opinion concerning the effect of the accident upon the Applicant's intellectual abilities is fairly consistent. Dr. Furlong found no impairment whatsoever. During his testimony, he specifically remarked upon the Applicant's articulate use of language, her obvious intellectual abilities, her knowledgeability about the medical and legal aspects of her situation, as well as her pleasant and communicative manner.

Dr. Brun del Re, Dr. Werboski, and Dr. Brunarski also observed that the Applicant consistently demonstrated good insight, intelligence, judgment and that depression was not a problem. I find that the Applicant does not suffer a substantial inability to perform the intellectual aspects of her former employment.

The Applicant testified that during major flare-ups, her experience of pain overshadows all her activities, she becomes weak, the pain interferes with her concentration and thinking, and she is required to lie down. Dr. Brun del Re also mentioned these reactions by the Applicant to major pain flare-ups.

The Applicant testified that over the past two and one half years, with effort and self-education, she has learned techniques which assist her to manage and cope with her pain. She testified that by 1992 she was experiencing approximately one major pain flare-up a month which lasted an average of two to three days. During testimony, Dr. Werboski referred to the Applicant as partially disabled. Dr. Deathe described her status as "prevented from returning to her sedentary job as a laboratory manager on a temporary basis." (Exhibit 1, Tab 7, page 4).

This case is a difficult one. There is some question in my mind whether the Applicant is employable on a full-time basis if she loses approximately two to three work days a month (assuming her pain flare-ups occur during working hours). There is also a question whether the Applicant is motivated to work through her pain in the same manner she did during the three months following the October 1990 accident. However, on balance, I am satisfied that the Applicant possesses the necessary physical function, coping skills and intelligence to manage her pain and return to full-time work equivalent to her position at Retek Resources Recovery Inc. Considering the whole of the evidence, the Applicant presents herself as a person of considerable abilities rather than substantial inability.

I am also persuaded that a return to work will not jeopardize the Applicant's hard won mobility and function and may improve it. It is clear that the passive, protective approach to the treatment of the Applicant's neck injuries has brought only limited relief and has perhaps contributed to the development of her chronic pain. Dr. Craig, Dr. Bowler, and the C.B.I. supported the Applicant's return to normal activities, including work, as the appropriate long-term treatment for the Applicant's chronic pain. Upon cross-examination, Dr. Werboski, Dr. Brun del Re, and the Applicant's chiropractor David Brunarski agreed that a gradual return to a full spectrum of activities was in the Applicant's best interests. Dr. Lo and Dr. Deathe did not address the question of long-term treatment for chronic pain. Dr. Michael Hall and Dr. Furlong did not agree that the Applicant suffered chronic pain.

During her testimony, the physiotherapist, Alexandra Warne, referred to a book written by Dr. Hamilton Hall entitled More Advice from the Back Doctor, and specifically to Chapter 6 entitled "Back Patient or Pain Patient", which describes chronic pain from the perspective of a back pain sufferer (Exhibit 14). At page 150 of this exhibit, Dr. Hamilton Hall explains that getting back to regular work is "far less risky to the patient than remaining idle, trying to wait out the pain and playing the role of a disabled person." He goes on to state that:

It's often hard to make the powers that be understand that getting back on the job is an essential part of getting better.

Supplementary Medical and Rehabilitation Benefits:

Care benefits:

The Applicant has claimed payment for certain supplementary medical and rehabilitation expenses under section 6(1) of the No-Fault Benefits Schedule.

The criteria that must be met before an insurer will be found liable for an expenditure for goods and services under section 6(1) are articulated in the arbitration decision of Richard Mark Plows and Jevco Insurance Company, Commission File Nos. A-000175 and A-000588 (upheld on appeal), as follows:

(1) it must be a reasonable expense resulting from the accident.

(2) it must be required because of the accident.

(3) a medical practitioner must, if the insurer so requires, provide a signed statement that the expense is necessary for the insured's treatment or rehabilitation.

The Applicant's expenses were set out in Exhibit 13. Her claims included amounts for various forms of therapy including massage, chiropractic, occupational, physiotherapy and muscle therapy. Counsel for the Insurer objected to payment of some of these amounts on the basis that, upon the Applicant's own admission, many of these passive therapies have proven to be of little long-term value to her. In addition, some of the therapies have been contrary to the specific recommendations of several of the medical experts consulted by the Insurer as well as experts consulted by the Applicant.

I am not prepared to deny the Applicant reimbursement of the expenses incurred by her in connection with passive therapies. The Applicant's treatment was co-ordinated by her long time family physician. There was a diversity among the medical opinions as to the proper diagnosis and treatment of the Applicant's injury. The Applicant was reasonable in following the advice of her family doctor, chiropractor and some of the specialists in pursuing this treatment. Furthermore, the evidence discloses some improvement in the Applicant's function and mobility. Some of this improvement may well be attributed to these treatments.

The Applicant sought reimbursement of babysitting expenses incurred by her during periods when she attended medical and therapy appointments. She also sought reimbursement of some miscellaneous babysitting expenses, not connected to medical appointments.

In the case Anh Le and Wellington Insurance Company, Commission File No. A-000920, I considered a claim for the reimbursement of babysitting expenses incurred by an unemployed applicant during the period she was hospitalized following back surgery. In the case of Trinidad Chamale and Wellington Insurance Company, Commission File No. 000849 (under appeal), Senior Arbitrator Naylor considered a claim for general babysitting and housekeeping expenses by an unemployed applicant. In both these cases it was decided that such expenses fell squarely within the scope of section 6(1)(f) of the Schedule in the context of a section 13 claim for weekly benefits, where there was no claim for income from employment. At page 18 of the decision Trinidad Chamale and Wellington Insurance Company, Senior Arbitrator Naylor concluded:

The expenditure must be required for the applicant's treatment or rehabilitation. However, this requirement should be given a broad and expansive definition, in accordance with the remedial nature of the legislation. It is important to note that section 6(1)(f) is not limited to medical goods and services – it expressly covers expenditures "whether medical or non-medical in nature".

In the present case the Applicant was engaged in full-time employment at the time of the accident in October 1990. Her husband was off work due to a strike at that time. I heard no evidence concerning the arrangements made for the care of her two young children when both she and her husband were working during December 1990 and January 1991. Up to April 4, 1991, the Applicant received Weekly Income Benefits calculated on the basis of her employment income, in accordance with the provisions of section 12 of the Schedule. During this time, the Applicant was able to pay her portion of the children's ongoing babysitting expenses from this income. I heard no evidence to establish that the Applicant incurred babysitting expenses as a result of the injuries suffered by her, beyond what she would have incurred for work-related day care arrangements. Without such evidence, I am not prepared to award the miscellaneous babysitting expense claimed for the period prior to April 4, 1991.

The Insurer terminated weekly income benefits to the Applicant on April 4, 1991. The medical evidence filed on behalf of the Applicant (Exhibit 1) establishes that for a period of time the Applicant was advised by her family doctor, her chiropractor, the neurologist Dr. Lo, and Dr. Werboski to restrict her activity to allow the muscle spasm in her neck to settle. However, by August 1992, the video evidence (Exhibit 8) establishes that the Applicant had assumed some responsibility for the care of her children and shows the Applicant engaged in a broad range of activities, including childcare and household duties such as grocery shopping. I received no evidence establishing that house cleaning and general babysitting services were "necessary for the insured person's treatment or rehabilitation" beyond August 1992. Therefore, I award babysitting expenses which were incurred after April 4, 1991 and before August 1992. In his written submissions, counsel for the Insurer agreed to pay expenses connected to the Applicant's attendance upon Dr. Furlong and the C.B.I. on November 19 and 20, 1992 provided they fell within the parameters of the Schedule. Therefore, babysitting expenses incurred by the Applicant in connection with those dates are recoverable, on consent.

I also award house cleaning expenses for the entire period up to August 1992, but not beyond that date.

I also award the prescription drug expenses claimed by the Applicant in Exhibit 13.

The Applicant sought reimbursement for transportation expenses to and from medical appointments, including mileage and some taxi fares. Such expenses are contemplated under section 6(1)(d) of the Schedule, provided that they are reasonable and connected to the Applicant's treatment or rehabilitation. The mileage expenses claimed are reasonable. The video surveillance (Exhibit 8a and 8b) records the Applicant driving herself without apparent difficulty in July 1992. Taxi fares incurred in relation to obtaining treatment or therapy, prior to the Applicant's return to driving in July 1992, are also reasonable.

The Applicant sought reimbursement for wages lost by her husband on July 2, 1991, as well as November 19 and 20, 1992, during the time he drove her to medical appointments some distance from their home.

Section 6(1) of the No-Fault Benefits Schedule does not specifically contemplate the reimbursement of income reasonably lost by a person other than the insured person as a result of the accident. However, section 7(1) (a) of the No-Fault Benefits Schedule does specifically contemplate such an expenditure, provided that it was incurred as a result of the accident in caring for the insured person.

In the case Imelda Gazzola and Canadian Surety Company, Commission File No. A-000324, Senior Arbitrator Naylor extensively reviewed the operation of section 7(1) in respect of a son's claim for recovery of lost wages during the time he spent with his severely injured mother in hospital. At pages 23 and 24 of that decision, Senior Arbitrator Naylor concluded that section 7(1)(a) "extends to care given by a person, whose usual occupation is not professional caregiving, and whose earnings from employment or self-employment are interrupted or reduced by their care-giving services." At page 24, Senior Arbitrator Naylor states:

However, each case must be determined in light of its own particular circumstances – in the circumstances, was a service rendered to an applicant, and a benefit derived therefrom, that can be characterized as "caring for the insured person?...

It is noteworthy, however, that, in the context of the No-Fault Benefits Schedule, "care" is not equivalent to nursing services. Nursing services are separately covered by s. 6(1)(a) of the Regulations. There is no requirement under s. 7 that a medical or other professional certify that the care services are required for the rehabilitation or treatment of the Applicant, as there is under s. 6(4).

I heard evidence from the Applicant's family physician that at the end of 1991 he still considered it unsafe for the Applicant to drive herself. In response to that opinion, it was reasonable for the Applicant to make travel arrangements to medical appointments which did not require her to drive. I heard no evidence concerning other travel options that may have been available to the Applicant. However, having regard to the decision of Arbitrator Palmer in Carlos and Blanca Ferreyra and Royal Insurance Company of Canada, Commission File Nos. A-000301, A-000325 and A-000384, in which she awarded the expenses of hiring a chauffeur to drive the applicants to and from medical appointments, I am prepared to award the expense related to the husband's lost wages on July 2, 1991.

In his written submissions, counsel for the Insurer agreed to pay expenses connected to the Applicant's attendance upon Dr. Furlong and the C.B.I. on November 19 and 20, 1992 if they fell within the parameters of the Schedule. Consequently the husband's lost wages for those dates are recoverable, on consent.

I have concluded that after August 1992, Mrs. Edwards no longer suffered a substantial inability to perform the essential tasks of her employment. However, she may well continue to experience pain and some limitation of function which may prevent her from carrying out her normal range of activities to her former level of performance.

The physiotherapist, Alexandra Warne, testified that the Applicant viewed herself as disabled and presented herself as being deconditioned. It was her opinion that the Applicant would maximize her chances for a successful return to full-time employment if she participated in a comprehensive rehabilitation program including exercise, work conditioning, symptom control and pain management.

As stated by arbitrator J. Palmer in the case of Surbir Singh Gaba and Allstate Insurance Company, Commission File No. A-000624, at page 16:

the tests of eligibility under s. 6 and s. 12 of the Schedule are completely different. There may well be occasions when insured persons will be entitled to supplementary medical and rehabilitation benefits, although they are not substantially unable to perform the essential tasks of their employment...

I also share the opinion expressed by arbitrator Palmer that the Applicant's efforts to rehabilitate herself to her pre-accident level of function are greatly enhanced when the Insurer, the Applicant's medical advisors and the Applicant work together toward that common goal.

Expenses:

The Applicant has claimed the expenses she has incurred in respect of this arbitration. An award for expenses may be made under section 222(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 664 (R.R.O. 1990), Dispute Resolution Expenses.

In the Ralph McCormick and Economical Mutual Insurance Company case, Commission File No. A-000139, Senior Arbitrator 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 Director of Arbitrations approved this statement of the principles guiding an award of expenses in the appeal decision in Vito Luigi Calogero and The Co-Operators General Insurance Company, Commission File No. P-000251.

This is an appropriate case in which to award the Applicant her expenses of this arbitration.

Counsel for the Insurer argued that several of the expenses claimed on Exhibit 13 are more in the nature of expenses incurred in connection with the arbitration proceeding rather than Supplementary Medical and Rehabilitation Benefits or Care Benefits, as claimed. I agree with this submission. Those expenses set out in Exhibit 13 that relate to mileage expenses incurred by the Applicant and her counsel to and from the arbitration hearing and for travel incurred in respect of the hearing, photocopying expenses for documents submitted as exhibits or otherwise used at the hearing, medical reports referred to in the arbitration, are proper expenses for reimbursement under section 282(11). I heard no argument that the cost of these expenses was unreasonable.

Several expenses included on Exhibit 13 appear to relate to the face-to-face mediation meeting between the parties, which occurred in Toronto on June 1, 1992. Unlike "expenses incurred in respect of an arbitration proceeding", there is no specific provision in the Insurance Act or its Regulations pertaining to expenses incurred in respect of mediation at the Commission. The omission of such a provision must be given some significance in the overall legislative scheme. In the case of Amnon Ajzensztadt et al. and CAA Insurance Company (Ontario) et al., Commission File No. A-000185 et al., upheld on appeal in Commission File No. P-000185, Senior Arbitrator Rotter determined that legal expenses incurred by parties in dealing with the insurer after the accident, but prior to preparation of the application for arbitration, were not recoverable by the Applicant. I therefore conclude that the expenses set out on Exhibit 13, which specifically relate to mediation, are not recoverable.

The Applicant also sought reimbursement of restaurant meal expenses incurred on November 19, 1992. These expenses do not pertain to the arbitration hearing, they do not relate to care of the Applicant in the context of section 7, nor are they sufficiently connected to the rehabilitation or treatment of the Applicant contemplated by section 6, to be recoverable under the No-Fault Benefits Schedule.

In the event the parties cannot agree upon the total amount of expenses payable to the Applicant, I remain seized of this matter and either party may apply for assessment of the expenses before me.

Order.

1. The Applicant is entitled to weekly income benefits under section 12 of the No-Fault Benefits Schedule, in the amount of $461.54, from April 4, 1991 to August 14, 1992.

2. Applicant is entitled to reimbursement, under sections 6 and 7 of the No-Fault Benefits Schedule, of some of the expenses claimed in Exhibit 13 as specifically allowed in this decision.

3. The Applicant is entitled to payment of her expenses incurred in relation to this arbitration as prescribed by Ontario Regulation 664, R.R.O. 1990, including some of the expenses claimed in Exhibit 13, as specifically allowed in this decision.

4. The Applicant is entitled to receive interest on overdue payments at the rate of 2 per cent per month under section 24 of the No-Fault Benefits Schedule

July 12, 1993

Janice Mackintosh Arbitrator

Date

APPENDIX "A"

Documents before the Arbitrator:

Report of Mediator, dated June 1, 1992

Application for Appointment of an Arbitrator, dated July 3, 1992,

Response by Insurer, dated August 7, 1992

Letter to parties from pre-hearing arbitrator, Susan Naylor, dated September 22, 1992.

Exhibits:

Exhibit 1

Medical Brief of Barbara Edwards, prepared by counsel for the Applicant, tabs 1 through 9

Exhibit 2

Medical Brief of Barbara Edwards, prepared by counsel for the Insurer, tabs 1 through 5

Exhibit 3

Resume and handwritten addition, prepared by Barbara Edwards

Exhibit 4

Job Descriptions for Lab Manager and Technical Supervisor, prepared by Technical Manager at Retek Resource Recovery Inc.

Exhibit 5

Mini Bio – David J. Brunarski, Doctor of Chiropractic

Exhibit 6A

1990 calendar, annotated by Barbara Edwards

6B

1991 calendar, annotated by Barbara Edwards

Exhibit 7

Application for Accident Benefits, prepared by Barbara Edwards, dated October 31, 1990

Exhibit 8a

Video Surveillance Tape – July 1992

8b

Video Surveillance Tape – August 1992

8c

Video Surveillance Tape – November 1992

Exhibit 9

Curriculum Vitae of Lawrence Werboski

Exhibit 10

Letter from Dr. K.A. Bowler to Dr. Renato Brun del Re, dated November 4, 1992

Exhibit 11

Curriculum Vitae of Dr. Michael Clement Hall

Exhibit 12

Curriculum Vitae of Dr. R. Brun del Re

Exhibit 13

Supplementary Medical, Rehabilitation and Care Benefits summary of claims with accompanying receipts

Exhibit 14

More Advice from the Back Doctor, by Dr. Hamilton Hall, Chapter 6, "Back Patient or Pain Patient"

Exhibit 15

Curriculum Vitae of Dr. F. Wayne Furlong