Neutral Citation: 1993 ONICDRG 48

File No. A-003410

ONTARIO INSURANCE COMMISSION

BETWEEN:

YANG PARK

Applicant

and

THE CITADEL GENERAL ASSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Yang Park, was injured in a motor vehicle accident on July 21, 1990. She applied for and received weekly income benefits of $576 a week from The Citadel General Assurance Company (The Citadel) under section 12 of the No-Fault Benefits Schedule (Ontario Regulation 672, enacted under the Insurance Act, R.S.O. 1990, c. I.8).

The Citadel terminated Mrs. Park's weekly income benefits, effective November 13, 1992, on the basis that she was no longer substantially unable to perform the essential tasks of her pre-accident employment or occupation. Mrs. Park applied for mediation. The Citadel agreed to pay weekly income benefits of $185 a week while the dispute was being mediated.

Mrs. Park also claimed benefits for income lost by her husband and mother as a result of caring for her. The Citadel refused this claim. It also refused Mrs. Park's claim for medical and rehabilitation services in Korea.

The disputed issues were not resolved through mediation and her weekly income benefits were terminated, effective January 8, 1993. Mrs. Park applied for arbitration. The issues in this hearing are:

1. Is Mrs. Park entitled to weekly income benefits under section 12 of the No-Fault Benefits Schedule for any period after November 13, 1992?

2. If Mrs. Park is entitled to any additional weekly income benefits, what is the proper amount of those benefits?

3. If Mrs. Park was ineligible for weekly income benefits after November 13, 1992, should she be required to repay any benefits paid after that date, according to section 27(1) of the No-Fault Benefits Schedule?

4. If Mrs. Park is entitled to ongoing weekly income benefits, will she remain entitled to benefits beyond 156 weeks after the accident, according to the test set out in section 13(8)(b) of the No-Fault Benefits Schedule?

5. Is Mrs. Park entitled to care benefits under section 7 of the No-Fault Benefits Schedule for services provided by either her husband or mother?

6. Is Mrs. Park entitled to benefits under section 6(1)(c) of the No-Fault Benefits Schedule for medical and rehabilitation expenses in Korea?

The Applicant also claims interest on any outstanding amounts owing, and her expenses incurred in the hearing.

Result:

1. Mrs. Park is entitled to weekly income benefits of $266.06 from November 14, 1992. Because she received some benefits from November 14, 1992 to January 8, 1993, she is only entitled to receive an additional $81.06 a week for that period. She is also entitled to interest on the outstanding amounts, calculated according to section 24 of the No-Fault Benefits Schedule.

2. There is no overpayment with respect to weekly income benefits paid after November 13, 1992.

3. Mrs. Park's eligibility after 156 weeks was not determined.

4. Mrs. Park is not eligible for care benefits under section 7 with respect to services provided by either her husband or mother. I remain seized, however, if Mrs. Park chooses to claim benefits under section 6 for the childcare and housekeeping services performed by her mother.

5. Mrs. Park is not entitled to the medical and rehabilitation expenses that she requested.

6. Mrs. Park is entitled to her expenses of this arbitration, calculated according to Ontario Regulation 664, Dispute Resolution Expenses.

Hearing:

The hearing was held in North York, Ontario, on June 23, 24 and 25 and 28, 1993, before me, David R. Draper, arbitrator.

Present at the Hearing:

Applicant:

Yang Park

Applicant's Representative:

Young Park, the Applicant's husband

Insurer's

Scott Ringler

Representative:

Barrister and Solicitor

Witnesses:

1. Yang Park, the applicant

2. Young Park, the applicant's husband

3. Bill Johnman, private investigator (by telephone)

4. Darlene Spence, medical services consultant (by telephone)

5. Valerie Monge, claims examiner

Exhibits:

Thirty-three exhibits were filed and are listed in Appendix A. The following documents were also before the arbitrator:

• Report of Mediator, dated February 4, 1993.

• Application for Appointment of an Arbitrator, dated February 23, 1993. - Response by Insurer, dated March 1993.

• Letters, dated May 13 and 20, 1993, from the pre-hearing arbitrator confirming the pre-hearing discussions.

Reasons for Decision:

This matter has been frustrating for both parties. Neither side feels that it received the information that it needed during the process. Communication between the parties appears to have been a serious problem due to a language barrier, physical distance, the involvement of various intermediaries and, eventually, distrust.

The arbitration hearing was also lengthy and difficult. The parties disagreed significantly about the facts of the case and, therefore, much of the evidence was contentious. They also disagreed about how the No-Fault Benefits Schedule should apply to Mrs. Park's situation.

The complexity of the case made it difficult for Mr. Park to represent his wife. Every effort was made to accommodate the Parks by keeping the hearing as informal as possible. I commend counsel for The Citadel for accepting the need for informality, without compromising the rights of his client. I am satisfied that both parties were able to put forward their case.

1. Eligibility for Weekly Income Benefits

As a result of an accident on July 21, 1990, Mrs. Park received weekly income benefits under section 12 of the No-Fault Benefits Schedule. The Citadel terminated her weekly income benefits, effective November 13, 1992, on the basis that she no longer met the test for eligibility. It then agreed to pay weekly income benefits of $185 during the mediation process. The dispute was not resolved through mediation and, effective January 8, 1993, Mrs. Park's weekly income benefits were terminated and have not been reinstated.

Mrs. Park's position is that she has continued to be eligible for weekly income benefits. The issue to be determined, therefore, is whether she is entitled to weekly income benefits for any period after November 13, 1992.

Mrs. Park's eligibility is determined under section 12(1) of the No-Fault Benefits Schedule:

12(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).

In order to be eligible, Mrs. Park must establish that as a result of the accident, she was substantially unable to perform the essential tasks of her occupation or employment. This raises two questions. First, what are the essential tasks of her occupation or employment? Second, was she substantially unable to perform those essential tasks, as a result of the accident, for any period after November 13, 1992?

a) What are the essential tasks of Mrs Park's occupation or employment?

One of the complications in this case is that at the time of her accident, Mrs. Park's situation was changing. She was in the process of changing jobs and expected her first child in just over five months.

Mrs. Park was born in Korea in 1964. She attended college in Korea and received a certificate as a kindergarten teacher. She explained that the certificate qualified her to teach children from three to six years old in the Korean method of early childhood education. She worked as a kindergarten teacher in Korea until May 1989.

Mrs. Park came to Canada in August 1989 and took up residence with her husband in Hamilton, Ontario. She was able to find a job, through her church, at the Korean Language Heritage School. My understanding is that this school was publicly funded and operated out of a local high school. Mrs. Park taught on Friday evenings for two and a half hours. She had sixteen to twenty children in her program, ages four and five, with some three year olds. She testified that she was paid a little more than $200 a month.

At some point, the 1989-1990 school year ended at the Korean Language Heritage School. When Mrs. Park was referred to her written statement, dated July 27, 1990, she agreed that the school year ended in June 1990 (Exhibit 10).

Mrs. Park testified that after the school year at the Korean Language Heritage School finished, she worked in a summer program that operated out of the church. This program operated five days a week, four to five hours a day, and involved twenty-five to thirty children, ages four to five, with some three year olds. Notwithstanding the fact that the summer school is not mentioned in her written statement, I found her testimony to be credible and accept it. I am unable to determine, however, the precise period that she taught at the summer school. Based on her evidence, I find that she could not have worked there for much more than one month.

I accept that prior to her accident, Mrs. Park had made plans to open a Korean-style educational program in her home. The Parks referred to her program as a "kindergarten" and I have adopted their term in this decision. Mrs. Park testified that she and her husband had rented a house with a large living room area for the kindergarten. At the time of her accident, she had received applications for her program and planned to open on August 7, 1990.

On July 21, 1990, Mrs. Park was struck by a car as she attempted to cross an intersection. She contacted The Citadel and it retained an independent adjuster to adjust her claim. On July 27, 1990, six days after the accident, the independent adjuster took a written statement from Mrs. Park, which includes the following (Exhibit 10):

I am working for the Board of Education for the City of Hamilton, teaching Korean language to young children at Westdale High School in Hamilton. I work one day a week, on Friday, for two-and-a-half hours. I am paid $20.78 per hour, plus 4% vacation pay. I have worked there since September 1989 until June of 1990. I also have plans to start my own business, kindergarten and drawing school, out of my residence at ..., Hamilton. We had sent out notices to the Korean community in Hamilton about the program which was to start August 7, 1990. It involved teaching Korean subjects, mathematics, music, etc. We also hired ... from the Ontario College of Art to teach drawing to the children. We planned to have a maximum of twelve children each day for the Korean education. We expected a larger number for the art class. I was operating a similar business in Korea up until about May of 1989.

Mrs. Park formally applied to The Citadel on August 3, 1990 (Exhibit 9). Her application states that she was employed part-time by the Board of Education and had a full-time job as a kindergarten teacher (Exhibit 9). According to her testimony, she actually opened the kindergarten in her home on August 7, 1990. Her program opened with four children, ages four and five, and continued to operate with these children until the end of September 1990.

The Citadel initially decided that Mrs. Park was entitled to benefits of $185 a week. In September 1990, however, it decided that she was entitled to weekly income benefits of $576 under section 12 of the No-Fault Benefits Schedule. This decision was based on information that the monthly fee for her kindergarten was $360 per child and that she planned to have twelve children in the program (Exhibit 33).

For reasons set out later in this decision, I find it difficult to reconcile benefits of $576 with the provisions of the No-Fault Benefits Schedule. In my view, however, it is understandable that The Citadel might have chosen to take into account the fact that Mrs. Park had applications for students to start her kindergarten program within three weeks of the accident. It appears that The Citadel treated Mrs. Park as someone who, at the time of the accident, had either essentially started her kindergarten program (s. 12(2)1.ii), or had a legitimate offer of employment as a teacher of twelve children (s.12(2)1.iii).

I conclude that Mrs. Park's essential tasks should be based on her work as a Korean-style teacher of a class of three, four and five year olds. Given her changing work situation at the time of the accident and the history of her no-fault benefits, I conclude that it is more appropriate to base her essential tasks on those of a full-time teacher, rather than limiting her to her tasks as a part-time teacher at the Korean Language Heritage School.

I find that Mrs. Park's essential tasks involved leading her students through various lessons, including language, music, dance, and movement. Considering the ages of the students, I accept her evidence that she had to demonstrate the various tasks, rather than simply instructing the students verbally.

b) For what period was Mrs. Park unable to perform her essential tasks?

After reviewing all of the evidence, I conclude, on a balance of probabilities, that Mrs. Park continued to be eligible for weekly income benefits after November 13, 1992. I will review my findings in order to respond to the submissions made on behalf of The Citadel, which I would summarize as follows:

Mrs. Park was involved in a relatively minor accident. The fact that she was able to run her kindergarten for nearly two months following the accident is a clear indication that her injuries were not serious. Since she stopped working, she has made little effort to rehabilitate herself physically or vocationally. She has reduced her opportunities by refusing to speak English and by failing to improve her English skills. She has misled her doctors and the insurer by exaggerating the circumstances of the accident and the severity of her injuries. The evidence as a whole, but particularly the surveillance evidence and the evidence of Ms. Spence, demonstrates that by November 13, 1992, she was capable of performing the essential tasks of her employment or occupation.

Mrs. Park's credibility is a key factor in this decision. It was submitted on behalf of The Citadel that various aspects of her evidence were inconsistent, implausible and contradicted by other, more credible evidence. As a general observation, I found her evidence to be credible. Mrs. Park did not provide information easily and there were significant gaps in her memory, but in my opinion, this was not because she was being evasive. During her lengthy cross-examination, she provided a great deal of additional information, but did not significantly contradict herself.

The accident occurred on July 21, 1990, when Mrs. Park was walking across an intersection. She was struck in the area of her left thigh by a car that was making a right turn. Mr. Park took her to the hospital, where she complained of back pain, particularly near her left hip. Because she was four months pregnant, the doctors were restricted in assessing and treating her injuries.

It appears that during the initial period, Mrs. Park's injuries were not regarded as particularly serious and everyone hoped that they would not be too debilitating. She decided to proceed with her plans to open the kindergarten program in her home on August 7, 1990. This decision was consistent with Dr. Thomson's advice that she could exercise to her tolerance (Exhibit 26).

By September 6, 1990, however, Dr. Joyce noted that Mrs. Park's physical activities were limited due to back pain (Exhibit 28). Exercise was not recommended due to her pregnancy, but she continued to work. At the end of September 1990, Mrs. Park closed her kindergarten because she did not feel physically able to continue. She advised Dr. Joyce of her decision and Dr. Joyce apparently accepted that she was unable to continue working (Exhibit 27).

Mrs. Park has complained of back pain from the start, and the doctors have consistently accepted that her medical problems have been caused, at least primarily, by the accident (e.g. Exhibits 7, 8 and 25).

In my opinion, therefore, her post-accident work should not be interpreted as evidence that she was not seriously injured in the accident. Rather, it should be recognized as a serious attempt to keep working. Mr. Park testified that his wife "had a dream" to run a Korean-style kindergarten in Canada. I accept that. Not only did she feel an obligation to the children and their parents to go ahead with her kindergarten program, she did not want to abandon her plans.

Mrs. Park's situation was complicated by her pregnancy. The initial diagnosis of her injuries was uncertain because no x-rays could be taken and other aggressive forms of investigation had to be postponed. Her doctors prescribed only Tylenol. With the knowledge of her doctors, Mrs. Park arranged for acupuncture treatment and herbal remedies.

In November 1990, The Citadel asked Mrs. Park to see Dr. Jeremias, an orthopaedic surgeon (Exhibit 23). Dr. Jeremias found that she had "left sciatic notch tenderness", and concluded that her "primary disability is related to the fact that she does have some nerve root irritation on the left, with a secondary influence of her pregnancy, which makes things worse." He suggested that after her baby was born, x-rays should be taken of her back and she should start exercising.

On January 7, 1991, Mrs. Park gave birth to her son. Her mother came from Korea to be with her daughter and new grandson.

The Citadel asked Mrs. Park to see Dr. Jeremias again on February 14, 1991 (Exhibit 24). Dr. Jeremias found that she had "continuing subjective nerve root irritation on the left side, with a bit of secondary left hip and left ankle stiffness." He repeated his suggestions that x-rays be taken of her back and that she get involved in an exercise program. He also recommended that an EMG be done on her left leg "to exclude any nerve root irritation."

For reasons that are not clear, there was a significant delay in arranging for the EMG. By May 6, 1991, Mrs. Park had been referred for an EMG, but it was not done until August 29, 1991 (Exhibit 29).

Mrs. Park did not get involved in any regular rehabilitation program. There was some indication that she did not want to proceed with rehabilitation until the testing was done. I find, however, that the principal reason related to her situation at home and her emotional condition. Some of the pressures that Mrs. Park faced are obvious. She was a newcomer to Canada with limited facility in English. She had her first child to care for. As a result of the accident, she had abandoned, at least temporarily, her plans to operate her own business.

In the spring of 1991, the pressures increased. Her mother had to return to Korea. In addition, Mr. Park lost his job. I accept that Mrs. Park felt responsible for this. Although I am unable to determine whether there is any reasonable basis for her belief, she believes that he lost his job because he had taken too much time off work to care for her. Mr. and Mrs. Park both testified that in May 1991, she attempted suicide. Their evidence was vague and, therefore, I make no specific findings about the suicide attempt. I find, however, that at this time, Mrs. Park's emotional condition, along with her physical condition, compromised her ability to return to work.

The EMG was finally done on August 29, 1991. The results were not submitted, but two of the later medical reports refer to the EMG (Exhibits 2 and 22). Apparently, no CAT scan was done. By this time, however, the Parks had decided to move to British Columbia, which they did at the end of September 1991.

It was suggested on behalf of The Citadel that the move to British Columbia was ill-advised and may have impeded Mrs. Park's rehabilitation. I am not prepared to draw any adverse conclusions from the Park's decision to move. I accept Mr. Park's evidence that he was having difficulty finding work in Ontario and understood that the unemployment rate was lower in British Columbia. I also find that the Parks were looking for a new start. Things were not going well for them in Hamilton and this was a source of both concern and embarrassment.

In November 1991, The Citadel arranged for a multi-disciplinary assessment of Mrs. Park at the Columbia Centre to determine if she would benefit from its four-week outpatient assessment program. In my view, this was a reasonable course of action. Approximately fifteen months had passed since the accident, Mrs. Park had not been involved in a rehabilitation program, and she was reporting little, if any, improvement in her condition.

The assessment team at the Columbia Centre decided that Mrs. Park was not an appropriate candidate for the program "due to her difficulty understanding English". It was submitted on behalf of The Citadel that this is one example of Mrs. Park purposely subverting the rehabilitation process by failing to reveal the full extent of her English skills. In my opinion, the evidence does not support such a finding. The reports from the Columbia Centre do not indicate that Mrs. Park was encouraged to speak English or that her English skills were specifically tested. There is also no indication that Mrs. Park would have known that English language skills would be a criteria for admission to the program.

Mrs. Park acknowledges that she is able to understand some spoken English and can carry on a simple conversation in English. There is no evidence, however, that she has anything beyond basic English skills. I find no evidence that Mrs. Park refused to use English in any situation in which she was encouraged to do so. Rather, I find that she tended to avoid speaking English if an alternative was available. She explained that when she is with her husband, she does not feel any need to speak English because English-speaking people prefer to speak to him. It was clear during the hearing that Mr. Park tends to speak on his wife's behalf. I found Mrs. Park's evidence on this issue credible and accept it.

Based on the reports of the Columbia Centre, The Citadel paid for Mrs. Park's mother to return to Canada in January 1992 to help with housework and childcare. Although the Columbia Centre had also recommended that Mrs. Park be seen by a psychologist and a physiotherapist, it does not appear that any rehabilitation plan was developed. This may have been due to the difficulty faced by The Citadel of arranging for rehabilitation services in another province.

There continued to be an emotional component to Mrs. Park's disability. Mr. and Mrs. Park testified that in March 1992, she had an abortion. Although it is unclear from their evidence whether this was a self-induced abortion, or was done in consultation with a doctor, I accept that her pregnancy was terminated because she did not feel able to cope with another child. Not surprisingly, this was a traumatic event for her.

In June 1992, Mrs. Park found a Korean-speaking family doctor, Dr. Oh. He became her doctor, and also treated her son. In addition to traditional medical care, Dr. Oh also provided counselling services.

In July 1992, The Citadel retained Crawford & Company to work with Mrs. Park. Ms. Valerie Monge, the claims examiner at The Citadel, explained that Crawford & Company was to arrange for appropriate rehabilitation services for Mrs. Park. I am not surprised that The Citadel had concerns about Mrs. Park's ongoing claim for benefits. Two years had passed since the accident and little, if any, progress was apparent. It also makes sense that The Citadel would want to involve someone who was familiar with local services.

At some time prior to September 1992, Mrs. Park started a physiotherapy program, but stopped after two or three sessions because she found it too painful. I find that at this time, the Parks were still looking for a clear explanation of what was wrong with Mrs. Park's back. They were concerned that she could do further damage to her back if the problem was something other than simply a soft tissue injury.

In August or September of 1992, Mrs. Park was asked by The Citadel, presumably on the recommendation of Crawford & Company, to go for an assessment at the Canadian Back Institute and also to see Dr. Jaworski, a physiatrist.

On September 15, 1992, the Canadian Back Institute conducted a "standardized Canadian Back Institute Work Tolerance Test" (Exhibit 18). Mrs. Park was found to be cooperative, but pain focused and lacking in confidence about her physical abilities. "Numerous inconsistencies" were found in her work tolerance test. It was suggested that this could have resulted from her lack of English skills, or from a lack of motivation. The report concludes as follows:

Ms. Park states that prior to her automobile accident, she was working as a kindergarten teacher, with the exception of her self-reported sitting tolerance of 10 minutes, she appears to have physical abilities which meet her job demands, as long as lifting and carrying of pre-school aged children is not required [sic].

RECOMMENDATIONS:

1. Ms. Park would benefit from a stretching, strengthening and educational program of a 4 to 6 week duration prior to her return to gainful employment.

2. After a period of 4 to 6 weeks of supervised daily physical work conditioning, Ms. Park should return to her previous occupation on a graduated basis as follows:

Week 1 4 hours per day/5 days per week

Week 2 6 hours per day/5 days per week

Week 3 8 hours per day/5 days per week

3. The Canadian Back Institute can provide an active rehabilitation program of supervised work conditioning and education. If after a trial period of 1 week Ms. Park shows no improvement, treatment would be discontinued. She would then be considered fit to return to work as outlined above.

4. Any permanent work restrictions are not recommended.

I do not find the report of the Canadian Back Institute to be particularly persuasive. The conclusion and recommendations give the impression of being rather standard. It is unclear how familiar the assessor was with Mrs. Park's previous work, as it is difficult to imagine her running her kindergarten program, involving three, four and five year olds, without lifting and carrying. Because Mrs. Park had no job to return to, it is also difficult to understand the recommendation that she gradually return to work according to a detailed schedule.

The most significant limitation of the report of the Canadian Back Institute, however, is that it is based entirely on the diagnosis that was provided by either The Citadel or Crawford & Company: "low back soft tissue injury". The problem is that Mrs. Park's diagnosis was still unclear. Dr. Oh had advised Crawford & Company that the working diagnosis was soft tissue injury to the low back and possible involvement of the sacroiliac joint (Exhibit 8). Previous medical reports had indicated various possible causes for Mrs. Park's symptoms, including nerve root irritation and chronic pain syndrome. In order to clarify the cause of Mrs. Park's symptoms, Dr. Chalmers from the Columbia Centre had recommended in November of 1991, that a CT scan be done of her left sacroiliac joint region.

Mrs. Park was examined by Dr. Jaworski on October 1, 1992 (Exhibit 2). Dr. Jaworski reviewed a number of the earlier reports and took a complete history. It was suggested that Mrs. Park gave Dr. Jaworski an exaggerated description of the accident. Dr. Jaworski's report states that Mrs. Park remembers "falling down" and that her husband found her "lying on the street". Mrs. Park testified that she was not knocked to the ground, but rather put her hand on the ground and braced herself. She then sat down until her husband came. In my opinion, the difference in these versions of the accident is insignificant, particularly when Mrs. Park's limited English is taken into account. There is also no indication that the precise details of the accident were a significant factor in Dr. Jaworski's opinion.

In contrast to the report of the Canadian Back Institute, I find Dr. Jaworski's report quite persuasive. He recommended further electrophysiological studies, preferably by Dr. Eisen, because he felt that the earlier EMG was inconclusive. If the results of the tests were abnormal, he suggested that the next step would be a CT scan of the lumbar spine. He also noted an underlying problem with depression and anxiety which could be affecting Mrs. Park's pain tolerance threshold. He did not feel able to make any predictions about her ability to work, but chose to send a copy of his report to Dr. Oh for his consideration.

In spite of Dr. Jaworski's recommendation for further testing, The Citadel decided to terminate Mrs. Park's weekly income benefits, effective November 14, 1992. This decision was based primarily on information provided by Mr. Johnman and Ms. Spence.

On October 22, 1992, The Citadel retained Mr. Johnman, a private investigator, to "ascertain the subject's current activities, in particular whether or not she was employed", although no evidence was provided about the source of the suspicion that Mrs. Park was working (Exhibit 11). Mr. Johnman observed Mrs. Park on a number of days in November 1992, primarily at the restaurant where Mr. Park worked. He prepared a videotape and reports, dated November 16, 1992 and December 3, 1992 (Exhibits 11, 12 and 30).

Ms. Spence joined Crawford & Company in October 1992 and was assigned to Mrs. Park's file. She testified that she has been a nurse since 1971 and has worked in the area of rehabilitation throughout her nursing career. According to section 23(2) of the No-Fault Benefits Schedule, an insurer may require someone who is claiming weekly income benefits to see a medical practitioner, psychological advisor, or chiropractor, as often as reasonably required. Mrs. Park complied with a number of requests by The Citadel that she see various medical experts. Crawford & Company, however, does not fall within section 23(2). It may be quite appropriate for an insurer to offer the services of a rehabilitation expert, but that person must work with the insured person on a voluntary basis.

In my opinion, Ms. Spence's actions and evidence display a partisanship that is incompatible with her purported role of assisting the Parks in developing an appropriate rehabilitation plan. Regardless of her instructions and intentions, I was left with the impression that she was acting more as an investigator than as a rehabilitation counsellor. Some of the factors that led to this impression are:

1. Before she ever met Mrs. Park, Ms. Spence spoke with someone from the Canadian Back Institute and provided The Citadel with a very negative assessment of Mrs. Park's willingness to pursue rehabilitation (Exhibit 14).

2. When Mr. Johnman was unable to identify the woman who answered the Park's door on November 4, 1992, he contacted Ms. Spence. She advised him that Mrs. Park's mother lived in the house and also provided him with the address of the restaurant where Mr. Park worked (Exhibit 11). Ms. Spence and Mr. Johnman also arranged for her to view the videotape following her home visit with Mrs. Park, so that she could provide a positive identification.

3. Although it is clear that Ms. Spence was aware of Mr. Johnman's investigation, there is no indication that Ms. Spence ever asked Mrs. Park about her visits to the restaurant. Rather, it appears that her approach was to test Mrs. Park's honesty by asking general questions (Exhibit 15).

4. On the day after her home visit with Mrs. Park, Ms. Spence visited the restaurant for no obvious reason. She testified that she needed to speak to Mr. Park, but I accept Mr. Park's evidence that she left without speaking to him about his wife's case.

5. On November 16, 1992, Ms. Spence viewed the videotape and, therefore, she would have known that by November 7, 1992, the Parks were aware that they were under surveillance. Her report to The Citadel, however, shows no appreciation that this might be the reason that Mrs. Park was uncertain about her role and wanted to be left alone (Exhibit 15).

6. Mrs. Park's weekly income benefits were terminated, effective November 14, 1992, two days after Ms. Spence's home visit. Ms. Monge testified that the decision was based on the videotape, but it was not sent to The Citadel until November 16, 1992.

Mrs. Park acknowledged that she was not forthcoming with Ms. Spence during the home visit. In the circumstances, however, I am not prepared to treat this as a general indication of her credibility.

The surveillance evidence must still be addressed. It shows that in November 1992, Mrs. Park was able to perform a range of physical functions and, in my view, legitimately raised questions about her inability to work (Exhibit 30).

Mr. Park explained that he encouraged his wife to come to the restaurant as a way of exercising, keeping active and not becoming too isolated. He was working long hours and was not able to help her get involved in other activities. I find this explanation believable, particularly in light of the fact that the Parks were waiting for the testing to be completed. Dr. Jaworski had recommended that further tests be done in order to determine whether Mrs. Park's injuries were simply soft tissue injuries, or involved some damage to her spinal column (Exhibit 2). I find that the Parks place a great faith in diagnostic tests and were reluctant to pursue a treatment program designed to resolve soft tissue injuries if her symptoms actually resulted from some other problem.

In reaching my decision, I have the advantage of hindsight. In this case, I am significantly influenced by what happened after the decision to terminate Mrs. Park's weekly income benefits.

Dr. Oh referred Mrs. Park to Dr. Eisen for further testing, as recommended by Dr. Jaworski. In his report, dated November 23, 1992, Dr. Eisen stated his opinion that Mrs. Park had "a significant root lesion, most likely an L5 possibly S1." He indicated that Mrs. Park might also have a problem with a large mid-line disc. Dr. Eisen arranged for a CT scan in order "to solve this problem".

The CT scan was done on December 28, 1992 by Dr. Koopmans (Exhibit 4). Dr. Koopmans' impression was that Mrs. Park had a "mild central and slightly left lateral disc herniation at L4-5 indenting the thecal sac."

It appears that after receiving Dr. Eisen's report and the results of the CT scan, Dr. Oh referred Mrs. Park to Dr. Schweigel, an orthopaedic surgeon. On January 19, 1993, Dr. Schweigel examined Mrs. Park and concluded that she had "an acute disc protrusion at the L4-5 level" and that she might be a candidate for percutaneous discectomy or microsurgery.

Mrs. Park decided to proceed with the microsurgery. It was suggested that she could have chosen non-surgical options. I find no medical evidence, however, to suggest that Mrs. Park made an inappropriate choice. According to Ms. Spence's report to The Citadel, dated March 9, 1993, Dr. Jaworski was advised of Dr. Schweigel's treatment plan and felt that it was appropriate.

On March 4, 1993, Dr. Schweigel performed a percutaneous discectomy on Mrs. Park. I accept Mrs. Park's evidence that she was supposed to see Dr. Schweigel four or five weeks after the surgery. Because of her pain, however, she went to see him after two weeks. Dr. Schweigel concluded that the microsurgery had been unsuccessful and discussed further options with the Parks.

Mrs. Park decided, in consultation with Dr. Schweigel, that she should proceed with open surgery on her back. The surgery was scheduled for June 1993, but was postponed due to the arbitration. Dr. Schweigel indicates that it is likely that Mrs. Park will not be able to return to work for at least four to five months after the open surgery (Exhibit 7). In my opinion, the legitimacy of Mrs. Park's complaints is strengthened by her willingness to undergo surgery.

In his recent report, dated June 14, 1993, Dr. Oh describes Mrs. Park's situation as follows:

With a disc protrusion causing sciatica, one would expect compromise in range of motion in the affected area due to pain. Thus Mrs. Park has had and still has difficulty involving the movement of her low back such as bending down and lifting objects from the floor. She also can not sit for a prolonged period due to pain. This disability precludes her from employment as well as some household chores involving lifting. This disability spans the time period from immediately after the accident to that time when she recovers fully from her open surgery.

Her physical suffering is one aspect of the problem due to the accident. Mrs. Park has suffered and is suffering mentally due to sudden compromise in her physical ability over a long period of time, loss of her employment, and having to go through myriad of investigations and consultations prior to Dr. Schweigel which did not help the patient's symptoms significantly. She has been suffering from reactive, or situational depression for which she is currently being treated medically. To fully recover from this depression will take time and the prognosis is uncertain.

Dr. Oh has been acting as Mrs. Park's family doctor for a full year and is in a good position to evaluate the complexities of her situation. I find his observations consistent with my view of the other evidence and accept them.

In summary, I find that as a result of an accident on July 21, 1990, Mrs. Park suffered a back injury. Her condition was not finally diagnosed until December 23, 1992, when it was determined that she had suffered an L4-5 disc protrusion. She was able to work for approximately two months after the accident, but was unable to continue due to back pain. Her situation was complicated by the fact that she was pregnant at the time of the accident and gave birth to her first child on January 7, 1991. She was unable to return to work as a result of the physical and emotional problems that resulted from the accident.

Unfortunately, no consistent rehabilitation plan was developed. There were various reasons for this, but I am not convinced that Mrs. Park failed to cooperate with The Citadel in a way that should affect her eligibility. She has now undergone unsuccessful microsurgery and faces open surgery on her back, which will require a lengthy rehabilitation process.

I conclude, therefore, that Mrs. Park is eligible for weekly income benefits under section 12 of the No-Fault Benefits Schedule from November 14, 1992.

2. The proper amount of Mrs. Park's weekly income benefits

I have determined that Mrs. Park is entitled to weekly income benefits from November 13, 1992. According to section 12(4), the amount of Mrs. Park's weekly income benefits is 80 per cent of her "gross weekly income from her occupation or employment". The calculation of "gross weekly income" is set out in section 12(7):

12(7) The following rules apply to the calculation of gross weekly income:

1. A person's gross weekly income shall be deemed to be the greatest of,

i. his or her average gross weekly income from his or her occupation or employment for the four weeks preceding the accident,

ii. his or her gross average weekly income from his or her occupation or employment for the fifty-two weeks preceding the accident,

iii. $232.

As set out above, The Citadel decided that Mrs. Park was entitled to weekly income benefits of $576. The explanation of this amount is set out in a letter, dated September 14, 1990 (Exhibit 33):

I have advised you that your payment will change from the present $185.00 per week to $576 per week.

Breakdown: - $360.00 x 12 = $4,320.00 per month

$360.00 x 4 children = $1,440.00 per month.

Difference of $2,880.00 per month.

Therefore, we have taken the difference of 8 children and divided by $2,880.00 by 4 weeks gives us a total of $576.00 per week. Therefore four payments have been made in the amount of $185.00, to bring your payments up to date we have taken $576.00 minus $185.00 a total of $391.00. Therefore we owe you $1,564.00 to bring you up to date to September 7, 1990.

Even if Mrs. Park's entitlement should have been based on her projected income from her kindergarten program, I conclude, for the following reasons, that $576 was not the correct amount. First, the calculation does not include any expenses that she had to run the program. Second, weekly income benefits are 80 per cent of gross weekly income, not 100 per cent [s.12(4)(b)]. Third, post-accident income is to be deducted from weekly income benefits at 80 per cent, not 100 per cent [s.15].

The Citadel is not asking Mrs. Park to repay any benefits paid up to November 13, 1992. The issue is the proper amount of Mrs. Park's benefits after November 13, 1992. I do not feel that I should order The Citadel to continue to pay weekly income benefits of $576 simply because it incorrectly paid that amount in the past. It is difficult, however, to unravel the situation three years after the accident.

It was submitted on behalf of The Citadel that the only income that Mrs. Park documented was her income from the Korean Heritage School and, therefore, her weekly income benefits should be the minimum amount of $185.60. In my opinion, this would be a harsh result in all of the circumstances of this case. I conclude that the fairer approach is to base her weekly income benefits on her income from her home kindergarten, but only on the income that she actually received.

I find that prior to her accident, she had made arrangements to open the kindergarten and had applications. When she opened, she had four students. She may have planned to accept more students, but at the time of the accident, it appears that she could not be assured of more than four students. I conclude, therefore, that her entitlement to weekly income benefits should be $266.06, calculated as follows:

Monthly fee

$ 360.00

Students

x 4

Monthly income

$1,440.00

Weekly income ($1,440.00 / 4.33)

$ 332.57

x 80%

Weekly income benefits

$ 266.06

There is no indication that Mrs. Park was ever asked about her expenses and, therefore, I have not reduced her income by any amount for expenses.

Because Mrs. Park received $185 a week from November 14, 1992 to January 8, 1993, she is entitled to receive an additional $81.06 a week for that period ($266.06 - $185 = $81.06). After January 8, 1993, she is entitled to $266.06. Mrs. Park is also entitled to interest on the amounts owing, calculated according to section 24 of the No-Fault Benefits Schedule.

3. Repayment of overpayment

I have concluded that Mrs. Park was not overpaid for the period from November 14, 1992 to January 8, 1993 and, therefore, this issue does not arise.

4. Eligibility for weekly income benefits after 156 weeks

The test to be used in determining eligibility under section 12 of the No-Fault Benefits Schedule changes after 156 weeks:

12(5) The insurer is not required to pay a weekly benefit under subsection (1),

(b) for any period in excess of 156 weeks unless it has been established that the injury continuously prevents the insured from engaging in any occupation or employment for which he or she is reasonably suited by education, training or experience.

It was submitted that because Mrs. Park was injured on July 21, 1990, section 12(5)(b) becomes relevant in July 1993, the month following the arbitration hearing. Both parties asked me to deal with Mrs. Park's continuing eligibility under section 12(5)(b). According to her Application for Appointment of an Arbitrator, Mrs. Park is seeking weekly income benefits for five years to allow her to return to Korea for medical treatment, rehabilitation services and vocational training.

Section 281(2) of the Insurance Act provides that no one may "refer a matter to arbitration unless mediation has first been sought and has failed." It was submitted, however, that section 282(3) allows me to assume jurisdiction to decide this issue:

282(3) The arbitrator shall determine all issues in dispute and such other issues as the parties may agree.

These sections suggest that a "matter" must go through mediation, but that "issues" may be added on consent. However, even if Mrs. Park's entitlement to weekly income benefits after 156 weeks can be characterized as an "issue", I am being asked to determine her entitlement in the future. The decision, therefore, would have to be based on speculation about her condition at a later date.

Although I am sympathetic to the desire of the parties to resolve as many issues as possible, I conclude that it would be inappropriate for me to determine future entitlement. This is particularly so in the situation presented by this case. Mrs. Park testified that she was scheduled for back surgery in mid-July 1993. If she proceeds with her surgery, it will surely have an impact on her eligibility for weekly income benefits beyond 156 weeks.

Section 287 of the Insurance Act deals with the effect of an arbitrator's decision on ongoing eligibility:

287 An insurer shall not, after an order of the Director or of an arbitrator, reduce benefits to an insured person on the basis of an alleged change of circumstances, alleged new evidence or an alleged error, unless the insured person agrees or unless the Director or an arbitrator so orders in a variation or appeal proceeding under section 283 or 284.

Assuming, but not deciding, that section 287 applies to the insurer's re-evaluation of an applicant's eligibility after 156 weeks, an application for variation under section 284 would be required if The Citadel concludes that Mrs. Park is no longer eligible for weekly income benefits under the post-156 week test.

5. Care benefits

Mrs. Park is seeking care benefits under section 7(1) of the No-Fault Benefits Schedule. There are two parts to her claim for care benefits:

a) $953 for Mr. Park's loss of income; and

b) $1,500 a month for Mrs. Won's (Mrs. Park's mother) loss of income from January 1992.

a) Care benefits related to Mr. Park

No evidence was presented to substantiate this claim. Mr. Park suggested that the claim for $953 represents only the loss that could be proven, but no documentation was submitted to support even that amount. The onus is on the applicant to prove his or her claim. I conclude that Mrs. Park has not proven that she is entitled to any amount under section 7(1) for her husband's loss of income.

b) Care benefits related to Mrs. Park's mother

At the time of Mrs. Park's accident in July 1990, her mother, Mrs. Won, lived and worked in Korea.

In January 1991, Mrs. Won came to Canada to be with her daughter and newborn grandson. In April or May 1991, she returned to Korea to resume her job.

Mrs. Park testified that after her mother left, she had no choice but to manage with the housework and childcare. She also noted that her son was still small and that after her husband lost his job, he had more time to help.

As described above, Mrs. Park was assessed at the Columbia Centre at the request of The Citadel in November 1991. In reports dated November 13, 1991, the physician and the psychologist both concluded that Mrs. Park would benefit from her mother's assistance. Dr. Chalmers, a physician, stated:

In view of Yang's present physical disability, I think that is very important and medically necessary for Yang's mother to come over to help with child care especially - so that Yang can have time to recover from her injury, can hopefully avoid aggravating her condition, and can get the ongoing therapy she needs. [Exhibit 22]

In his report, Dr. Le Page, the psychologist, concluded:

Owing to the obvious language difficulties, I do not believe that our program would be beneficial to Mrs. Park. She does, however, need to widen her social network and to be involved in counselling with a Korean speaking counsellor. Hopefully, they will be able to find this within the Korean Christian community. If Mrs. Park's mother is able to return this will help the situation, but the couple do need to look towards a wider support structure for the long term. [Exhibit 21]

The reports do not suggest that Mrs. Park required her mother's assistance for her own care. Rather, they state that her mother's assistance, particularly with childcare, would aid her recovery. I do not interpret these reports as saying that only Mrs. Park's mother could provide the needed assistance, but that it would be desirable.

In deciding whether this proposal was reasonable, therefore, at least two options were available: paying the reasonable costs of hiring someone to provide these services; or, paying for Mrs. Park's mother to come to Canada to fill that role, as recommended by the Columbia Centre. I find no evidence that Mrs. Won expected any compensation for her services and, in fact, the Parks have not paid her. In my view, this is important because it means that The Citadel evaluated the reasonableness of the two options by comparing the costs and benefits of hiring someone to provide housekeeping and childcare services with the costs and benefits of paying for Mrs. Won to travel to Canada to provide them voluntarily.

The second option was chosen, apparently with the agreement of the Parks. In January 1992, The Citadel paid for Mrs. Park's mother to return to Canada. Mrs. Park testified that since her arrival, her mother has assumed virtually all of the housekeeping and childcare responsibilities. Mrs. Park is and has been able to care for herself. Although I accept that her mother provided emotional support, I find that her primary role was to help with the housework and childcare.

Unfortunately, the situation did not progress as hoped. In spite of her mother's presence, Mrs. Park's participation in rehabilitation was minimal and she became quite dependent on her mother's assistance. At some point, Mrs. Won had to decide whether to return to work in Korea, or to remain in Canada and lose her job. She decided to stay and has now been doing the housework and childcare for approximately eighteen months. It does not appear that the issue of providing benefits to compensate Mrs. Won for her services was raised until late 1992 or early 1993.

Mrs. Park is claiming benefits of $1,500 a month from January 1992 under section 7(1) of the No-Fault Benefits Schedule based on income lost by her mother:

7(1) The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident, for the care, if any, required by the insured person,

(a) the reasonable cost of a professional caregiver or the amount of gross income reasonably lost by a person other than the insured person as a result of the accident in caring for the insured person; and

(b) all reasonable expenses resulting from the accident in caring for the insured person after the accident.

My difficulty with Mrs. Park's claim is that I am not convinced that it falls within section 7. Most of the benefits in Part II of the No-Fault Benefits Schedule are based on actual expenses. Section 7 is an exception. It allows benefits to be based on the income reasonably lost by someone "in caring for the insured person". This appears to be a recognition that an injured person may require personal care that is best performed by someone close to them. In my opinion, however, section 7 is restricted to situations in which the care is required by the injured person herself or himself.

In this case, I am unable to conclude that Mrs. Won was "caring for" Mrs. Park, as required by section 7. She was caring for Mrs. Park's son and doing housework. I conclude, therefore, that Mrs. Park is not entitled to benefits under section 7.

This decision means that Mrs. Park is not eligible for benefits of $1,500 a month to compensate her mother for her lost income. This leaves open the question of whether she should be entitled to some benefits for childcare and housekeeping services. In other arbitration decisions, babysitting and housekeeping expenses have been awarded under section 6(1) (f) of the No-Fault Benefits Schedule [e.g. Trinidad Chamale and Wellington Insurance Company, OIC #A-000849 (September 25, 1992), and Anh Le and Wellington Insurance Company, OIC #A-000920 (November 25, 1992)]. I note that this issue is under appeal to the Director of Arbitrations in the Chamale case.

Section 6(1)(f) provides:

6(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.

In my opinion, it would be overly technical and harsh to conclude that because Mrs. Park claimed benefits under section 7, she is precluded from claiming benefits under section 6(1) (f). Her eligibility for benefits under section 6(1)(f), however, was not addressed in this hearing. Although I am reluctant to prolong or further complicate this matter, I do not believe that it would be fair for me to decide this issue without giving the parties an opportunity to present relevant evidence and to make submissions.

I conclude, therefore, that Mrs. Park may claim benefits for housekeeping and childcare expenses under section 6(1)(f) of the No-Fault Benefits Schedule, if she wishes. If a claim is made and the parties are unable to resolve it, I will remain seized of this issue. Because of the cost and inconvenience of a further oral hearing, consideration should be given to proceeding by way of written submissions or conference call if a further decision is necessary.

Although I do not feel that I have sufficient information to decide this issue, I was presented with a substantial amount of evidence that would be relevant to Mrs. Park's eligibility for benefits under section 6(1) (f) of the No-Fault Benefits Schedule. Based on that evidence, I make the following comments in order to assist the parties.

I would not be inclined to order benefits for any period prior to the date of Mrs. Park's operation on March 4, 1993. This is based on a number of factors. First, The Citadel paid on the basis that it was reasonable to pay for Mrs. Won to come to Canada and provide voluntary services. This is not to suggest that she was obligated to provide these services indefinitely, but if the situation changed, the insurer needed notice so that a new decision, involving different considerations, could be made.

Second, I am influenced by the videotape evidence. In my opinion, that evidence strongly suggests that Mrs. Park did not require full-time assistance.

Third, Mrs. Park has been receiving weekly income benefits under section 12, as someone who is unable to return to work. In another decision, an arbitrator considered whether the babysitting expenses being claimed exceeded the expenses that the applicant would have had if she had been working (Barbara Edwards and State Farm Mutual Automobile Insurance Company, OIC #A-001707, July 12, 1993).

In my view, however, the evidence is reasonably strong that Mrs. Park needed some assistance with childcare and housework following her operation in March 1993. Dr. Oh anticipated a recovery period of six to eight weeks (Exhibit 1). I find, however, that the operation was unsuccessful and accept Mrs. Park's testimony that her condition deteriorated following the operation. A further, more serious operation was scheduled for mid-July 1993. Although Dr. Schweigel did not comment on her ability to do housework or childcare, he predicted a recovery period of four to five months before she would be able to return to work (Exhibit 7).

6. Medical and rehabilitation benefits

Medical and rehabilitation benefits are provided under section 6(1) of the No-Fault Benefits Schedule. The relevant provisions state:

6(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,

(a) medical, psychological, surgical, dental, hospital, chiropractic, nursing and ambulance services and the services of physiotherapists;...

(c) rehabilitation, life-skills training and occupational counselling and training;

(d) transportation for the person to and from treatment, counselling and training sessions, including transportation for an assistant;

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

(4) Subject to subsections (5) and (6), the insurer, before making a payment for an expense under subsection (1), may require the insured person to submit a statement signed by the insured person's qualified medical practitioner or psychological advisor stating that the expense is necessary for the insured person's treatment or rehabilitation.

Mrs. Park's position is that the most reasonable course of rehabilitation is for her to return to Korea with her mother and son, receive medical treatment, and then pursue vocational training, perhaps in accounting. She estimates that the rehabilitation process will take five years. Specifically, she is claiming the following benefits under section 6:

Air fare for Mrs. Park, her son and her mother to Korea.

$ 3,000

Estimated medical expenses, including physician, psychologist, physiotherapist, child care, and transportation ($2,000 per month for two years).

$48,000

Vocational training, including travel costs, books, and tuition ($1,000 a month for three years).

$36,000

I am convinced that Mrs. Park requires rehabilitation services, but am unable to conclude that her proposal is reasonable. In my opinion, the evidence simply does not support the need for her to return to Korea for medical care. Although her desire to obtain medical care in her home country is understandable, I find that reasonable services are available in the Vancouver area. She has a Korean-speaking family doctor who has referred her to a number of specialists. Dr. Schweigel, who she acknowledges has an excellent reputation, is available to perform her surgery. It is true that for counselling services, she may need to decide between Korean-speaking counsellors who do not have professional qualifications and professionals who do not speak Korean. This does not lead me to the conclusion, however, that the services are inadequate.

I am also unable to conclude that Mrs. Park needs to return to Korea for three years of vocational re-training. Her position is that she needs re-training because she will never be able to return to her work as a Korean-style kindergarten teacher. Mrs. Park stated that it was Dr. Schweigel who advised her that she could not return to her pre-accident work, but his reports do not reflect that opinion. In his report, dated June 8, 1993, he states: "Hopefully, she will be able to return to work about 4 - 5 months post open surgery" (Exhibit 7). Although it is not absolutely clear that he is referring to her work as a kindergarten teacher, it is clear from his earlier reports that he is aware of her occupation (e.g. Exhibit 5).

Mrs. Park's rehabilitation is in everyone's interest. The parties should work cooperatively toward that goal. I accept that The Citadel retained Crawford & Company to determine what type of rehabilitation services, if any, Mrs. Park required. Unfortunately, the relationship between the Parks and Ms. Spence quickly broke down. For the reasons set out above, I do not find it surprising that the Parks felt that Ms. Spence's real role was investigation, not rehabilitation. The Parks did not express their concerns about Ms. Spence to The Citadel and, therefore, the problem was not resolved. Hopefully, the dispute resolution process has helped to clarify the situation and will allow the parties to develop an appropriate rehabilitation plan.

7. Expenses

Mrs. Park seeks an award of the expenses that 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:

282 (11) 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.

It was submitted on behalf of The Citadel that Mrs. Park should be denied her expenses because her claims were not supported by any objective evidence and, therefore, were frivolous or vexatious. I do not agree. I am satisfied that the issues raised by Mrs. Park, including her claim for medical and rehabilitation benefits, were legitimate. If she had been represented by someone more familiar with the No-Fault Benefits Schedule and the arbitration process, the issues and evidence might have been presented differently, but I do not feel that the Parks abused the arbitration process in any way. In fact, I note, without intending any criticism, that much of the length of the hearing involved the lengthy cross-examination of Mrs. Park on issues related primarily to her eligibility for weekly income benefits, an issue on which she was partially successful.

I conclude that I should exercise my discretion under section 282(11) to award Mrs. Park her expenses, including the reasonable expenses for her and her husband to attend all four days of the hearing. If the parties are unable to agree on the amount of the expenses, I remain seized of this matter and either party may apply for an assessment of the expenses.

Order:

1. Mrs. Park is entitled to weekly income benefits of $266.06 from November 14, 1992. Because she received some benefits from November 14, 1992 to January 8, 1993, she is only entitled to receive an additional $81.06 a week for that period. She is also entitled to interest on the outstanding amounts, calculated according to section 24 of the No-Fault Benefits Schedule.

2. There is no overpayment with respect to weekly income benefits paid after November 13, 1992.

3. Mrs. Park's eligibility after 156 weeks was not determined.

4. Mrs. Park is not eligible for care benefits under section 7 with respect to services provided by either her husband or mother. I remain seized, however, if Mrs. Park chooses to claim benefits under section 6 for the childcare and housekeeping services performed by her mother.

5. Mrs. Park is not entitled to the medical and rehabilitation expenses that she requested.

6. Mrs. Park is entitled to her expenses of this arbitration, calculated according to Ontario Regulation 664, Dispute Resolution Expenses.

August 23, 1993

David R. Draper Arbitrator

Date

APPENDIX A

Exhibit 1

A photocopy of the handwritten note of Dr. Oh, dated February 12, 1992 [the parties agreed that the proper date is February 12, 1993].

Exhibit 2

A photocopy of a report, dated October 1, 1992, from Dr. Jaworski, physiatrist, to Crawford and Company.

Exhibit 3

A photocopy of a report, dated November 23, 1992, from Dr. Eisen, neurologist, to Dr. Oh.

Exhibit 4

A photocopy of a radiological consultation report, dated December 23 or 28, 1992.

Exhibit 5

A photocopy of a report, dated January 19, 1993, from Dr. Schweigel, orthopaedic surgeon, to Dr. Oh.

Exhibit 6

A photocopy of a report, dated April 8, 1993, from Dr. Schweigel to Dr. Oh.

Exhibit 7

A photocopy of a report, dated June 8, 1993, from Dr. Schweigel to Mrs. Park.

Exhibit 8

A photocopy of a report, dated June 14, 1993, from Dr. Oh.

Exhibit 9

A photocopy of Mrs. Park's application for accident benefits, dated August 3, 1990.

Exhibit 10

A handwritten statement, dated July 27, 1990, signed by Mrs. Park, together with a typewritten version of the statement.

Exhibit 11

A photocopy of a report, dated November 16, 1992, from Mr. Johnman to The Citadel, together with Mr. Johnman's account, dated November 16, 1992.

Exhibit 12

A photocopy of a report, dated December 3, 1992, from Mr. Johnman to The Citadel, together with Mr. Johnman's account, dated December 3, 1992.

Exhibit 13

A photocopy of a report, dated April 20, 1993, from Crawford & Company to Mr. Ringler, counsel to The Citadel.

Exhibit 14

A photocopy of a report, dated October 27, 1992, from Crawford & Company to The Citadel.

Exhibit 15

A photocopy of a report, dated December 21, 1992, from Crawford & Company to The Citadel.

Exhibit 16

A photocopy of a report, dated February 8, 1993, from Crawford & Company to The Citadel.

Exhibit 17

A photocopy of a report, dated March 9, 1993, from Crawford & Company to The Citadel.

Exhibit 18

A photocopy of a report, dated September 15, 1992, from the Canadian Back Institute.

Exhibit 19

A photocopy of a letter, dated December 4, 1991, from the Columbia Centre to The Citadel.

Exhibit 20

A photocopy of a report, dated November 13, 1991, from Sandy Perrin, a physiotherapist at the Columbia Centre.

Exhibit 21

A photocopy of a report, dated November 13, 1991, from Dr. Le Page, a psychologist at the Columbia Centre.

Exhibit 22

A photocopy of a report, dated November 13, 1991, from Dr. Chalmers, a medical doctor at the Columbia Centre.

Exhibit 23

A photocopy of a report, dated November 1, 1990, from Dr. Jeremias to Bannatyne & Company, Insurance Adjusters.

Exhibit 24

A photocopy of a report, dated February 14, 1991, from Dr. Jeremias to The Citadel.

Exhibit 25

A photocopy of a report, dated March 6, 1991, from Dr. Jeremias to The Citadel.

Exhibit 26

A photocopy of a Medical or Psychological Report form, completed by Dr. Thomson at Hamilton General Hospital.

Exhibit 27

A photocopy of an Accident Benefits Medical Report, completed by Dr. Joyce on October 4, 1990.

Exhibit 28

A photocopy of an Accident Benefits Medical Report, completed by Dr. Joyce on September 6, 1990.

Exhibit 29

A photocopy of an Accident Benefits Medical Report, completed by Dr. Joyce on May 6, 1991.

Exhibit 30

A copy of a videotape, prepared by Shepp Johnman & Associates Investigations Inc.

Exhibit 31

A letter, dated February 23, 1993, from Mr. Park.

Exhibit 32

A copy of a letter, dated March 28, 1993, written in Korean.

Exhibit 33

A letter, dated September 14, 1990, from The Citadel to Mr. Park.