Shelley L. P. v. Royal Insurance Company of Canada, 1994 ONICDRG 10

Court File and Parties

Neutral Citation: 1994 ONICDRG 10 File No.: A-002235

ONTARIO INSURANCE COMMISSION

BETWEEN:

SHELLEY L. P. Applicant

and

ROYAL INSURANCE COMPANY OF CANADA Insurer

DECISION

Issues:

The Applicant, Shelley L. P., was injured in a motor vehicle accident on November 16, 1990. She applied for and received accident benefits from the Insurer under the No-Fault Benefits Schedule ("the Schedule"), Ontario Regulation 672, R.R.O. 1990, enacted under the Insurance Act R.S.O. 1990, c. I.8. The No-Fault Benefits Schedule is now referred to as the Statutory Accident Benefits Schedule - Accidents before January 1, 1994, further to Ontario Regulation 779/93.

Weekly income benefits under section 13 of the Schedule were paid until January 31, 1993, when they were terminated. Mediation was unsuccessful in resolving the dispute between the Applicant and the Insurer, and the Applicant applied for arbitration under the Insurance Act.

The issues in this hearing are:

1. Is the Applicant entitled to weekly benefits from February 1, 1993 to September 7, 1993?

2. Is the Insurer required to pay a special award under section 282(10) of the Insurance Act on the basis that it unreasonably delayed or withheld benefits?

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

Result:

1. The Applicant is not entitled to weekly benefits from February 1, 1993 onwards.

2. The Insurer is not obliged to pay a special award.

Hearing:

The hearing was held in Thunder Bay, Ontario, on July 26, 27 and 28, 1993, before me, Frederika Rotter, Senior Arbitrator. I received final submissions in writing from the parties on August 23, 1993.

Present at the Hearing:

Applicant:

Shelley L. P.

Applicant's Representative:

James D. Young, QC Barrister and Solicitor

Insurer's Representative:

Alex W. Demeo Barrister and Solicitor

Witnesses:

Shelley L. P. Ted Baker Capt. J. P. Dr. Diana Johnson Dr. Gayle Kumchy

The exhibits and other material before me are listed at Appendix "A".

Due to the personal circumstances of the Applicant and the nature of the material before me, I have chosen not to identify the Applicant and her family in my reasons for decision.

Evidence and Findings:

This is a difficult and complicated case. The Applicant, Shelley L. P., was seriously injured in an automobile accident in Thunder Bay, Ontario, late in the evening of November 16, 1990. Ms. P. was 15 years old at the time of the accident. She was the front-seat passenger in a car which collided with a tree and slid backwards some 60 feet down an embankment.

Ms. P. suffered serious orthopaedic injuries which eventually resolved. It is agreed that she is no longer physically disabled as a result of these injuries. Ms. P. claims that she also suffered a head injury in the accident, which caused a psychological or mental injury which continued to disable her until September 1993.

It is the theory of the Applicant's case that Ms. P. sustained brain damage which turned her into "a totally different person" after the accident, and seriously affected her ability to function normally, and to perform her essential tasks as a high school student.

The Insurer claims that Ms. P.'s psychiatric difficulties do not result from the accident and that, in any case, Ms. P. was not substantially disabled from performing her essential tasks as a high school student after January 1993.

Shelley P. did not present her case by way of evidence in chief at the hearing. She was made available for cross-examination and testified in response to questions of counsel for the Insurer.

THE ACCIDENT

At the time of the accident, Ms. P. was a grade 10 high school student. She and a girlfriend had gone out for the evening, planning to go to the movies. They met two teenaged boys, Ben and Jud, at a McDonald's restaurant.

The four teenagers went off in the boys' car. The boys had been drinking and had alcohol in the car. They drove around, and stopped for a while at "the bluffs", a popular night-time spot for teenagers.

Ms. P. testified that on the way back from the bluffs, Ben took the wheel, although he had not been driving previously. She commented that she did not know why he was driving, as he did not even have a licence.

Ms. P. was sitting in the front passenger seat, beside Ben. She had her seat belt on. She remembers "going really fast" and then "flying over something". She remembers being hurt. She remembers seeing Ben's face in the steering wheel, and blood on the steering wheel. Ben was not talking or moving.

Ms. P. does not remember being taken out of the car and to the hospital. She remembers being at the hospital -- her mother and brother were there. She remembers lying on a table and having her clothes cut off - there was glass everywhere.

Ms. P. was seriously injured in the accident. She fractured her lumbar spine, her left wrist and left femur. She fractured and dislocated her right elbow and right ankle. The emergency records from The General Hospital of Port Arthur (Exhibit 5, Tab 24) also indicate that Ms. P. had:

"some minor bruising on the anterior aspect of her face and there was no hemotympanum [bleeding from the middle ear] or CSF rhinorrhea [discharge through the nose of cerebrospinal fluid]. There was no evidence of any scalp or skull injury. The C-spine [cervical spine] was absolutely normal".

(emphasis and explanations in square brackets added)

The emergency records indicate that Ms. P. was "alert on arrival". Her blood alcohol level was noted as .050 - equivalent to having consumed 2 beers - less than the legal blood alcohol limit of .080. However, it is not clear how much time had elapsed between the time Ms. P. consumed the alcohol and the time her blood alcohol was tested.

Ms. P.'s condition was assessed and stabilized at the Port Arthur General Hospital. Her spine was immobilized, and her right elbow, left wrist, left leg and right ankle were splinted. At 8:00 the next morning, she was transferred to the McKellar General Hospital for surgery.

Ms. P. was examined at McKellar General Hospital. A CT-scan of her head was performed. The Diagnostic Imaging Report, signed by N. Hickey, M.D. (Exhibit 5, Tab 1), states:

No significant abnormalities have been demonstrated. There is no evidence of intracranial trauma.

(emphasis added)

Prior to her surgery, Ms. P. was assessed by a neurological consultant at McKellar General Hospital, Dr. J. L. Hiscox, who reported (Exhibit 5, Tab 1):

...Examination reveals a drowsy, but easily alertable, somewhat vague, but reasonably cooperative teenager lying on Emergency stretcher with intravenous running and indwelling urinary catheter...

...There were splints, etc. on all four extremities, so neurologic examination is difficult and I cannot check plantar responses. However, I can find no definite neurological deficit except or [sic] some questionable sensory change about the dorsum of the right foot and perhaps weakness of right ankle dorsiflexion, but of course, she does have a fracture of the right ankle...

...Pre-infusion CT head scan reveals that she has an asymmetrical head, but there is no intracranial pathology...

...IMPRESSION:

Multiple injuries:

#1. Head injury with concussion...

Ms. P. spent eight hours in surgery. A rod was placed in her back and left femur, and her right elbow and ankle were surgically pinned. Her ankle and wrist were casted.

Dr. Porter, the orthopaedic surgeon who operated on Ms. P., reported on his treatment of her at Exhibit 5, Tab 4 (a letter dated December 4, 1991). At page 2, he comments that when he first saw Ms. P., she had a hematoma (bruising) over her right forehead, but noted that:

Neurologically, she seemed to be well intact, but because of the amnesia for the events and because of an anticipated long operative course, I had her assessed by Dr. Tom Batay-Csorba, a general surgeon at McKellar Trauma Centre, as well as Dr. Jim Hiscox, who is a neurosurgeon. They did not feel that significant head and neck or abdominal injuries had occurred...

Although Dr. Hiscox reported that Ms. P. suffered a "head injury with concussion", the emergency team at McKellar, including Dr. Hiscox, did not find that her head injury was significant or merited further investigation at that time.

The records clearly indicate that at the emergency units of both hospitals Ms. P. was conscious, alert and orientated. She knew she had been in a serious accident, although she could not recollect the specific events of the accident at that time. She complained of intense and severe pain from her orthopaedic injuries.

Ms. P. was released from hospital on December 22, 1990 so that she could spend Christmas with her family. She went back to school in February 1991, with a back brace, and taking pain killers.

She successfully completed all four courses she was enrolled in that semester, although she was still suffering considerable pain, and had to miss a fair number of school days on this account. She was also receiving physiotherapy and ongoing treatment for her orthopaedic injuries.

In the summer of 1991, her mother felt that Ms. P. was still recovering -- but she indicated that her daughter's activities that summer were not very different from what they had been the previous summer.

POST ACCIDENT BEHAVIOUR

In or about the summer of 1991, Ms. P.'s behaviour started to become more worrisome to her parents. The medical experts agree that Ms. P. is a troubled young woman, who suffers from real psychological or psychiatric difficulties. They disagree about the cause of her troubles, and a diagnosis for her condition. It was argued on behalf of the Applicant that her behavioural problems resulted from a head injury in the accident, which has caused a psychological or mental injury.

The Applicant's mother, Capt. J. P. of the Canadian Army, testified that prior to the accident, she had not experienced behaviour problems with her daughter. Capt. P. testified that in August 1991 Shelley (who was still just 15 years old) started becoming "emotionally very radical". She began staying out very late, breaking her curfew rules. She became very argumentative and even physically violent with her mother. According to the medical records, in one confrontation, she broke her mother's nose. Capt. P. stated that she then had evidence that her daughter was using drugs and alcohol.

In August 1991, Ms. P. drove her father's car out of the driveway, two houses down the block, and collided with another car, smashing the headlights. She had been taking a driver education course, but had not yet started the practical driver training portion at that time.

In September 1991, Mr. P. was teaching out of town, so Capt. P. was generally left to deal with her daughter alone. However, Mr. P. was home one weekend, towards the end of September, when Shelley asked if she could have some friends over for a 16th "birthday party" (her birthday was on October 2). Capt. P. was out of town for a meeting.

Capt. P. stated that Mr. P. gave Shelley permission to have "a few people over" and left Shelley's older brother Scott in charge. Mr. P. went out to a barbecue. When he returned home, he found about 200 or more people at the party, and the house in shambles. The police were called.

Shelley P. testified that she had spread the word about the party to her friends in advance, and that more people showed up than she expected. She testified that she was drinking and got really drunk that evening. Some fights broke out and the police came. She testified that her father showed up afterwards.

It was suggested, on behalf of the Applicant, that these last two incidents -- the accident with Mr. P.'s car, and the out-of-control house party -- are evidence of "disturbed" behaviour on the part of Shelley P., and constitute signs or symptoms of brain injury as a result of the accident.

However, Dr. Oyewumi, a psychiatrist who dealt with Ms. P. at the London Psychiatric Hospital, in his report of November 30, 1992 (Exhibit 5, Tab 22), reviewed this behaviour (which had been characterized as a "conduct disorder") and suggested that "adolescence itself might predispose her to some of the conduct disorder described above".

The Insurer's expert, Dr. Gayle Kumchy, thought that these incidents could be viewed as elements of an ongoing "conduct disorder" which would explain much of Ms. P.'s troublesome behaviour up to and after that point.

I find that Ms. P.'s conduct up to this point is not unusual for adolescents and not necessarily indicative or probative of any serious mental illness or pathology.

In or around October 1991, Ms. P. was charged with shoplifting. The evidence suggests that her school attendance was poor. Her mother also testified that Shelley started cutting off her hair and shaving her head bald.

In November 1991, Ms. P. was hospitalized for behaviour that truly appeared aberrant and bizarre. The evidence is that since November 1991 and to the date of the hearing, Ms. P. has been under more or less constant psychiatric care and attention.

Capt. P. testified that on a Thursday night (presumably Thursday, October 31, 1991) she came home from working a late shift to find her daughter acting peculiarly. Shelley P. was sitting outside in the snow, in her night-dress, with no socks or shoes on. Capt. P. testified that she made Shelley come into the house, but that her daughter kept running out again all night, until she finally went to sleep, much later.

Capt. P. testified that Shelley was fine the following day, Friday. However, Friday night, she repeated her behaviour of the previous night. She was fine again during the day on Saturday, but acted strangely again Saturday night. Capt. P. testified that Shelley took off all her clothes and ran over to a friend's house. She was brought back home, but kept running out to her friend's house all night. Capt. P. testified that Sunday night was another repeat performance -- Shelley did not finally go to sleep until 6:00 the next morning.

The following day, Monday, November 4, Capt. P. took her daughter to Port Arthur General Hospital. She testified that when they got into the car, Shelley started shrieking, and accusing her mother of trying to kill her. At the hospital, her behaviour was wild and erratic. She was transferred to the Lakehead Psychiatric Hospital, where she remained for about a week, for an initial assessment. Upon her discharge, she was prescribed medications to control her behaviour.

Ms. P. testified that she does not really remember the weekend before she was hospitalized, but stated that she had been up all night every night that week, doing drugs and drinking.

After Ms. P. was released from Lakehead Psychiatric Hospital, her behaviour continued to be a problem. She was depressed and acted in disruptive and inappropriate ways. She started seeing Dr. Diana Johnson, a child and adolescent psychiatrist, in early February 1992. Dr. Johnson met with Capt. P. before seeing her daughter. In a consultation report dated January 22, 1992, (before she had yet seen Ms. P.), Dr. Johnson notes (Exhibit 5, Tab 34, at p. 1) that:

...Her school attendance has been intermittent. During Christmas, she laid around, got up at 2 p.m. December 31. Told parents she was going out shopping with the girls. She left the house with 3/4 of a bottle of cognac, got drunk, returned by taxi, was covered with paint. She had no money. She didn't have her own clothes...

At page 3, Dr. Johnson reports:

...She complains that nobody loves her...She gets into many fights with her family...She will refuse to talk, she threatens to run away from home. She screams a lot at her mother. She is very secretive and keeps things to herself. Her mother feels she may be sexually active...She stares blankly into space, she has been steeling [sic] outside the home. Her behaviour in the past 6 months is quite strange...She has sudden change of moods and feelings. She sulks a lot, swears, she has a real hot temper. She threatens her mother. She has problems getting back to sleep. She skips school. For the past 3 weeks she has been very lethargic and lacks energy. She is sad and depressed, has been using alcohol and drugs.

Her mother testified that Shelley continued to be "wild" throughout the winter and spring of 1992. She was charged for shoplifting again. She was also charged for assault (of a security guard) and mischief. She earned only one of seven credits attempted in grade 11 (the school year of 1991-92). She earned that credit with a mark of 50% in World Religion: a mark that Mr. Baker, her former guidance counsellor, who testified at the hearing, characterized as a "gimme" -- the minimum passing mark, assigned so a student will not fail a course.

Ms. P. was hospitalized again at Lakehead Psychiatric Hospital on July 3, 1992. The hospital records indicate that she had shaved off much of the hair on her head and had painted the shaved areas with stenographic "white-out". She admitted to taking LSD and hearing voices.

She was discharged from Lakehead Psychiatric Hospital on July 31, 1992, at the request of her father, who was attempting to obtain treatment for her at some other facility. However, Ms. P. was re-admitted to the crisis unit at Lakehead Psychiatric Hospital on August 1, 1992 (less than 24 hours after her discharge). She had reportedly "slashed" her wrists. The hospital admission summary, dated August 3, 1992, indicates that Ms. P. had "superficially lacerated her wrists" and the physical findings were of "very superficial scratch marks" on her wrists. Ms. P. told Dr. R. Denson, the admitting psychiatrist, that she had cut her wrists because her father was "behaving like a jerk".

She was transferred to McKellar General Hospital on August 10, 1992, after her father expressed extreme dissatisfaction with her treatment at Lakehead. However, she was apparently re-admitted to Lakehead in late August, after having run away from McKellar (Exhibit 5, Tab 30 -- Admission records, London Psychiatric Hospital). She had been abusing alcohol and drugs and had shaved her head again.

Ms. P. remained at Lakehead until she was admitted to London Psychiatric Hospital on September 30, 1992, for clinical evaluation and assessment, and recommendations for further management. She remained in London for some six weeks, until approximately November 13, 1992. Her medications were adjusted. After returning to Thunder Bay, she continued as an outpatient at Lakehead, and also continued seeing Dr. Johnson. Her mother testified that her behaviour has improved: she is less violent and irrational. She returned to school on a half-time basis in January 1993 and planned to take a full course load in September 1993. Ms. P. received weekly accident benefits until January 31, 1993.

APPLICANT'S PRE-ACCIDENT CONDITION

To adequately evaluate the cause of Ms. P's post-accident behaviour, it is important to look at her history and background. Shelley P. was born on October 2, 1975. She was placed for adoption with her parents on March 19, 1976. She was the second adopted child of the family, joining an older brother.

The adoption records were made an exhibit to the hearing, as were Ms. P.'s school reports. The adoption records disclose nothing of note regarding Ms. P.'s birth parents.

The school reports indicate that Ms. P. had some learning difficulties in primary school: her junior kindergarten teacher reported that she required firmness and attention to participate in a group situation. Her senior kindergarten teacher noted difficulties concentrating and listening for any length of time. She was referred to a learning centre during kindergarten and grade 1, to remediate her poor visual analytical skills and fine motor difficulties. Her primary school reports show that Shelley P. was an average student, and that she had some trouble applying herself and concentrating.

Her junior high reports are similar. Her marks are generally low-average, and teachers' comments in the 7th grade indicate that her behaviour in class needed improvement. In grade 8, her report indicates that Shelley P. failed to complete or hand in a number of projects and assignments.

Dr. Diana Johnson, a psychiatrist who testified at the hearing on Shelley P.'s behalf, commented that the school reports suggested that Shelley possibly suffered from hyperactivity and an attention deficit disorder.

The Insurer retained the firm of Price and Associates to perform an educational assessment and analysis of Ms. P.'s academic history. After reviewing all of Ms. P.'s school reports, they conclude (Exhibit 4, non-medical documentation book):

...Shelley proceeded through to grade 7, as a low average student. Concern re her behaviour and social development was expressed...

...Shelley entered Junior High School:

• behaviour and effort was still a problem

• this appears to have been resolved the following year.

...Shelley entered High School:

• Grade 9 she enjoyed a relatively good 1st year as a "C" student.

Capt. P. described her daughter, before the accident, as a quiet child who always did as she was told, although she acknowledged that she and Shelley went through "the usual mother-daughter things". She stated that she and Shelley did not have a very close relationship, but she described it as a "normal mother-daughter relationship". Capt. P. agreed that both Shelley and Mr. P. perceived her as being closer with her son, Scott.

Capt. P. testified that before the accident, Shelley "chatterboxed" with her friends on the telephone, and that her friends were the centre of her life. However, at home she was quiet and did her homework or watched TV. She did not talk with her mother about her activities.

Capt. P. testified that to her knowledge, Shelley had not used alcohol or any other substance prior to the accident. However, she conceded, on cross-examination, that she was probably "out of touch" with her daughter, and not aware of many of her activities.

She recalled that Shelley's 13th birthday party was a "mess" and that one friend had arrived drunk. She had to call the girl's mother to pick her up. However, she described her daughter's pre-accident behaviour as "mostly acceptable".

Shelley P. testified that she had started drinking in grade 8 (at about age 13), at weekend parties and get-togethers with her friends. She did not tell her parents that she was drinking, but she felt that they nevertheless suspected it.

Capt. P. testified that as a young child, Shelley P. was much closer with her father than with her. Mr. P. had to leave the family to work out of town in March 1989, when Shelley was in grade 8. Capt. P. testified that, in her mind, this did not cause a disruption in the home life -- everyone carried on as usual. However, she admitted that Mr. P.'s departure bothered Shelley and was disruptive to her. Shelley missed her Dad and always looked forward to his letters. Nevertheless, Capt. P. felt that after Mr. P.'s departure, Shelley carried on as usual with her school work and family life.

In her testimony, Ms. P. confirmed that she missed her father when he went away to work. She testified that her Dad seemed to have more time for her than her mother did, because her mother was always working. After her father left, her mother had even less time for Shelley, because of problems with her older brother, Scott. Ms. P. felt that she got less attention from her mother than did Scott: "you don't get noticed that much if you're good". She stated that she and her mother had "average mother-daughter fights".

Capt. P. testified that before the accident her daughter had actively participated in school sports such as volleyball, basketball, soccer and ringette. However, in cross-examination, she conceded that Shelley last participated in sports in junior high, and that in high school (which she started in September 1989), she was not involved in organized sports.

Mr. Ted Baker, Shelley P.'s grade 9 guidance counsellor, recollected that she had tried out for the varsity volleyball team, but did not have the athletic ability to play at that level.

Capt. P. stated that Shelley was "not brilliant but did OK" in school. She felt that Shelley was doing well so long as she got passing grades. She conceded that Shelley was having some difficulties in grade 9 (1989-90, the year before the accident), but did not view this as a problem since she was passing.

In grade 9 (the first year of high school), Shelley P. passed her year with an overall average of 62 per cent. She took five advanced-level subjects and three general-level subjects. Guidance counsellor Ted Baker testified at the hearing that he had recommended that Shelley not take advanced courses in grade 10, based on her performance in grade 9.

Mr. Baker testified that he felt Ms. P. was "in over her head" in attempting advanced-level courses. He described Shelley P.'s behaviour in 9th grade as "attention-seeking". He had more contact with her than with other students, because she frequently dropped in to chat. She spent a fair amount of time talking about "generalities" -- what Mr. Baker described as "normal adolescent inhibitions and concerns".

He described Shelley P. when he first knew her as a "normal grade 9 young girl", perhaps somewhat withdrawn and shy, although not necessarily quiet.

Capt. P. testified that the summer before the accident (the summer of 1990), Shelley spent her time going to the beach, hanging around the shopping mall, and visiting with her friends. The evidence is that she also did some casual babysitting. She testified that the following summer, after the accident, Shelley did basically the same things as the summer before.

Evidence was led that Shelley P. had been sexually abused by a great-uncle as a young girl. Capt. P. testified that she knew about one incident -- when Shelley was seven years old.

The records from Lakehead Psychiatric Hospital (Biopsychosocial Needs Identification, July 8, 1992, Exhibit 5, Tab 30, p.4) show that Ms. P. reported that she had been molested by her great-uncle from age 4-10. At the hearing, she indicated that this had occurred "a couple of times", but was vague about the details, stating merely that he used to try to grab her and touch her.

MEDICAL OPINIONS

The medical opinions presented in this case are complex and contradictory. Extensive documentation was provided by both parties in joint medical binders. I will review the initial assessments from the Lakehead Psychiatric Hospital, the evidence presented on behalf of the Applicant and the evidence of the Insurer.

It is argued on behalf of Ms. P. that her mental problems result from a head injury sustained in the accident, and substantially disabled her from performing her essential tasks as a high school student from February 1, 1993 until September 7, 1993, when she planned to return to school full-time.

Ms. P. had been receiving weekly benefits from the Insurer until January 31, 1993. Although she returned to school in February 1993, she only attended classes part-time, and took two courses, rather than a full course load of four or five. She was absent a great many days (in total, she missed almost a month's worth of classes) and participated in no extra-curricular activities. Therefore, it is claimed that during this period, Ms. P. was suffering from a substantial inability to perform the tasks in which she would normally engage as a high school student.

The Applicant and her counsel indicated at the hearing that September 7 was the appropriate cut-off date for benefits, if they were awarded, based on Ms. P.'s plans to return to school full-time.

Initial Assessments: Lakehead Psychiatric Hospital

As I have outlined above, Ms. P.'s first psychiatric admission occurred in November 1991, almost exactly one year after the motor vehicle accident. It is clear from the records of Lakehead Psychiatric Hospital that the psychiatric staff was aware that Ms. P. had been involved in a serious motor vehicle accident the year before. Yet the admission summary (prepared November 18, 1991) provides, as an admitting diagnosis, "Probable drug-induced psychosis or onset of bi-polar disorder". This document is signed "R. R. Kletke, M.D." (Exhibit 5, Tab 30).

The discharge summary (Exhibit 5, Tab 14), prepared by the same physician and dated November 26, 1991, indicates that the final diagnoses were:

1. Drug Induced Psychosis

2. Drug Abuse Syndrome (marijuana)

3. Alcohol Abuse Syndrome

The social work assessment from Lakehead Psychiatric Hospital (Exhibit 5, Tab 15), dated November 28, 1991, relates, as background history, the following:

For over the last two years, Shelley's behaviour has dramatically changed. She has gone from a placid, calm, and healthy adolescent to an acting out and troubled child. She has been heavily involved in alcohol and drugs for two years (drinking every day), theft, two major car accidents, and associates with friends in inappropriate and illegal activities. Her change in behaviour coincides with her father's absence from the family. Mr. [P] left three years ago to work out of town and this has disrupted the family system.

The social worker's assessment states:

Shelley is the symptom of a dysfunctional family. The blurred family roles and crossed family boundaries (child to parental) have contributed to a chaotic situation. Mr. [P.]'s relocation to work and his absence from the family have left some gaping holes in functioning. Mrs. [P.] has little power, control, or authority in this home and this has resulted in Shelley acting out in inappropriate ways.

The social work assessment indicates that information was obtained through interviews with the Applicant and her parents.

I find it significant that neither the physicians nor the social worker at Lakehead Psychiatric Hospital attributed Ms. P.'s difficulties in November 1991 to the motor vehicle accident of November 1990. I also find it significant that the social worker's background history relates that Shelley P.'s behaviour had dramatically changed as of two years prior to her psychiatric admission: connecting her behaviour change with her father's absence from the home rather than the motor vehicle accident. The social worker also reports that at that point Shelley P. had been involved with alcohol and drugs for two years. This report confirms Ms. P.'s own testimony that she had been drinking since junior high school.

The social worker was not called to give evidence nor was his report seriously called into question. However, at the hearing, Capt. P. testified that she did not tell the social worker that Shelley P.'s behaviour had changed in the past two years. It is possible, nevertheless, that either Shelley P. herself or her father reported this to the social worker. In the absence of any further evidence on this point, I accept the social worker's assessment as an accurate report of the facts provided at that time by the individuals interviewed. I am satisfied that the document is a reliable record, made in the normal course, by a professional who has no interest in the outcome of this litigation.

Ms. P. was re-admitted to the Lakehead Psychiatric Hospital the following summer. A discharge summary by Dr. Denson, dated July 31, 1992 (Exhibit 5, Tab 16), states:

DIAGNOSIS: Hebephrenic Schizophrenia, 295.1

The role of the motor accident and the resultant concussion, in the development of this illness is difficult, if not impossible, to demonstrate. It may be that the blow on the head and the long period of hospitalization acted as releasing mechanisms and therefore can be regarded as precipitants of her mental illness. On the other hand, it seems clear that the accident is not fully responsible for the pathological mental condition which she has displayed.

Shelley P. was re-admitted to Lakehead Psychiatric Hospital the next day, after she cut her wrists. However, her father was not happy with her progress and treatment at this institution and, accordingly, arrangements were made to have her transferred.

The discharge summary of August 12, 1992 (Exhibit 5, Tab 30), prepared by Dr. Denson, states:

COURSE IN HOSPITAL:

...She did very well indeed during her stay;...

In spite of this significant improvement in the patient's condition, her father expressed extreme dissatisfaction and said she was receiving no treatment at all while in the Lakehead Psychiatric Hospital. For this reason, the patient was transferred to McKellar Hospital on the 10th of August, 1992, through the kind cooperation of Dr. C. L. Dodick and J. B. Frost.

DIAGNOSIS: Hebephrenic Schizophrenia (295.1)

DISCHARGE ARRANGEMENTS: Because she has been transferred to McKellar Hospital, her contacts with this institution have been terminated and it is hoped that it will not be necessary to see her or her father again. There are some appealing features to the patient's personality, but attempting to work with him was a most unpleasant experience.

Counsel for the Applicant, in his submissions, suggested that Mr. P.'s unhappiness stemmed, at least in part, from the suggestion made by the staff at Lakehead that family dysfunction contributed to Ms. P.'s disturbed behaviour.

I note that Dr. Denson, who was responsible for Ms. P.'s care at Lakehead and spent a considerable amount of time working with her (July through August 10, 1991), felt that it was impossible to ascertain the role of the motor vehicle accident in Ms. P.'s mental illness. He felt that the blow on the head and Ms. P.'s long hospitalization "may" have acted as releasing mechanisms or precipitants for her illness, but that the accident clearly was not fully responsible for her condition. At its highest, therefore, Dr. Denson's evidence suggests that the accident possibly had some role in facilitating the development of a latent or pre-existing mental illness.

Applicant's Medical Evidence

(a) Evidence of Dr. Johnson

After her first discharge from Lakehead Psychiatric Hospital, Shelley P. started seeing Dr. Diana Morgan Johnson, a child and adolescent psychiatrist, in early 1992.

Dr. Johnson testified at the hearing. Her curriculum vitae shows that she is an experienced child and adolescent psychiatrist, who has acted as a consultant for various children's service organizations, boards of education and medical institutions. Her curriculum vitae does not reveal any particular expertise in the field of trauma or brain injury. It indicates rather, that through much of her career, Dr. Johnson has focused on issues such as abuse, parenting problems, and learning disabilities.

Dr. Johnson estimated that she has spent close to 50 hours with Ms. P. and her parents and has seen Ms. P. 15 or 20 times since February 1992. At the hearing, she gave her opinion that Shelley P.'s behavioural and psychological problems were secondary to the motor vehicle accident and caused by a minor brain injury, sustained in the collision.

Dr. Johnson acknowledged in cross-examination that Shelley P. presented a difficult diagnostic problem. However, she opined that Ms. P.'s problems were organic in origin: that is, caused by a disease, injury or dysfunction of the brain (in this case, injury from the accident). She stated that she based this conclusion on several factors:

(1) Ms. P.'s history of a motor vehicle accident and a concussion

(2) her post-accident behaviour, and

(3) the results of a SPECT-scan test and the results of other psychological tests performed on Ms. P.

Dr. Johnson also pointed out that Ms. P. was currently being treated with medications (lithium and tegretol) that are typically and frequently utilized in cases of individuals with organic psychiatric problems.

Dr. Johnson testified that she first interviewed Capt. P. on January 22, 1992. On the basis of that interview, before she had yet seen Shelley P., she prepared a consultation report, referred to above, dated January 22, 1992 (Exhibit 5, Tab 34), which summarizes her view of Ms. P.'s problems as follows:

In summary, Shelley is a 16 year old who is extremely rebellious and who's [sic] behaviour has changed remarkably since she was involved in a car accident. She lacks respect for authority. She is extremely depressed, lacks motivation and is involved in many social behaviour [sic], shop lifting and she has tried to commit suicide but [sic] taking her father's gout pills. She is physically and verbally aggressive with her mother. She has been skipping school. Her sleep habits are poor, she acts like a class clown at school. She associates with 18 and 19 year olds. Mother feels she is sexually active and she has been involved in drugs and alcohol.

DIAGNOSIS:

Axis 1 - Conduct disorder, under socialized aggressive.

Axis 2 - Chronically depressed and suicide attempts.

Axis 3 - Substance and alcohol abuse, post-traumatic stress disorder.

Axis 4 - Psychosocial stressors - mild.

Axis 5 - Highest level of adaptive function in the past year - very poor.

It is clear from the report that Dr. Johnson was aware of Shelley P.'s motor vehicle accident of November 1990. However, it appears that at this point Dr. Johnson felt that the effect of the motor vehicle accident was limited to a post-traumatic stress disorder. Dr. Johnson does not appear to link the diagnoses of conduct disorder, depression, and substance and alcohol abuse with the motor vehicle accident.

Dr. Johnson testified that she first saw Ms. P. some two weeks after she met her mother. Her report dated February 5, 1992 (Exhibit 5, Tab 34) concludes as follows:

In Summary:

Shelley is chronically depressed. She really hasn't bonded to either parent. She has a lot of inner anger. School is a problem for her. Her choice of friends leaves a great deal to be desired. There is a tendency to withdraw. She has been involved in delinquent behaviour such as stealing. As Shelley is over 16, it makes it difficult to find an appropriate placement for her. It may be necessary for the parents to become involved in "Tough Love". They may also be able to get some help from the support group of parents who are presently dealing with adolescents who are in treatment in the United States. The biggest problem is Shelley's willingness to accept treatment. There is also the problem that she is definitely a suicide risk.

DIAGNOSIS:

1. Conduct disorder, under socialized, aggressive.

2. Borderline personality.

3. Chronic neurotic depressive neurosis.

4. Suicide attempt.

5. Psychosocial stressors - moderate.

6. Highest level of adaptive functioning in the past year - very poor.

I note that the diagnoses of January 22 and February 5, 1992 are quite similar. However, in February 1992, after seeing Shelley P. and reviewing the results of various psychological tests, Dr. Johnson does not allude to a post-traumatic disorder. She does not even mention the motor vehicle accident and its sequelae in her report and discussion of Shelley P.'s mental state. Rather, she introduces a new diagnostic category, that of "borderline personality". She also notes that Ms. P. "really hasn't bonded to either parent", an observation which I find reinforces the view of the social worker at Lakehead who reported some family dysfunction.

In a consultation report dated May 12, 1992, Dr. Johnson reviews Ms. P.'s problematic behaviour and comments, "Some of this difficulty certainly can be due to a post-traumatic symptom".

In a subsequent report to the Applicant's counsel, dated June 11, 1992 (Exhibit 5, Tab 6), Dr. Johnson states:

There is definitely deterioration in this girl's personality. She definitely is showing signs of post-traumatic stress syndrome which is a direct result of the accident. I [sic] would appear that she requires neuro-psych testing. A lot of her antisocial behaviour is secondary to depression and this has been seen in follow up as late as February of 1992 when her Beck Hopelessness Scale was positive for 14 out of the 20 questions. She is also fantasizing a great deal and there are times that her touch with reality is not that great.

On July 13, 1992, Dr. Johnson wrote to Dr. Stanley P. Kutcher, head of the division of adolescent psychiatry at Sunnybrook Hospital in Toronto. She indicates that Ms. P. was involved in a motor vehicle accident in November 1990, describes her problematic behaviour, and states, "She presents as a post-traumatic stress syndrome as well as oppositional behaviour in adolescence".

In a further letter to Dr. Kutcher, dated September 3, 1992 (Exhibit 5, Tab 10), Dr. Johnson indicated that a new SPECT-scan (Single-Photon Emission Computed Tomography) service was available in Thunder Bay. She writes:

Since Shelley had a head injury when she was hurt, this test might provide more information as to what is going on at the present time. It is extremely difficult to determine whether her behaviour is due to the accident or as a side effect to all the medication she is on.

I cite this material because it demonstrates that for at least the first few months of her involvement with Ms. P., Dr. Johnson was by no means certain of the cause of her problems. Based on Shelley P.'s behaviour and presentation, Dr. Johnson diagnosed a conduct disorder, oppositional behaviour in adolescence, post-traumatic stress reaction, borderline personality, chronic depression, drug and substance abuse, as well as possible adverse reactions to psychotropic medications.

Dr. Johnson seemed to be most certain of the diagnosis of post-traumatic stress syndrome. The American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (Third Edition - Revised, "DSM-III-R" (Washington, DC, 1987) describes post-traumatic stress syndrome as a psychological disorder which arises following a markedly distressing experience. It is not caused by brain damage or injury, but rather, results from an individual's reaction to a traumatic or life-threatening experience (such as an automobile accident).

Given the seriousness of the accident in which Shelley P. was involved, and the length of her subsequent hospitalization, it seems likely that Ms. P. indeed experienced post-traumatic stress disorder after the accident. The Insurer's expert, Dr. Kumchy, testified that in her view, Ms. P. was suffering from a post-traumatic stress disorder for some time after the accident, in addition to her other problems.

However, post-traumatic stress disorder did not appear to fully explain all of Ms. P.'s problems. Dr. Johnson considered that further investigations would be helpful, and therefore suggested a SPECT-scan.

At the hearing, Dr. Johnson confirmed that Shelley P. was "behaving as an acting-out youngster -- very depressed". She then stated that all of her behaviour problems could be explained by a minor head injury. She indicated that behavioural problems, lack of emotional control, depression and learning difficulties -- all exhibited by Ms. P. - are frequently symptoms of minor brain injury or trauma.

In cross-examination, she conceded that Shelley P.'s behaviour and symptoms could also be accounted for by a diagnosis of bipolar disorder (manic-depressive disorder), as suggested by Dr. Kumchy, the Insurer's expert. She agreed that Ms. P.'s symptoms arose in late adolescence, at the age when such disorders typically emerge. However, she rejected that diagnosis because she was not aware of any family history of bipolar disorder in Shelley P.'s case. She testified that she would not diagnose bipolar disorder without genetic testing or a family history.

Dr. Johnson indicated that she had reviewed the information on Shelley P.'s birth parents provided by the Children's Aid Society, and pointed out that this material contained no reference to any family history of psychiatric problems.

Dr. Johnson agreed that lithium, one of the medications prescribed for Shelley P., is prescribed for individuals with bipolar disorders. Dr. Johnson stated that lithium also works for people with head injuries, and that many doctors use it to treat organic depression.

Exhibit 7 is an extract from the Compendium of Pharmaceuticals and Specialties, "CPS", (Ottawa 1993, 28th Ed.), published by the Canadian Pharmaceutical Association. The CPS is a publication which lists and describes all drug products available in Canada and provides information on such topics as pharmacology (the chemical and physical effects of the drug), indications (when the drug should be used), contra-indications (when the drug should not be used), precautions, adverse effects and dosage.

Lithium is described (at p. 678) as an antimanic agent. It is indicated only for the treatment of acute manic episodes in patients with bipolar affective disorders. Patients are maintained on lithium to prevent or diminish the frequency of relapses of manic behaviour. The CPS does not suggest that lithium is used for any problem other than manic disorders.

I am not persuaded by Dr. Johnson's evidence at the hearing that Shelley P.'s psychiatric problems were caused by brain damage from the motor vehicle accident.

As I have outlined, Dr. Johnson's initial assessment or diagnosis of Shelley P.'s difficulties was much more ambiguous than the views she expressed at the hearing. Her letter of September 3, 1992, suggesting that a SPECT-scan might be useful as a diagnostic tool, shows she was unclear about the causes of Shelley P.'s problems on that date.

Dr. Johnson testified that SPECT-scan results indicated that Ms. P. had some abnormalities or lesions in the left frontal and parietal areas of her brain "consistent with previous focal trauma". However, she confirmed that from the SPECT-scan it was impossible to say how or when the damage occurred. She stated that she was content to rely on the SPECT-scan results which "showed me head injury - frontal lobe injury". She confirmed that she was not able to read the SPECT-scan results herself. She did not explain why left frontal lobe damage would appear on the SPECT-scan when the evidence was that Shelley P. had bruised the right side of her forehead.

Dr. Gayle Kumchy, a neuropsychologist retained by the Insurer, testified at the hearing that she could make no sense of the SPECT-scan results, since they showed left-sided findings, and Ms. P.'s bruises were on the right. She therefore suggested that the SPECT-scan findings had nothing to do with the motor vehicle accident.

Dr. Garry Hawryluk, another neuropsychologist retained by the Insurer, discussed the SPECT-scan results in a report dated July 12, 1993 (Exhibit 5, Tab 36A), as follows:

I believe that there are two issues which merit additional comment in this instance. First is the degree of diagnostic accuracy and confidence which may be placed in these investigations...With regard to the SPECT particularly, it is my understanding that there is considerable variability in records of "normal" individuals...In Ms. [P.]'s situation, while the record appears consistent with focal trauma...reference is made in hospital records regarding laceration to the right frontal region (apparently forehead and not brain), which, even in this case that underlying damage would be suspected, it would either be expected in this region (right frontal) or contralaterally and more posteriorly on the left associated with contre-coup injury...

The Applicant's counsel in his written submissions tried to explain the left-sided SPECT-scan findings as the result of a "coup/contre coup" injury. However, I am satisfied that this explanation is speculative. Exhibit 9, a booklet on "Minor Head Injury", by Thomas Kay, Ph.D., explains that coup/contre coup occurs as the result of "a particularly sharp blow to the head", so that the area of the brain immediately below the impact point is bruised, and the entire brain bounces off the opposite side of the skull, resulting in additional damage on the diametrically opposed side.

From my understanding of the mechanics of a coup/contre coup injury therefore, one would expect the SPECT-scan to show right frontal and left posterior lesions or abnormalities, as indicated by Dr. Hawryluk. Left frontal lesions cannot be explained as the results of a coup/contre coup injury from the motor vehicle accident. I also find the absence of right frontal findings noteworthy in this context.

Accordingly, I find that the SPECT-scan results are inconclusive, and do not support Dr. Johnson's opinion that Shelley P. sustained detectable brain damage as a result of the accident.

Finally, I note that Dr. Johnson also testified that she had administered a Bender-Gestalt psychological test on Shelley P., and that the results of this test suggested organicity. Again, however, Dr. Johnson could not provide any evidence that showed that the test results were linked to the accident. Indeed, she testified that alcoholics and chronic drug users often show similar results in a Bender-Gestalt test.

Dr. Johnson in her viva voce testimony presented herself as an advocate for the Applicant's family and their point of view. In cross-examination, when she was asked whether she was trying to be objective in giving her evidence, she responded "my concern is with the kid".

I felt that Dr. Johnson presented no clear explanation or evidence for her conclusion that Shelley P. suffered from brain damage as a result of the accident. Clearly, at some point the diagnosis of post-traumatic stress disorder failed to account adequately for Ms. P.'s ongoing and severe mental illness. I find that Dr. Johnson relied heavily on Ms. P.'s parents' history, that Shelley P.'s behaviour had changed dramatically after the accident, and concluded that the accident must therefore logically account for the change.

However, in the absence of any specific evidence as to a detectable brain injury, I cannot accept, on a balance of probabilities, Dr. Johnson's theory that Ms. P.'s condition is directly attributable to the organic effects of the automobile accident.

Although Dr. Johnson was the only medical expert to testify on behalf of the Applicant, as I have indicated previously, I was provided with volumes of medical evidence in the form of documents and reports. In particular, the reports and records of the Clinical Evaluation Unit from the London Psychiatric Hospital also tended to support the Applicant's position that her psychiatric problems resulted from the motor vehicle accident. The Applicant also relied heavily on a publication entitled Minor Head Injury: An Introduction for Professionals, by Thomas Kay, Ph.D, published in December 1986 by the (American) National Head Injury Foundation (Exhibit 9).

(b) London Psychiatric Records

Ms. P. was assessed at the London Psychiatric Hospital from September 30, 1992 until November 13, 1992. She was referred to the London Psychiatric Hospital by Dr. Hutchinson of Lakehead Psychiatric Hospital, who requested assistance with the clarification of Ms. P.'s diagnosis, and also advice on treatment.

At the London Psychiatric Hospital, Ms. P. underwent a battery of tests and assessments by members of the clinical evaluation team. I have reviewed the various reports and records compiled at the London Psychiatric Hospital. I note that all the reports and opinions rely on background information provided by informants including Ms. P.'s parents and her legal advisor, as well as on medical documentation from Lakehead Psychiatric Hospital and Ms. P.'s other doctors. Insofar as these reports rely on inaccurate or incomplete information, they are unreliable.

For example, the discharge summary dated November 13, 1992 (Exhibit 5, Tab 29), prepared by Dr. L.K. Oyewumi, the Director of the Clinical Evaluation Unit, states on p.1 that:

"Apparently, Ms. Shelley [P.] was involved in a severe road traffic accident in which she was unconscious for at least two hours while sustaining severe physical injuries...It was alleged that shortly following this accident, her behaviour changed drastically. She became disinhibited with significant anti-social behaviour". (emphasis added)

I note that, in contrast to Dr. Oyewumi's information, the evidence before me does not reliably confirm the duration of Shelley P.'s period of unconsciousness. The evidence is that Shelley P. was conscious during and after the car-crash, lost consciousness some time afterwards, and regained consciousness upon her admission to hospital. I have no evidence of whether she was unconscious for more or less than two hours.

Furthermore, the evidence is that Shelley P.'s behaviour only began to change "drastically" approximately one year after the accident. Accordingly, Dr. Oyewumi's conclusions about the effect of the accident on Shelley P.'s behaviour may be questionable, based on these questionable assumptions.

Dr. Oyewumi cites the view of Dr. Llewellyn W. Joseph, who reported (Exhibit 5, Tab 29) his impression of "some organicity which may be accountable for [her] personality change". Dr. Joseph based his impression on a single interview with Ms. P., in which she reported that she had "passed out for several hours" during the motor vehicle accident of November 1990.

In the same discharge summary, Dr. Oyewumi also cites the view of Dr. Harold Merskey, who reported on October 21, 1992:

I do not think that there is good evidence so far for a diagnosis of schizophrenia. It looks as if she has features of disinhibition and intermittent elation, poor insight and organic impairment of intellectual capacity. These signs are quite severe and compatible with a very significant frontal lobe injury perhaps with injury to other parts of the brain as well." (emphasis added)

Dr. Merskey's report in its entirety was part of the evidence (Exhibit 5, Tab 29). Dr. Merskey reported:

I am told she used to be a B/C student in grade 10 when she had a motor vehicle accident in which she was unconscious for 24 hours. At that time she was well liked and had good social conduct but her behaviour has deteriorated markedly since then".(emphasis added)

Dr. Merskey then concluded that Ms. P.'s psychological and psychiatric signs are compatible with "a very significant frontal lobe injury". Clearly, this conclusion is based on a misapprehension about the extent of Ms. P.'s head injury, as it pre-supposes a 24-hour period of unconsciousness.

Dr. Oyewumi's discharge summary goes on to find that Shelley P. suffers from the following psychiatric problems:

• organic personality syndrome

• post traumatic stress disorder

• physical injury and brain injury

Dr. Oyewumi had the results of the psychological tests that were performed at the London Psychiatric Hospital, which suggested problems of an organic nature. The psychological assessment team reported a suspicion of frontal lobe dysfunction, and so psychological tests were performed to assess this function. However, the assessment team found that "the test evidence for frontal lobe damage in particular is not strong".

The team concluded (Exhibit 5, Tab 29, at p. 5 of the report) that it was likely that Ms. P.'s problems had:

an organic origin. Whether this organicity is entirely the result of her car accident or reflects, at least in part, a more longstanding condition .... is unclear. The decline in her school marks is more consistent with the former, however. It also seems unlikely to be primarily a frontal lobe dysfunction; occipital and parietal dysfunction, particularly on the right side, is rather more prominent at this time. (emphasis added)

I find that this report falls far short of establishing, with any degree of probability, a causal connection between Ms. P.'s observed dysfunction and the automobile accident. The assessment team concludes that Ms. P. is likely suffering from an organic problem (i.e. a disease or injury to the brain). It is indicated that the problem could have resulted from the car accident, or from a more longstanding condition.

The assessment team feels that the accident is the more likely cause, based on an alleged decline in Ms. P.'s school marks. The team apparently did not have access to Ms. P.'s school reports, which demonstrate a generally low-average academic performance, with considerable difficulties and a decline in marks in grade 9, the year before the motor vehicle accident. Moreover, I note that in the spring of 1991 (the first school term completed by Ms. P. after the accident), Ms. P.'s marks did not decline substantially from the previous year.

Further, the assessment team finds that Ms. P. shows occipital and parietal dysfunction, whereas the evidence from the accident suggests that any injury (and dysfunction) would logically occur in the right frontal lobe, the area directly behind Ms. P.'s bruised right forehead.

Accordingly, I am not satisfied, on the balance of probabilities, that the organic problems which the psychological assessment team at the London Psychiatric Hospital identified as causing Ms. P.'s problems, resulted from the motor vehicle accident rather than from some other pre-existing condition.

Dr. Oyewumi prepared a further report, dated November 30, 1992 (Exhibit 5, Tab 22), addressed to Ms. P.'s counsel. He indicates at the outset of this report that he is not an expert in the field of head injury cases, but that the Clinical Evaluation Unit at the London Psychiatric Hospital (of which he is the Director) was set up to evaluate cases with difficult diagnosis and treatment.

In this report, Dr. Oyewumi specifically refers to background material, provided to him by counsel for the Applicant -- he was advised by counsel that the Applicant had sustained "a hematoma over her right forehead" and also "a closed head injury with concussion and multiple lacerations, contusions and abrasions".

Dr. Oyewumi again referred to documentation from the Lakehead Psychiatric Hospital and the reports from his colleagues at the Clinical Evaluation Unit, and the opinions of Drs. Merskey and Joseph. He also obtained further background information from other informants, including guidance counsellor Ted Baker, who testified at the hearing.

Dr. Oyewumi reports that Mr. Baker indicated that prior to her accident, Shelley P. had been a "good student" with "an A or B average at school, was not using street drugs or alcohol". This statement is not consistent with the school reports, nor with Mr. Baker's own testimony at the hearing. It also contradicts Shelley P.'s own evidence that she had been drinking alcohol since junior high school.

In his letter, Dr. Oyewumi reviews the background information and concludes:

It is my opinion judging from the background information summarized above and our findings that the diagnosis in this young lady at the moment are

1. Organic personality syndrome

2. Post traumatic stress disorder

3. Adjustment disorder with disturbance of conduct

It is my opinion that these are related to the head injury suffered from the road traffic accident of November 1990. The history available to me clearly showed a change in behaviour following this accident. One may argue that adolescence itself might predispose her to some of the conduct disorder described above. However, the features of her presentations, such as disinhibition, poor judgement and labile mood and general personality change reported would support more of a secondary personality change and behavioural disorder related to the road traffic accident....

Dr. Oyewumi diagnoses a Post Traumatic Stress Disorder (PTSD), a psychological disturbance, resulting from a traumatic experience, as described above.

He also diagnoses an adjustment disorder with disturbance of conduct, described in DSM-III-R as "a maladaptive reaction to an identifiable psychosocial stressor" with the "predominant manifestation" being

conduct where there is violation of the rights of others or of major age-appropriate societal norms and rules: Examples: truancy, vandalism, reckless driving, fighting, defaulting on legal responsibilities

DSM-III-R (Exhibit 5, Tab 39) describes adjustment disorder as a reaction that occurs within three months of the onset of the stressor and has persisted for no longer than six months.

If the symptoms of adjustment disorder persist for more than six months, the diagnosis should be changed to some other mental disorder.

Dr. Oyewumi also diagnoses organic personality syndrome, a psychiatric disturbance resulting from brain injury. As I have shown, much of Dr. Oyewumi's report depends on questionable information about the accident and its immediate physical effects, and about Ms. P.'s previous normal conduct and level of academic functioning.

Dr. Oyewumi accepts as an established fact that Shelley P. sustained a closed head injury. He relies on the views of Drs. Joseph and Merskey -- whose versions of the facts were not accurate. He was not present at the hearing, nor was his evidence tested through cross-examination. Accordingly, I cannot give his opinion much weight. More specifically, I cannot find, based on his opinion, that Ms. P.'s behavioural disorders likely arose because of or can be substantially attributed to the motor vehicle accident.

(c) Minor head Injury publication

Ms. P.'s counsel in submissions cited this document at length in support of the proposition that the Applicant's psychiatric problems were caused by a minor head injury from the accident.

The document indicates that the effects of minor head injuries are often not recognized and therefore not appropriately treated by the relevant professional caregivers. It describes two major types of injuries: diffuse mild head injury and focal mild head injury.

Diffuse head injuries occur when brain tissues are damaged (suffer microscopic stretching and tearing) diffusely - i.e. in a widely scattered manner throughout the brain, and not in any particular localized area. Brain damage is usually not detectable to CAT scans or neurological examination.

The resulting deficits are described as problems with the overall speed, efficiency, execution and integration of mental processes. Individuals process information less efficiently, react less quickly, have difficulty with complex operations, learning and memory, and abstract thinking. The publication describes these deficits as "not gross and obvious in casual interaction".

From my understanding of Shelley P.'s problems, particularly after November 1991, I conclude that her difficulties cannot be explained on the basis of a diffuse mild head injury. Although she may have experienced some problems with learning, memory and the like, her major "gross and obvious" behavioural disorders do not appear to be the product of this type of damage.

The second type of mild head injury described is "focal mild head injury". These injuries result in neurological damage which can be localized to a particular area of the brain and involve "grossly observable tissue damage". Two major types of lesions are fronto-temporal lesions and coup/contre-coup injuries.

As I have indicated above, the evidence does not suggest that Ms. P. suffered a coup/contre-coup injury. Similarly, we have no documentation of "grossly observable" frontal lobe injuries. The booklet describes frontal lobe injuries as adversely affecting "executive functions" -- such cognitive processes as planning, organization, learning and memory, as well as "emotional control". It states that "memory deficits are the hallmark of closed head injury".

The booklet also discusses the immediate effects of head injury, including "headache, nausea, dizziness, confusion, disorientation, amnesia, agitation and fatigue". I note that none of these specific symptoms were documented upon Ms. P.'s admission to hospital after the accident, with the exception of some amnesia as to the actual accident.

The document goes on to discuss the long-term consequences of minor head injuries -- the most serious of which is "psychiatric imbalance". The document speculates that "psychiatric imbalance" is triggered by "organically-based cognitive, emotional and behavioural deficits" although "At present, the mechanics of such scenarios are not clear".

This document provides a helpful description of the nature of minor head injury, and the deficits and problems produced as a result of such injuries. However, it does not assist in proving, on a balance of probabilities, that Ms. P.'s problems are "organically based", as is alleged on her behalf.

Insurer's medical evidence

(a) Dr. Hawryluk

The Insurer had Ms. P. assessed by a neuropsychological expert, Garry Hawryluk, Ph.D., C. Psych, in the summer of 1992.

Dr. Hawryluk has a Ph.D. in Clinical Psychology with a minor in Clinical Neuropsychology. His curriculum vitae shows that after completing his clinical psychology internship, he completed an additional specialized internship in Rehabilitation Psychology/Neuropsychology. Since 1977, he has practised as a consulting psychologist and neuropsychologist, and has extensive experience in research and teaching. He is a professor in the Department of Psychiatry and in the Department of Rehabilitation Medicine at the University of Manitoba, and has published and presented many papers on the subject of traumatic brain injury. His research interests include cognitive and emotional changes, post-head injury, and neuropsychological and psychological outcome predictors post-head injury.

Dr. Hawryluk submitted three separate reports about Ms. P. The first lengthy report (Exhibit 5, Tab 36a) is dated September 13, 1992 and was prepared after a neurological assessment based on a clinical interview with Ms. P., an interview with her father, formal psychometric testing and a review of all the medical data then available, including hospital emergency records, medical history and documentation of the motor vehicle accident, the medical documentation from the Lakehead Psychiatric Hospital, correspondence from Dr. Johnson and information from the Children's Aid Society.

Dr. Hawryluk's report took into account that at the time of his assessment, Ms. P. was a psychiatric patient receiving heavy doses of psychotropic medications. He opined (at p. 14):

Even considering medication effects and behavioural intrusions, Ms. [P.]'s pattern of psychometric test results does not appear consistent with that normally demonstrated in individuals who have sustained significant brain injury...

With regard to comments raised by others concerning Ms. [P.]'s presentation as being reflective of post traumatic stress, individuals can experience a Post Traumatic Stress Disorder with delayed onset, although this reaction appears more common in the absence of head injury, or in cases of minimal head injury. However, Ms. [P.] does not demonstrate any of the classic features of this disorder, including nightmares, flashbacks, excessive preoccupations with the event, and avoidance, although she does acknowledge apprehensiveness as a passenger in a motor vehicle. Her current presentation is, however, significantly different both quantitatively and qualitatively to that demonstrated with PTSD, and as such, it is unlikely that Ms. [P.]'s current presentation solely and exclusively attributable to her motor vehicle accident.

While the extent of behavioral disturbance currently manifest by Ms. [P.] appears consistent with Bipolar Disorder (Mixed), features of her presentation also suggest Axis II personality features including conduct disorder, parent-child difficulties, and the possibility of alcohol and substance abuse, although the specific psychiatric diagnosis in this situation would be best deferred to individuals at Lakehead Psychiatric Hospital more continuously and directly involved in her care. The foregoing suggests that Ms. [P.] may have encountered a number of stressors associated with her motor vehicle accident, in addition to a number of stressors independent of same, the aggregate of which appears to have precipitated a significant psychiatric reaction, in an individual likely predisposed in this regard.

(emphasis added)

At this point, therefore, Dr. Hawryluk's view was that Ms. P.'s problems could not be attributed solely to the motor vehicle accident. He felt that her behavioural disturbance could not be accounted for by the diagnosis of PTSD. He suggested that Ms. P. was suffering from a psychiatric disturbance, to which she was likely predisposed, and that the onset of this disturbance was probably attributable to the combination of a number of stress factors, of which the motor vehicle accident was one.

Almost one year later, on July 12, 1993, Dr. Hawryluk submitted a second, updated opinion, which considered further "voluminous" information which had been provided to him (Exhibit 5, Tab 36b). This information included the admission records from McKellar Hospital (November 17, 1990), the London Psychiatric Hospital records (fall 1992), and the results of other investigations, including an evaluation by Dr. C.I.G. Kumchy, and the results of the SPECT brain scan.

Dr. Hawryluk concluded at (p. 7):

...Ms. [P.] may have sustained a mild head injury associated with her accident, although other features of a characterological or psychiatric nature were considered as more heavily responsible for her behavioural presentation, ...

In an evaluation of this type, a number of parameters are considered, including the nature and character of loss of consciousness or interruption in conscious mental activity, an individual's behavioral presentation during testing, collateral and historical information, in addition to psychometric test data.

With regard to the parameters of head injury, in Ms. [P.]'s situation indicators appear consistent with mild head injury. Specifically, the period of retrograde amnesia (memory loss preceding the traumatic event) appears relatively short, possibly only of several minutes duration. The period of unconsciousness documented appears to vary considerably, with most estimates assuming a maximum duration of unconsciousness of two hours. While the actual ambulance notes and admission notes from Port Arthur General Hospital do not appear available, retrospective information from McKellar suggests that Ms. [P.] was not unconscious upon admission to PAGH. Interview with Ms. [P.] also suggests that she demonstrates patchy recollections and memory subsequent to her accident, and subsequent to hospitalization was medicated, and as such, it is difficult to determine with precision the extent (if any) of post traumatic amnesia, which also appears relatively short in this instance.

Individuals having sustained brain injury can experience a period of confusion and behavioural disorganization subsequent to injury, although this presentation tends to be more characteristic of the post acute phase. In instances of severe and significant brain injury, however, the behavioural presentation tends to be one of emotional lability (generally unprecipitated by "appropriate" environmental circumstances), indiscriminate acting out, and behavioural disorganization accompanied by a virtual dependence upon others for assistance in the execution of even the more rudimentary tasks. This does not appear characteristic of Ms. [P.]'s presentation with, as indicated in our earlier report, the degree of behaviour disturbance demonstrated by Ms. [P.] not characteristic of that demonstrated even in severe brain injury, and certainly beyond that which would be expected given the parameters of head injury possibly encountered by Ms. [P.], most generously applied...

...In my years of practice in working with head injured individuals I have never seen a case with such pronounced behavioural disability where there were no indicators of concern, more prominent and obvious at the time of initial hospitalization.

...the degree of behavioural and cognitive disturbance demonstrated by Ms. [P.], in addition to the nature and character of this disturbance, is much greater that which would be expected on the basis of injuries sustained.

...Ms. [P.]'s current behavioural presentation is not, in my view, solely or likely in the majority, the product of head injury.

To paraphrase this analysis, Dr. Hawryluk finds from the evidence of the accident, that at most Ms. P. may have sustained a mild head injury. However, he finds that the degree of mental disturbance which she manifests is not characteristic of, and much greater than that which would be expected, based on the injuries she sustained.

Dr. Hawryluk submitted a final short letter on July 24, 1993 (Exhibit 5, Tab 36c), in response to another report from Dr. Kumchy. After reviewing Dr. Kumchy's findings, he writes:

In short, it would appear that Ms. [P.]'s motor vehicle accident, resulting particularly in the significant orthopaedic injuries and related disabilities noted by others, appears to have contributed to a psychological reaction, with difficulties in this regard considered among the stressors confronted by Ms. [P.] over a longer span of time. I do not believe, however, the accident to be the sole factor in precipitating or contributing to the number of difficulties encountered by Ms. [P.] subsequently, but consider her accident likely among those factors contributing to currently demonstrated behavioural and psychological difficulties.

(emphasis added)

Dr. Hawryluk's opinions are based on a careful review of all the documentation. He acknowledged that Ms. P.'s case represented "a difficult diagnostic dilemma". He considers that the accident was a psychological stressor and, as such, would have contributed to Ms. P.'s psychological difficulties. However, he does not view the accident itself as being the single precipitating cause for Ms. P.'s psychiatric problems.

(b) Dr. Kumchy

Dr. C.I. Gayle Kumchy was called by the Insurer to testify at the hearing. She is a clinical neuropsychologist whose present practice focuses on the evaluation, treatment and rehabilitation of head-injured and back-injured individuals. She examined and tested Shelley P., at the request of the Insurer, on January 27, 1993. She prepared a neuropsychological evaluation dated January 29, 1993, and a follow-up report dated July 6, 1993 (Exhibit 5, Tabs 35 a & b).

At the hearing, Dr. Kumchy explained that the phrase "head injury" is a generic term, and can refer to an injury either of the skull or of the brain. She pointed out that brain injuries should be differentiated from head injuries.

Dr. Kumchy testified that generally brain injuries are classified as mild, moderate or severe. She confirmed the information provided by Dr. Hawryluk -- that in order to determine the extent of the brain injury, one would look at such indicators as the extent of amnesia before and after the accident, the duration of the period of unconsciousness, the Glasgow rating scale, which evaluates the individual's response to stimulus after consciousness has been regained, and also the individual's blood pressure in the following days.

On the basis of all these factors, Dr. Kumchy concluded, like Dr. Hawryluk, that Shelley P. had sustained, at most, a mild (or minor) brain injury. She pointed out that Ms. P. was quite alert and able to respond appropriately when the emergency team found her, shortly after the accident. She has, relatively, a great deal of recall about the accident and limited forgetfulness of events before and after. Much of her forgetfulness after the accident can be attributed to the medications she immediately started receiving.

Dr. Kumchy testified that following the accident, Ms. P. did not display the agitation, anger and rage normally immediately evident in the behaviour of brain-injured individuals.

She also testified that, in her opinion, Ms. P. would not have been able to complete three of four courses in the school term immediately after the accident (winter-spring, 1991) if she had sustained significant brain damage from her injury. Dr. Kumchy stated that the neuropsychological tests she conducted on Shelley P. showed that her executive functioning (the process by which thinking and behaviour is organized, planned, initiated, monitored and adjusted) was adequate. She testified that executive functioning is usually affected in individuals with frontal lobe damage. The "Minor Head Injury" publication submitted in evidence by counsel for the Applicant confirms this point.

Dr. Kumchy further stated that her experience with brain-injured individuals was that their symptoms were worst immediately after the accident, and tended to improve over time. Based on all these factors, she felt that the accident did not cause Ms. P.'s very disturbed behaviour starting in November 1991.

Dr. Kumchy opined that the accident did produce a post-traumatic stress disorder in Shelley P. -- it was a psychologically traumatizing event, and Shelley P. did show symptoms of post-traumatic stress disorder for some months after the accident. For example, she had nightmares, reported a driving phobia, and would frequently refer to the accident on other occasions. However, Dr. Kumchy felt that Ms. P. was not suffering from post-traumatic stress disorder when she examined and tested her in January 1993.

Dr. Kumchy also thought that Shelley P. showed symptoms of a conduct disorder which pre-dated the accident. She considered Ms. P.'s low self-esteem, her poor academic achievement (the fact that even in junior high, she did not pay attention and failed to complete many assignments), and her statement that she had been drinking alcohol since junior high were indicative of a conduct disorder.

Dr. Kumchy also suggested (p. 3 of her report of January 29, 1993, Exhibit 5, Tab 35a) that Ms. P. and her parents had some ongoing difficulties prior to the accident, as her mother visited her only briefly while she was in hospital, and her father first saw her only five weeks post-accident -- when he returned home for Christmas.

After the accident, Ms. P.'s behaviour continued to suggest a conduct disorder: stealing, fighting, taking her father's car, and staying out at night all support the psychiatric diagnosis of a conduct disorder.

Dr. Kumchy testified that sometimes conduct disorders are precursors to bipolar (manic depressive) disorders. She concluded that in this case, Ms. P. went on to develop a full-blown bipolar disorder - a disorder to which she was most likely predisposed prior to the accident. She referred to the diagnostic criteria for a bipolar disorder, set out in the DSM-III-R.

The DSM-III-R refers to an "initial episode that occasioned hospitalization ... usually manic", followed by a depressive episode. Dr. Kumchy testified that Shelley P.'s behaviour resulting in her hospitalization in November 1991 meets the DSM-III-R criteria for an initial manic episode: she showed symptoms such as grandiose behaviour, decreased need for sleep, pressure of speech, distractibility, psychomotor agitation, and associated features such as lability of mood, with rapid shifts to anger or depression - all described in the manual.

Dr. Kumchy noted that DSM-III-R indicates that the mean or average age of onset for this disorder is the early 20s. She testified that this disorder can arise earlier, although it is generally not seen until late adolescence, and is never seen in childhood. The DSM-III-R also indicates that this disorder occurs more frequently in first-degree biologic relatives of individuals with bipolar disorder.

Dr. Kumchy noted that Ms. P. was on medication that was controlling this disorder -- namely lithium. She suggested that because Ms. P. had been "misdiagnosed" (i.e the bipolar disorder was not recognized), she had been over-medicated -- and many of her reported difficulties (and anomalous or otherwise unexplained psychometric test results) could be attributed to the extra-pyramidal, or side effects of her medications.

Dr. Kumchy's second report (dated July 6, 1993, Exhibit 5, Tab 35b) reviews further material which had been provided to her and concludes:

Taken as a whole, I believe that the complete file further documents the presence of a bipolar disorder which became fully visible after a period of delay post motor vehicle accident. I believe that Shelly [sic] was at risk for this psychiatric disturbance aside from being involved in an [sic] motor vehicle accident. Her present impulsivity and lack of concentration I believe is more related to her psychiatric disturbance than to a loss through a head injury.

The motor vehicle accident in which Shelly was involved no doubt created a situation where she was in significant pain due to orthopaedic injuries. While she sustained a bruise on her right forehead, there is no evidence that she has significant post traumatic amnesia nor significant amnesia for events prior to the accident. I therefore suspect that the head injury is minor and that the behavioural anomalies that we see are secondary to a psychiatric disorder and not to organic brain syndrome. The early fearful behaviours in the hospital may have been secondary to the trauma of the accident and may have been characterized briefly as a Post Traumatic Stress Disorder. These, however, abated and what we see now is more characteristic of psychopathology in an individual whose integration was fragile due both to congenital factors as well as to a history of early sexual abuse. The stress in the family created by remaining with the least favoured parent and having the more favoured parent absent for long periods of time, may also have contributed to Shelly's difficulties.

(emphasis added)

Dr. Kumchy impressed me as a knowledgable and credible witness. Her opinions were arrived at after a thorough review of the evidence, and strike me as sensible and persuasive. Although she testified on behalf of the Insurer, she did not appear to have any interest in the outcome of these proceedings.

Dr. Kumchy was not cross-examined on her evidence. Counsel for the Insurer submitted that the absence of cross-examination creates a presumed acceptance of the truth of a witness's assertions, and cited in support of that proposition Brown v. Dunn (1893) 6 R. 70.

I find that the failure to cross-examine does not create an automatic presumption of the truth of Dr. Kumchy's statements. However, such a failure can only enhance her credibility. Had Dr. Kumchy's evidence been successfully attacked in cross-examination, I would have had considerably more difficulty in reaching a conclusion in this case. As it was, Dr. Kumchy's findings were not directly challenged by counsel for the Applicant, although her evidence was addressed in the Applicant's submissions.

I am not a medical expert or diagnostician, and the object of the present exercise is not to arrive at a firm psychiatric diagnosis in the unfortunate case of Ms. P. Therefore, I make no findings as to the "correct" diagnosis in this case. However, I do accept Dr. Kumchy's view, supported by the evidence of Dr. Hawryluk and the other evidence she has cited, that any brain injury sustained by Ms. P. in the accident was "mild", and did not cause her subsequent psychiatric problems. I also concur with her view, supported by the evidence, that Ms. P. was manifesting some conduct difficulties prior to the accident.

I accept Dr. Kumchy's opinion that if Ms. P. had sustained any serious frontal lobe damage as a result of the accident, this would have been apparent shortly afterwards. I also accept that Shelley P. would probably not have been able to succeed in school, to the extent that she did in the term after the accident, had she sustained significant brain damage. Finally, I accept that the delayed onset of Ms. P.'s serious behavioural problems suggests that they are not the direct result of the accident, but rather the spontaneous development of a disorder to which Ms. P. may have been predisposed. I accept these conclusions as reasonable and probable, based on the evidence before me.

Conclusion:

It was submitted on Ms. P.'s behalf that her mental and psychiatric problems were solely caused by the physical head injury, sustained in the accident.

In reviewing the evidence, I am satisfied that Ms. P. sustained at most a mild head injury, and that her severely disturbed behaviour cannot be attributed to the physical effects of the head injury alone. In this regard, I accept the views of Dr. Hawryluk and Dr. Kumchy, that the severity and character of Ms. P.'s behaviour disturbance are not in keeping with the generally expected effects of a mild head injury.

In this case, it was not argued on behalf of Ms. P. that the motor vehicle accident precipitated or contributed to the emergence of a pre-existing mental illness or psychiatric condition.

However, entitlement to benefits under section 13 of the Schedule may be established if it can be shown that a psychological or mental injury is "the result of" an accident. My understanding of the meaning of this phrase is that a causal connection between the injury and the accident must exist, but that the accident need not be the sole cause of the injury.

I adopt the view articulated by Arbitrator Mackintosh in the recently released case Gail MacNeill and Royal Insurance Company of Canada, (Commission File No. A-000057, January 10, 1994, at p. 20) that it is sufficient that the motor vehicle accident made a significant contribution to the development of the psychological or mental injury. I therefore feel it appropriate to address this issue.

In this case, I am not persuaded, on the balance of probabilities, that the motor vehicle accident played a significant role in the development of Ms. P.'s mental disorder.

I accept that the accident affected Ms. P.'s psychological condition to some extent, and may have been one of a number of factors which precipitated the development of her psychiatric illness. This view is supported by virtually all the medical professionals involved in this case.

The accident was a traumatic and stressful event in Ms. P.'s life. I find that Ms. P. did suffer from a post traumatic stress reaction for some time after the accident. Dr. Kumchy considered that Ms. P. had largely recovered from the post-traumatic stress reaction by January 1993 (when she examined her). I accept that opinion.

However, I find that Ms. P. also suffered from many other serious pre-existing problems and stressors. The various professionals dealing with Ms. P. have suggested that her mental illness could have been precipitated by a variety of different factors, including family dysfunction, childhood sexual abuse, street drug and alcohol abuse, and even the side effects of her medication.

Ms. P. testified to a history of childhood sexual abuse, and to the regular use of alcohol since junior high school. From the evidence, I also find that Ms. P. had difficulties with her family, pre-dating the accident. Ms. P.'s first psychiatric admission, in November 1991, occurred after she had been drinking and taking street drugs. She was discharged with a diagnosis of "drug-induced psychosis".

The evidence is that certain psychiatric conditions (such as bipolar disorder) do not emerge until late adolescence or early adulthood. The medical evidence suggests that Ms. P. may have been pre-disposed to developing a mental illness. Because Ms. P. is an adopted child, and our knowledge of her birth family's history is limited, we do not know whether any significant psychiatric family history exists.

Ms. P. has been diagnosed as suffering from drug-induced psychosis, conduct disorder, depression, post-traumatic stress disorder, borderline personality, hebephrenic schizophrenia, bipolar disorder, as well as organic personality syndrome.

Psychiatry is not yet an exact science. The mechanics and etiology of many mental illnesses are not fully understood. Even assuming that certain psychological stressors may precipitate or hasten the onset of a psychiatric disturbance, I am not persuaded, on the balance of probabilities, that the motor vehicle accident played a significant role in this case. I find that it is equally likely that any of the other psychological or social stressors that were affecting Ms. P. -- or a combination of all or some of them - may have played a significant role in her mental illness.

I conclude that the motor vehicle accident was one of a number of psychological stressors affecting Ms. P., but not a significant factor in the development of her condition. I accept the view of Dr. Kumchy that Ms. P. was showing early signs of a behavioural disturbance prior to the accident, and would probably have gone on to develop psychiatric problems notwithstanding the accident.

Ms. P. is not entitled to weekly benefits from February 1993 onwards, since I am not persuaded, on a balance of probabilities, that the motor vehicle accident caused or played a significant role in causing her disability, after that period.

Special Award:

The Applicant has requested a special award under section 282(10) of the Insurance Act.

I find that the Insurer has not unreasonably withheld or delayed any payments owing to Ms. P. Accordingly, the Insurer is not liable to pay a special award under section 282(10).

Expenses:

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

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

The prescribed expenses and amounts are set out in Schedule 1 of the Dispute Resolution Practice Code and in Ontario Regulation 664, R.R.O. 1990, Dispute Resolution Expenses.

In Ralph McCormick v. Economical Mutual Insurance Company (O.I.C. 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 v. The Co-Operators General Insurance Company (O.I.C. File No. P-000251, issued February 13, 1992).

The Applicant is entitled to her expenses as set out in Schedule 1 of the Dispute Resolution Practice Code.

The Applicant's counsel, in written submissions, sets out a detailed summary of his client's expenses. In reviewing this material, I find that in general, the expenses claimed appear reasonable and appropriate. The Insurer argued that these expenses have not been proved pursuant to Schedule 1.

Counsel for the Applicant also submitted that counsel fees should be awarded at the hourly rate established for experienced counsel under the Legal Aid Act. I find this is an appropriate case to award counsel his fees at the "experienced counsel" rate.

In the event that the parties cannot agree as to the total amount of expenses, I remain seized of this matter and a party may apply for assessment of the expenses before me.

Order:

1. The Applicant is not entitled to weekly benefits from February 1, 1993 onwards.

2. The Insurer is not obliged to pay a special award.

3. The Applicant is entitled to her expenses incurred in respect to the arbitration, including counsel fees at the hourly rate established for experienced counsel.

February 9, 1994

Frederika M. Rotter Senior Arbitrator

Date

APPENDIX A

List of exhibits:

Exhibit 1

Release, executed by Applicant

Exhibit 2

Police Accident Report

Exhibit 3

Photos of vehicle

Exhibit 4

Non-medical documentation book

Exhibit 5

Joint Medical Binders (3)

Exhibit 6

Curriculum Vitae of Dr. D. Johnson

Exhibit 7

Excerpt from manual, Compendium of Pharmaceuticals and Specialties, "CPS", (Ottawa 1993, 28th Ed.)

Exhibit 8

Resume of Dr. C.I.G. Kumchy

Exhibit 9

Booklet - Minor Head Injury: An Introduction for Professionals, by Thomas Kay, Ph.D (December 1986, National Head Injury Foundation)

Exhibit 10

Excerpt from Diagnostic and Statistical Manual of Mental Disorders (Third Edition - Revised, American Psychiatric Association, Washington, DC, "Mood Disorders", pp. 213-222)

Other documents before the Arbitrator:

Report of Mediator, dated August 20, 1992

Application for Appointment of an Arbitrator, dated September 15, 1992

Response by Insurer, dated September 29, 1992