Neutral Citation: 1994 ONICDRG 137
File No. A-005612
ONTARIO INSURANCE COMMISSION
BETWEEN:
MARLANE P. CZANK
Applicant
and
THE PORTAGE LA PRAIRIE MUTUAL INSURANCE COMPANY
Insurer
DECISION
Issues:
The Applicant, Marlane P. Czank, was injured in a motor vehicle accident on November 30, 1992. She applied for and received statutory accident benefits from The Portage La Prairie Mutual Insurance Company ("Portage La Prairie"), payable under Ontario Regulation 6721. Weekly income benefits were terminated by Portage La Prairie on August 8, 1993. Mrs. Czank claims that she continues to be eligible for weekly income benefits.
The parties were unable to resolve their dispute through mediation, and Mrs. Czank applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8. The issues in this hearing are:
Is Mrs. Czank entitled to weekly income benefits under section 12 of the Schedule for any period from August 8, 1993 onwards?
Is Mrs. Czank entitled to benefits for housekeeping services under section 6 of the Schedule?
Mrs. Czank also claims interest on any outstanding amounts owing, and her expenses incurred with respect to the arbitration.
Result:
Mrs. Czank is entitled to weekly income benefits from August 8, 1993, plus interest calculated according to section 24 of the Schedule.
Mrs. Czank is entitled to housekeeping expenses totalling $323.00, plus interest calculated according to section 24 of the Schedule.
Mrs. Czank is entitled to her expenses related to the arbitration, calculated according to Ontario Regulation 664, Dispute Resolution Expenses.
Hearing:
The hearing was held in St. Catharines, Ontario, on May 5 and 6, 1994, before me, David R. Draper, arbitrator.
Present at the Hearing:
Applicant:
Marlane P. Czank
Insurer's Representative:
Robert Miller Barrister and Solicitor
Witnesses:
- Marlane Czank, applicant
- Heather Taplay, occupational therapist
- Ann Cleary, registered nurse/rehabilitation specialist
- Nicholas Wood, investigator
- Vera Papalia, investigator
- Robert MacLeod, investigator
Exhibits:
The exhibits filed and the other documents before the arbitrator are set out in Exhibit A.
Reasons for Decision:
1. The Issue
Mrs. Czank was involved in a motor vehicle accident on November 30, 1992. She testified that she was unable to avoid hitting the passenger side of a car that pulled out from a side street to her left. Later that night, she was treated in the emergency room of the local hospital. She saw her family doctor, Dr. W.J. West, two days later.
Mrs. Czank initially complained of pain in her neck, right shoulder, and right arm, with a loss of strength and dexterity in her right arm and hand. She subsequently developed jaw pain, chest and abdominal discomfort, and headaches. She has continued to see Dr. West, along with a number of other health professionals.
Eligibility for weekly income benefits is determined under section 12 of the Schedule, which provides:
12.--(1) The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident a weekly income benefit during the period in which the insured person suffers substantial inability to perform the essential tasks of his or her occupation or employment
At the time of her accident, Mrs. Czank was almost twenty-six years old, married, and the mother of a two year old son. She was working as a full-time dental assistant in Dr. L.W. Nash's dental office. In order to be eligible for weekly income benefits, she must establish that as a result of the accident, she suffered injuries that make her substantially unable to perform the essential tasks of her employment as a dental assistant.
The duties of a dental assistant are described in the Canadian Classification and Dictionary of Occupations, as follows:
Assists dentist in care and treatment of patients: Seats and prepares patient for dental treatment. Arranges instruments, materials and medication and hands them to dentist. Keeps oral operating area clear during dental procedure, using suction devices, water sprays, cotton rolls and holders, and by retraction of cheek and tongue. Prepares filling materials, using mechanical amalgamator and instruments, and supplies them to dentist as required. Comforts patient through reassuring conversation and action. Gives emergency treatment, as directed by dentist, for local and systemic distress. Advises patients on post-operative care, oral hygiene, and importance of diet and preventive dentistry. Sterilizes instruments, using ovens, autoclaves and aseptic solutions. Pours, trims and mounts plaster models from impressions taken by dentist, and performs other dental laboratory procedures. Performs routine maintenance duties such as lubricating equipment, sharpening dental instruments, replacing expendable parts, and cleaning equipment and treatment area. Exposes processes and mounts X-ray films. Polishes teeth, applies fluoride to teeth, and performs other inter-oral procedures, as permitted by training and by provincial legislation. . . Acts as receptionist, if required.
Mrs. Czank explained that she and Dr. Nash practised "four-handed dentistry". Her role was to sit on the patient's left side, toward his or her head, and work in concert with Dr. Nash. Although her duties included some lifting, the real issue is whether she is able to do the dexterous work with her hands, particularly her right hand, with her arms extended.
Portage La Prairie terminated Mrs. Czank's weekly income benefits, effective August 8, 1993, on the basis that she was no longer substantially unable to perform the essential tasks of her pre-accident employment as a dental assistant. The issue in this arbitration is whether Mrs. Czank continued to be eligible for weekly income benefits from August 8, 1993, onwards.
At the hearing, Mrs. Czank also questioned whether Portage La Prairie had calculated her weekly income benefits properly. Her position is that her weekly entitlement should be $311.07, not $292.68. Mr. Miller, on behalf of Portage La Prairie, objected to this matter being included in the arbitration. Because the amount of Mrs. Czank's benefits was not raised in the mediation, in the Application for Appointment of an Arbitrator, or at the pre-hearing discussion, I concluded that it should not be dealt with in this arbitration. If Mrs. Czank wants to pursue this matter, she will need to make another application for mediation.
2. The Position of the Parties
Mrs. Czank acknowledges that she is not totally disabled. She maintains, however, that she has been physically unable to perform the specific tasks of a dental assistant. She claims that primarily due to problems with her right shoulder, right arm and right hand, she is unable to practice "four handed dentistry" or mix thick materials.
Mr. Miller submitted, on behalf of Portage La Prairie, that the surveillance evidence demonstrates that Mrs. Czank has consistently exaggerated her symptoms, which compromises the opinions of the medical professionals who relied on her subjective complaints. He submitted that she has focused on proving her disability rather than on returning to work. It was suggested that she may not be motivated to return to work because her previous job is no longer available, she has primary responsibility for the care of her pre-school aged son and, at the time of the hearing, was expecting her second child in June 1994.
3. Findings
Mrs. Czank returned to work after her accident. She testified, however, that she could not do her job properly, even relying on pain medication, and had to rely on assistance from her co-workers. She missed one full day of work, and parts of a number of other days, due to the pain in her right shoulder and weakness in her right hand.
On December 8, 1992, eight days after the accident, Mrs. Czank completed an Application for Accident Benefits. In her application, she stated that she was unable to assist "during 50% or more of all procedures," and was unable to mix the thick materials before they hardened.
Dr. West, Mrs. Czank's family doctor, initially encouraged Mrs. Czank to continue working. On January 8, 1993, however, she told him that she was having a lot of problems at work, including tingling and cramping in her right hand. Dr. West suggested that she "take a few days off and see how things go". Mrs. Czank stopped working and began to receive weekly income benefits from Portage La Prairie on or about January 11, 1993.
Dr. West referred Mrs. Czank to Dr. Stoltz, a neurologist, primarily to investigate the problems that she was having with her right hand. The medical records indicate that an EMG done in January 1993, presumably by Dr. Stoltz, was normal.
Dr. West also referred Mrs. Czank to Kay Yardley and Associates Physiotherapy, where she started on January 15, 1993 and continues to attend. The initial rehabilitation plan, developed by Ms. Yardley and Dr. West, was for Mrs. Czank to continue physiotherapy and gradually return to work, starting in early April 1993. According to Dr. West, this was a form of "work hardening". Dr. West provided her with a note, dated March 22, 1993, stating that she was able to return to work for two days per week, starting April 5, 1993, and then for three days per week, starting April 19, 1993.
In the meantime, Portage La Prairie retained Quest Investigations Ltd. to conduct surveillance of Mrs. Czank. She was observed on February 27, 1993, the day that she and her family were moving to a new home. The videotape shows her moving about without any apparent distress, including carrying a few boxes and driving. In my view, however, this level of activity is not obviously inconsistent with Dr. West's clinical notes.
Shortly before she was to return to work, Mrs. Czank aggravated her condition while lifting weights as part of her physiotherapy program. In a note, dated April 19, 1994, Ms. Yardley, the physiotherapist, describes it as "an acute exacerbation of pain, and neck and right arm dysfunction".
Despite this set-back, Mrs. Czank returned to work at Dr. Nash's dental office on Monday, April 5, 1993. However, she was only able to work for half a day. She saw Dr. West on Tuesday, April 6, 1993, complaining of a flare-up in neck and shoulder pain, and numbness in her right hand. He was concerned about her lack of progress, and referred her to Dr. Trotter, a specialist in physical medicine and rehabilitation. In the meantime, he encouraged her to attempt to keep working. Mrs. Czank returned to work on Wednesday, April 7, 1993, but only remained for haf of the day.
Mrs. Czank testified that on April 12, 1993, the first day of her second week back to work, she had a lot of back pain and had to rely on her co-workers for many of her job tasks. She called in sick on April 13, 1993. According to Dr. West's clinical notes, Mrs. Czank went to the hospital on April 14, 1993, and saw him on April 15, 1993. He noted that her range of motion in her neck and right shoulder was somewhat restricted.
Dr. West provided Mrs. Czank with a note, dated April 15, 1993, stating that she would be unable to work for two weeks. In her report, dated May 28, 1993, Ms. Yardley stated: "An attempt to return to modified work failed, resulting in six weeks of severe increase in pain and dysfunction."
Surveillance of Mrs. Czank was conducted on April 17, 27, 28, 29, and May 1, 1993, although she was not observed on April 27th. She was not seen doing anything particularly strenuous, but the videotapes show no signs of obvious impairment. She appears to move freely at a normal pace, and does not obviously avoid using her right hand. The videotape taken on May 1, 1993, shows her moving her neck freely, including back over both her right and left shoulder, using her right hand to unlock and open her car door, and driving with both hands. I agree with Mr. Miller's submission that it is difficult to reconcile the surveillance evidence with the "severe increase in pain and dysfunction" reported by Ms. Yardley.
On or about April 20, 1993, Mrs. Czank discussed her situation with Dr. Nash. He did not feel that he could keep her position open any longer, and hired the dental assistant who had been replacing her. Mrs. Czank agreed that this was "very upsetting".
In April 1993, Portage La Prairie retained Comprehensive Rehabilitation Associates, Inc. to help coordinate Mrs. Czank's rehabilitation. Ms. Ann Cleary was the rehabilitation specialist assigned to work with Mrs. Czank. She arranged for Mrs. Czank to be assessed by Dr. M.P. Rathbone, a neurologist, and for a functional abilities evaluation to be done by Ms. Heather Taplay of Career Probe.
Dr. Rathbone saw Mrs. Czank on May 3, 1993. His report, prepared some time later, indicates that he found most of her movements within the normal range, but that she had some restrictions in her neck.
The investigator observed Mrs. Czank as she arrived at Dr. Rathbone's office in Hamilton, Ontario, and then driving home. The investigation report indicates that no limitations in her movement were observed.
Mrs. Czank met with Dr. West the next day, May 4, 1993. According to his notes, she reported that her back was sore as a result of her drive to Hamilton to see Dr. Rathbone. Dr. West found her condition about the same, with decreased range of movement in her neck and right shoulder. That same day, Dr. West advised Ms. Cleary that Mrs. Czank still needed a couple more months of physiotherapy before she could return to work as a dental assistant.
On May 5, 1993, Mrs. Czank returned to Hamilton for the functional abilities evaluation. The purpose of the examination was to assess Mrs. Czank's ability to do the type of tasks required by her job as a dental assistant, as well as tasks that might be required for other jobs. Ms. Taplay explained in her testimony that the examination is self-limiting, the person being tested may discontinue any of the activities based on his or her tolerance level.
Ms. Taplay felt that the results of the testing were somewhat inconsistent. Mrs. Czank told her that she did many child care duties, including lifting her 27 pound son occasionally, yet she demonstrated very little ability to lift or carry during the testing. For example, she was only able to carry a weight of 2.90 kilograms a distance of 33 metres, although the test was to carry it 100 metres. Hand grip strength was measured with a Jamar Dynamometer. According to Ms. Taplay, there were discrepancies in the results of this test that indicate that Mrs. Czank was not using her maximum effort. In her report, dated May 6, 1993, Ms. Taplay stated that the results were consistent with "individuals who have been identified as suffering from the Symptom Magnification Syndrome".
Despite the inconsistencies, Ms. Taplay's report states that she felt that the "test results reflect the current functional abilities of this client". She concluded that, based on the test results, Mrs. Czank was unable to return to work as a full-time dental assistant. At the hearing, however, she testified that she was concerned about how little of the testing Mrs. Czank completed, and felt that she could have tried harder. Mrs. Czank's explanation was that she had a migraine headache during the testing, which interfered with her ability to complete the various tests.
Additional surveillance was conducted on May 7, 8, 9, 10, 11, and 12. Again, it revealed Mrs. Czank going about her normal activities without any indication of impairment. On May 7, 1993, the day after the functional abilities examination, she is seen lifting her sleeping child out of his car seat, and carrying him into the shopping centre, a distance of 30 metres or more. On May 8, 1993, she is seen carrying a number of thin chair cushions over her left shoulder, with her handbag over her right shoulder. She is later seen bending over and squatting for some time to tie down her trunk. Her activities on the videotape and described in the investigator's reports certainly seem to exceed what she was able to do during the functional abilities examination.
At some point, Ms. Cleary provided Dr. Rathbone with a copy of the functional abilities evaluation, and viewed the surveillance videotapes with him. In his report, Dr. Rathbone indicated that as a result of the accident, Mrs. Czank had soft tissue injuries to her right shoulder and back muscles, post-traumatic headaches and mild temporomandibular joint ("TMJ") dysfunction. He felt that "the pain from the soft tissue injury should be reducible with an active exercise program and should not interfere with her ability to return to her previous job as a dental assistant". He did not believe that the headaches or the TMJ dysfunction should prevent her from working.
Dr. Rathbone also felt that Mrs. Czank's problems with her right hand might be the result of a scalenus entrapment syndrome in which the blood vessels and nerves supplying the right arm are compressed. He recommended an Evoked Potential Examination of her right arm, but expressed the view that even if she had scalenus entrapment syndrome, it should not prevent her from working.
In Dr. Rathbone's opinion, there were "some behavioural aspects contributing to her chronic pain," and recommended an "active exercise program of approximately 8-12 weeks, with a swift return to her previous job following the program".
In May 1993, Mrs. Czank also saw Dr. Trotter as a result of the earlier referral by Dr. West. In her report, dated May 28, 1993, Dr. Trotter concluded that Mrs. Czank likely had a cervical myoligamentous strain, but ordered an EMG to see if there was evidence of nerve root damage. Her opinion, at that time, was that Mrs. Czank was unable to return to work as a full-time dental assistant due to the sustained and awkward postures involved.
The EMG was conducted by Dr. Garner on June 23, 1993. He concluded:
These results are normal. There is no evidence to suggest the diagnosis of significant radiculopathy, thoracic outlet entrapment or more distal nerve entrapment at this time. She has findings suggesting chronic pain with reflex inhibition and her poor posture and pain limitations may be resulting in a vicious circle which results in irritative symptoms and perpetuation of poor posture and deconditioning.
Dr. West reviewed Dr. Rathbone's report and felt that his recommendations were "fairly reasonable". He met with Ms. Cleary and Ms. Yardley in June 1993, to arrange an active exercise program, as recommended by Dr. Rathbone. It was agreed that Ms. Yardley would supervise "an intense work hardening, muscle stretching and strengthening program with an aerobic component," starting in mid-June.
Mrs. Czank participated in this program to the satisfaction of her therapists. In addition to the exercise component of the program, she worked on a computer keyboard, attempting to increase her tolerance to that type of activity. The program also included pain management education and periodic testing. The following test results, using the Jamar Dynamometer, are of interest:
The Jamar Hand Dynamometer is used to assess hand grip strength. In the standard position, Marlane completed 24.67 kg with her right hand and 23.67 kg with her left hand. These scores were re-tested on August 26, 1993, with right hand grip improved to 25.00 kg and left hand grip to 26.67 kg. Mrs. Czank gave maximum and consistent effort throughout this test. Average score for her age and gender are 31.8 kg with a maximum difference of 10% between hands.
Mrs. Czank also saw Dr. Trotter on August 6, 1993. Dr. Trotter found multiple tender points throughout her neck and shoulder area, but no signs of thoracic outlet syndrome. In a later note, dated September 1, 1993, Dr. Trotter clarified that although her physical examination did not reveal thoracic outlet syndrome, she had not ruled out that possibility.
Portage La Prairie terminated Mrs. Czank's weekly income benefits effective August 8, 1993. She was provided with a detailed Assessment of Claim by Insurer form, dated August 17, 1993, explaining that the decision was based on the opinions of Dr. Rathbone and Comprehensive Rehabilitation Associates, Inc., and the surveillance evidence. Mrs. Czank applied for mediation, and continued with treatment and further testing.
The evoked potential testing, which had been recommended by Dr. Rathbone to evaluate scalenus entrapment syndrome, was completed in August 1993 by Dr. Upton. It showed some abnormality. Ms. Cleary reviewed the results with Dr. Rathbone. She testified that he felt that a MRI scan should be done to determine if surgery would help her shoulder.
Ms. Clearly also stated that these test results did not change Dr. Rathbone's opinion about Mrs. Czank's ability to return to work. He still felt that she was able to work, even if she had scalenus entrapment syndrome. I have considerable difficulty with this evidence. First, it is my view that evidence of this importance should come from the doctor, at least in the form of a report. Second, more than three months had passed since Dr. Rathbone's only assessment of Mrs. Czank.
On the recommendation of Dr. Trotter, Dr. West referred Mrs. Czank to Dr. McGee for anaesthetic injections, and to Fort Erie Physiotherapy for laser therapy. Mrs. Czank did not find either the injections or the laser therapy to be of much help. At Mrs. Czank's request, Dr. West also referred her to Dr. Kumbhare, another specialist in physical medicine and rehabilitation, for an additional opinion. She did not see him, however, until October 1993.
As of August 27, 1993, Dr. Trotter still felt that Mrs. Czank was totally disabled from her previous employment. Additional surveillance was done on August 26, 27, 28, 30 and 31, 1993. Again, Mrs. Czank is seen going about her activities with no obvious limitations, although none of her activities are particularly strenuous.
Dr. Kumbhare examined Mrs. Czank on September 17, 1993. In his report, dated October 21, 1993, he described her problems as follows:
Myofascial neck pain with trigger points in the scaleni, sternocleidomastoid, levator scapulae, upper fibers of trapezius, rhomboids with probable contracture in these muscles.
Chronic pain syndrome.
Probable tightness of her right pectoralis minor muscle and signs and symptoms suggestive of thoracic outlet syndrome on the right.
Deconditioned muscles of the neck and shoulder girdle.
Dr. Kumbhare recommended that Mrs. Czank continue in physiotherapy with Ms. Yardley, and noted that she was scheduled for a MRI of her cervical spine in November 1993. He also suggested that the EMG be repeated.
Mrs. Czank's treatment was complicated by the fact that in or about October 1993, she learned that she was pregnant. The MRI could not proceed due to Mrs. Czank's pregnancy. In addition, her physiotherapy was somewhat curtailed. However, Dr. Kumbhare was able to do the EMG on January 17, 1994. He found an abnormality that "may be consistent with thoracic outlet syndrome". Dr. Kumbhare suggested that she remain in the care of Dr. West until the MRI scan could be done. He would then review her condition in light of the test results.
Dr. Kumbhare prepared a follow-up report, dated March 11, 1994, based on his previous examinations of Mrs. Czank. He stated:
I believe that the demands placed on Mrs. Czank while working as a certified dental assistant will serve to exacerbate her symptoms and as such she will probably not be able to perform this type of work at the present time.
In their most recent reports, Dr. West and Ms. Yardley continue to support Mrs. Czank's claim. In his report, dated April 27, 1994, Dr. West concludes:
Mrs. Czank had worked as a dental assistant prior to the motor vehicle accident, and at the present time because of her injuries and the lack of recovery I feel she is not able to return to her duties as a dental assistant. I think the physical activity necessary especially with having to use the arms at or above mid-chest area would exacerbate her present state of affairs in terms of injuries. It is my opinion that since the motor vehicle accident on November 30, 1992 at no point has this woman been capable of performing her duties as a dental assistant and this includes up to the present time. I can not see her returning to that type of work for the foreseeable future, it may be a year or more before she can do so, and one must be aware of course that she is to undergo further investigations pending the birth of her child, and depending on the outcome of those, possibly even surgical intervention might be necessary.
In her report, dated January 19, 1994, Ms. Yardley states that Mrs. Czank has not been able to demonstrate that she could perform the essential tasks of her employment based on the Canadian Classification and Dictionary of Occupations. She feels that Mrs. Czank demonstrated maximum and consistent effort during testing at all times, and concludes:
Given the fact a major component of a dental assistant job is sitting with the cervical spine flexed, sustained reaching with the arms, and fine co-ordination of the hands, it is unlikely Mrs. Czank could return to this job until she shows considerable improvement in endurance use of her right arm.
3. Conclusions
I found Mrs. Czank sincere in her belief that she is unable to return to work. It is difficult to watch the surveillance videotapes, however, and not have some doubts about the extent of her disability.
There are clearly many activities that she has continued to do, without apparent difficulty. But her claim is not that she is totally disabled; it is that she is unable to perform the specific tasks of a dental assistant.
The medical professionals who support Mrs. Czank's claim, Dr. West, Dr. Trotter, Dr. Kumbhare, and Ms. Yardley, all focus on her inability to do the specific tasks of a dental assistant, particularly sustained, detailed work with her arms extended. Unfortunately, unlike Dr. Rathbone and Ms. Cleary, they did not have an opportunity to view the surveillance videotapes. I would have been interested in their reactions.
Both Dr. West and Ms. Yardley have treated Mrs. Czank for a long time, and strongly support her claim. I am not prepared to dismiss their opinions on the basis that they would be different if they had seen the surveillance evidence. It is not obvious to me that they would have been surprised by Mrs. Czank's activities. Their reports and clinical notes indicate that they were aware that she was generally able to do her daily tasks, which is what the videotapes show. The videotapes do not show her doing anything particularly strenuous, or with her arms extended for any period of time.
I note that Portage La Prairie, through Ms. Cleary, expressed some confidence in Ms. Yardley. Ms. Cleary agreed that Mrs. Czank should continue with Ms. Yardley for the work hardening program, including pain education, rather than move to a different program. Ms. Yardley's notes and reports suggest that Mrs. Czank cooperated fully with the treatment that was recommended.
Although I find Dr. Rathbone's report thoughtful, he only examined Mrs. Czank once. At that time, he felt that she would be able to return to work after an active exercise program. Mrs. Czank participated in an active exercise program, but the doctors and therapist who evaluated her afterwards concluded that she was not able to return to work as a dental assistant. In the circumstances, I prefer their opinions.
I conclude, on a balance of probabilities, that Mrs. Czank has remained substantially unable to perform the essential tasks of her pre-accident employment as a dental assistant.
It was submitted by Mr. Miller that if I concluded that Mrs. Czank continued to be entitled to weekly income benefits beyond August 8, 1993, she should not receive benefits beyond October or November 1993 due to her pregnancy. I am not persuaded that her pregnancy should interrupt her entitlement. The evidence supports the conclusion that she was unable to return to work due to the accident, not her pregnancy. Therefore, Mrs. Czank is entitled to weekly income benefits under section 12 of the Schedule from August 8, 1993, the date on which they were terminated, plus interest.
This is not to say that there is no merit to the submissions made by Mr. Miller on behalf of Portage La Prairie. I share some of the concerns that he raised.
Mr. Miller submitted that Mrs. Czank is setting too high a standard for her return to work. She acknowledges that she was a perfectionist in her work. She became convinced that she was unable to do her job, although it appears that her employer, Dr. Nash, wanted her to continue. There should come a time, hopefully in the near future, when Mrs. Czank will be able to return to work as a dental assistant, although there is bound to be a readjustment period in which she will feel less effective than she was prior to the accident.
Mr. Miller also submitted that Mrs. Czank may not be motivated to return to work, and has focused on proving her disability, rather than on rehabilitating herself. Mrs. Czank's rehabilitation has proceeded slowly, but I am not convinced that it is due to a lack of motivation. There is evidence that, at times, she has felt overwhelmed and discouraged about dealing with her injuries, her treatment, and the insurance company, together with her home and childcare responsibilities. I find, however, that she has attempted to deal with her emotional reactions, including discussing them with Dr. West and the other medical professionals. Most importantly, I find that she has not given up. She has tried a number of different treatments and has continued to cooperate with the medical professionals involved in her treatment.
Concern was also expressed about Mrs. Czank's request to be seen by Dr. Kumbhare. I am satisfied that her requests for further opinions were not simply to prove her claim. I find that she sincerely believes that her condition had not yet been properly diagnosed, and is looking for answers. Presumably, the MRI will be re-scheduled after the birth of her child.
Housekeeping Services
Mrs. Czank started using Molly Maid, a housekeeping service, in or about May 1993. Dr. West provided two handwritten notes, dated May 11, 1993 and August 5, 1993, stating that Mrs. Czank needed housekeeping services once a week. In his report, dated May 3, 1993, Dr. Rathbone stated:
A housekeeping service is advised only while she is involved in a active daily exercise program, from a time-management perspective. Following the completion of the program, she should return to normal housekeeping duties.
Portage La Prairie paid for this service for a while, but refused to pay the following expenses:
August 12, 1993
$ 68.00
August 19, 1993
$ 68.00
August 26, 1993
$ 68.00
September 2, 1993
$ 68.00
September 9, 1993
$ 51.00
TOTAL
$323.00
Mr. Miller submitted that if Mrs. Czank had been attempting to return to work, Portage La Prairie probably would have agreed to pay for housekeeping services. Therefore, he took the position that if Mrs. Czank is found ineligible for weekly income benefits, Portage La Prairie is willing to concede the issue of housekeeping expenses.
The surveillance evidence suggests that Mrs. Czank may have been physically able to do her own housework, although perhaps at a slower pace. I am persuaded, however, that given the extent of her treatment during this period, she required housekeeping services once a week. During the period for which she is claiming housekeeping expenses, she was going for active physiotherapy with Ms. Yardley two to four times per week, she received injections from Dr. McGee, she received laser therapy from Fort Erie Physiotherapy, she saw Dr. Trotter, and she saw Dr. West a few times.
I conclude, therefore, that Mrs. Czank is entitled to benefits for housekeeping expenses totalling $323.00, plus interest.
Expenses
Mrs. Czank claims the expenses that she has incurred in this arbitration. An award for expenses may be made under section 282(11) of the Insurance Act, which provides as follows:
282 (11) The arbitrator may award to the insured person such expenses incurred in respect of an arbitration proceeding as may be prescribed in the regulations to the maximum set out in the regulations.
Given Mrs. Czank's success in this arbitration, I conclude that she should be awarded her expenses. 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. If the parties are unable to agree on the amount of the expenses, I remain seized of this matter and either party may apply for an assessment of the expenses.
Order:
Mrs. Czank is entitled to weekly income benefits from August 8, 1993, plus interest calculated according to section 24 of the Schedule.
Mrs. Czank is entitled to housekeeping expenses totalling $323.00, plus interest calculated according to section 24 of the Schedule.
Mrs. Czank is entitled to her expenses related to the arbitration, calculated according to Ontario Regulation 664, Dispute Resolution Expenses.
David R. Draper Arbitrator
Date
APPENDIX A
Exhibit 1
Arbitration Brief prepared by Mr. Miller on behalf of Portage La Prairie, including the following documents:
Tab 1
Application for Accident Benefits, dated December 8, 1992, including Employer's Confirmation of Income and Medical Report form.
Tab 2
Assessment of Claim by Insurer, dated August 17, 1993.
Tab 3
Application for Appointment of an Arbitrator, dated October 14, 1993.
Tab 4
Response by Insurer, dated November 12, 1993.
Tab 5
Clinical notes and records of Dr. W.J. West.
Tab 6
Report of Dr. W.J. West, dated January 5, 1993.
Tab 7
Handwritten notes of Dr. W.J. West, dated March 22, 1993 and April 15, 1993.
Tab 8
Referral note from Dr. W.J. West to Dr. Judy Trotter, dated April 19, 1993.
Tab 9
Referral form from Dr. W.J. West to Career Probe, dated May 4, 1993.
Tab 10
Handwritten note of Dr. W.J. West, dated May 11, 1993.
Tab 11
Report of Dr. W.J. West, dated May 20, 1993.
Tab 12
Report of Dr. J.E. Trotter, dated May 28, 1993.
Tab 13
Handwritten notes of Dr. W.J. West, dated August 5 and 30, 1993.
Tab 14
Electromyography and Nerve Conduction Report of Dr. Scott Gardner, dated June 23, 1993.
Tab 15
Report of Dr. J.E. Trotter, dated August 6, 1993.
Tab 16
Report of Dr. J.E. Trotter, dated August 27, 1993.
Tab 17
Handwritten note of Dr. J.E. Trotter, dated September 1, 1993.
Tab 18
Report of Dr. J.E. Trotter, dated October 5, 1993.
Tab 19
Report of Dr. Dinesh A. Kumbhare, dated October 21, 1993.
Tab 20
Chedoke-McMaster Hospitals EMG Report, dated January 17, 1994.
Tab 21
Report of Dr. Dinesh A. Kumbhare, dated March 11, 1994.
Tab 22
Report of Dr. J.E. Trotter, dated April 18, 1994.
Tab 23
Report of Dr. W.J. West, dated April 27, 1994.
Tab 24
Handwritten note of Kay Yardley, physiotherapist, dated April 19, 1993.
Tab 25
Report of Kay Yardley, physiotherapist, dated May 28, 1993.
Tab 26
Report of Kay Yardley, physiotherapist, regarding assessment on August 6, 1993.
Tab 27
Report of Kay Yardley and Associates Physiotherapy, dated November 8, 1993.
Tab 28
Report of Kay Yardley and Associates Physiotherapy, dated December 10, 1993.
Tab 29
Report of Kay Yardley and Associates Physiotherapy, dated January 4, 1994.
Tab 30
Report of Kay Yardley, physiotherapist dated January 19, 1994.
Tab 31
Report of Kay Yardley and Associates Physiotherapy, dated January 26, 1994.
Tab 32
Report of Dr. Michel P. Rathbone, dictated May 3, 1993.
Tab 33
Report of Comprehensive Rehabilitation Associates, Inc., dated May 13, 1993.
Tab 34
Report of Comprehensive Rehabilitation Associates, Inc., dated June 17, 1993.
Tab 35
Report of Comprehensive Rehabilitation Associates, Inc., dated September 1, 1993.
Tab 36
Report of Comprehensive Rehabilitation Associates, Inc., dated October 12, 1993.
Tab 37
Report of Career Probe, dated May 6, 1993.
Tab 38
Surveillance Report of Quest Investigation Ltd., dated March 1, 1993.
Tab 39
Surveillance Report of Quest Investigation Ltd., dated May 4, 1993.
Tab 40
Surveillance Report of Quest Investigation Ltd., dated May 12, 1993.
Tab 41
Surveillance Report of Quest Investigation Ltd., dated May 18, 1993.
Tab 42
Surveillance Report of Quest Investigation Ltd., dated September 1, 1993.
Exhibit 2
Curriculum Vitae of Michel Piers Rathbone.
Exhibit 3
Curriculum Vitae of Heather Taplay.
Exhibit 4
Five invoices from Molly Maid, totalling $323.00, plus a covering letter from Portage La Prairie to Molly Maid, dated August 23, 1993.
Exhibit 5
Letter, dated April 26, 1994, from the Executive Director of the Ontario Dental Nurses & Assistants Association to Mrs. Czank.
Exhibit 6
Document entitled, "What is a Functional Evaluation?"
Exhibit 7
Document entitled, "Assessment Criteria, Protocols and Modalities".
Exhibit 8
Curriculum Vitae of Ann Cleary.
Exhibit 9
Surveillance videotape taken on May 8, 1993.
Exhibit 10
Surveillance videotape taken on February 27, 1993.
Exhibit 11
Four photographs taken on May 7, 1993.
Exhibit 12
Surveillance videotape taken on April 17 and 29, 1993.
Exhibit 13
Surveillance videotape taken on May 1, 1993.
Exhibit 14
Three photographs taken on May 3, 1993.
Exhibit 15
Surveillance videotape taken on May 7, 9 and 10, 1993.
Exhibit 16
Surveillance videotape taken on May 11 and 12, 1993.
Exhibit 17
Surveillance videotape taken on August 27 and 30, 1993.
In addition to the exhibits, the following documents were before the arbitrator:
Report of Mediator, dated September 3, 1993.
A letter, dated March 1, 1994, confirming the pre-hearing discussions held on February 8 and 25, 1994.