Neutral Citation: 1994 ONICDRG 15
File No. A-002021
ONTARIO INSURANCE COMMISSION
BETWEEN:
JANET YOUKHANEH
Applicant
and
PRUDENTIAL ASSURANCE, now operating as GENERAL ACCIDENT INDEMNITY COMPANY
Insurer
DECISION
Issues:
The Applicant, Janet Youkhaneh, was injured in a motor vehicle accident on August 2, 1991. She applied for and received statutory accident benefits from the Insurer, payable under section 13 of Ontario Regulation 672.1 Weekly benefits were terminated by the Insurer on April 2, 1992, on the basis that the Applicant no longer met the eligibility test under section 13.
The Applicant claims she continues to suffer a substantial inability to perform her essential tasks from and after April 2, 1992. The parties were unable to resolve their disputes through mediation and the Applicant applied for arbitration under the Insurance Act.
At the pre-hearing discussion concerning this matter, the Applicant produced a recent letter indicating that, prior to the accident, she had been offered employment. However, it was agreed at the pre-hearing discussion that the issue to be determined at this arbitration hearing is the Applicant's eligibility under section 13 of the Schedule and not her eligibility under section 12(2) 1 .iii of the Schedule. This agreement is reflected in the pre-hearing letter dated July 5, 1993.
At the outset of the arbitration hearing, the Applicant raised the issue of her entitlement to section 12 benefits under the provisions of section 12(2) 1 .iii of the Schedule. The Insurer objected to the inclusion of this issue. In view of the understanding reached at the pre-hearing discussion, and the fact that there is no reference to this issue in the Report of Mediator dated July 24, 1992, I upheld the objection of the Insurer. The Applicant is free to apply for mediation of the issue of her entitlement to benefits under the provisions of section 12(2) 1 .iii of the Schedule.
The issues in this hearing are:
Is the Applicant entitled to weekly benefits under section 13 of the Schedule for any period after April 2, 1992?
Is the Applicant entitled to supplementary medical and rehabilitation benefits under section 6(1) of the Schedule for chiropractic treatment, transportation expenses to and from such treatment and medication for any period after April 2, 1992?
The Applicant also claims interest on any outstanding amounts owing, and her expenses incurred in the hearing.
Hearing:
The hearing took place on September 8 and 9, 1993, in North York, Ontario, before me, Janice Mackintosh, Arbitrator.
Present at the hearing:
Applicant:
Janet Youkhaneh
Applicant's representative:
Razmek Aziz Sardroud Applicant's spouse
Insurer's representative:
Lee Samis Barrister & Solicitor
Insurer's officer:
Ole Larson General Accident Indemnity Company
Witnesses:
Janet Youkhaneh Razmek Aziz Sardroud Doctor Hugh Urquhart Cameron
The exhibits and other material before me are listed at Appendix "A". The proceedings were recorded by Valerie Brennan and Margaret J. Charles of Legal Transcript Services (LTS) Ltd.
Translation services in the Farsi language were provided by Bijan Moayedi of Global Translations & Interpreters Services Inc.
Result:
The Applicant is not entitled to weekly benefits under section 13 of the Schedule for any period after April 2, 1992.
The Applicant is not entitled to payment of supplementary medical and rehabilitation benefits under section 6(1) of the Schedule for chiropractic treatment and transportation expenses to and from such treatment, for any period after March 16, 1993.
The Applicant is entitled to her expenses incurred in respect to the arbitration
Evidence and Findings:
The Applicant, her husband and their two daughters immigrated to Canada approximately three years ago. Several months after their arrival in Canada, the Applicant's husband suffered a serious injury at work. The Applicant provided home care for her injured husband, supervised their two daughters, then aged 11 and 12, and maintained their apartment.
Shortly before her motor vehicle accident, the Applicant was considering entering the work force. Her husband's medical condition had improved and he no longer needed her care and assistance during the day. The evidence was inconclusive whether the Applicant was entitled to start work within one year of the accident under a legitimate offer of employment made before the accident and evidenced in writing. I make no finding of fact on this point, as the issue of the Applicant's entitlement to weekly income benefits under section 12(2)1.iii is not before me in this hearing. However, it is clear from the testimony of the Applicant and her husband, that their chief frustration following the Applicant's accident was her inability to enter the work force due to injuries suffered in her car accident. During the course of their testimony the Applicant and her husband stressed that she should be awarded compensation for her inability to accept a job following the accident and the resultant loss of potential income.
In the case of David Bress and Erica Bress and State Farm Insurance Companies, Commission File Nos. A-000191 and A-000192, Senior Arbitrator Naylor considered a claim for loss of potential or future business profits, or for future economic loss, made by self-employed applicants under section 12 of the Schedule. At pages 16 and 17 of that case, arbitrator Naylor concluded as follows:
The agreed statement of facts acknowledges that the Applicants' business failed, at least in part, because of their automobile accident. While the precise effect of the accident on their business is a matter to be proved by evidence, it can be assumed that the Applicants' injuries deprived them of potential profits from their business. This case is, at heart, a claim for loss of future business profits resulting from the automobile accident. However this is not a loss that is compensable under the no-fault benefits scheme.
As an arbitrator exercising statutory powers, I have no jurisdiction to award benefits or compensation for losses that do not fall within the existing statutory no-fault benefits scheme. I have no jurisdiction to award income replacement benefits on any other basis, regardless of whether the legislation works unfairly in individual cases, or whether it fails to compensate an applicant to the full extent of his or her loss. I have no jurisdiction to award compensation for loss of potential or future business profits, or for future economic loss.
The fact is that the present no-fault benefits scheme does not guarantee full and perfect compensation to persons injured in motor vehicle accidents. The choices or trade-offs involved in establishing the present no-fault system — in balancing the competing goals of full compensation, affordable premiums and universal benefit coverage regardless of fault — are legislative choices. It is for the Legislature — and only the Legislature — to address that balance as it sees fit.
I adopt and accept the conclusions of Senior Arbitrator Naylor. It may be that the Applicant can establish her entitlement to employment income replacement benefits under the provisions of section 12(2)1.iii in another proceeding. However, that issue is not before me in this hearing. I have no jurisdiction to award the replacement of income from future employment on any other basis under the legislative scheme in force at the time of the Applicant's accident. I have no general jurisdiction to award compensation for loss of opportunity and future economic loss.
To be successful in her claim for weekly benefits under section 13 of the Schedule, the Applicant must establish:
that she sustained physical, psychological or mental injury
as the result of a motor vehicle accident
that the injury results in a substantial inability
to perform the essential tasks in which the Applicant would normally engage
during the time period claimed
The relevant portion of section 13 reads as follows:
13.—(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 benefit during the period in which the insured person suffers substantial inability to perform the essential tasks in which he or she would normally engage if he or she meets the qualifications set out in subsection (2).
What were the Applicant's essential tasks prior to the accident?
There is little dispute concerning the Applicant's essential tasks under section 13 of the Schedule, prior to the motor vehicle accident of August 2, 1991. The Applicant was responsible for the bulk of child supervision and housekeeping responsibilities for her family. She cleaned the apartment, prepared meals, washed dishes, shopped, and did the laundry, with some assistance from her daughters. At the time of the accident, she no longer provided extensive care to her husband as his medical condition had improved sufficiently to allow him to care for himself.
Did the applicant continue to suffer a substantial inability to perform her essential tasks after April 2, 1992?
Following the motor vehicle accident in August 1991, the Applicant immediately visited the Sheppard Bayview Chiropractic Centre and received treatment from Harry G. Mikazans, Doctor of Chiropractic medicine. The Applicant received treatment from her chiropractor two or three times a week, for several months following the accident. The Applicant continues to see her chiropractor for treatment, but far less frequently than before.
The Applicant's chiropractor completed a Form 4 medical report dated September 19, 1991 which was provided to the Insurer as part of the original application for accident benefits (Exhibits 11 and 12). In that report, her chiropractor classified the Applicant's injury as a moderate hyperflexion-hyperextension injury to her cervical spine. The chiropractor estimated that the Applicant would be able to return to her normal activities in three to four months. The chiropractor suggested that treatment should continue for an eight-month period until April 1, 1992.
By letter dated May 8, 1992, Chiropractor Mikazans requested further funding from the Insurer for an extension of the Applicant's chiropractic treatment beyond April 1, 1992 to the end of September 1992 (Exhibit 7). Chiropractor Mikazans commented upon the Applicant's condition as follows:
Her response to chiropractic adjustments has been excellent and she has been able to return to most of her normal duties and activities. She is, however, experiencing remissions and exacerbations of her original signs and symptoms the most prevalent being a burning pain in her neck (left sided) radiating into her left shoulder upon prolonged standing or sitting. These symptoms are quickly alleviated by chiropractic care. The intensity and frequency of the pain is also less.
(emphasis added)
Chiropractor Mikazans re-affirmed his opinion in a letter dated July 6, 1992, addressed "To Whom It May Concern" (Exhibit 8).
In response to a request by the Applicant's former counsel, Chiropractor Mikazans prepared a detailed and lengthy report, dated June 28, 1993, which summarized the Applicant's complaints, and progress, from August 2, 1991 to June 28, 1993 (Exhibit 3). The report concluded as follows:
Throughout the last two months, Ms. Youkhaneh's response to therapy has been good and she has been further able to resume many of her normal duties and activities. However, for varying periods of time after the primary lesions have been corrected, I indicated to Ms. Youkhaneh that there will still remain a residual weakness in the paravertebral soft tissue and capsular joint structures of the spine comparable to the damage sustained and that this predisposes her to possible future recurrences.
As of her last assessment two weeks ago, Ms. Youkhaneh had experienced a mild relapse where she experienced pain and spasm in the left side of her neck causing concommitant headache and strength loss. The symptoms persisted. Consequently, I suspect that Ms. Youkhaneh may, in all likelihood experience a five to ten percent permanent disability to her neck which would equate to a five to ten percent disability to the body as a whole.
(emphasis added)
By letter dated September 7, 1993, Andrew Mere, D.C., an associate of Chiropractor Mikazans, reported "To Whom It May Concern" as follows:
Janet [the Applicant] was treated by specific spinal manipulation to the involved areas and has responded. Additional therapy would still be beneficial as treatment objectives have not yet been fully achieved. Janet is still experiencing residual symptoms due to the injury and there is a strong possibility that early degenerative changes and mild disability will persist. (Exhibit 4)
(emphasis added)
The Applicant also received treatment from her family physician, Doctor A. Vartan Aynaciyan. The Applicant saw him on 13 occasions between August 19, 1991 to August 11, 1993 (several visits were unrelated to the accident), as compared to 139 visits to her chiropractor from August 1991 to June 1993. In a report dated September 7, 1993, Doctor Aynaciyan summarized the Applicant's visits and recorded complaints. On August 11, 1993, the Applicant reported pain and discomfort and stated that housework — washing dishes, other kitchen work, vacuuming and mopping — aggravated her symptomatology. Doctor Aynaciyan offered no opinion as to the Applicant's ability to carry out these tasks. He concluded that it was too early to give a useful and fair prognostication concerning the Applicant's complete recovery from her injuries.
Doctor Hugh U. Cameron, an orthopaedic specialist, examined the Applicant on February 21, 1992, at the request of the Insurer. Doctor Cameron noted a full range of motion in the Applicant's lumbar spine, hips and neck areas. He concluded that the Applicant had suffered a musculoligamentous strain of her neck that had largely resolved. In a follow-up report dated August 9, 1993, Doctor Cameron opined that from an orthopaedic perspective he found nothing in his earlier examination to suggest that the Applicant would be unable to do housework.
The consensus of medical opinion and the Applicant's own evidence indicate that several months after the accident on August 2, 1991, the Applicant's condition had improved significantly. By her own account the Applicant was able to perform her light duties and had learned to accommodate the bulk of her heavier household tasks by moving slowly, resting when necessary, using her right hand more frequently than her left hand and assuming certain postures recommended by her chiropractor. The medical evidence submitted by the Applicant, particularly the correspondence of Chiropractor Mikazans, suggested that the Applicant had resumed the bulk of her essential tasks by April 2, 1992, although she was still experiencing residual symptoms, mild relapses, along with disability estimated to be between five to ten percent.
At several points in her testimony the Applicant expressed her concern that she was still suffering pain and discomfort as a result of her injuries and that she had not yet returned to her full pre-accident level of activities. As stated in the case of Lawrence Whitney and Co-operators General Insurance Company, Commission File No.A-001005, at page 14:
To qualify for benefits under this test, it is not sufficient to show that the Applicant has been prevented from returning to his full pre-accident level of activities, or that he suffers some remaining limitations. As stated in Lily Steele and Zurich Insurance Company, O.I.C. File No. A-001024, dated December 3, 1992, at page 32:
...it is not some inability to perform key tasks, but a sizable inability which is compensable.
As noted by Senior Arbitrator Naylor, at page 23 of her decision Norman Downs and Allstate Insurance Company of Canada, Commission File No. A-000064:
Pain and suffering which is experienced as a result of injuries sustained in an automobile accident are not, per se, compensable under section 13, unless the experience of pain causes an insured to be substantially disabled, within the meaning of the section.
I have concluded that, although Ms. Youkhaneh continues to experience discomfort and disability estimated to be between five to ten percent which may prevent her from carrying out her essential tasks to her former level of performance, she has not established a substantial disability to the degree contemplated by section 13 of the Schedule after April 2, 1992. The Applicant is not entitled to weekly benefits under section 13 of the Schedule beyond April 2, 1992.
Is the Applicant entitled to supplementary medical and rehabilitation benefits under section 6 of the Schedule?
The Applicant seeks payment of chiropractic treatments and transportation costs to and from such treatments from and after April 2, 1992, under sections 6(1) (a) and (d) of the Schedule. The Insurer has continued to pay these expenses (up to March 16, 1993), under protest, pending resolution of the dispute, pursuant to the provisions of sections 6(7) of the Schedule (Exhibits 6 (a), (b) and (c)). The Insurer does not seek a reimbursement from the Applicant of chiropractic expenses it has already paid beyond April 2, 1992; however, the Insurer takes the position that it should be relieved of the obligation to continue to pay for such expenses on the basis that further chiropractic treatments are no longer necessary or reasonable.
The relevant portions of section 6 are:
6.—(1) The insurer will pay with respect to each person who sustains physical, psychological or mental injury as a result of an accident all reasonable expenses resulting from the accident within the benefit period set out in subsection (3) for,
(a) medical, psychological, surgical, dental, hospital, chiropractic, nursing and ambulance services and the services of physiotherapists;
(d) transportation for the person to and from treatment, counselling and training sessions, including transportation for an assistant;
(7) In case of a dispute concerning an expense described in clause (1)(a), (b) or (d), the insurer will pay the expense pending resolution of the dispute.
The Applicant's chiropractor originally predicted a period of disability in the range of four months and further chiropractic treatments for approximately eight months to April 1, 1992 (Exhibit 12). He then requested an extension of treatments to the end of September 1992, for a total of 13 months. In his letter to the Insurer dated May 8, 1992, Chiropractor Mikazans stated:
In normal instances I would have anticipated treating Mrs. Youkhaneh a total of 12-15 months for complete correction of her condition. (Exhibit 7)
(emphasis added)
I heard no evidence to suggest that the Applicant's injury or response to chiropractic treatment was abnormal. In a report dated June 28, 1993, Chiropractor Mikazans further revised his estimate of the length of chiropractic treatment required by the Applicant from 12 to 15 months for the complete correction of her condition to "at least 24 months," i.e., up to August 1993 (Exhibit 3). By June 26, 1993, the Applicant had received 139 chiropractic treatments (Exhibit 5).
In September 1993, Chiropractor Andrew Mere suggested that additional therapy would be beneficial in order to achieve treatment objectives (Exhibit 4). The Insurer continued to pay for chiropractic treatments up to March 16, 1993, i.e., approximately 19 months post-accident (Exhibit 6(c)). The Applicant continued to receive chiropractic treatments at least until June 26, 1993 (Exhibit 5), i.e., approximately 222 months post-accident.
The Insurer relies upon the opinion expressed by Doctor Cameron in his follow-up letter dated August 9, 1993 (Exhibit 10). Doctor Cameron stated:
In my opinion this suggestion that the plaintiff requires 2 years of chiropractic care is nonsense. I do not believe that repeated passive manipulations over a long period of time are of any value whatsoever. The only form of treatment which is found to be effective in musculoskeletal problems is active exercise.
The Applicant's family doctor was aware of her chiropractic treatments but recommended physiotherapy for her neck and left trapezius region, four times weekly. The Applicant did not enter a physiotherapy program but continued her chiropractic treatments.
The Applicant testified that she continues to seek chiropractic care because it provides her with temporary pain relief and she attributed significant improvement in her condition to such treatments. The letter of May 8, 1992, from Chiropractor Mikazans (Exhibit 7), set the general treatment objective of "complete correction of her condition." I heard no evidence concerning the specific treatment modalities planned to accomplish this objective. I do not know whether the same treatment program was intended to be used throughout the 24-month and continuing period recommended, or whether different treatment modalities were employed at different stages, with different expected outcomes. Chiropractor Mikazans revised the anticipated length of his treatment program several times. I received no explanation for these extensions, nor evidence that such extensions resulted in the accomplishment of the treatment objectives set at each stage. In the absence of such information, I am not satisfied that the prolonged and open-ended continuation of chiropractic treatments is useful in resolving the Applicant's remaining complaints. I conclude that no further payments are due from the Insurer with respect to chiropractic treatments received by the Applicant.
I heard no evidence concerning the Applicant's claim for reimbursement of her medication costs; therefore, I make no order concerning them.
Other claims raised by the Applicant:
Following the Insurer's final submissions at the conclusion of the hearing, Mr. Sardroud reiterated his request for an award of general damages for the Applicant's missed job opportunity. For the reasons stated earlier, it is beyond my jurisdiction to award damages of this kind. Mr. Sardroud also requested payment for housework performed by the Applicant's eldest daughter. At the hearing, I heard little evidence concerning the household tasks performed by the Applicant's eldest daughter, the amount of time spent she spent at these tasks before and after the accident or the expense associated with the performance of such work. I therefore make no determination with respect to this claim.
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 the case of Ralph McCormick and Economical Mutual Insurance Company, Commission File No. A-000139, Senior Arbitrator Naylor stated that the discretion to award expenses should be exercised in light of the objective of facilitating applicants' access to relatively inexpensive, speedy and informal adjudication of disputes. Senior Arbitrator Naylor concluded that expenses should be awarded unless it is determined that the application was manifestly frivolous or vexatious, or that the Applicant's conduct unreasonably prolonged the proceedings.
In her final submissions the Applicant described her situation as follows:
My problem is that 25 months after the accident I am still without a job and my life is not as it was before. This accident was an obstacle to my progress in life. In Canada there are many opportunities which were free to me to make progress in my life but this accident closed up all the ways open to me to get them.
I accept that the Applicant suffered pain, discomfort and minor disability, as a result of her injuries, which prevented her from returning to her full pre-accident level of activities and may have prevented her from securing opportunities that might otherwise have been open to her. However, these facts alone are insufficient to establish entitlement to benefits under section 13 of the Schedule. The Applicant did not accept the position taken by her Insurer. However, I am satisfied that the Applicant pursued arbitration out of a sincere belief in her entitlement to benefits and not for any improper purpose. Accordingly, I award the Applicant her expenses incurred in connection with the arbitration. In the event the parties cannot agree as to the total amount of expenses, I remain seized of this matter. Either party may apply for an assessment of the expenses before me.
Order:
The Applicant is not entitled to weekly benefits under section 13 of the Schedule for any period after April 2, 1992.
The Applicant is not entitled to supplementary medical and rehabilitation benefits under section 6(1) of the Schedule for chiropractic treatment, and transportation expenses to and from such treatment for any period after March 16, 1993.
The Applicant is entitled to her expenses incurred in respect to the arbitration.
February 21, 1994
Janice Mackintosh Arbitrator
Date
APPENDIX A - EXHIBITS
The following exhibits were introduced into evidence:
Report of Dr. A Vartan Aynaciyan, dated September 7, 1993
Clinical notes and records of Dr. Aynaciyan, August 19, 1991 to May 14, 1993.
Report of Harry G. Mikazans, D.C., Sheppard Bayview Chiropractic Centre, dated June 28, 1993.
Letter of Andrew Mere, D.C., Sheppard Bayview Chiropractic Centre, dated September 7, 1993.
Record of dates on which Applicant received treatment at the Sheppard Bayview Chiropractic Clinic, dated June 29, 1993.
Three letters of correspondence from Kimberley Chalmers of Prudential Assurance Company.
(a) April 29, 1992, to Sheppard Bayview Chiropractic Centre
(b) September 29, 1992, to Applicant, with enclosed Statement of Account from Sheppard Bayview Chiropractic Centre, dated September 10, 1992.
(c) March 11, 1993, to Sheppard Bayview Chiropractic Centre
Letter from Harry Mikazans, D.C., Sheppard Bayview Chiropractic Centre, dated May 8, 1992.
Letter from Harry Mikazans, D.C., Sheppard Bayview Chiropractic Centre, dated July 6, 1992.
Medical report of Dr. Hugh U. Cameron, orthopaedic surgeon, dated February 21, 1992.
Follow-up letter and curriculum vitae of Dr. Cameron received by Insurer's counsel, dated August 9, 1993.
Applicant's Application for Accident Benefits, dated September 13, 1991.
Form 4 medical report, dated September 19, 1991.
Documents before the Arbitrator
Report of Mediator, dated July 24, 1992.
Application for Appointment of Arbitrator, date-stamped by the Commission on October 1, 1992.
Response by Insurer, dated February 18, 1993.
Pre-hearing letter, dated July 5, 1993.