Court File and Parties
Neutral Citation: 1994 ONICDRG 16 File No.: A-003051
ONTARIO INSURANCE COMMISSION
BETWEEN:
LUCY BEILER Applicant
and
ALPINA INSURANCE COMPANY LIMITED Insurer
DECISION
Issues:
The Applicant, Lucy Beiler, was injured in a motor vehicle accident on October 12, 1990. She applied for and received accident benefits from Alpina Insurance Company, Limited (Alpina), payable under Ontario Regulation 6721, enacted under the Insurance Act, R.S.O. 1990, c.
Alpina paid Mrs. Beiler a weekly benefit until January 3, 1991. Mrs. Beiler claims weekly benefits from January 4, 1991 onwards. Mediation was unsuccessful in resolving the parties' differences and Mrs. Beiler applied for arbitration under the Insurance Act.
The issues in this hearing are:
Does Mrs. Beiler qualify for weekly benefits for any period of time after January 3, 1991?
What is the amount of Mrs. Beiler's benefit during the period in dispute?
Is Mrs. Beiler entitled to a special award?
Mrs. Beiler also claims interest on any outstanding amounts owing, and her expenses incurred in the hearing.
Result:
Mrs. Beiler is entitled to weekly benefits under section 13 of the Statutory Accident Benefits Schedule until December 1, 1991.
Mrs. Beiler's weekly benefit is $285 per week for the period in dispute.
Mrs. Beiler is entitled to a $4,000 special award.
Mrs. Beiler is entitled to her expenses of the arbitration in accordance with the Regulations.
Hearing:
The hearing was held in Kitchener, Ontario, on August 16, 17, 23, 24, 25, 1993, before me, Fred B. Sampliner, arbitrator. I heard the parties' final submissions on September 22, 1993 in North York, Ontario.
Present at the Hearing:
Applicant: Lucy Beiler
Applicant's Representative: Brian Eby, Barrister and Solicitor
Insurer's Representative: Wayne F. McCormick, Barrister and Solicitor
Witnesses: Lucy Beiler, Applicant Dr. Mavis Kerr, family therapist Dr. Catherine Straus, chiropractor Anthony Beiler, applicant's spouse Dr. Donald Ranney, orthopaedic consultant Dr. Linda Gruson, psychologist Dr. John Tallon, orthopaedic surgeon Dr. Thomas Borys, family doctor Dr. Alfred Margulies, psychiatrist Rick Albrecht, claims adjuster Beverley Wilhelm, claims supervisor Lucia VanDerVelden, applicant's mother
Documents before the Arbitrator: The 19 exhibits are listed at Appendix "A" of this decision.
The parties also filed an agreed statement, briefs of relevant case law, and calculations of interest on payment arrearage, also listed at Appendix "A".
Evidence and Findings:
Background:
Lucy Beiler was a busy homemaker at the time of the October 12, 1990 automobile accident. In addition to caring for her two daughters (5 and 2 years old), she sold Tupperware and Discovery Toys part time, actively participated in La Leche League (a breastfeeding support group), and often organized summer weekend camping trips for the family. Before the accident, Mrs. Beiler did all of the housework and child care, without much assistance from her husband Tony, who worked full time outside the home.
With the children, her part-time work, household tasks and social activities, Mrs. Beiler testified that she was always "on the go" before the accident.
The Accident:
The accident occurred on October 12, 1990. Mrs. Beiler testified that she and her two year old daughter were driving to a Tupperware demonstration when their car was struck from the rear while stopped at a traffic light. The impact was minor. It caused Mrs. Beiler's head to lightly bounce off the headrest a couple of times. She got out, inspected the minimal physical damage to her vehicle, and exchanged information with the other driver. Mrs. Beiler and her daughter then continued on to the Tupperware party.
By the time she reached the host's home, Mrs. Beiler testified that she had a headache. Because of the headache, Mrs. Beiler left the Tupperware party early to meet her chiropractor. She complained to her chiropractor, Dr. Catherine Straus, of a headache, ringing in her ears (tinnitus) and pain down the left side of her neck, which ran into her left shoulder and arm. Dr. Straus advised Mrs. Beiler to wear a neck collar, apply ice to her shoulder and neck, and rest. Following the accident, Mrs. Beiler was examined by her family physician, Dr. Thomas Borys. On October 16, 1990, Dr. Borys noted Mrs. Beiler's symptoms, and also found that she was in the early stage of pregnancy.
Mrs. Beiler stated that her initial symptoms did not improve after the accident. Her headaches, tinnitus, neck, left shoulder and arm pain continued without respite. Mrs. Beiler ceased all of her part-time sales work, curtailed family outings, social activities and her hobbies.
Mrs. Beiler said she could not perform her heavier household tasks, and that she was able to accomplish the less physical household chores at a reduced level. As a result, Mrs. Beiler claims that she has been substantially unable to perform her essential tasks as a homemaker since the accident.
The Claim: Homemaker or Salesperson?
Mrs. Beiler claims benefits as a homemaker under section 13 of the Statutory Accident Benefits Schedule. However, because she was also a self-employed salesperson at the time of the accident, Alpina maintains that Mrs. Beiler's claim should be considered under section 12 of the Statutory Accident Benefits Schedule. Establishing the applicable section is crucial to determining Mrs. Beiler's accident benefits.
An insured person who is employed or self-employed may seek weekly benefits under section 12 of the Statutory Accident Benefits Schedule. Entitlement depends on whether the person is substantially unable to perform the essential tasks of his or her employment. Those who are not considered employed or self-employed as defined by the Schedule, including homemakers, may claim weekly benefits under section 13. Section 13 entitlement depends on whether the claimant is unable to perform the essential personal and household tasks in which he or she was engaged before the accident.
In this case, Mrs. Beiler's eligibility for benefits under section 12 is measured by her ability to perform her essential part-time sales duties; while her section 13 essential tasks are those of a full-time homemaker. The tests are dramatically different.
The Statutory Accident Benefits Schedule directly addresses the situation of a primary caregiver who qualifies for section 13 benefits and has a business in his or her home. Section 13(2)2 of the Schedule states:
He or she must not be entitled to receive a benefit under section 12 at the time of the payment of a benefit under this section or, if entitled to a benefit under that section, he or she must be a primary caregiver as described in section (4) and have only income from self-employment from work in his or her home.
Alpina argues that Mrs. Beiler is not qualified to receive section 13 benefits as a homemaker because her self-employment work was not entirely completed at her home. Consequently, Alpina believes that Mrs. Beiler does not qualify under the section 13(2)2 exception, and that she should be considered a self-employed person who must look to section 12 for any benefits.
Mrs. Beiler testified about her part-time business. She stated that she used her home as her office for her Tupperware and Discovery Toy sales. Mrs. Beiler's tax returns and business records confirmed this assertion. Most of the business's paperwork was prepared at her residence. She also stored some inventory at home. Mrs. Beiler stated that she phoned all her customers, suppliers and party hosts from her home. Although Mrs. Beiler conducted a few sales demonstrations at home, most were held at other people's houses. These outside sales demonstrations plus product pick up and deliveries, Alpina believes, cause Mrs. Beiler's work to fall outside the section 13(2)2 meaning of "work in his or her home".
I do not agree with Alpina's strict interpretation of section 13(2)2. The Statutory Accident Benefits Schedule is remedial legislation, which should be given broad and liberal interpretation, as was pointed out in Branden K. Hui v. Security National Insurance Company (O.I.C. File No. A-000055, dated November 15, 1991). I do not see Mrs. Beiler's occasional work trips and attendance outside of her home as disqualifying her from section 13. In my opinion, it would be wholly inappropriate to set a standard which would essentially exclude everyone except the most completely housebound working caregivers from qualifying under the section 13(2)2 exception.
Rather, I look to the location where Mrs. Beiler conducted the majority of her work as determinative. I accept Mrs. Beiler's evidence that set up, arranging delivery of orders, and the paperwork and phone calls from her home constituted the majority of her work. From Mrs. Beiler's evidence and business records, I conclude that the Beiler home was the business office from which she conducted the bulk of her work. On these facts, I find that Mrs. Beiler's claim for weekly benefits properly falls under section 13 of the Statutory Accident Benefits Schedule.
Consequently, Mrs. Beiler's essential tasks are concerned with homemaking. I accept Mrs. Beiler's testimony that before the accident she did all of the housecleaning, laundry, cooking, child care, yard work, and shopping. I find these to be her essential tasks.
The Benefit Amount:
Section 13 provides a basic $185 weekly benefit. In addition to the basic benefit, section 13(4) provides that a claimant who is a primary caregiver for children under sixteen years is entitled to $50 per child, per week (up to a maximum of $200) during the period of the disability. Mrs. Beiler claims the basic $185 weekly benefit, plus $50 for each of her three children from the accident date forward.
Mr. Albrecht, Alpina's claim adjuster, testified that he authorized Alpina to pay Mrs. Beiler $185 per week as a section 12 self-employed person. Mr. Albrecht admitted that he did not understand the Schedule during the period he handled the claim because Alpina had not trained him in the then relatively new statutory benefits system. He testified that he had only cursorily read the Schedule a couple of times, and did not distinguish between sections 13 and 12. He thought Mrs. Beiler was due the same benefit under either section. However, during mediation of this dispute, Alpina paid Mrs. Beiler $100 per week section 13(4) benefits for her two elder children to the January 3, 1991 cut-off date.
Alpina did not agree to pay Mrs. Beiler's claim for her third child, who was in utero at the time of the accident. Anthony Beiler Jr. was born on June 17, 1991. Mrs. Beiler seeks a weekly benefit of $50 during her pregnancy with this child. Alpina takes the position that the benefit is not due until his birth.
The relevant portion of section 13(4) is written in plain language. The section provides a $50 per week benefit, "... , for each person who at the time of the accident was residing with the insured person and in respect of whom the insured person was the primary caregiver...." To be eligible, the child must both reside with Mrs. Beiler and she must be his or her primary caregiver. In my opinion, the Statutory Accident Benefits Schedule does not include a fetus, whether viable or not, within the definition of a dependant person. Therefore, Mrs. Beiler does not qualify for section 13(4) benefits for Anthony Beiler Jr. from the accident until his birth. The issue of section 13(4) benefits after Anthony Jr.'s birth is not before me.
Thus, I find that the quantum of benefits is $285 per week for the period of Mrs. Beiler's disability (disregarding section 13(4) benefits after Anthony Jr.'s birth).
Pre-Existing Condition:
Both parties characterize Mrs. Beiler's condition as a soft tissue injury accompanied by a somatoform pain disorder. The perception of pain in soft tissue injuries cannot be attributed to any objective or physical findings. It is subjective to the mind of the sufferer, a condition often questioned by insurers. Somatoform pain disorders, associated with soft tissue injuries like Mrs. Beiler's, are described in the American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (Third Edition-Revised, 1987):
The essential feature of this disorder is the preoccupation with pain in the absence of adequate physical findings to account for the pain or its intensity.
In some cases there may be evidence that psychological factors are etiologically involved in the pain, as when there is a clear temporal relationship between an environmental stimulus that is apparently related to a psychological conflict or need... In other cases the evidence may be that the pain's (sic) permitting the person to avoid some activity that is noxious to him or her or to get support from the environment that otherwise might not be forthcoming.
Alpina argues that Mrs. Beiler's claim to a disability after January 3, 1991 is the result of her pre-existing psychological condition.
Mrs. Beiler testified that she was hospitalized with abdominal pains in 1982. The hospital records were introduced. Those records show that Mrs. Beiler's attending physicians could find no physical cause for her complaints. Mrs. Beiler also admitted that she had attended chiropractic treatment for eight years before the accident, complaining of pain in her neck, hip and back, and occasional dizziness and headaches. Mrs. Beiler was also diagnosed with temporal mandibular joint syndrome, a jawbone condition known to occur in tense people. I cannot find any physical diagnosis of the cause for these complaints in the evidence.
I found the evidence of Dr. Linda Gruson, psychologist, and Dr. Alfred Margulies, psychiatrist, helpful to my understanding of Mrs. Beiler's pre-existing complaints and reaction to the accident. Both Drs. Gruson and Margulies interviewed Mrs. Beiler and reviewed her history. They agree that Mrs. Beiler had difficulty coping with her earlier life experiences and emotions. Her family life and part-time work added stress too. As I understand Dr. Margulies, Mrs. Beiler internalized her emotional reactions to life's experiences. The phrase "grin and bear it" was an expression used at the hearing to describe Mrs. Beiler's stoic reaction to adversity. Dr. Margulies testified that Mrs. Beiler converted her stress into physical symptomatology. He diagnosed this reaction as somatoform pain disorder.
While I accept that Mrs. Beiler suffered from this disorder before the accident, it is not disputed that she was fully functional. In my view, the accident was the trigger point. Dr. Margulies describes Mrs. Beiler as "burned out" from the household duties, children, pregnancy and her part-time job; "The accident gave her a peg upon which to hang all of her pre-existing emotional baggage." Dr. Margulies gave evidence that Mrs. Beiler overreacted to the additional stress of the accident. He said that the chronic pain was real in Mrs. Beiler's mind, and that she could not control it. I agree with Dr. Margulies that Mrs. Beiler's pain was real and that she had no control. Dr. Margulies concluded that Mrs. Beiler should have been paid an additional six to eight months of benefits. His evidence contradicts Alpina's contention that Mrs. Beiler's pre-existing condition caused her disability. I feel that Dr. Margulies' view confirms that Mrs. Beiler was prone to overreact, and was the "thin skulled plaintiff". Therefore, I find that the October 12, 1990 accident, and not any pre-existing condition, caused Mrs. Beiler's disability.
Disability Duration:
Mrs. Beiler claims that since the accident she has been substantially unable to perform her essential household work and child-care tasks.
Mrs. Beiler testified that after the accident, she prepared simple one-pot meals for her family, rather than the full-course meals her husband and children were used to before her injury. Mrs. Beiler did not have a dishwasher, and after the accident she often left clean-up until she felt better. She did not shop for groceries and other necessities as often because of the pain and fatigue it caused her. She said that Mr. Beiler helped with the dishes and shopping sometimes, tasks which he had not done before the accident.
Mrs. Beiler stated that she stopped laundering her family's clothes regularly. Before the accident, Mrs. Beiler washed the linens, clothing and baby's diapers in a machine, and hung them to dry outdoors. After the accident, Mrs. Beiler said she fatigued quickly and did not have the strength to carry the laundry loads or hang them to dry on the outdoor clothesline. Mrs. Beiler also said she stopped vacuuming, mopping and washing the floors. According to Mrs. Beiler, her mother did these tasks during her visits.
Mrs. Beiler testified that her husband did not help with the cleaning after the accident, but he did bathe the children in the evenings and put them to bed for her. He also began doing the yard work that Mrs. Beiler had been responsible for before the accident.
Mrs. Beiler also testified that her irritability and failure to manage the housework made it difficult for her to cope with the children, and also caused bitterness, tension and resentment between her and her husband. Mrs. Beiler went to chiropractic treatment and physiotherapy throughout 1991. According to Mrs. Beiler, her headaches, neck, shoulder pain and fatigue continued through her pregnancy and after the birth of her son in June 1991.
I note that Mrs. Beiler's pregnancy and the additional work of a third child may have contributed to her difficulties. Though this complication pre-existed the accident, I do not see her pregnancy as the primary cause of her disability.
Anthony Beiler, Mrs. Beiler's husband, testified. Mr. Beiler confirmed that before the accident he did none of the housecleaning, shopping, child care or yard work. After the accident, Mr. Beiler said his wife was tired, irritable and was obviously in pain, but that she did not outwardly complain. He stated that Mrs. Beiler asked him to help with the household chores, yard and children. Because of his job overtime and sports interests, Mr. Beiler admitted that he did not help his wife out much in the first year after the accident.
However, Mr. Beiler did assist his wife in some ways after the accident. He stated that he bathed and put the children to bed, did the yard work, and often went shopping for his wife. Mr. Beiler said the house was disorderly and unclean most of the time until his mother-in-law, Lucia VanDerVelden, began to visit and regularly help Mrs. Beiler with the child care and housework.
Mrs. Lucia VanDerVelden was retired at the time of the accident and had been living in London, Ontario. Mrs. VanDerVelden testified that she visited her daughter in Kitchener after the accident for three to four days at a time, two or three times a month. Mrs. VanDerVelden said that her daughter was able to prepare breakfast in the morning, get the children off to school and clean up afterwards, but by the afternoon her daughter was tired and not able to clean or cook supper. During her visits, Mrs. VanDerVelden testified that she vacuumed, dusted, washed floors, cooked, and did the laundry and window cleaning. When Anthony Jr. was born in June 1991, Mrs. VanDerVelden stayed at the Beiler's for two months. I accept the evidence of Mrs. VanDerVelden.
I found Mr. and Mrs. Beiler to be reliable and credible witnesses. Their testimony is consistent and credible. I believe Mrs. Beiler and her husband are hardworking, honest and highly motivated people.
I find that Mrs. Beiler suffered a substantial inability to perform the following essential tasks after the accident: vacuum, mop and wash the floors, launder clothes, and do the yard work. In addition, I find that Mrs. Beiler suffered a partial inability to perform the following essential tasks after the accident: prepare and clean up after the evening meal, shop for necessities, and care for the children after dinner. Combining those tasks Mrs. Beiler could not do, together with the tasks she was partially able to do, I find that Mrs. Beiler was substantially unable to perform her essential tasks as a homemaker after the accident.
Alpina maintains that Mrs. Beiler was able to perform her essential homemaking tasks as of the January 3, 1991 termination of weekly benefits. Alpina's decision to terminate benefits was based upon the opinion of Mr. Rick Albrecht, claims adjuster, and surveillance evidence.
Mr. Albrecht testified that he visited the Beiler home at least five times between the accident and January 15, 1991. During these visits, Mr. Albrecht would drop off benefit cheques and discuss Mrs. Beiler's treatment and progress. The parties were quite amicable at this time. Mr. Albrecht would have coffee at the kitchen table, where he was able to casually observe Mrs. Beiler preparing meals, cleaning, performing other kitchen chores, and attending to her two young children's needs. Mr. Albrecht testified that he thought, based upon his observations, that Mrs. Beiler could resume her pre-accident activities by the late fall of 1990.
Mr. Albrecht also ordered surveillance to assist Alpina in assessing Mrs. Beiler's ongoing eligibility for weekly benefits. The surveillance videotape shows Mrs. Beiler's outdoor activities on numerous days in December 1990. The investigator's observations are summarized in a report dated December 31, 1990. The videotape shows Mrs. Beiler driving a car, carrying groceries, loading her children and packages in her car, attending medical appointments, and walking the children to school.
On January 9, 1991, Mr. Albrecht received and reviewed the surveillance evidence with the investigator. Convinced by his personal observations at the Beiler home and by the surveillance, Mr. Albrecht stated that he felt Mrs. Beiler was fit, and was no longer eligible for weekly benefits. He called Mrs. Beiler on January 11, 1991, to tell her that Alpina would pay no weekly benefits until the company had further medical evidence of her disability.
Mrs. Beiler confirms that Mr. Albrecht explained the reasons for the company's decision to her on the telephone and at a subsequent meeting in her home. However, the parties agree that Mrs. Beiler did not receive an "Assessment of Claim By Insurer" form at or around the time that her benefits were cut off. Nor did she receive some other written statement outlining the reasons for the decision. Mrs. Beiler argues that written notice of an insurer's decision is required to be sent to an insured person by section 24(8) of the Schedule:
If the insurer refuses to pay an amount claimed in an application for no-fault benefits, the insurer shall forthwith give written notice to the insured person giving the reasons for the refusal.
Although I am troubled by Alpina's failure to send Mrs. Beiler a formal written notice, I recognize she understood the reasons for Alpina's decision from her personal visit and telephone call with Mr. Albrecht. On these facts, I accept Mrs. Beiler's candid admission as sufficient notice.
When Alpina made the decision to terminate Mrs. Beiler's weekly benefits, the company had the medical report of Mrs. Beiler's family physician, Dr. Thomas Borys. Dr. Borys' October 30, 1990 report states that Mrs. Beiler sustained a "whiplash injury to the neck" with headaches, muscle spasms and tension. The doctor described the duration of her disability as "indefinite".
Mr. Albrecht testified that he did not agree with Dr. Borys' opinion. Mr. Albrecht stated that he relied upon the surveillance and his personal observations in deciding to terminate Mrs. Beiler's weekly benefits.
However, it also appears that Alpina wanted some additional medical information in assessing this issue. Mr. Albrecht testified that he requested reports from Mrs. Beiler's treating chiropractors, Catherine Strauss and Elsie Frickey, on November 22, 1990 and December 5, 1990, approximately one month before the benefits were terminated. Mr. Albrecht stated that he received both reports on January 22, 1991, about three weeks after Alpina terminated Mrs. Beiler's weekly benefits. Both chiropractors opined that Mrs. Beiler was not fit. Mr. Albrecht testified that Alpina did not re-evaluate or change its position about Mrs. Beiler's entitlement to weekly benefits in light of this information.
In my opinion, the statutory accident benefits scheme is designed to ensure that decisions about ongoing entitlement to weekly benefits are based upon medical evidence, not lay observations alone. Section 23(2) of the Statutory Accident Benefits Schedule provides that the insurer may request the claimant to attend at a medical examination by an expert of the insurer's choice. This specific provision, which allows the insurer to conduct an independent medical examination, indicates the process an insurer should follow in assessing a claim. Except in the circumstance where the surveillance overwhelmingly demonstrates that a claimant is actually performing his or her tasks, I cannot imagine that some medical evidence of fitness would not be required before terminating benefits.
In this case, Alpina's decision was not based on surveillance indicating Mrs. Beiler was completing all or most of her duties. Mr. Albrecht saw Mrs. Beiler providing snacks to her children, cooking and doing some light kitchen duties for short periods of time. The surveillance indicated Mrs. Beiler could drive, go shopping and run errands too. But there was no direct evidence that Mrs. Beiler was able to perform the heavier household chores she denied doing; such as vacuuming, dusting, washing floors, changing bedding, or the laundry. Neither did the surveillance show Mrs. Beiler performing any of her part-time sales tasks.
Alpina could have waited for the chiropractic opinions it solicited before making its decision or it could have sought out another evaluation resource of its own. Instead, Alpina ignored the only medical evidence (Dr. Borys') existing at the time of the decision, and relied upon the partisan views of its personnel alone. Based on the testimony and reports, I find that Alpina did not have a reasonable basis to terminate Mrs. Beiler's benefits on January 3, 1991, and that Mrs. Beiler continued to suffer a substantial inability to perform her essential tasks after that date.
Alpina maintains that, even if Mrs. Beiler was not able to perform her essential duties on January 3, 1991, she was headache-free and functional by April 1991. Alpina points out that Dr. Borys' (Mrs. Beiler's family doctor) April 23, 1991 report and Dr. Ward Hazen's (Mrs. Beiler's chiropractor) April 9, 1991 report both indicate Mrs. Beiler reported no headaches for up to one and a half and two weeks, respectively. While I recognize that Mrs. Beiler may have had periodic relief of this one symptom, the evidence indicates to me that Mrs. Beiler's tinnitus, neck and left shoulder pain continued unabated. I am convinced that her symptomatology, though relieved to some extent, continued to substantially disable Mrs. Beiler from performing her essential tasks after April 1991.
Beverley Wilhelm, Alpina's claims supervisor, testified about her experience with the Beiler claim. Ms. Wilhelm took carriage of the file from Mr. Albrecht after January 1991. Ms. Wilhelm admitted that she would have waited for the additional medical opinions Mr. Albrecht had requested before making a decision on weekly benefits, and she also did not deny telling Mrs. Beiler that benefits had been cut off too early. However, Ms. Wilhelm did not authorize Alpina to reinstate weekly benefits. She continued to authorize payment for Mrs. Beiler's chiropractic and massage during the spring and summer of 1991, and monitored her progress.
After Ms. Wilhelm met with Mrs. Beiler at her home on October 3, 1991, Alpina requested The Rose Nursing Care Inc. ("The Rose") evaluate Mrs. Beiler's home needs. A nurse from The Rose interviewed Mrs. Beiler about her ability to perform her household tasks on November 13, 1991. At that time, Mrs. Beiler was complaining of daily headaches and neck pain, varying in intensity and duration, which interfered with her activities. Mrs. Beiler told the nurse that she could not vacuum, mop, or sweep floors, and that she was doing some laundry with difficulty. Among other things, the nurse recommended daily housekeeping assistance, a diaper service, a dishwasher, and some babysitting to assist Mrs. Beiler. The Rose's recognition of the need for housekeeping services confirms, in my view, Mrs. Beiler's inability to perform these essential tasks.
The Rose followed-up and assessed the effect of the recommended services. The November 22, 1991 and December 9, 1991 entries state, and Mrs. Beiler's testimony confirms, that the babysitting, housekeeping, diaper service and a dishwasher were in place by December 1, 1991, and that they greatly assisted Mrs. Beiler.
The notes of Dr. Catherine Straus, Mrs. Beiler's chiropractor, confirm that Mrs. Beiler was able to accomplish more of her household duties by the fall of 1991. Her November 25, 1991 report states that Mrs. Beiler told her the headaches had reduced in frequency and intensity as a result of the homemaking assistance provided by Alpina. She concluded that Mrs. Beiler had improved 75 per cent.
Significantly, The Rose report states that Mrs. Beiler reported that the services allowed her more time to rest and to decrease the activities that aggravated her symptoms. The Rose reports that Mrs. Beiler began regularly taking analgesics, which she had previously not taken during her pregnancy. I accept The Rose's conclusion that with the assistance, the analgesics, periodic rest and a more relaxed attitude towards her condition and work, Mrs. Beiler was able to cope with her housework. On these facts, I am persuaded that by December 1, 1991 most of Mrs. Beiler's pressures and symptoms were alleviated, and that she had regained her ability to perform the substantial majority of her essential tasks as a homemaker. Therefore, I find that Mrs. Beiler is entitled to section 13 benefits until December 1, 1991.
I do not feel it is necessary to discuss the many other medical practitioners' reports, hospital records or the viva voce testimony of all seven health professionals who appeared before me. Because of the volume of evidence, I discuss only that which I rely upon or find determinative of the issues.
Special Award:
Mrs. Beiler requests a special award under section 282(10) of the Insurance Act, which states:
(10) If the arbitrator finds that an insurer has unreasonably withheld or delayed payments, the arbitrator, in addition to awarding the benefits and interest to which an insured person is entitled under the Statutory Accident Benefits Schedule, shall award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became due under the Schedule.
"Reasonableness" is the standard applied to the insurer's conduct to determine whether a special award is warranted. Larry Erickson v. The Guarantee Company of North America (O.I.C. File No. A-000560, dated June 2, 1992).
In Erickson, the insurer obtained medical information that predicted Mr. Erickson would return to work in eight weeks. Without follow-up on Mr. Erickson's condition or notice to him, the insurer terminated his weekly benefits eight weeks later. Senior Arbitrator Rotter found that the insurer's failure to advise Mr. Erickson of its decision to act in reliance upon the reports was unreasonable because Mr. Erickson had no opportunity to dispute the insurer's decision before the suspension of benefits, and the insurer had no medical evidence that he was fit eight weeks later.
Like Erickson, in this case I had no medical evidence that Mrs. Beiler could return to her tasks when benefits were terminated. Mr. Albrecht admitted that his decision was based upon his personal observations and the surveillance, and that he disregarded Dr. Borys' findings. Later, in January 1991, after Alpina received the two chiropractors' reports stating Mrs. Beiler was not capable of performing her work, Alpina did not reinstate Mrs. Beiler or engage another expert to evaluate her. I find that Alpina's conduct in terminating Mrs. Beiler's weekly benefits is more unreasonable than the insurer's conduct in Erickson, and warrants a more significant award.
In addition to my concerns about Alpina's conduct in terminating benefits, I am also concerned by its treatment of Mrs. Beiler. Mr. Albrecht did not deny that when Mrs. Beiler requested assistance he told her she was lucky to get anything. Other testimony from Mr. Albrecht revealed that Alpina trivialized Mrs. Beiler's condition, acted in a high-handed manner towards her, did not explain the benefits available to her under the policy, and was skeptical of her treatment after the termination of weekly benefits. Alpina took one year to bring in a rehabilitation expert. This is analogous to the situation in Wayne Allan Plowright v. Wellington Insurance Company (O.I.C. File No. A-003985, dated October 29, 1993) where Arbitrator Palmer stated:
Whereas I view the obligation of the Insurer to work as a partner with the Applicant, his family doctor and other health care professionals in the rehabilitation of this insured person, in many respects the claims of Mr. Plowright have been treated with suspicion, more like those of a third party in the tort system of damage compensation.
I find that Alpina's cavalier disregard for Mrs. Beiler's needs is incompatible with the first party relationship which exists between the parties in a no-fault system.
I make a special award of $4,000 pursuant to section 282(10) of the Insurance Act.
Expenses:
Mrs. Beiler requests her expenses of the arbitration. It is within my discretion to award her expenses, and I grant Mrs. Beiler her arbitration expenses in accordance with the Regulations.
Order:
Alpina will pay Mrs. Beiler section 13 weekly benefits until December 1, 1991, consistent with the findings of this decision.
Alpina will pay Mrs. Beiler a $4,000 special award plus interest according to section 282(10).
Alpina will pay Mrs. Beiler her arbitration expenses.
February 22, 1994
Fred B. Sampliner Arbitrator
Date
APPENDIX "A"
Exhibit 1 Insured's Evidence of Self-Employment Income
Exhibit 2 Application for Accident Benefits, dated October 29, 1990
Exhibit 3 Assessment of Claim by Insurer, dated September 2, 1992
Exhibit 4 Letter from La Leche League Canada, dated March 12, 1993
Exhibit 5 Medical or Psychological Report of Dr. Borys, dated October 30, 1990
Exhibit 6 Pregnancy Exercises
Exhibit 7 The Rose Nursing Care Inc. Rehabilitation Brief
Exhibit 8 Letter from Applicant to B. Wilhelm, Alpina Insurance, dated September 30, 1992
Exhibit 9 Letter from B. Wilhelm to Applicant, dated October 7, 1992
Exhibit 10 Medical Brief from Applicant, Tabs 1 to 24
Exhibit 11 Letter from B. Eby to Alpina Insurance, dated January 6, 1993
Exhibit 12 Copy of letter from B. Eby to Alpina Insurance, dated February 12, 1992
Exhibits 13 & 14 Surveillance Tapes #1 and #2
Exhibit 15 Alpina Inter-Office-Memorandum, dated Februry 18, 1993
Exhibit 16 Excerpt from Diagnostic and Statistical Manual of Mental Disorders (Third Edition - revised) DSM-III-R, pp. 264-267
Exhibit 17 Investigative Reports - Larrek Investigation, dated December 31, 1990 and December 18, 1992; Phoenix Report of July 28 and 29, 1993
Exhibit 18 Application for Additional Accident Benefits (undated)
Exhibit 19 Letter from B. Wilhelm to Applicant, dated August 27, 1992
Documents before the Arbitrator: Report of Mediator, dated December 22, 1992 Application for Appointment of an Arbitrator, filed March 16, 1993 Response by Insurer, dated April 14, 1993 Agreed Statement, dated August 16, 1993 Law Brief, Tabs 1-14, submitted by the Applicant's counsel Case Law Brief, Tabs 1-9, submitted by the Insurer Calculation of Interest on Arrears, submitted by Peat Marwick Thorne, dated June 28, 1993 Summary of Past Payments Owing, submitted by Drew, Hellerman, Coburn, dated August 9, 1993