Neutral Citation: 1994 ONICDRG 63

File No. A-003506

BETWEEN:

PEGGY A. HAMELIN

Applicant

and

ALPINA INSURANCE COMPANY, LIMITED

Insurer

DECISION

The Applicant, Peggy A. Hamelin, was injured in a motor vehicle accident on October 5, 1991. She received weekly income benefits and other statutory accident benefits from Alpina Insurance Company, Limited ("Alpina"), payable under Ontario Regulation 672¹. Ms. Hamelin disputed the termination of her weekly income benefits and claimed payment of certain other expenses.

The issues in this hearing are:

Is Ms. Hamelin entitled to weekly income benefits from December 23, 1992, when benefits were terminated, and thereafter, under section 12 of the Schedule?
Is Ms. Hamelin entitled to the cost of chiropractic treatment, housekeeping services, and other miscellaneous expenses under section 6 of the Schedule?
Is Ms. Hamelin entitled to a special award under section 282(10) of the Insurance Act, R.S.O. 1990, c. I.8?

Ms. Hamelin also claims interest on any outstanding amounts owing, and her expenses incurred in the arbitration.

Ms. Hamelin is entitled to weekly income benefits of $185.60 from December 23, 1992 onwards. Alpina is entitled to credit for benefits paid between June 2, 1993 and February 28, 1994.
Ms. Hamelin is entitled to payment of the following expenses under section 6 of the Schedule:

Chiropractic services

$ 432.55

Expenses for transportation to treatment

$ 814.65

Housekeeping services

$ 395.15

$1,642.35

Ms. Hamelin is entitled to a special award of $216.27, together with compound interest, under section 282(10) of the Insurance Act on the basis that Alpina unreasonably withheld payment for chiropractic expenses from her.
Ms. Hamelin is entitled to interest on the outstanding benefits under section 24 of the Schedule.
Ms. Hamelin is entitled to her expenses incurred in respect to the arbitration under section 282(11) of the Insurance Act.

The hearing was held on March 1, 1994 and March 2, 1994, in Windsor, with submissions by telephone heard on March 11, 1994, before me, Susan Naylor, Senior Arbitrator.

Present at the Hearing:

Applicant:

Peggy A. Hamelin

Applicant's

Joseph J. Comartin

Representative:

Barrister and Solicitor

Insurer's

Patrick Furlong and Mark Binder

Representatives:

Barristers and Solicitors

Witnesses:

Ms. Peggy Hamelin

Dr. William R. Borre

Ronald J. Jones, D.C.

Dr. Stephen W. Bartol

Dr. D.A. Fleming

Dr. Michael Hall

Ms. Elizabeth Gillies, physiotherapist

Exhibits:

Exhibit 1

Medical Brief

Exhibit 2

Applicant's Document Brief

Exhibit 3

Curriculum Vitae of Dr. Stephen William Bartol

Exhibit 4

Plate 23-1, Textbook of Orthopaedics, Turek

Exhibit 5

Figure 1-3, Textbook of Shoulder Surgery, Neer

Exhibit 6

Plate 3.3, "Measurement of Abnormal Motion", Orthopaedic Shoulder Surgery, Neer

Exhibit 7

Fig 18.28, Adult Orthopaedics, Cruise and Rennie,

Exhibit 8

Curriculum Vitae, Dr. D.A. Fleming

Exhibit 9"

Acromioplasty for Impingement with an Intact Rotator Cuff", R.J. Hawkins, R.M.. Brock, J.S. Abrams, P. Hobeika, J. Bone Joint Surg [Br] 1988; 70-B:795-7

Exhibit 10

Hand-drawn diagram of the shoulder joint

Exhibit 11

Curriculum Vitae, Elizabeth Gillies

Evidence and Findings:

1. Weekly Income Benefits:

a) Summary

Ms. Hamelin complained of neck and lower back pain after the accident on October 5, 1991. She received a substantial amount of therapy for her problems. More than a year after the accident, she complained of pain in her left shoulder, and was found to have left shoulder rotator cuff tendonitis.

Whether Ms. Hamelin's shoulder condition was caused by the accident is really the key issue in this arbitration. Findings on the other issues largely flow from this.

Before the new problem was disclosed, Ms. Hamelin received weekly income benefits until December 23, 1992. Benefits were stopped on the basis that Ms. Hamelin was not disabled from the essential tasks of her job and had twice discontinued a program of active rehabilitation therapy. Alpina reinstated benefits between June 2, 1993 and February 28, 1994, on a "without prejudice" basis, under an interim agreement reached by the parties. Ms. Hamelin contends that she has been continually disabled since December 23, 1992, and is entitled to ongoing benefits.

The amount of Ms. Hamelin's weekly income benefits was based on the deemed minimum gross weekly income from employment set out in section 12(7) 1 .iii of the Schedule. There is no issue as to the amount of benefits. However, it appears that Ms. Hamelin's benefits erroneously have been paid at the rate of $185.00, whereas the precise weekly figure under section 12(7) 1 .iii should be $185.60. I assume that Alpina will make the appropriate adjustment for this.

b) Ms. Hamelin's Essential Tasks of Employment

Ms. Hamelin worked part-time as a cashier in a local IGA grocery supermarket. She had worked there for about a month before the accident. Before that, she was a homemaker and did not work for wages.

As a cashier, her principal responsibility was to operate the cash register. She stood at the register, and keyed in the articles with her right (dominant) hand; she used her left hand to help move the goods along a conveyer belt. The job required continual and repetitive movement of her hands and arms throughout the work day. Ms. Hamelin generally was not required to bag the goods, which was the responsibility of an assistant.

Ms. Hamelin was also responsible for keeping the counter wiped clean, and for sweeping the area around the cash register. If customers left articles on the counter, she was required to replace them on the shelves. Ms. Hamelin occasionally performed other duties; however, the activities set out above represent the essential tasks of her employment as a cashier.

c) Left Rotator Cuff Tendonitis

The accident happened on October 5, 1991. Ms. Hamelin was driving the family car. She was wearing a shoulder and lap belt. She had stopped to make a left turn, when her car was rear-ended by another car.

There was little damage to Ms. Hamelin's car and she was able to drive home unassisted, but went to the hospital the next day, where x-rays were taken and she was given analgesics. She remained under the care of her family physician, Dr. Borre, whom she saw regularly after the accident. She also received extensive physical therapy in a number of programs.

Ms. Hamelin initially felt pain in her neck, which later extended down over her shoulder blades, and down to her lower back. The weight of the medical evidence indicates that the pain over her shoulder blades was referred pain from her neck strain. In the year following the accident, Ms. Hamelin did not complain of a separate problem in her left shoulder joint (the glenohumeral joint), and her doctors did not pick up on any such problem.

In January 1993, Dr. Ronald Jones, Ms. Hamelin's chiropractor, found a left shoulder impingement distinct from the referred neck pain. Ms. Hamelin had been referred to Dr. Jones because of her unresolved neck and back complaints, and following complaints, in November and December 1992, of left arm numbness and of discomfort over the left shoulder and difficulty reaching behind her back. The medical experts agree that the left arm numbness is unrelated to the left shoulder impingement that was later found, and its etiology remains unclear.

In late April 1993, Ms. Hamelin saw Dr. Stephen Bartol, an orthopaedic surgeon. She complained of pain radiating down her neck to her shoulder blades, as before, but also described pain "on the superior and anterior aspects of the shoulder" which, in Dr. Bartol's opinion, was "separate and distinct from the neck pain".

Dr. Bartol found full range of motion in the neck and back, and only slight decrease in motion of the shoulder with 160 degrees of abduction and forward flexion. X-rays of the area showed early degenerative changes of the acromioclavicular joint. Dr. Bartol subsequently diagnosed tendonitis of the left shoulder rotator cuff.

According to the medical evidence, tendonitis reflects inflammation in the area of the tendon, in this case, the rotator cuff tendons. Dr. Bartol explained that medical studies have shown that the functional arc of elevation of the shoulder is forward, rather than lateral. The inflamed rotator cuff tendons, especially the supraspinatus tendon, are squeezed against the anterior edge of the acromion and coracoacromial ligament. This causes pain and restrictions of movement at the glenohumeral joint, on certain motions, particularly a "painful arc" when the arm is elevated in mid-range. However, many people will demonstrate full range of motion, or only minor restrictions, on passive testing of the general shoulder area.

Dr. Bartol performed a number of generally accepted clinical tests that are intended to isolate the location of the problem and confirmed the diagnosis of rotator cuff tendonitis. These included the "impingement sign", which involves reproducing pain when the arm is forcibly forward flexed and internally rotated, forcing the humerus against the anterior surface of the acromion. The tests were positive in Ms. Hamelin's case.

Dr. Bartol suggested conservative treatment of the problem, including a corticosteroid injection which he administered on April 28, 1993. According to the medical evidence, because pain from rotator cuff tendonitis is localised, the injection of a local anaesthetic under the coracoacromial arc should relieve the pain but only on a short term basis for the duration of the anaesthetic. Dr. Michael Hall, an expert called on behalf of the Insurer, called this procedure a "valid, almost obligatory diagnostic test". This test was positive in Ms. Hamelin's case. A subsequent arthrogram, involving injecting contrast material into the shoulder joint, indicated that the rotator cuff was not torn.

Since conservative therapy did not help Ms. Hamelin, she elected surgery, known as an acromioplasty, to release the impingement. Dr. Bartol performed this procedure on August 26, 1993. He first confirmed evidence of chronic tendonitis of the intact rotator cuff. He then proceeded to decompress the rotator cuff, by shaving the undersurface of the acromion, splitting the ligament and inflamed bursa, and finally resecting it.

The Applicant's and the Insurer's experts disagreed on whether the tendonitis was related to the automobile accident, based on the details of the accident and the time that elapsed between it and the onset of Ms. Hamelin's symptoms. There was general agreement among the experts with the diagnosis of rotator cuff tendonitis, based on the results of the diagnostic tests administered and Dr. Bartol's findings at surgery. Although Dr. Michael Hall initially expressed some doubt about the diagnosis, his concerns appeared to be dispelled after he reviewed Dr. Bartol's report during the hearing.

In his submissions, counsel for the Insurer properly conceded that the wisdom of surgery in Ms. Hamelin's circumstances was not in issue here.

Dr. Bartol and Dr. Hall were essentially in agreement that Ms. Hamelin had not complained of a problem in respect to her left glenohumeral joint until around January 1993, more than a year after the accident. During the interim, she had received a great deal of active and passive therapy, which would have severely tested her left arm. The physicians who saw her during the period also did not identify a problem with her left shoulder joint.

Dr. Bartol advanced two explanations for why a problem with the left shoulder joint only materialised a year after the accident.

He testified that the condition of tendonitis develops gradually. It starts with an initiating event, causing an inflammatory reaction. The inflammation becomes chronic with use, compromising the subacromial space, and leading in time to impingement. Dr. Bartol testified that, in addition, Ms. Hamelin had a large beak of bone on the anterior acromion, which further reduced the space available between the tendon and the acromion.

Dr. Bartol also explained that Ms. Hamelin may have been concerned with the more diffuse pain she experienced that radiated down her neck and across her shoulder blades to her back, and did not focus on pain at the shoulder joint site. Both Dr. Bartol and Dr. Jones, Ms. Hamelin's chiropractor, suggested that Ms. Hamelin's treating physicians did not entertain a separate diagnosis of tendonitis, in part, because Ms. Hamelin demonstrated full range of motion of the shoulder, when tested. Because they did not suspect a problem, the doctors did not test for loss of motion specifically at the glenohumeral joint, therefore, their results may have been misleading. Dr. Borre, Ms. Hamelin's family doctor, agreed that he may have missed the diagnosis for these reasons.

Dr. Bartol testified that, in his view, the rotator cuff tendonitis was caused by the automobile accident. He testified that there was no evidence of a pre-existing problem. He stated that tendonitis was generally caused by some initiating event, usually either a series of minor traumas or sequence of events. This could include a car accident, with subsequent wear on the arm.

He hypothesised that, although Ms. Hamelin had not struck her shoulder directly in the accident, the pressure of the shoulder belt on the restrained shoulder which was being thrust forward in the collision could have caused an internal injury to the shoulder, even if the force was not sufficient to cause bruising. He postulated that a similar injury could have been caused to the shoulder if Ms. Hamelin was grasping the steering wheel when the collision occurred, and was thrust forward by the force of the accident, creating stress on the shoulder. He described this as having "almost a traction effect". He suggested that either scenario separately or in combination with each other could have been the mechanism of initial injury, which then gradually worsened over time, with use. Dr. Borre and Dr. Jones agreed with Dr. Bartol's opinion.

However, Dr. Hall, Alpina's orthopaedic expert, considered Ms. Hamelin's failure to report left shoulder problems earlier to be "very reasonable evidence" that the left shoulder tendonitis was not caused by the accident. He disagreed that tendonitis necessarily develops gradually, and stated that inflammation could give rise to the onset of pain immediately, depending on the circumstances.

Dr. Hall testified that, according to the literature, tendonitis usually develops spontaneously, without specific trauma. He testified that it was a degenerative condition, generally associated with the 40 to 55 year age group. He stated that those cases which identified a triggering trauma in the literature were dependent on self-reporting.

Dr. Bartol has not had the benefit of as much experience in orthopaedic medicine as Dr. Hall. However, he had the benefit of seeing Ms. Hamelin for her shoulder problem both before and after the surgery. His opinion on causality is supported by Ms. Hamelin's family physician and by her chiropractor, Dr. Jones, who first identified the problem.

Counsel for the Insurer submitted that the mechanisms of injury suggested by Dr. Bartol were speculative. However, determining causality often involves an element of speculation -- scientific certainty is not required. An applicant need only establish a probable connection -- proof on the balance of probabilities.

I accept that it is not known, for sure, whether the seat belt "locked", impacting against Ms. Hamelin's shoulder, or whether Ms. Hamelin's arms were flexed against the steering wheel. However, it is known that Ms. Hamelin was wearing a shoulder and lap belt, which presumably was in working order, and it is reasonable to infer that she had her hand on the steering wheel, while waiting to make a left turn. On the balance of probabilities, I find that either or both of the scenarios suggested likely occurred, and that they likely formed the mechanism of initial injury to the shoulder. According to Dr. Bartol's testimony, which I accept, the shoulder tendonitis that he found was consistent with the mechanism of injury suggested.

Ms. Hamelin's left shoulder problems post-dated the accident. There is no indication of any prior symptomatic problem, that could account for her complaints. Although Dr. Hall testified that many people of Ms. Hamelin's age develop tendonitis spontaneously, he conceded that development of the condition was associated with a specific trauma in a significant number of cases in the literature, even though there was no certainty of a causal connection.

The medical evidence indicates that tendonitis can develop gradually with use, after an initial event causing inflammation. It is probable that this was such a case. The evidence suggests that the anatomy of Ms. Hamelin's shoulder -- the presence of a significant acromion beak -- made development of an impingement problem more likely, once initial inflammation from the trauma had occurred. Moreover, Ms, Hamelin participated in extensive and vigorous rehabilitation, which may have placed additional stress on the shoulder, leading gradually to the impingement and to the tendonitis ultimately diagnosed.

Alpina submitted that Ms. Hamelin would have experienced pain during such rehabilitation. However, I find it equally plausible that the wear and tear on Ms. Hamelin's vulnerable shoulder was incremental in effect. Exactly when it started to be a problem is unclear, and it is conceivable that its gradual onset may have been masked to some extent by Ms. Hamelin's other complaints and the nature of the tests performed in response to them. This conclusion is supported by Dr. Bartol, Dr. Jones and by Dr. Borre.

Based on the above, I find that Ms. Hamelin's rotator cuff tendonitis results from the accident.

d) Disability

Ms. Hamelin has not returned to work since the accident. The second issue is whether Ms. Hamelin's injuries disabled her from her job as a supermarket cashier from the date benefits were terminated on December 23, 1992 and thereafter.

Much of the evidence I heard related to Ms. Hamelin's neck and back problems, which were largely subjective in nature. Although I do not doubt that Ms. Hamelin suffers from pain in these areas, it is not clear to me that these complaints substantially disable her from her part-time work. However, I am satisfied that her left shoulder condition has continuously prevented her from returning to work since benefits were terminated.

Ms. Hamelin's essential tasks include constant extension, flexion and abduction of her left shoulder and arm, as she moves grocery items along the conveyer belt. Both Dr. Jones and Dr. Bartol testified that, before the surgery, Ms. Hamelin's shoulder problem prevented her from directing the groceries with her left arm, as the job demanded. Dr. Bartol indicated that Ms. Hamelin's tendonitis rendered her unable to elevate her arm above waist high or to flex her arm repeatedly. Ms. Hamelin's job clearly required her to do this.

Dr. Bartol testified that the recovery time following the surgery carried out in Ms. Hamelin's case is lengthy. It involves an early progressive physiotherapy program, which is intended to resume motion in the shoulder, and then strengthen it. He reported that the therapy program normally lasts from four to six months, with complete plateauing of recovery expected nine months post operatively. After the nine months, further manipulation to break down scar tissue from the surgery is an option.

Dr. Bartol testified that in 70 per cent of cases, patients experience significant relief of pain and improvement in function of the shoulder following the surgery. There is therefore a substantial risk that the surgery will not relieve the problem. Dr. Bartol stated that he has not seen this kind of improvement in Ms. Hamelin to date, although it was too early to tell whether the operation will be successful. He testified that, when he examined Ms. Hamelin most recently, he still found her to be very restricted and recommended that she continue therapy.

It is noteworthy that Dr. Hall, citing a study, marked Exhibit 9, by Dr. Richard Hawkins and others from St. Joseph's Hospital in London, Ontario, questioned whether the surgery would be successful in Ms. Hamelin's case.

Dr. Bartol's view that Ms. Hamelin remained disabled was confirmed by Dr. Stewart, a neurologist, who saw Ms. Hamelin on February 4, 1994. Dr. Stewart found that Ms. Hamelin's shoulder movement was quite restricted and that she was "quite disabled from pain". Dr. Stewart's prognosis was guarded.

Dr. Hall likewise found marked restrictions in movement when he examined Ms. Hamelin on February 10, 1994, and acknowledged that this loss of movement constituted a "significant disability". He testified that there was no question that Ms. Hamelin was suffering from pain in her shoulder. However, it was Dr. Hall's view that Ms. Hamelin was able to return to work as a cashier, save for a brief post-operative period. He felt that Ms. Hamelin could adjust her physical movements to reduce any difficulties caused by her shoulder problem at work and that work was "the best form of therapy".

He gave, as an example, people with severe impairments, such as the loss of an arm, who were able to work in a similar jobs to that of Ms. Hamelin.

I am satisfied that the weight of medical opinion -- Dr. Borre, Dr. Jones, Dr. Bartol and Dr. Stewart -- overwhelmingly supports a finding of substantial disability in this case. The evidence indicates that the condition of Ms. Hamelin's left shoulder, both before and after surgery, has significantly affected her ability to work as a cashier. The test under section 12 requires that an applicant be substantially unable to do the essential tasks of his or her job. It does not require an applicant to undertake extraordinary efforts to overcome disability in order to return to work. I find that Ms. Hamelin's shoulder condition has rendered her substantially unable to perform her essential tasks as a cashier from December 23, 1992, when benefits were terminated, onwards.

e) Rehabilitation

Ms. Hamelin attended a number of physiotherapy and rehabilitation programs for her back and neck problems, apparently without relief. She twice discontinued a program of active therapy. Counsel for Alpina submitted that Ms. Hamelin had not made reasonable efforts to participate in rehabilitation and had failed to mitigate her loss, thus disqualifying herself from continued weekly benefits. Ms. Hamelin's counsel submitted that the doctrine of mitigation did not apply to statutory accident benefits, and, in any event, Ms. Hamelin had made reasonable efforts at rehabilitation.

The argument in regards to rehabilitation in this case is largely moot, given that continued benefits are based on Ms. Hamelin's left shoulder condition, rather than the injuries which were the subject of the therapy. However, in any event, I am not persuaded that Ms. Hamelin unreasonably refused to participate in the rehabilitation.

In mid-December 1991, after passive physiotherapy, Ms. Hamelin was referred to a more intensive, active strengthening program at the Canadian Back Institute. Ms. Gillies, Ms. Hamelin's physiotherapist there, felt that Ms. Hamelin was making good progress in the program. However, this was not the picture that Dr. Borre, Ms. Hamelin's family practitioner, was receiving from his patient. There appears to have been a breakdown in communication between all the parties involved: decisions about Ms. Hamelin's rehabilitation management were made with inadequate consultation between the family doctor and the rehabilitation providers. Some personalty and philosophical differences seemed to come in to play. I do not find that any one particular person was to blame for the situation. However, not surprisingly, Ms. Hamelin lost confidence in the program, and discontinued it on the recommendation of her doctor.

She then went to a more passive therapy program at Hotel Dieu Hospital. In early August 1992, a functional abilities evaluation was carried out at the Acute Injuries Rehabilitation and Evaluation Centre at Windsor Western Hospital Centre. An active conditioning program was recommended, with a graduated return to work. The report noted that the success of the program depended on Ms. Hamelin's "commitment to physical reconditioning and implementation of active pain management techniques into...daily life". Unfortunately,

Ms. Hamelin felt that she was not able to cope with the program, and discontinued it. Again, Dr. Borre supported her in discontinuing activities which caused her pain.

Alpina questioned Ms. Hamelin's credibility, in part, because she vocalised her complaints of pain during therapy to her family doctor rather than to the physical therapist. However, I attribute her greater openness with her family doctor as much to her comfort level with, and confidence in, Dr. Borre -- her family physician for more than ten years -- as to any other cause. I found Ms. Hamelin's testimony to be credible and forthright.

I accept that Ms. Hamelin tried her best during the extensive therapy she received. I note that the report of Windsor Western Hospital makes it clear that Ms. Hamelin fully co-operated in the program, and discontinued it because she was in too much pain. She was willing to attempt the treatment programs suggested for her, and ultimately to subject herself to painful surgery for her shoulder, which involved a significant risk of failure, in order to enhance her prospects of recovery. In my view, Ms. Hamelin reasonably sought, and took account of, the advice of her family doctor in considering her treatment options.

I would add that Ms. Hamelin's efforts at rehabilitation were not furthered by Alpina's refusal to share Dr. Fleming's reports with her or her family doctor.

Ms. Hamelin was examined twice by Dr. Fleming, an orthopaedic specialist, on May 7, 1992 and again on November 2, 1992, at Alpina's request. Dr. Fleming testified at the hearing. He advocates progressive rehabilitation for applicants with soft tissue injuries, which emphasises active therapy and normalisation of life, including work trials.

When he saw Ms. Hamelin the first time in May 1992, he concluded that she was de-conditioned, and required a progressive rehabilitation program. He apparently thought at that time that Ms. Hamelin had not recovered sufficiently so as to try some form of modified work. However, on reviewing the reports afterwards, he concluded that a return to modified, part-time work was appropriate as part of Ms. Hamelin's progressive rehabilitation plan. He recommended this to Alpina in his report, marked Exhibit 1, Tab 13. Alpina did not give Ms. Hamelin or her family doctor a copy of the report.

Dr. Fleming testified that he normally discusses his general recommendations with applicants in the course of an examination, and I find that he probably did so here. However, Ms. Hamelin would not have been aware of Dr. Fleming's suggestion, incorporated in his report, that she try to return to work, which she believed that she was incapable of doing. Moreover, Dr. Fleming testified that he advises insurance companies to provide his reports to family practitioners as a way of promoting active treatment for the patient.

At the second visit in early November 1992, Dr. Fleming reiterated his view that Ms. Hamelin should return to a sustained work trial, as part of the normalization of her life. It was after receiving this report that Alpina terminated benefits.

Regrettably, Alpina did not share either of the reports with Ms. Hamelin or her family doctor. They were only provided to Ms. Hamelin at the pre-hearing stage of arbitration.

Arbitrators have stressed the need for a co-operative partnership between applicants, insurance companies and health care professionals, in setting and achieving rehabilitation goals. It appears that this partnership, regrettably, broke down in this case. A co-operative partnership is impossible where the insurer refuses to share its reports with the insured or his or her family doctor. In my view, an insurer cannot successfully impugn the rehabilitative efforts of an applicant unless it has demonstrated a commitment to work in partnership with the applicant towards his or her rehabilitation. This includes the provision of relevant medical information in its possession.

2. Supplementary Medical and Rehabilitation Expenses:

Ms. Hamelin claimed payment of chiropractic and certain other expenses under section 6 of the Schedule. The expenses claimed were set out in a brief marked Exhibit 2. The Insurer disputed these expenses because it felt that Ms. Hamelin's left shoulder condition was not caused by the accident, and therefore that it was not responsible for treatment for it, and because it believed that continued passive treatment of Ms. Hamelin's neck and back was not helpful or reasonable.

My finding on causality largely resolves the issue of Alpina's liability for these expenses.

a) Chiropractic Expenses

Ms. Hamelin claimed the cost of chiropractic treatment administered by Dr. Jones. Ms. Hamelin first saw Dr. Jones on January 5, 1993 and continues to see him. Exhibit 2 contained an account for the period between January 5, 1993 and February 15, 1994, the date of Ms. Hamelin's most recent visit before the hearing. It shows that during this period, Ms. Jones received treatment from Dr. Jones approximately twice a week.

According to the evidence, Ms. Hamelin paid $118.00 for treatment in January and February 1993, for which she has not been reimbursed. Alpina started to make payments, but then apparently discontinued them. I understand that other payments were made by collateral sources. As of February 15, 1994, $314.55 was owing for ongoing treatment.

Dr. Jones first identified and investigated Ms. Hamelin's left shoulder problem, and has provided chiropractic treatment to increase flexibility in her shoulder as well as for her neck and lower back pain. He treated these areas both before and after the surgery, although he moved away from the shoulder in the weeks immediately following the operation, to allow for recovery.

His testimony indicates that, for treatment purposes, there is an inter-relationship between Ms. Hamelin's problems in her neck, back and shoulder. The shoulder surgery, and consequential loss of mobility placed additional stress on Ms. Hamelin's neck and, to a lesser extent, on her lower back, because she has to adjust her movements to compensate for the injury. Dr. Jones suggested this gave rise to the need for additional treatment of these areas.

Alpina objected to further passive treatment for Ms. Hamelin's neck and back. Its evidence did not address her need for therapy for her left shoulder, or any additional therapy needs for her neck and back generated by the left shoulder surgery. Consequently, Dr. Jones' testimony as to Ms. Hamelin's requirements for chiropractic treatment was essentially unchallenged.

I am satisfied that the chiropractic treatment administered to Ms. Hamelin in respect to her neck, back and left shoulder was reasonable and necessary for her rehabilitation. Ms. Hamelin is entitled to her expenses of $432.55 for it.

b) Transportation Expenses

Ms. Hamelin claimed the cost of transportation to chiropractic treatment and for treatment in respect to her left shoulder. The claims are set out in Exhibit 2, as follows:

Dr. Borre November 24 -1992 to February 15, 1994 10 visits - 14 km. round trip @ $.25 cents per km.

$ 35.00

Lauzon Parkway Chiropractic Clinic January 5, 1993 - February 15, 1994 85 visits - 26 km. round trip @ $.25 cents per km.

$552.50

Dr. Bartol April 27, 1993 - July 27, 1993 2 visits - 17 km. round trip @ $.25 cents per km.

$ 8.50

Windsor Western Hospital 36 visits - 12 km. round trip @ $.25 cents per km.

$108.00

Windsor Western Hospital Parking

$ 89.40

Grace Hospital (Arthrogram - June 17, 1993) 1 visit - 14 km. round trip @ $.25 cents per km.

$ 3.50

Grace Hospital Parking

$ 3.00

Windsor Health Centre Parking $ 14.75

TOTAL$814.65

The expenses claimed are for transportation to treatment for Ms. Hamelin's shoulder or for chiropractic treatment. I find that they are recoverable under section 6(10(d) of the Schedule. These expenses come to $814.65.

c) Housekeeping Expenses

Ms. Hamelin hired someone to help with the housework every two weeks after her shoulder surgery. She claimed the cost as an expense under section 6(1) (f) of the Schedule. The person who presently cleans her house charges $40 for each visit. Exhibit 2 contained invoices for services performed from October 4, 1993 to February 18, 1994. They totalled $395.15.

Based on Ms. Hamelin's own testimony and the medical evidence, I find that Ms. Hamelin's post-surgical condition restricted her ability to do housework, and that she reasonably required help with the house for her rehabilitation. I allow Ms. Hamelin's claim of $395.15 for this item.

Ms. Hamelin also claimed the cost of a carpet cleaning service for November 29, 1991 ($77.90) and December 3, 1993 ($90.52). She testified that she cleaned the carpet in the family room and on the stairs each year before Christmas, herself. However, after the accident she was unable to do so, and had to employ a service to do it for her.

The primary purpose of benefits under section 6(1)(f) is not to replace services that the applicant can no longer do but to provide services that are necessary for the applicant's rehabilitation. I accept that Ms. Hamelin's recovery necessitated some home-help; however, it is not clear to me that annual carpet cleaning at Christmas is necessary for her rehabilitation. I therefore do not allow these expenses.

3. Special Award

Ms. Hamelin claimed a special award under section 282(10) of the Insurance Act. This section states:

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 is entitled under the No-Fault Benefits Schedule, shall award a lump sum of up to 50 per cent of the amount to which the insured person is 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 payable under the Schedule.

In Larry Erickson and The Guarantee Company of North America, June 2, 1992 and July 16, 1992, OIC File No. A-000560 (under appeal), Senior Arbitrator Frederika Rotter rejected the view that a special award was comparable to an award of exemplary or punitive damages, and held that it was not necessary to find deliberate misconduct or bad faith. I agree with these comments.

In Lawrence Whitney and Co-Operators General Insurance Company, March 31, 1993, OIC File No. A-001005 (under appeal), the insurer refused to provide a copy of a medical report, which had been prepared by a doctor appointed by the insurer. It was ordered to produce the report, and unsuccessfully sought judicial review of the arbitral order. I indicated that I would have awarded the applicant a special award had I found any benefits to be owing, stating:

Regrettably the Insurer, through its counsel, has taken an adversarial and confrontational approach in these arbitration proceedings. It refused to provide the Applicant with a copy of Dr. Yadav's report or to advise the Applicant of Dr. Yadav's recommendations. It took no steps to ensure that the recommendation to pursue a psychiatric evaluation was followed. In so doing, the Insurer improperly placed defence of its case above the Applicant's right to effective and timely rehabilitation.

In Wayne Allan Plowright and Wellington Insurance Company, October 29, 1993, OIC File No. A-003985, Arbitrator Palmer described "unreasonable" conduct as "behaviour which was excessive, imprudent, stubborn, inflexible, unyielding or immoderate". In Plowright, benefits were terminated, in large part, on the basis of a videotape that the insurer did not share with the applicant until the hearing. The arbitrator found that the videotape was ambiguous and called for further investigation, not termination of benefits. She 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.

Counsel for the Applicant submitted that a special award was warranted on the grounds that the Insurer had conducted itself in an adversarial manner in its dealings with Ms. Hamelin. He cited a number of instances as evidence of Alpina's adversarial approach. These included the Insurer's refusal to produce Dr. Fleming's reports, its refusal to re-evaluate benefits on receiving Dr. Bartol's report, the termination of housekeeping benefits in January 1992 and the insurer's failure to pay for chiropractic expenses pending arbitration.

Counsel for the Insurer denied that Alpina had adopted an unduly adversarial approach in this case. He submitted that Alpina had taken all reasonable steps to help rehabilitate Ms. Hamelin.

The basis of an award under section 282(10) must be that the insurer has unreasonably withheld or delayed payments that are found to be owing. Otherwise, arbitrators have no jurisdiction to order a special award because of an insurer's conduct, however egregious it may seem. Other remedies may be available outside the arbitration process -- for example, if the evidence at arbitration discloses unfair or deceptive business practices, it would be open to the Director of Arbitrations to recommend an investigation of the insurer's business practices by the Superintendent, under section 288 of the Insurance Act. However, the authority of an arbitrator to make a special award is limited to the terms of section 282(10).

I find that there was a real and substantial issue as to whether the accident caused Ms. Hamelin's left shoulder problem. The medical and rehabilitative reports did not, for the most part, support continued income benefits by the time Alpina terminated benefits at the end of 1992, before the new problem emerged. I do not find that Alpina unreasonably terminated benefits in December 1992, or unreasonably refused to reinstate them afterwards.

Counsel for the Applicant submitted that Alpina unreasonably withheld weekly income benefits by refusing to provide Ms. Hamelin with Dr. Fleming's reports, which it relied on to terminate her benefits. Dr. Fleming's two reports were not produced until the pre-hearing stage at arbitration, despite counsel's frequent requests.

I agree that Alpina's conduct in this regard reflects an adversarial approach to its insured that has no place in a first-party, no-fault system. On page 18, I commented on this as it affected Ms. Hamelin's rehabilitation efforts. However, I do not think that, in the circumstances of this case, the Insurer can thereby be regarded as unreasonably withholding weekly income benefits. Ongoing benefits have been awarded on the basis of Ms. Hamelin's left shoulder condition, not on the basis of the medical complaints that were addressed in Dr. Fleming's report. There is therefore no substantial relationship between the Insurer's conduct in refusing to produce the report and the harm -- the wrongful interruption of benefits -- intended to be addressed under section 282(10). In these circumstances, a special award is not warranted.

I heard a considerable amount of evidence in relation to the termination of Ms. Hamelin's home-help payments in early 1992, while she was attending the Canadian Back Institute. I do not intend to review this evidence, in detail. Regrettably, there was not a co-operative working relationship between the Canadian Back Institute and Ms. Hamelin's family practitioner in this case, leading to some misunderstandings. As I stated on page 16, certain personality and philosophical differences seemed to come into play; however, I accept that all the parties involved acted in good faith based on the information available to them. I do not find evidence of unreasonable conduct on Alpina's part, in stopping Ms. Hamelin's home-help at that time.

However, I take a different view of the outstanding chiropractic expenses that Alpina declined to pay.

Section 6(7) of the Schedule requires an insurer to pay for certain health services -- expressly including chiropractic treatment -- pending resolution of a dispute. I received no explanation from Alpina as to why it had withheld payments, in the face of this section. In the absence of a satisfactory explanation, I find that Alpina unreasonably withheld payment of these expenses, and is liable to pay a special award on this basis. To avoid a nominal award given the amount of expenses owing, I award the maximum 50 per cent of the outstanding chiropractic expenses, for a total of $216.27, plus compound interest as set out in section 282(10).

Expenses and Interest:

Ms. Hamelin is entitled to her expenses in respect of the arbitration under section 282(10) of the Insurance Act, and Ontario Regulation 664, R.R.O. 1990. Counsel for the Applicant filed, at Exhibit 2, a list of expenses for medical reports totalling $635.00. I find these charges to be reasonable and payable by the Insurer. I remain seized of this matter in the event that the parties disagree about the amount of other arbitration expenses.

Ms. Hamelin is also entitled to interest on amounts found to be owing, as set out in section 24 of the Schedule.

Order:

Ms. Hamelin is entitled to weekly income benefits of $185.60 from December 23, 1992 onwards.

Alpina is entitled to credit for benefits paid between June 2, 1993 and February 28, 1994.

Ms. Hamelin is entitled to payment of the following expenses under section 6 of the Schedule: