Neutral Citation: 1994 ONICDRG 75
File No. A-004198
ONTARIO INSURANCE COMMISSION
BETWEEN:
VINCENZA DI CENSO
Applicant
and
WELLINGTON INSURANCE COMPANY
Insurer
DECISION
Issues:
The Applicant, Vincenza Di Censo, was injured in a motor vehicle accident on August 18, 1990. She applied for and received weekly income benefits from the Insurer, payable under section 12 of Ontario Regulation 6721. Weekly income benefits were terminated by the Insurer on April 30, 1992, approximately 20 months after her accident, on the basis that Mrs. Di Censo no longer suffered a substantial inability to perform the essential tasks of her employment as a sewing machine operator.
The Applicant seeks reinstatement of her weekly income benefits from and after May 1, 1992, at the rate of $347.53 per week. The parties were unable to resolve their dispute through mediation and the Applicant applied for arbitration under the Insurance Act, R.S.O. 1990, c. I.8, as amended.
The issues in this hearing are:
Is the Applicant entitled to weekly income benefits under section 12(1) of the Schedule from May 1, 1992 to August 18, 1993?
Is the Applicant entitled to weekly income benefits under section 12(5)(b) of the Schedule from and after August 19, 1993?
Is the Insurer required to reimburse the Applicant for the expense of a new mattress under section 6(1)f) of the Schedule?
The Applicant also claims interest on any outstanding amounts owing, and her expenses incurred in respect to the arbitration.
The parties agree that 80 per cent of the Applicant's gross weekly income from employment under section 12(7) is $347.53 per week, less allowable deductions under section 12(4)(b) of the Schedule.
Result:
The Applicant is entitled to weekly income benefits under section 12(1) of the Schedule from May 1, 1992 to August 18, 1993.
The Applicant is not entitled to weekly income benefits under section 12(5)(b) of the Schedule from and after August 19, 1993.
The Insurer is required to reimburse the Applicant for the expense of a new mattress under section 6(1)(f) of the Schedule.
The Applicant is entitled to interest on outstanding amounts owing.
The Applicant is entitled to her expenses incurred in respect to the arbitration.
Hearing:
The hearing was held in Toronto, Ontario, on December 1 and 2, 1993, before me, Janice Mackintosh, arbitrator.
Present at the Hearing:
Applicant:
Vincenza Di Censo
Applicant's
David Longley
Representative:
Barrister and Solicitor
Insurer's
Edmund Kent
Representative:
Barrister and Solicitor
Witnesses:
Dr. Michael C. Hall, orthopaedic surgeon
Mrs. Vincenza Di Censo, applicant
The proceedings were translated into the Italian language by Ms. Maria Ierullo, of Global Translation Services.
The proceedings were recorded by Ms. Charlene Massey, of the office of Paul W. Rosenberger.
Exhibits: There were six exhibits filed including the medical brief of the Applicant containing nine tabbed items, marked as Exhibit 2. The exhibits are listed in Appendix A to this decision. Other documents before the Arbitrator are listed in Appendix B to this decision.
Evidence and Findings:
Pre-accident Activities:
Mrs. Di Censo was born and educated up to grade five in Italy. She immigrated to Canada in 1958. Prior to her arrival in Canada, Mrs. Di Censo had no experience working outside her parent's home. She married one year after her arrival in Canada. Over the next 20 years she worked sporadically as a sewing machine operator, but her principal activities during this period were those of a home maker and mother. Mrs. Di Censo's English language skills are limited. She was approaching her 55th birthday at the time of the accident and is now 59.
From 1978 to the date of her accident on August 18, 1990, Mrs. Di Censo worked full time as a sewing machine operator for Workwear Corporation, manufacturers of uniforms. She had no other education, training, or work experience. At the time of her accident she was doing piecework on the denim coverall assembly line. She generally worked with a large bundle of one section of the coverall at a time. For example, one bundle of sleeves would contain eight dozen sleeves. Prior to her accident, she was able to finish approximately four bundles of sleeves per hour.
It was often necessary for Mrs. Di Censo to work on different pieces of machinery to complete a coverall piece. For example, she punched out the button holes for the several bundles of sleeves she was working on. To obtain her maximum speed and efficiency, she generally stood while performing the work at the button hole station and worked with many layers of material at a time. Mrs. Di Censo is right handed and operated the hole puncher with her right hand. She then moved armloads of denim sleeves to a large sewing machine where she sewed the cuffs and the button holes. Mrs. Di Censo customarily operated this machine while standing, bent over the sleeve material while activating the machine with a foot pedal. She then moved to a smaller sewing machine to do the finishing work on the sleeve pieces. She sat at the smaller machine, while activating it with a foot pedal. Much of this activity is shown in a series of 11 photographs marked as Exhibits 3 and 4 and described by the Applicant in her testimony. Many machines and employees worked in one large area. The machines created noise and vibration.
Mrs. Di Censo worked on whatever section of the coverall her foreman directed her to. Different pieces of the coverall required the use of different machines for different periods of time. She assumed different positions, either sitting or standing, depending on the particular piece of the garment she was working on. Mrs. Di Censo was comfortable either standing or sitting, and generally assumed the position that maximized her speed and efficiency. On different days her activities could involve extended periods of sitting bent over a machine or extended periods of standing, depending on what piece of the coverall she was working on. Mrs. Di Censo testified that she generally spent more of her day sitting than standing.
Minimum production quotas had to be met by all the factory workers. Slower workers were paid a flat rate of $7.00 per hour. Faster workers were put on piece work. Pieceworkers were paid per finished piece. The faster they worked and the more finished pieces they produced, the more they earned. At the time of her accident, Mrs. Di Censo was a pieceworker, earning approximately double the flat hourly rate. She generally worked from 7:00 a.m. to 3:30 p.m. She generally did not take breaks and often took only a 10 minute lunch because pieceworkers were not paid during breaks.
Mrs. Di Censo stated that she enjoyed her work. She described the pace as brisk, but she found the work satisfying. Although she was tired by the end of the day, she still had energy to work around the house when she got home. Some time after the accident, Mrs. Di Censo visited her friends at work. She stated that she would like to return to her friends and her job, but believes that she could not keep up with the pace of production due to her pain and the injuries she suffered in the accident.
The Accident:
Mrs. Di Censo recalls attempting to cross Dufferin Street with her husband and other family members, on a marked crosswalk at approximately 11:00 p.m. on August 18, 1990. She has no memory of the accident or its aftermath until approximately eight days later when she remembers one of the nurses in the hospital telling her that it was August 26, 1990, her birthday. Her husband informed her that while crossing the street, she was hit by a speeding car on the left side of her body, thrown into the air and back onto the car. She struck the right side of her head and body against the car, smashing the windshield and damaging the hood of the car. She then slid back down to the pavement.
Mrs. Di Censo was immediately taken to Toronto Western Hospital by ambulance and remained there for approximately five weeks. She was diagnosed with pelvic fractures of the superior and inferior pubic rami on the left side, a small cortical break of the anterior aspect of the sacrum (bone below the lumbar vertebrae), a closed head injury with a suspected skull fracture at the base of the skull, and post traumatic 6th nerve paralysis (Exhibit 2, Tab 1, Toronto Western Hospital Records).
Dr. Michael Kliman, an orthopaedic specialist retained on behalf of the Applicant, noted at page seven of his report dated January 18, 1993 (Exhibit 2, Tab 5), that:
The fracture of her pelvis involved a separation of the left sacroiliac joint and a fracture through the adjacent area of the sacrum. Pelvic fractures involving the posterior aspect of the pelvis, as did this woman's fracture, usually are more violent injuries and there is more significant soft tissue injury associated with them. This woman's pelvic fractures have healed well and she has some mild difficulties remaining in this region secondary to the soft tissue injuries suffered.
Mrs. Di Censo's recovery from her pelvic fractures and multiple contusions was somewhat delayed by the development of palsy. The neurosurgical department of the Toronto Western Hospital attributed the palsy to bruising on the 6th cranial nerve (Exhibit 2, Tab 1, Toronto Western Hospital discharge report by Dr. A. Casses, dated October 5, 1990).
After five weeks at Toronto Western, Mrs. Di Censo was transferred to Hillcrest Hospital, for a further month of rehabilitation therapy. While a patient at Hillcrest Hospital, she progressed smoothly to ambulation, using a walker. She was released from Hillcrest Hospital on October 18, 1990, with a cane and bed rails were recommended.
The discharge diagnosis from Hillcrest Hospital states:
Fractured pelvis. Closed head injury. Right third-cranial nerve injury. Multiple contusions. Acute cervical myofascial strain injury.
At the time of her discharge Mrs. Di Censo continued to complain of dizziness and blurred and double vision. Her neck muscles were spasmodic with a decreased range of motion and her right shoulder remained tender, although some improvement was noted (Exhibit 2, Tab 2, Hillcrest Hospital Final Note dictated 28/11/90).
In a neurological follow-up, conducted November 30, 1990, Dr. Gentili, neurosurgeon, notes:
Cranial nerve examination revealed limitation of abduction to the right. There remains a very subtle ptosis of the right eye suggesting a mild right 3rd and right 6th nerve palsy. There is also a suggestion of a mild left 6th nerve palsy. The rest of the cranial nerves were intact.
Dr. Gentili reported limitation of movement of Mrs. Di Censo's right shoulder, which he related to her soft tissue injury rather than a focal neurologic deficit in her limbs. However, Dr. Kliman was of the view that the absence of Mrs. Di Censo's right triceps reflex suggested right 7th cervical nerve root irritation, in addition to the soft tissue injuries affecting her neck, shoulder and right arm (Exhibit 2, Tab 5, report of Dr. Kliman dated January 18, 1993).
Dr. Gentili advised that the continuing effects of the cranial nerve deficit resulting from Mrs. Di Censo's closed head injury could be minimized by surgery or corrective lenses. Mrs. Di Censo was fitted for corrective lenses and she confirmed that over time, her problems with blurred and double vision, relating to the accident, were substantially corrected.
Mrs. Di Censo attended further physical therapy at Humber Memorial Hospital until April 26, 1991. Approximately one year following her accident, Mrs. Di Censo stopped using a cane.
Applicant's Present Condition:
Upon her release from hospital in October 1990, the Applicant's progress was monitored by Dr. Domenico Di Carlo, her family doctor of the previous ten years. Dr. Di Carlo initially saw Mrs. Di Censo every month and then approximately every second month. In his regular examinations Dr. Di Carlo monitored Mrs. Di Censo's continuing difficulties with her right shoulder and right arm; stiffness, pain and swollen tissue in the area of her hips and legs; neck pain and headaches; blurred and double vision; knee swelling, crepitus of the knee joints, and pain, particularly on the right side; ankle swelling and pain, particularly on the left side; sleep disturbances; anxiety; feelings of being dazed, confused, and lightheaded, especially if she went out among people (Exhibit 2, Tabs 3 and 4, Dr. Di Carlo's clinical notes and records, and Form 4 medical reports).
Mrs. Di Censo's recovery was somewhat complicated by arthritic changes to her right knee, osteoporosis and mild degenerative osteoarthritis in her left ankle and foot, which likely contributed to her symptoms of pain, swelling, and crepitus in these areas. These problems were noted in an X-ray report dated November 25, 1991. It is not clear whether Mrs. Di Censo experienced symptoms related to degenerative arthritis in these areas prior to the accident. No evidence suggests that she had significant problems with her knees and ankles prior to the accident. I am satisfied that the onset of arthritic symptoms in these areas was likely triggered by multiple contusions, including extensive bruising to her knees, which Mrs. Di Censo suffered in the August 1990 accident.
Mrs. Di Censo also suffered an undisplaced fracture at the base of the 5th metatarsal bone in her left foot in November 1991. She testified that following her accident she often felt dazed, lightheaded, and unsteady. She explained that she lost her balance and fractured her left foot, which contributed further to her disability and pain. I find that Mrs. Di Censo's left foot fracture resulted from her general unsteadiness due to the injuries she suffered in the car accident.
In reviewing the medical records contained in Exhibit 2, it appears that over time, the focus of Mrs. Di Censo's complaints has shifted somewhat, from her pelvic fractures and cranial nerve injuries to those relating to her acute neck and shoulder whiplash and other soft tissue injuries. As her sight and ability to walk improved and her fractures healed, Mrs. Di Censo's references to headaches, neck, shoulder and right arm pain increased. In addition, the secondary problems relating to the soft tissue injuries to her back and pelvic area, and the problems with her knees, and ankles have become more dominant.
Both Dr. Di Carlo and Dr. Hall, an orthopaedic surgeon retained by the Insurer to examine Mrs. Di Censo, expressed the opinion that she honestly described her symptoms and did not appear to exaggerate. It was noted by all the treating medical practitioners and examiners that Mrs. Di Censo was fully co-operative. Dr. Hall acknowledged in testimony that Mrs. Di Censo's symptoms and complaints were consistent with the nature of her injuries in the accident.
Mrs. Di Censo testified that she continues to suffer from sleep disturbances and anxiety because of pain. She often feels dazed and weakened. She seldom socializes, rarely goes out, and then, only in the company of her husband or adult daughters. Mrs. Di Censo feels that she has made little further progress in her recovery over the last year.
The Applicant's Accident:
Pre-existing Medical Conditions:
Counsel for the Insurer referred to the pre-accident clinical notes and records of Dr. Di Carlo dating back to 1981 (Exhibit 2, Tab 4). Counsel referred to several complaints in the same locations as some of Mrs. Di Censo's current complaints. For example, Mrs. Di Censo is currently experiencing pain and some numbness in her right arm and shoulder. Counsel for the Insurer noted that in March 1985, she also complained of pain and numbness in her right arm and hand. Mrs. Di Censo was diagnosed with "bilateral carpal tunnel, much more profound on the right side". The Applicant underwent surgery to relieve the median nerve in her right hand on April 11, 1985. The Applicant returned to work on June 3, 1985.
I find that the Applicant's current complaints of pain in her right shoulder and arm more likely relate to the significant cervical strain and suspected 7th cervical nerve root irritation which she suffered in the car accident, than to a recurrence of her carpal tunnel problem. None of the numerous doctors treating the Applicant suggested carpal tunnel problems were the source of her ongoing difficulties with her right arm.
The clinical notes and records of Dr. Di Carlo make three references to left leg and buttock pain associated with degenerative disc disease, in December 1984, January and April 1985. Dr. Di Carlo referred Mrs. Di Censo for x-rays and she saw a specialist, Dr. Mayer, in connection with these complaints. In a consultation note to Dr. Di Carlo, dated May 14, 1985, Dr. Mayer wrote that Mrs. Di Censo complained of a mild ache in the back of her left thigh and her left buttock as well as a little tenderness in her low back which was aggravated by lying on her left side or by standing (Exhibit 2, Tab 4, consultation note of Dr. Mayer dated May 14, 1985). The x-rays of Mrs. Di Censo's lumbar spine, taken in December 1984, revealed mild degenerative disc disease at the levels L2-L3 and L3-L4 as well as mild degenerative osteoarthritis in both sacroiliac joints. Mrs. Di Censo was advised to start some abdominal strengthening exercises. No evidence suggests that she missed any time from work as a result of these complaints in the five years preceding the car accident.
Approximately two weeks prior to her car accident, on July 30, 1990, Mrs. Di Censo complained of pain in her right shoulder. Dr. Di Carlo diagnosed tendonitis. Mrs. Di Censo continued to work, despite these complaints.
I conclude that the Applicant's pre-existing conditions of degenerative disc disease and right shoulder tendonitis likely heightened her vulnerability and prolonged the effect of the injuries she received, but I am satisfied that the Applicant's post accident limitations arose primarily from her accident. However, even as Mrs. Di Censo's pelvic fractures and cranial nerve injuries were resolving, she was subsiding into chronic pain. It is probable that in the three years following her accident, Mrs. Di Censo's pain was largely related to the significant soft tissue injuries she sustained in the accident. However, as more time passes from the date of the accident, and Mrs. Di Censo continues to age, it is likely that her pre-existing degenerative disc disease, osteoporosis, and mild degenerative osteoarthritis are making a greater contribution to her chronic pain, while her accident related injuries recede.
Can the Applicant perform the essential tasks of her job as a machine operator under section 12 (1) of the Schedule?
Dr. Di Carlo, the Applicant's family physician, Dr. Hall, the orthopaedic specialist retained by the Insurer, and Dr. Kliman, the orthopaedic specialist retained by the Applicant, all agree that the Applicant has regained a normal range of movement in her neck, arms, back, hips, knees and legs with a minimal decrease of movement in the area of her shoulders and left ankle. They all note that the Applicant experiences pain at the extremes of movement, that she complains of neck, shoulder and lumbar muscle tenderness but exhibits no muscular spasm. They all note her persistent complaints of headaches and agree that her current complaints are more likely due to her significant soft tissue injuries than to her closed head injury. However, each of these doctors expresses a different view concerning the Applicant's ability to return to work.
In his Form 4 medical reports, Dr. Di Carlo observed that by her third year post-accident, Mrs. Di Censo reached a plateau in her recovery. He consistently expresses doubt that she can ever return to any form of employment as a result of her medical condition. (Exhibit 2, Tab 4, Form 4 dated November 23, 1992).
In a report dated October 18, 1993, Dr. Kliman opines that the Applicant could gradually resume relatively light physical work, taking care to avoid positions that aggravate her neck, back and knee. He did not think that she could tolerate moderate or heavy repetitive physical strains to her neck and/or back. He thought that sitting with her knee bent for long periods of time or standing on her feet for extended intervals might cause an increase in her knee symptoms and would be difficult for her to handle. (Exhibit 2, Tab 5, Medical/Legal report dated October 18, 1993)
In his reports, dated August 12, 1991 and April 29, 1992, Dr. Hall concluded that from an orthopaedic point of view the Applicant was fit to return to the light duties of her sedentary job as a seamstress and he saw "no reason why she should not undertake all the tasks of her house, leaving her husband and two daughters at relative idleness as they were supposed to be prior to the accident" (Exhibit 2, Tab 6).
In oral testimony, Dr. Hall expressed the view that the Applicant's continuing complaints of headaches, pain, swelling, and soreness, although honest and not exaggerated, do not amount to a disability or even an impairment of function.
The range of medical opinion in this case brings to mind the observations made by Arbitrator Draper at page 11 of his decision Jodi E. Wiseman and Coachman Insurance Company, June 10, 1994, OIC File No. A-005706:
After reviewing the medical evidence, I am left with the impression that the differences in the medical opinions relate as much to the philosophy and approach that each professional takes to soft tissue injuries, as it does to Ms. Wiseman's particular situation. The dilemma that they all face is how to respond to chronic complaints of pain when there is no evidence of bony or neurological injury. The professionals supporting Ms. Wiseman's claim, Dr. Walsh, Dr. Finestone, and Ms. Gowen, seem to accept pain as a limiting factor, and are more accepting of therapy as a means of helping people deal with their pain. The orthopaedic surgeons, particularly Dr. Hall, express the view that although pain is real, the best approach is to get the person back to work after a short period of physiotherapy. Dr. Hall emphasized that working through her pain could not harm Ms. Wiseman, and would probably help.
Arbitrator Draper concluded that the test under section 12(1) of the Schedule, is not limited to a consideration of whether a person can return to work without risking further injury. Rather, in chronic pain cases, the question is always, "how much pain is too much pain".
A similar view was also expressed by Arbitrator Alves at page 14, and following, of her decision Rosa Fernandes and State Farm Mutual Automobile Insurance Company, August 3, 1994, OIC File No. A-005516. Arbitrator Alves noted:
The range of opinions as to the Applicant's ability to perform the essential tasks of her occupation or employment reflect clear philosophical differences as to what an individual should appropriately do in relation to work in the face of pain.
Dr. Hall appeared to give little consideration to the positional aspect of the Applicant's employment in considering whether she was fit to return to it. On the other hand, Dr. Kliman, who is also an orthopaedic specialist, placed great importance upon the positions the Applicant was required to maintain. In his report dated October 18, 1993, Dr. Kliman indicated that:
The positioning of her neck and back and the type of physical strain applied to these areas during her normal work day is going to have a lot to do with this woman's capabilities at her previous employment.
Mrs. Di Censo testified that, prior to the accident, she generally stood, bent over the button hole machine or the large sewing machine, to achieve her maximum speed and efficiency. Dr. Hall acknowledged that he was unaware of the standing component of the Applicant's employment.
I accept Dr. Kliman's view that the positional aspect of the Applicant's employment is important in considering her ability to resume her former job. I conclude that the Applicant's work as a sewing machine operator, working in a factory setting on a piecework basis, was moderately demanding from a physical standpoint. In order to achieve the high level of production demanded of a pieceworker, it was necessary for the Applicant to maintain standing and sitting positions for prolonged periods, with her head bent over the material she was working on, while simultaneously operating a foot pedal. These are the very positions which Dr. Kliman suggested should be avoided.
The Applicant agreed with the observation made by counsel for the Insurer, that she was free to sit or stand at many of the machines and that she could shift her position as needed. However, counsel for the Applicant submitted that Mrs. Di Censo's efficiency, and her accustomed rate of production, would be substantially reduced by the need to continually shift her position or take breaks, in an effort to relieve the stress placed on her neck, shoulders, right arm, hips, legs, knees, right ankle and foot.
Dr. Hall agreed that the Applicant's work required speed, dexterity, and concentration. However, he did not appear to consider the effect of ongoing pain and headaches upon these elements of the Applicant's job.
I am satisfied that the Applicant's pain is such that it prevents her from resuming her former job as a full time sewing machine operator, on a piecework basis. Her ability to produce finished pieces quickly and efficiently is likely reduced to the point where she would be unable to continue as a pieceworker and would consequently suffer a substantial drop in her income. I conclude that the Applicant continues to suffer a substantial inability to perform the essential tasks of her position as it was at the time of the accident. Therefore, the Applicant is entitled to payment of weekly income benefits under section 12(1) of the Schedule, from May 1, 1992 to August 18, 1993.
Can the Applicant engage in any occupation or employment for which she is reasonably suited by education, training or experience under section 12(5)(b) of the Schedule?
Counsel for both parties agreed that the Insurer is relieved of the obligation to pay a weekly income benefit under section 12(1) of the Schedule, for any period beyond August 18, 1993, unless the Applicant can establish, on a balance of probabilities, that her injury continuously prevents her from engaging in any occupation or employment for which she is reasonably suited by education, training or experience under section 12(5)(b) of the Schedule.
I accept that the Applicant's pain prevents her from maintaining the sustained positions, concentration, speed and dexterity required of a pieceworker in a factory setting. However, it has not been established that the Applicant is unable to return to the slower pace of working at a flat hourly rate in a factory setting, or working as a seamstress out of her home, or in some other environment where she can control the amount of work she takes in and the number of hours she works at any one time. The Applicant testified that she has resumed some of her household tasks including laundry, some cooking and light cleaning. It is also possible that she could utilize these skills, as well as her experience raising children, in a position supervising children or as a companion to the more elderly.
Dr. Kliman suggested that the gradual resumption of light, or sedentary employment may be tolerated provided that Mrs. Di Censo takes care to avoid sustained positions that aggravate her neck and back. On cross examination Dr. Hall accepted that the Applicant would likely not work as fast or as efficiently upon her initial return to work, but he expected her to gradually improve. Only Dr. Di Carlo doubted that the Applicant would ever be able to return to any form of employment as a result of her medical condition.
The balance of the medical evidence supports the Applicant's gradual return to modified work. Mrs. Di Censo testified that a program of gradual reintegration into the workforce or part time work was not available at Workwear Corporation. Mrs. Di Censo frankly acknowledged that she has made no attempt to return to any kind of employment since her accident in August 1990. She has followed no further therapy since April 1991, and has sought no rehabilitation or work hardening program. In my view Mrs. Di Censo has not established, on a balance of probabilities, that her injury continuously prevents her from engaging in any occupation or employment from which she is reasonably suited by education, training or experience under section 12(5)(b) of the Schedule. She is not entitled to payment of weekly income benefits after August 18, 1993.
Is the Applicant entitled to the expense of a new mattress under section 6 of the Schedule?
The relevant portion of Section 6 of the Schedule provides:
6.--(1) The insurer will pay with respect to each insured 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,
(f) other goods and services, whether medical or non-medical in nature, which the insured person requires because of the accident.
Numerous cases before the Commission have dealt with the scope of this section. Several general principles have evolved from these cases. To succeed in a claim under section 6(1)(f) of the Schedule, the Applicant must establish:
the expense claimed is reasonable and resulting from the accident;
the expense claimed is required because of the accident;
if requested by the Insurer, the Applicant must provide a signed medical practitioner's statement that the expense is necessary for the Applicant's treatment or rehabilitation; and
the expense can be medical or non medical in nature and is not limited to expenses for medical treatment or rehabilitation. Treatment and rehabilitation have been interpreted in a broad sense.
The only evidence provided in respect of this claim came from the Applicant's testimony. Mrs. Di Censo stated that following the accident her own mattress aggravated the pain she was experiencing from her injuries because it was too hard. She purchased a softer mattress in the hopes of reducing this aggravation and improving her sleep. She mentioned this to Dr. Di Carlo who remarked that a softer mattress was a good idea if it helped her sleep. The Applicant stated that her previous mattress was relatively new and she would not have needed a new one but for the injuries she suffered in the accident. I heard no evidence concerning the cost of the mattress. The report of mediator dated May 7, 1993, lists the expense of the mattress as $918.85.
I heard no evidence that the Insurer had requested a statement signed by a qualified medical practitioner with respect to the expense nor whether any statement had been provided by the Applicant under section 6(4) of the Schedule. The Insurer made no objection to the cost of the mattress. The Insurer's only response to the claim was to query the therapeutic or rehabilitative basis for the new mattress.
Despite the paucity of evidence on the point, I am satisfied that the Applicant purchased the softer mattress in the hope that it would be more comfortable, which in turn would allow her to sleep. It is clear from the medical evidence submitted that Mrs. Di Censo suffered sleep disturbances as a result of her injuries. I accept the statement of Dr. Di Carlo, as reported by Mrs. Di Censo, that if the new mattress helped her to sleep it was a good thing. I am also prepared to conclude that a less disturbed sleep would have a therapeutic and rehabilitative effect upon the Applicant.
The Applicant is entitled to be reimbursed for the cost of a new mattress under section 6(1) (f) of the Schedule.
Expenses:
The Applicant seeks an award of expenses incurred in respect of this arbitration. An award of 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 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.
The dispute between the parties was primarily due to a difference of medical opinion concerning the Applicant's ability to return to employment. The issue of entitlement beyond 156 weeks under section 12(5)(b) of the Schedule has not previously been considered by the Commission. The Applicant was largely successful in her claims. This is an appropriate case in which to award the Applicant her expenses as set out in Schedule 1 of the Dispute Resolution Practice Code. In the event that the parties cannot agree as to the total amount of these expenses, I remain seized of this matter and either party may apply for an assessment before me.
Order:
The Applicant is entitled to weekly income benefits under section 12(1) of the Schedule from May 1, 1992 to August 18, 1993.
The Applicant is not entitled to weekly income benefits under section 12(5)(b) of the Schedule from August 19, 1993.
The Insurer is required to reimburse the Applicant for the expense of a new mattress under section 6(1)(f) of the Schedule.
The Applicant is entitled to interest on any outstanding amounts owing.
The Applicant is entitled to her expenses incurred in respect to the arbitration.
August 31, 1994
Janice Mackintosh
Date
Date
APPENDIX "A"
EXHIBITS
Exhibit 1
Curriculum Vitae of Dr. Michael Clement Hall
Exhibit 2
Medical Brief of the Applicant, Vincenza Di Censo
Tab 1
Hospital records: Northwestern General Hospital dated Aug. 18/90
Tab 2
Hospital records: Hillcrest Hospital dated Sept. 22/90
Tab 3
Medical/legal report: Dr. D. Di Carlo dated June 27/92
Tab 4
Medical report forms and Clinical Notes and Records: Dr. D. Di Carlo dated July 09/93, Nov. 23/93 and May 14/93
Tab 5
Medical/legal report: Dr. M. Kliman dated Jan. 18/93 and Oct. 18/93
Tab 6
Medical/legal report: Dr. M.C. Hall dated Aug. 12/91 and April 29/92
Tab 7
Clinical Notes and Records: Dr. Sharpe
Tab 8
Clinical Notes and Records: Dr. F. Gentili
Tab 9
Medical/legal report: Dr. D.R. Smith dated July 08/92
Exhibit 3
Eight photographs of Work Station A (Buttonholer)
Exhibit 4
Three photographs of Work Station B (Sewing Machine)
Exhibit 5
Two Form 4 "Ontario Automobile Insurance Medical or Psychological Reports" dated February 1, 1991 and March 12, 1992, completed by the Applicant's treating practitioner, Dr. Domenico Di Carlo
Exhibit 6
Letter dated November 18, 1993, together with the medical report and clinical notes of Dr. David R. Smith to Longley/Vickar
APPENDIX "B"
FURTHER DOCUMENTS BEFORE THE ARBITRATOR
Document 1
Report of Mediator dated May 7, 1993
Document 2
Application for Appointment of an Arbitrator dated July 21, 1993
Document 3
Response by Insurer dated August 18, 1993
Document 4
Letter dated October 1, 1993, from Arbitrator Julaine Palmer to David Longley and Edmund Kent with respect to the pre-hearing discussion of September 28, 1993