Neutral Citation: 1994 ONICDRG 78
File No. A-005216
ONTARIO INSURANCE COMMISSION
BETWEEN:
SABITA JOHNSON
Applicant
and
HALIFAX INSURANCE COMPANY
Insurer
DECISION
Issues:
The Applicant, Sabita Johnson, was injured in a motor vehicle accident on February 2, 1991. She applied for and received statutory accident benefits from the Insurer, payable under Ontario Regulation 6721. Weekly income benefits were terminated by the Insurer on March 31, 1993. The parties participated in mediation but were unable to resolve their dispute. Ms. Johnson then applied for arbitration under the Insurance Act, R.S.O. 1990, c. I.8, as amended.
The issues in this hearing are:
Is Ms. Johnson entitled to further weekly income benefits, under the provisions of Section 13 of Schedule, in that she was substantially unable to perform the essential tasks in which she would normally engage after March 31, 1993?
Is Ms. Johnson entitled to weekly income benefits after February 2, 1994, under the provisions of section 13(8)(b) of the Schedule in that her injury continuously prevents her from engaging in substantially all of the activities in which she would normally engage?
Is Ms. Johnson entitled to the housekeeping, babysitting, prescription, other supplementary medical and rehabilitation costs which she is claiming under section 6(1) of the Schedule?
The Applicant also claims interest on any outstanding amounts owing, and her expenses incurred in the hearing.
Result:
Ms. Johnson is not entitled to further weekly income benefits from March 31, 1993 until February 2, 1994.
Ms. Johnson is not entitled to weekly income benefits after February 2, 1994.
Ms. Johnson is entitled to the following amounts for supplementary medical and rehabilitation expenses: $408.40 for transportation; $280.00 for chiropractic care; $175.00 for a single, disabled adult athletic club membership (two years); and the cost of a T.E.N.S. neuro-stimulator with modulation (if still desired).
Ms. Johnson is not entitled to $300.00 per week for child care and housekeeping expenses.
Ms. Johnson is entitled to interest on the outstanding amounts owing according to section 24(1) and (4) of the Schedule and to her expenses of the hearing.
Hearing:
An arbitration hearing was held at North York, on April 15 and May 31, 1994, before me, K. Julaine Palmer, arbitrator.
Present at the hearing were:
Applicant: Sabita Johnson
Insurer's Representative: Marina Stefanovic, Barrister and Solicitor
Insurer's Officer: Vinti Sansanwal, Claims Supervisor
Witnesses: Sabita Johnson Dr. Lyndon Mascarenhas Ashmeela Khan Louise Paniccia Liz Hutcheson Vinti Sansanwal Dr. Fred Langer Chris Nielsen
The parties filed a medical brief and 20 other exhibits at the hearing.
Evidence and Findings:
Background:
Ms. Sabita Johnson, now aged 39, was a pedestrian crossing Pape Avenue at the intersection of Cosburn Avenue in Toronto on February 2, 1991, when she was struck by a car which was turning left. Ms. Johnson described being hit by the car on her left leg. The impact "sent her flying" a distance of four or five feet before she landed on the street. After the impact, with assistance, she was able to get up although she felt numb, shaky and was crying. Ms. Johnson testified that she felt no sensation in her left foot. She was taken by ambulance to Toronto East General Hospital where she was x-rayed, given pain medication and later sent home. She returned home by means of a wheelchair taxi cab.
The accident took place on a Saturday. The following week, Ms. Johnson's husband remained home from work to care for her and their young family. On February 4, 1991, Ms. Johnson visited her family doctor who sent her for physiotherapy, which continued for three months. In the period thereafter, she was a patient at Premier Treatment Centre for approximately three months, then a patient of the Toronto Rehabilitation Centre for approximately six months, from September 10, 1991 to March 6, 1992. Following that she regularly attended a program of physical activity at Variety Village. In addition, Ms. Johnson was evaluated by the Columbia Health Care Centre on February 19, 1993. At the time of the hearing she was receiving massage and chiropractic care at the Markham and Cedar Heights Clinic.
Ms. Johnson was a full-time homemaker before the accident. She is the mother of three young sons: Daniel Johnson, born March 28, 1984; Monroe Johnson, born September 12, 1985; and Dean Johnson, born November 12, 1987. Dean Johnson only began full days in school in September 1993.
Issue 1:
In order to determine whether Ms. Johnson is eligible for further weekly income benefits after March 31, 1993, I must here evidence of the essential tasks in which she would have normally engaged about the time of the accident in February 1991. I must determine whether Ms. Johnson is substantially unable to perform those tasks after March 31, 1993.
Essential Tasks Before The Accident:
At the time of the accident, the Johnson family had lived in a two bedroom apartment on Cosburn Avenue for many years. The Johnsons had been saving to purchase a house, and they were able to do this in July 1992.
Ms. Johnson testified that prior to the accident she did normal housekeeping chores such as making beds, doing laundry, washing dishes, making meals, mopping the kitchen floor, cleaning windows, and vacuuming. Ms. Johnson testified that it was important that she keep the apartment very clean, because her youngest son has asthma. Accordingly, she vacuumed and dusted everyday. She did laundry everyday when she lived in the apartment and changed the bed linen every week. She painted the walls in the apartment every second year. In addition, she walked the children to school daily. Ms. Johnson testified that she would make elaborate meals, including making roti after grinding the peas herself and rolling out the stiff dough.
Ms. Johnson testified that since the accident, she can no longer clean the bathtub because the bending causes too much pain. She said that when she vacuums she doubles up in pain. She testified that she can mop her kitchen because it is a very small area, but cannot mop the downstairs of her home. She stated that she has never cleaned the windows. When she goes shopping, she takes the boys or her husband with her and they carry the groceries to the car and into the house. Ms. Johnson testified that she cannot carry a laundry basket up the basement stairs because the stairs are very steep and hard on her lower back. She stated that in March 1993 her upper back was so painful that she could not fold more than four or five items of clothing at a time. She testified that she could do a little more folding of clothes in April 1994 as a result of the massage therapy which began in September 1993. Ms. Johnson testified that the boys do most of the vacuuming in her home now. She cleans the kitchen and the downstairs. Ms. Johnson also testified that she cannot sit very long to watch television because of pain in her lower back. She stated that she gets pain in her upper back when she washes dishes.
Ms. Johnson testified that she goes to Variety Village to walk around the field, do some cycling on an exercise bicycle, swim four to five widths of the pool and relax in the hot tub. On occasion, the children will go with Ms. Johnson to Variety Village, although the scheduling is not entirely satisfactory for family activities. From May to July, the boys play house league baseball in East York. Ms. Johnson takes her sons to baseball games and practices and, accordingly, does not always exercise at Variety Village in baseball season. Mr. Johnson is working nights this year and he is less able to take his children to baseball. In the winter, Mr. Johnson takes the boys to hockey practices and games. Ms. Johnson is not able to do this because in 1991 she experienced severe pain from the cold arena when she tried.
No other witnesses were called by Ms. Johnson to testify on her behalf. Reports from her family doctor and her treating rehabilitation specialist, however, were filed as evidence.
Medical Evidence:
The medical witnesses who testified at the hearing were all called by the Insurer. It appeared that the Insurer terminated weekly income benefits to Ms. Johnson on March 31, 1993, based on reports it received from Dr. Lyndon Mascarenhas and an occupational therapist at the Columbia Health Care Centre.
Dr. Lyndon Mascarenhas:
Dr. Mascarenhas testified at the hearing. He is a certified fellow of the American Academy of Disability Evaluating Physicians, a multi-speciality group of physicians who specialise in injury evaluation. He is also a fellow of the American Back Society, a member of the Physical Medicine Research Foundation of Canada and a non-economic loss assessor for the Workers Compensation Board of Ontario. Dr. Mascarenhas has seven years' experience assessing injured patients for the insurance industry, legal counsel, and human resources and safety professionals.
Dr. Mascarenhas examined Ms. Johnson on December 18, 1992, and drafted a 12 page report. At that time, he felt that Ms. Johnson had a good to excellent range of movement for the most part, and found her not to be in any acute distress. He thought that she was receiving appropriate rehabilitation at the time (she was then continuing at Variety Village) and that she needed to be encouraged to understand that she could do herself no harm by physically participating in routine homemaking tasks. He outlined what he perceived to be as "homemaking activities" in his report, including personal care, cooking and kitchen activities, household cleaning activities, laundry, home maintenance and repair activities, and activities outside the home such as shopping. At the time of his examination, Dr. Mascarenhas was convinced that within two months, Ms. Johnson should have been able to perform the vast majority of her homemaking activities. Dr. Mascarenhas noted that he was being asked to comment on Ms. Johnson's "functional status, and not her pain status".
Ashmeela Khan - Occupational Therapist:
Ashmeela Khan, occupational therapist at the Columbia Health Care Centre, testified. She has been certified in Canada as an occupational therapist for eight years and previously was certified in Britain for three years. Ms. Khan was employed by four Toronto area institutions before joining the Columbia Health Care Centre in 1992. Ms. Khan performed a functional ability evaluation of Ms. Johnson on February 19, 1993. Ms. Khan explained at length the standardised tools which she used to evaluate Ms. Johnson including the following: BTE Work Simulator, Jamar Grip Dynamometer, Valpar 9/whole body range of motion, Minnesota Manual Dexterity Test, Purdue pegboard, BTE Dynamic Lift, Oswestry Questionnaire, Loma Linda Tools Sort. Ms. Khan commented in her written report following the evaluation:
Ms. Johnson's performance during evaluation demonstrated poor consistency of maximum voluntary effort which obscures the evaluation of her true level of function particularly in strength, flexibility and endurance. Based upon her demonstrated performance she is at sedentary borderline light strength level. She has the potential to meet her pre-accident requirements, however may be restricted in strength.
Ms. Khan emphasized that even if an injured patient is in pain one can see consistency of effort in functional ability tests. Ms. Khan explained her psychophysical approach, not pure physical approach, to testing. She indicated that she made sure Ms. Johnson rested between tests, so that she was not becoming worse and worse from fatigue.
Ms. Khan impressed me as a knowledgeable and independent witness. She explained that sometimes poor performance by a patient is due to fear of the test; she testified that she takes care to explain each test in a specific way so that fear is removed. In evaluating the Loma Linda Tool Sort, Ms. Khan confronted Ms. Johnson regarding her reported difficulties with such items as a sponge, scissors and a pen causing Ms. Johnson to move these items to a less disabling category. Ms. Khan observed that Ms. Johnson's level of function, as observed during the evaluation, is higher than her stated perceived level of function. The occupational therapist concluded that Ms. Johnson has the potential to do most of her essential homemaking tasks, apart from a lifting tolerance limitation of less than 20 pounds.
Louise Paniccia, Behavioural Therapist:
Liz Hutcheson, Physiotherapist:
These two professionals from the Accident Rehabilitation Centre testified. They were involved with Ms. Johnson's program between October 19 and December 10, 1992. Ms. Johnson attended this program five days a week, three hours per day during that period, however towards the end of the programme she was absent more frequently. Although the behaviour therapist felt that Ms. Johnson did progress in the area of physical function, her responses to the Oswestry Questionnaire showed that she perceived that her condition was worse at the end of the period than at the beginning. Ms. Paniccia found this inconsistent with the objective findings. Throughout Ms. Johnson's participation in the programme, Ms. Paniccia noted multiple pain behaviours and inconsistencies in effort which she could not explain. Ms. Paniccia observed one occasion when Ms. Johnson was walking with a limp while being observed but then not walking with a limp when she was not aware that she was being observed by Ms. Paniccia. When she confronted Ms. Johnson with this fact, Ms. Johnson reported that there had been improvement in her leg and that the pain was less.
Ms. Hutcheson, the physiotherapist, impressed me as a witness who was doing her utmost to be fair to Ms. Johnson, noting that individual patients have a varied desire to improve, which hinges on many different things. She also testified that some patients have better coping skills, even in the face of severe physical disabilities, than other patients. Ms. Hutcheson observed that Ms. Johnson occasionally seemed perky and moving in apparent ease, but on more formal assessments she would appear more restricted. Ms. Hutcheson noted that Ms. Johnson had very dramatic expressions to describe the pain, which in her experience, had usually translated in the past into more restriction of movement than she saw in Ms. Johnson. Ms. Hutcheson was clear that she did not doubt at all that Ms. Johnson has widespread discomfort, but her functional level did not bear that out. She felt that Ms. Johnson was inclined to exaggerate her disability. Ms. Hutcheson felt that Ms. Johnson should certainly be able to perform the vast majority of her household tasks.
Dr. Fred Langer:
Dr. Fred Langer, orthopaedic surgeon, associate professor of surgery at the University of Toronto, testified. He examined Ms. Johnson at the request of the Insurer on September 2, 1993, five months after her weekly income benefits had been terminated. From his review of Ms. Johnson's medical records and his physical examination, Dr. Langer concluded that she had suffered a relatively minor motor vehicle accident, since there was no evidence of any structural damage, such as tearing of tendons, ligaments, or fractures. Dr. Langer found Ms. Johnson to be somewhat over-reactive on formal examination, although she walked into the examining room without any obvious abnormalities in her movement. In contrast, when specifically asked to walk, she walked slowly with her feet apart and when she was asked to walk on her toes or her heels she did so very slowly, grimacing, groaning and falling to one side or the other. The movements of her spine were carried out without limitation although with a cog-wheel type of movement and holding the small of her back in a histrionic fashion. Dr. Langer found that Ms. Johnson displayed no objective evidence of any disease. He concluded that she could perform her normal household tasks. He was not certain whether her exaggeration of pain was consciously carried out for secondary gain or whether she suffered from a psychosomatic illness.
Medical Reports:
A report was filed from Dr. John C. Evans, orthopaedic surgeon, who saw Ms. Johnson at the request of the Insurer on February 28, 1992. This examination took place more than a year before her weekly income benefits were terminated. Dr. Evans observed exaggeration in Ms. Johnson's behaviour, when she was being formally examined, in contrast to her abilities when she was not undergoing formal testing. Dr. Evans stated that he was unable to persuade Ms. Johnson that her injuries from the accident had healed. He recommended a session of therapy at the Toronto Rehabilitation Centre where Ms. Johnson would be assisted to perform in a gradual and increasing progression of strength and stamina. He recommended, as well, that she be given a graduated series of responsibilities at home and anticipated a return to a significant number of activities by April 1992.
Five reports from Dr. Veronica Kekosz, specialist in rehabilitation medicine, were filed. The reports of Dr. Kekosz were directed to Dr. Choi-Fung, Ms. Johnson's family doctor, who had referred her to Dr. Kekosz in the spring of 1991. Dr. Kekosz saw Ms. Johnson first in July 1991, then in March and June 1992. On June 2, 1992, she prescribed a T.E.N.S. machine for Ms. Johnson, because she had had significant relief for her interscapular pain with treatment on a T.E.N.S. machine at a local physiotherapy clinic. Dr. Kekosz encouraged Ms. Johnson to continue with her home therapy program, swimming and exercises at Variety Village. In May 1993, Dr. Kekosz recommended that Ms. Johnson refrain from using any form of heavy free weights, but that she should continue with her pool program and walking on the jogging track at Variety Village. Dr. Kekosz did not recommend any further investigation.
By February 17, 1994, when Dr. Kekosz examined Ms. Johnson, she concluded that Ms. Johnson exhibited trigger points in the neck, shoulders, arms, anterior chest, and legs. She also felt there was some limitation of movement of her cervical spine and mild weakness of her shoulders. Dr. Kekosz wrote that she still had tenderness and loss of mobility of the left hip with most of the pain being located over the left SI joint in the lumbar region. Dr. Kekosz recommended that Ms. Johnson try some muscle relaxants at night to reduce muscle spasms in her spine. She recommended no other investigation of Ms. Johnson.
Analysis:
In order for Ms. Johnson to continue to receive weekly income benefits after March 31, 1993, she must establish, on a balance of probabilities, that she continues to suffer "substantial inability to perform the essential tasks in which he or she would normally engage". This is the eligibility test set out in section 13(1) of the Schedule.
On Ms. Johnson's evidence, I find that the essential tasks in which she would normally engage are as follows: making beds, doing laundry, washing dishes, making meals, mopping the kitchen floor, cleaning windows, vacuuming, child care including walking with her children to school, and driving. I find that after March 31, 1993, Ms. Johnson suffered substantial inability only to scrub her bathtub and to turn over mattresses. Although she avoids doing vacuuming, she is able to vacuum, with some pain. She has never attempted to clean windows, but nothing in the evidence before me indicates that she could not clean windows if she were so minded.
The circumstances of Ms. Johnson's laundry facilities have changed since the accident. Now, her washer and dryer are in the basement, down a set of stairs. She claims that she cannot carry a laundry basket up the steep stairs. She is afraid she might fall.
Prior to the accident, Ms. Johnson was able to do her laundry using a cart in the apartment building where she formerly lived. Despite the change in circumstances, in my view, Ms. Johnson can carry out her laundry tasks, although perhaps not in as comfortable and time efficient a manner as she has done in the past.
I have no doubt that Ms. Johnson experiences considerable pain or discomfort in carrying on her daily life. However, as numerous arbitration decisions have pointed out in the past, the experience of pain itself is not compensable under the Schedule. Only when pain impairs the performance of one's essential tasks to a sizeable extent are applicants eligible for weekly income benefits.
In order to be successful in a claim under section 13(1) of the Schedule, it is not just some inability to perform essential tasks which must be shown, but a substantial inability to perform those tasks. If the tasks can be performed, albeit with some pain and discomfort and at a slower pace than formerly, then the required level of disability is not established. This is the classification of accident victims into which Ms. Johnson, unfortunately, must be placed. She can substantially perform her essential tasks.
Issue 2:
Eligibility for Weekly Income Benefits After Three Years:
The test for eligibility for weekly income benefits, at a period of three years after the accident, changes. According to the provisions of Section 13(8)(b) of the Schedule:
The insurer is not required to pay a weekly benefit under this section....
(b) for any period in excess of 156 weeks unless it has been established that the injury continuously prevents the insured person from engaging in substantially all of the activities in which the person would normally engage.
From my comments above relating to Ms. Johnson's disability in the period March 30, 1993 to February 2, 1994, it will be clear that Ms. Johnson's disability in no way approaches a level which would be considered for compensation under Section 13(8)(b).
Issue 3:
Supplementary Medical and Rehabilitation Expenses:
Transportation Expenses:
Ms. Johnson has submitted a claim for some 3,746 kilometres of travel to and from her doctor, chiropractor, massage therapist, and physical fitness activities at Variety Village. She has been paid at the rate of 20 cents per kilometre in the past. By letter dated May 5, 1994, the Insurer admitted responsibility to pay some 1,712 kilometres. The letter from the adjuster went on to state:
Please be advised that we did not pay for the appointment dates where you attended Dr. Jill Gammie's office and Sabine Schill's office on the same day as they are located at the same address. We also did not pay for trips to Dr. Gammie or Sabine Schill where your husband also attended on the same dates and were paid for travelling expenses under claim number 7317790.
Ms. Johnson testified at the hearing that although she may have attended at Dr. Gammie's office and Sabine Schill's office on the same day for chiropractic or physiotherapy treatments, she always attended at different times in the day because the massage therapist was only available between six and eight in the evening and the chiropractor worked in the morning. The distance from Ms. Johnson's home to the Cedar Heights Chiropractic Clinic and the massage therapist is six kilometres one way. I feel that it is entirely reasonable for Ms. Johnson to have attended on both her chiropractor and massage therapist at different times on the same day, and to have travelled 12 kilometres round trip for each visit.
Ms. Johnson also explained that her husband was injured in a motor vehicle accident months after herself and requires treatment. She stated that his appointments are never at the same time as hers. For example, her husband would go early in the morning to the chiropractor, whereas she would go at noon.
It is disturbing to me that an Insurer involved in an arbitration would deny transportation expenses to Ms. Johnson for the reasons set out in the correspondence of May 5, 1994, without even attempting to contact Ms. Johnson for an explanation. The scenario of different appointment times for herself and her husband and for attending on both the chiropractor and the massage therapist during separate trips on one day are entirely reasonable and plausible. It would have been simple for the Insurer to clarify any questions with Ms. Johnson.
In my view it is incumbent on the Insurer to communicate with its insured in this first party system to attempt to clarify such matters. Ms. Johnson's evidence in this regard was entirely credible and her claim for these transportation expenses should not have been denied.
Accordingly, I find that Ms. Johnson is entitled to reimbursement for 2,042 kilometres of transportation expense at 20 cents per kilometre, the rate which had been previously paid to her, for a total of $408.40.
Ms. Johnson's chiropractic account from February 7 until March 28, 1994, in the sum of $280 should be paid.
I understand that the prescription expense totalling $87.92 submitted by Ms. Johnson has been paid.
With respect to the Variety Village membership, Ms. Johnson had in previous years been paid sums of $85 or $90 to reimburse her for what would have been the cost of a single, disabled adult membership at Variety Village. (The Johnsons purchased a more expensive family membership.) Although this pattern had been established in the past for two prior years, in 1993 and 1994, the adjuster rejected the claim and required a receipt for her particular membership. Obviously, what was required was a statement from Variety Village or some other documentation showing the cost of a single, disabled adult membership. In fact the 1994 receipt for $200 shows on its face $90 as the cost of a single, disabled adult membership. In my view this is another example of an excessively heavy-handed approach being used against an insured person. A simple telephone call to Variety Village by the adjuster could have verified the current amount which would have been required for a single, disabled adult membership. Ms. Johnson should be paid $175 under this claim.
Child Care and Housekeeping Expenses:
Ms. Johnson claims that she paid the sum of $300 for a lengthy period of time throughout her convalescence for housekeeping and child care expenses. She said that she paid these sums to different babysitters who came to her home three times weekly. In the period, for example, March to May 1993, Dean Johnson, her youngest son, was only in school half days. He was being cared for in the mornings. Ms. Johnson claimed that Camla Ragoo would help her cook, clean and bathe her child, as it was hard for Ms. Johnson to bend over to bathe her son in the tub. During this time Ms. Johnson would be resting. Ms. Johnson explained that an old school friend of hers now helps her from time to time with her cooking and cleaning, but she is not paid. Ms. Johnson says that she paid other refugee friends to cook and clean for her, but they are no longer in the country.
Ms. Johnson was questioned at length about the amount which she paid for child care and housekeeping. She insisted that she paid $300 per week for housekeeping and child care. The Insurer informed her that $150 of that amount was already reimbursed to her by the sum that she received under section 13(4) of the Schedule. Ms. Johnson produced eight receipts which were signed by "C. Ragoo" over the period March 6 to May 15, 1993 -- each receipt for the sum of $150. In addition, Ms. Johnson produced stubs of receipts, some of which were dated, over the period November 7, 1992 to February 27, 1993, which showed amounts of $150.
I am not satisfied by the Applicant's evidence on this point. In these circumstances, an amount of $300 for three half days of housekeeping and child care for a single child appears excessive, in view of the evidence from the Insurer, that in 1993 it had a contract with a cleaning service which would provide a half day of cleaning for $50. Ms. Ragoo did not appear to testify that she was paid $300 for this work by Ms. Johnson, although Ms. Johnson was able to recite Ms. Ragoo's telephone number from memory. The receipts or stubs which were produced were not entirely satisfactory, in my view, due to their lack of completeness. A large amount is being claimed and, in my view, it is incumbent on the Applicant to present better evidence about its payment. Ms. Johnson certainly understood prior to the hearing that the Insurer doubted such sums had been paid. In addition, given my findings about Ms. Johnson's entitlement to benefit, it would be difficult to find this a reasonable and necessary expense after March 31, 1993.
With respect to the claim for child care expenses, however, I disagree with the suggestion conveyed to Ms. Johnson as the "correct" interpretation of Section 13(4). Section 13(4) states as follows:
The insurer will pay to an insured person who is receiving a weekly benefit under subsection (1)...a benefit of $50 per week...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 if the person receiving the care was less than sixteen years of age or if the person required the care because of physical or mental incapacity.
Arbitrators have commented before, that the purpose of the benefit under section 13(4) is somewhat difficult to divine, but it is clear that the benefit is not variable according to the amount of child care expense that an applicant incurs following an injury received in a motor vehicle accident. Other arbitrators have commented that proper housekeeping and child care expenses can be awarded under section 6(1)(f) of the Schedule as "other goods and services", particularly where the insured has submitted a statement signed by a qualified medical practitioner or psychological adviser stating that the expense is necessary for the insured person's treatment or rehabilitation.
In my view, it is wrong for an insurer to advise an applicant that $50 per child per week for child care expense is being provided by the benefits of section 13(4).
Ms. Johnson testified that she had obtained an orthopaedic mattress after obtaining a prescription for it, but she never submitted the cost of that mattress, because her husband sleeps on it too. She also submitted in evidence a prescription for a T.E.N.S. machine, which she never purchased because the adjuster told her that she would have to pay for it first and then be reimbursed. Ms. Johnson stated that she could not afford to purchase the machine in this way, although she found that it did give her relief when she used it at physiotherapy. Ms. Johnson did state, however, that she did not want to rely on machines for her pain relief, but wanted to get better.
The Insurer took some comfort in this last statement from Ms. Johnson but I do not. In my view, in this case it was not a reasonable approach by the Insurer in June 1992, to insist that Ms. Johnson bear the expense of the T.E.N.S. machine prior to reimbursement by the Insurer, particularly in view of the wording in section 6(1)(b) of the Schedule when read with section 6(7). Section 6(7) of the Schedule requires an insurer, in case of a dispute concerning an expense described in clause 6(1)(a),(b) or (d), to pay the expense pending the resolution of the dispute.
Section 6(1)(b) includes "prostheses, dentures, prescription eyewear, hearing aids or other medical or dental devices". It is clear that the T.E.N.S. machine would fall within the category of other medical devices. When the Schedule clearly calls for the insurer to pay first, dispute later and the insurer is told by an insured person that she is financially unable "to front" the money for a medical device, in my view, it is reasonable for the insurer to undertake direct payment with the vendor supplying the device.
Expenses:
The Applicant seeks an award of the expenses she has incurred in this arbitration. An award for expenses may be made under section 282(11) of the Insurance Act, which provides as follows:
The arbitrator may award to the insured person such expenses incurred in respect of an arbitration proceeding as may be prescribed in the regulations to the maximum set out in the regulations.
The prescribed expenses and amounts are set out in Schedule 1 of the Dispute Resolution Practice Code and in Ontario Regulation 664, R.R.O. 1990, Dispute Resolution Expenses.
In Ralph McCormick and Economical Mutual Insurance Company, October 2, 1991, OIC File No. A-000139, Arbitrator Susan Naylor made the following comments about expenses, with which I agree:
The discretion to award expenses should be exercised, having regard to the intent and purpose of the legislative scheme. The arbitration process has been established under the Insurance Act, as amended, in order to facilitate applicants' access to relatively inexpensive, speedy and informal adjudication of disputes regarding no-fault benefits. The discretion to award expenses should be exercised in accordance with this objective, having regard to the individual circumstances of each case.
Accordingly, it is appropriate to award an applicant his or her expenses, unless, in the circumstances of the particular case, it is determined that the application for appointment of an arbitrator was manifestly frivolous or vexatious, or that the applicant's conduct unreasonably prolonged the proceedings.
The Director of Arbitrations approved this statement of the principles guiding an award of expenses in the appeal decision in Vito Luigi Calogero and The Co-Operators General Insurance Company, February 13, 1992, OIC File No. P-000251.
The Applicant is entitled to 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 expenses, a party may apply for assessment of the expenses.
Order:
Ms. Johnson is not entitled to further weekly income benefits from March 31, 1993 until February 2, 1994.
Ms. Johnson is not entitled to weekly income benefits after February 2, 1994.
Ms. Johnson is entitled to the following amounts for supplementary medical and rehabilitation expenses: $408.40 for transportation; $280.00 for chiropractic care; $175.00 for a single, disabled adult athletic club membership (two years); and the cost of a T.E.N.S. neuro-stimulator with modulation (if still desired).
Ms. Johnson is not entitled to $300.00 per week for child care and housekeeping expenses.
Ms. Johnson is entitled to interest on the outstanding amounts owing according to section 24(1) and (4) of the Schedule and to her expenses of the hearing.
September 1, 1994
K. Julaine Palmer Arbitrator