Neutral Citation: 1994 ONICDRG 88
File No. A-003904
ONTARIO INSURANCE COMMISSION
BETWEEN:
LINA CHIACCHIA
Applicant
and
GENERAL ACCIDENT ASSURANCE COMPANY OF CANADA
Insurer
DECISION
Issues:
The Applicant, Lina Chiacchia, was injured in a motor vehicle accident on November 29, 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 July 10, 1992. Mrs. Chiacchia felt her weekly benefits should continue. The parties were unable to resolve their disputes 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 Mrs. Chiacchia entitled to weekly income benefits under section 13 of the Schedule from July 11, 1992 and ongoing?
Is Mrs. Chiacchia entitled to reimbursement of the housekeeping expenses which she claims, under section 6(1) (f) of the Schedule?
The Applicant also claims interest on any outstanding amounts owing, and her expenses incurred in the hearing.
Result:
Mrs. Chiacchia is not entitled to further weekly income benefits as a result of the accident of November 29, 1991.
Mrs. Chiacchia is not entitled to reimbursement of the housekeeping expenses she has sought.
Hearing:
The hearing was held in North York, Ontario, on June 20 and 21, 1994, before me, K. Julaine Palmer, arbitrator.
Present at the Hearing:
Applicant:
Lina Chiacchia
Applicant's Representative:
Altor Shields
Barrister and Solicitor
Insurer's Representative:
Raymond Watt
Barrister and Solicitor
Insurer's Officer:
William Mandau
Witnesses:
Lina Chiacchia
Dr. Galdino E. Pontarini
Lora Cardarelli
Dr. Ken McKenzie
Luciano Villella
Henry Wruck
The parties filed three volumes of medical documents and five other exhibits at the hearing.
Evidence and Findings
Mrs. Lina Chiacchia was injured in a motor vehicle accident on November 29, 1991. At that time she was the driver of her 1985 Pontiac motor vehicle which was struck from behind by another vehicle. Unfortunately, Mrs. Chiacchia had also been involved in a prior motor vehicle accident on July 29, 1989. At that time she was a pedestrian, struck while crossing a street.
I accept the evidence that Mrs. Chiacchia presently suffers from chronic pain syndrome. The medical evidence is equally clear that she suffered from this chronic pain syndrome after the July 1989 accident. However, at the hearing Mrs. Chiacchia and her daughter testified that Mrs. Chiacchia had largely recovered from the 1989 accident by the time of the 1991 accident.
Under the provisions of Section 13 of the Schedule, Mrs. Chiacchia received weekly income benefits of $185 from the Insurer until July 10, 1992. She claims ongoing weekly income benefits after that date. She also claims housekeeping expenses provided by her daughter from November 30, 1991 to March 23, 1993, and from August 17, 1993 to June 14, 1994.
Background
Lina Chiacchia is now 58 years old. She was born in Italy and received her high school education there. She came to Canada in 1960. She was married here and has a son and a daughter. Her daughter, Lora Cardarelli, married in July 1990. Mrs. Chiacchia lives with her husband and son in the family home, which is a 1600 square foot bungalow. Prior to the 1989 accident, Mrs. Chiacchia had a history of working in Canada "off and on". She testified that she has worked in a store, in a factory and at home making drapes.
Before the July 1989 accident, Mrs. Chiacchia was a homemaker. She had responsibility for all the homemaking chores, including cleaning, making lunches, cooking, shopping and laundry. She also sewed, in her basement on an industrial machine, making draperies for clients and friends. Mrs. Chiacchia testified that prior to the July 1989 accident she got up at 6:30 or 7:00 a.m. and went to bed at about 11:00 p.m. She testified that she slept very well prior to the July 1989 accident.
In July 1989, Mrs. Chiacchia was hit by a car making a left turn while crossing the road. She fell down, fracturing her pelvis, and was taken to hospital to treat the fracture and extensive bruising which she suffered. She was hospitalized for 10 days after the accident. At the hearing, Mrs. Chiacchia testified that she had recovered from the accident and could do all previous activities by July 1991. At that point, she had no help at home for cleaning or cooking. She did the shopping alone. She drove her car and did sewing, although not as much sewing as previously.
November 1991
Mrs. Chiacchia testified that she was driving and had stopped to wait for the road to clear at an intersection when a car hit her vehicle from behind. Her car did not hit any other vehicle in the accident. Mrs. Chiacchia said she hurt her left shoulder, back, neck, and her head in the accident. She said that the steering wheel banged into her chest. She did not go directly to hospital from the accident scene, but called her son who came to drive her home. Later she went to hospital where x-rays where taken and she was given medication for pain. After that she saw her family physician, Dr. Pontarini, and has seen him regularly since the accident. As well, she has seen several specialists to whom she was referred by Dr. Pontarini, and the Insurer.
Activities After the 1991 Accident
Mrs. Chiacchia testified that she cannot do things as she did before July 1989. She does not make meals or do any house cleaning. She testified that her daughter now does everything: cleaning, vacuuming, dusting, washing floors and cleaning bathrooms. Mrs. Chiacchia no longer makes beds, nor does the laundry or the ironing. Mrs. Chiacchia testified that she arranged to pay her daughter $120 per week from the time of the accident until the date of the hearing. Mrs. Chiacchia's daughter, Lora Cardarelli, works in a bank, but comes to clean on the weekend and usually on one day during the week, after work. Mrs. Chiacchia testified that she has never figured out the hours that her daughter has spent helping her. She testified that she engaged her daughter because cleaners whom she had hired after the 1989 accident did a sloppy job. She was happy with her daughter because she is trustworthy and knows what to do and where to put things.
Mrs. Chiacchia testified that her left arm now becomes very inflamed and weak if she tries to use it. She gets headaches and sometimes wears a soft collar to relieve pain. She wore the collar most of the first day of the hearing. Mrs. Chiacchia said she cannot load or unload the dishwasher because of pain. She cannot bend her neck to clean the bathtub and cannot do the ironing because she needs two hands to do it. She testified that her husband prepares the meals because she cannot do it using only one hand. Sometimes she will make a sandwich for lunch or her husband will leave one for her in the fridge. She testified that her husband does the shopping now, and sometimes her daughter, and she goes with them. Her husband or her daughter pushes the cart. Mrs. Chiacchia testified that she tells them which items to select and then her husband or daughter carries the bags to the car, brings them into the house and puts the groceries away. She stated that sometimes her husband helps her to dress, especially with a brassiere and a girdle. Sometimes she finds that putting on stockings is too hard for her. Mrs. Chiacchia testified that she is able to drive using one hand, only around the neighbourhood. She does not drive on the highway or far away because she is very nervous and doesn't feel comfortable with her neck and back.
Mrs. Chiacchia admitted that she can sometimes wipe the table in the kitchen with a cloth and she can sometimes shake out her floor mats if she feels good. She stated that she pushes herself to handle a pot with one hand to cook.
Mrs. Chiacchia testified that since the accident she has bought a special pillow to help her sleep but it has not been of any use. She takes medication to help her sleep but typically sleeps for only two to three hours and then wakes and stays in bed after that. Mrs. Chiacchia testified that it is pain that awakens her.
Mrs. Chiacchia testified that since the November 1991 accident, her headaches and the pain in the back of her neck and shoulder have intensified and increased in frequency, so that she now gets more headaches and feels worse than she did in 1991. She says that the only housework that she is able to do is dusting with her right hand, but she often gets pain and her right shoulder and neck feel inflamed if she does too much work. Mrs. Chiacchia testified that Dr. Pontarini had sent her to massage therapy and physiotherapy after the accident. She stopped the massage therapy because she felt it was making her condition worse. She also stopped attending physiotherapy for the same reason. Mrs. Chiacchia denied that she was taking physiotherapy immediately prior to the November 1991 accident, although she could not remember when it had stopped.
Mrs. Chiacchia testified that before the accident of July 1989 she had no health problems. She denied any problems with her legs or with depression. She stated that she had headaches like everyone else but had not seen a doctor about them, and took non-prescription medication at home to relieve such pain. She admitted that she had arthritis in her hands but said it really did not bother her, although she had consulted the doctor about it. Mrs. Chiacchia denied that she had taken Voltaren before the July 1989 accident. Mrs. Chiacchia testified that she had three family doctors prior to the 1989 accident, Dr. Ng, Dr. Anne Smith, and Dr. Pontarini. Dr. Smith came to see Mrs. Chiacchia in the hospital but according to her evidence, did not treat her after the accident. No records were produced from Dr. Ng or Dr. Smith at the hearing.
Mrs. Chiacchia was asked on cross examination if she was always honest with doctors when she went to see them. She replied that she was. When she was specifically questioned about seeing Dr. Daniel Selchen, a neurologist, on August 16, 1991 (before the second accident), Mrs. Chiacchia answered that yes, indeed, she had answered all of his questions truthfully, to the best of her ability. She had not read his report of August 21, 1991. Mrs. Chiacchia denied that she told Dr. Selchen that she was depressed or that she had a constant ache in her left arm. On reflection, Mrs. Chiacchia said perhaps she did tell Dr. Selchen she had a constant ache in her left arm, but stated that had nothing to do with her condition now; she said "it is not like now". Mrs. Chiacchia denied telling Dr. Selchen about chronic back pain. However she did admit telling him about pain in her right leg and blurring of her eyes. Mrs. Chiacchia was confused about whether she got worse between the visit to Dr. Selchen and the second accident on November 29, 1991. However she did state emphatically that she recalled no problem from August to November. She stated that to her "aching" was a different kind of pain.
Mrs. Chiacchia was specifically asked about her visit to Dr. Arthur Ameis, a physiatrist, on November 28, 1991, the day before the second accident. She did not recall this visit, because, she said, she had been sent to see a number of doctors. She told the Insurer's counsel that she would have told Dr. Ameis the truth about her problems and her activities. She said that she would have co-operated with him and moved her body for him. She denied that she had any problems the day before the second accident. Mrs. Chiacchia reiterated, "after the 1989 accident I had problems with the back, but I was recuperated".
Dr. Pontarini
Dr. Galdino E. Pontarini is Mrs. Chiacchia's family doctor. He first saw her on September 30, 1986, and she was seen in his clinic two or three times in 1987 and 1988, but not by him. He saw her again himself, in 1989, after her July 24, 1989 accident. Since that time he has seen her very frequently.
Dr. Pontarini testified that as a result of the multiple traumas Mrs. Chiacchia suffered in the 1989 accident she suffered a protracted functional disturbance and, by the end of 1989, he had diagnosed this as chronic pain syndrome. By the fall of 1991 he had noticed no dramatic improvement in her condition. She was still receiving antiinflammatory, antidepressant and analgesic medication. She continued to see him once or twice a month. In his view, Mrs. Chiacchia's condition plateaued in 1991 with negligible improvement thereafter. On November 19, 1991, Dr. Pontarini completed a claim form with respect to the injuries Mrs. Chiacchia received in the July 29, 1989 accident. At that time he indicated that Mrs. Chiacchia's diagnosis was "total body failure" and that her prognosis was "poor indeed".
Dr. Pontarini testified that Mrs. Chiacchia was struggling with a very strong functional overlay to her injury, which was for her very disabling. Dr. Pontarini saw Mrs. Chiacchia on December 2, 1991. Although his clinical notes do not record it, he stated he thought that Mrs. Chiacchia had indicated that she had been in another motor vehicle accident. His notes recorded on that visit state "same old story" "no better/complains of everything". Dr. Pontarini explained that he writes his notes at the end of the day, not after seeing each patient in sequence.
Dr. Pontarini described Mrs. Chiacchia's current treatment as psychotherapy. He stated that she had been through physiotherapy, functional assessment and occupational therapy and had not benefited from any of these treatments. After her first accident, she was referred to an English speaking psychiatrist. However, he felt that it was preferable for Mrs. Chiacchia to see him, because he speaks Italian. He has not referred her to an Italian-speaking psychiatrist. He testified that she attends at his office for supportive, positive-reinforcing therapy and he encourages her to decrease or eliminate her medications.
Lora Cardarelli
Lora Cardarelli, the 28 year old, married daughter of Mrs. Chiacchia, testified at the hearing. Mrs. Cardarelli is a customer service representative with the Royal Bank of Canada in Mississauga. She earns approximately $28,000 per year from this job and works five days a week. Mrs. Cardarelli describes her mother as having been the main support in the home prior to the 1989 motor vehicle accident. She testified that her mother did all the cooking, made the lunches, did the shopping, cleaning, vacuuming, laundry and was there for emotional support for her children and her spouse. Mrs. Cardarelli testified that after the 1989 accident, following her mother's recuperation, she returned to doing the household chores, shopping and laundry, although she was probably not operating at the same level as before 1989 because she felt some pain when she did these activities.
Mrs. Cardarelli testified that since the 1991 motor vehicle accident her mother no longer shops on her own. She is driven by Mrs. Cardarelli or by Mr. Chiacchia. Cleaning the house has become more difficult for her and she only does light dusting. Mrs. Cardarelli or Mr. Chiacchia do the rest of the heavier cleaning. Mrs. Cardarelli testified that she herself does the laundry and vacuuming, mops the floors and does the shopping. She testified that her father makes the beds and cooks dinner. Mrs. Cardarelli testified that she goes twice a week to do this housework at her mother's house, and that she is paid for her work.
Mrs. Cardarelli submitted a number of weekly receipts in support of her claim for payment for housework. Each receipt is in the amount of $120. Mrs. Cardarelli testified that she began to do the house cleaning because she and her mother agreed that rather than paying someone else to do the work, Mrs. Chiacchia would pay her. Mrs. Cardarelli testified that she worked a minimum of five to six hours per week and usually more than that. She also indicated that sometimes she goes more than twice a week. She will usually go to her mother's home after work one night during the week and on Saturdays. What is done depends on what her mother needs to have done, and whether she has to drive her anywhere. Mrs. Cardarelli testified that she spends three to four hours at a time at her mother's house and sometimes longer. Mrs. Cardarelli said that she never kept a diary or logbook of her work for her mother since the accident.
Mrs. Cardarelli was asked by the Insurer's lawyer whether she had any other way of proving that she had been paid this money by her mother. She indicated that she did not, as she always received the money in cash, and did not deposit it into her own bank account. She stated that she did not declare to Revenue Canada the $6,240 per year she earned as income because "it's cash". Mrs. Cardarelli testified that the bulk of the time she spends at her mother's home is on Saturdays. Mrs. Cardarelli testified that she now spends more time with her mother than she did before her marriage. When Mrs. Cardarelli does the laundry, for example, Mrs. Chiacchia will help fold the socks and undergarments.
Dr. Ken McKenzie
Dr. McKenzie is an orthopaedic surgeon who practices in Guelph, Ontario. He was retained by the Independent Assessment Company to perform an independent assessment on Mrs. Chiacchia on April 1, 1992. At that time he had no information about Mrs. Chiacchia, nor did she bring any x-rays with her.
Dr. McKenzie expressed an opinion, as a result of his examination of Mrs. Chiacchia, that she was suffering from a cervical soft tissue strain. He was concerned about her psychological state, because of the very flattened affect which she presented on her examination. Dr. McKenzie testified that Mrs. Chiacchia appeared tired and depressed and that palpitation of her neck elicited a painful response and diffused tenderness. He noticed that she could flex and extend her neck about 40 per cent of normal and rotate her neck about 70 per cent of normal, although her range of movement was better when she was distracted. Dr. McKenzie noted some tenderness in the left shoulder but he could not localise it to any anatomical structure, for example, a rotator cuff. He observed no muscle wasting of her left shoulder.
Dr. McKenzie recommended that Mrs. Chiacchia resume her physiotherapy, which she had stopped just prior to the independent medical assessment. He thought she was at risk of developing chronic pain syndrome. After his examination of Mrs. Chiacchia, Dr. McKenzie answered some specific questions in an addendum report of May 28, 1992. He stated that he could see no physical reason why Mrs. Chiacchia could not do light housework like dusting, and he thought she could load a dishwasher, although not as quickly as before the accident. Dr. McKenzie produced an extensive report dated June 10, 1994. He did not see Mrs. Chiacchia again but he had read and summarised a great deal of new information and opinions from other doctors who had seen Mrs. Chiacchia before the second accident. Dr. McKenzie's opinion, after reviewing these reports from other medical specialists, was that Mrs. Chiacchia's condition after the accident of November 1991 was not appreciably different from her presenting condition prior to the November 1991 accident.
Investigators
Two private investigators testified that they observed Mrs. Chiacchia in 1992 and 1993. Both investigators took photographs of their observations on some occasions. Of particular note were the observations of January 9 and 16, 1993, when Mrs. Chiacchia was observed shaking out floor mats from her home and airing them over a railing on the veranda. She was also observed January 23, 1993, on a shopping trip to Loblaws, by herself. Finally, she was observed on March 13, 1993, on a shopping trip with her husband. During that trip, her husband loaded the shopping cart while she pointed items out for him to select. Her husband also pushed the cart out of the store and unloaded the groceries at their home.
Analysis
The Applicant claims weekly income benefits under the provisions of section 13(1) of the Schedule which provides:
13.--(1) The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident, a weekly benefit during the period in which the insured person suffers substantial inability to perform the essential tasks in which he or she would normally engage if he or she meets the qualifications set out in subsection (2).
Lina Chiacchia suffers from chronic pain syndrome. On the basis of the medical evidence before me, she has suffered from this syndrome continuously since a motor vehicle accident in July 1989. I must decide whether the motor vehicle accident of November 29, 1991, continued to contribute to a substantial inability to perform her essential tasks after July 10, 1992. That is the date the Insurer terminated her weekly income benefits.
The Insurer submits that this case is about causation. I find that the medical evidence overwhelmingly supports the Insurer's view that prior to the accident of November 29, 1991, Mrs. Chiacchia was depressed and suffering chronic pain.
Dr. Pontarini, her family doctor, wrote a comprehensive six page report about Mrs. Chiacchia's condition on June 15, 1990. In that report he chronicled her treatment and symptoms. He wrote:
Her condition has been one of a protracted and a prolonged course with increasing depressive tenancy. [sic] She has lost her ability to function adequately at home and carry on her duties and chores in the household.
Ten days before the second accident Dr. Pontarini completed a form report. The report states:
Occupation:
Home maker
Nature of injuries:
Complete body contusion and total body failure! Every mm of body is in pain.
Post trauma complete body dysfunction
Provisional prognosis:
Poor indeed
To the best of my knowledge the patient has been unable to perform the essential duties of his/her occupation.
From 24-July-89 To Forever
To the best of my knowledge the patient has been able to perform some of the essential duties of his/her occupation.
From Never
Dr. Arthur Ameis, a specialist in rehabilitation medicine, who examined Mrs. Chiacchia the day before the second accident, made the following observations in his report of January 6, 1992:
She is on physiotherapy at the present time.... She states that she is not getting any better, but rather remains in the state of severe disability to the present time. This extends to include difficulty even in dressing at times.
Dr. Ameis recorded complaints by Mrs. Chiacchia of severe left-sided neck and shoulder pain and severe, disabling pain in her right buttock, groin and proximal right leg. She complained of swelling of her ankles and of being depressed, very sad, upset and tired.
In the face of these reports, and Mrs. Chiacchia's assurance that she was at all times truthful with the doctors who examined her, I cannot accept the evidence of Mrs. Chiacchia and her daughter that prior to the accident of November 29, 1991, she had largely recovered to her pre-1989 accident state and was performing most of her homemaking tasks.
After the accident, Mrs. Chiacchia did not go to the hospital. She called her son to come to pick her up. She testified that she later went to the hospital to be examined. She attended her doctor's office on Monday, December 2, 1991. At that visit Dr. Galdino E. Pontarini prescribed Toradol, a nonsteroidal antiinflammatory drug, for Mrs. Chiacchia. However, he made no note whatsoever in her chart about her having been in a motor vehicle accident the previous Friday. From my review of his clinical notes, and from his testimony at the hearing, it is clear that he recorded performing no more physical examination of Mrs. Chiacchia on that date than he had in the weeks preceding the accident. The notes of Dr. Pontarini for December 9, 1991, state as follows:
Same old story No better complains of everything.
At the hearing, Dr. Pontarini testified that he thought Mrs. Chiacchia had mentioned the second accident to him. Mrs. Chiacchia testified to that effect as well. Dr. Pontarini's only explanation for not having noted the accident in the clinical notes is that he might not have noted it if it only exacerbated the previous condition. He explained that he writes his notes at the end of the day.
The next note from Dr. Pontarini on December 23, 1991, deals with a cough and respiratory infection -- nothing to do with a car accident. The notes of December 30, 1991 and January 7, 1992, are sketchy. In December he noted that Mrs. Chiacchia was "stable on medications" and in January 1992, he noted that she was "no better with medications". Dr. Pontarini testified that most of Mrs. Chiacchia's visits were consultations and reassurance therapy.
Dr. Pontarini agreed that Mrs. Chiacchia was not functioning around the home in November of 1991. He agreed that his notes do not record a change in treatment after the second accident. Dr. Pontarini testified that, hypothetically, if someone has lost a considerable level of function around the home, say 80 to 90 per cent, a quantitative change of five to 10 per cent would not really be noticed. He stated that the second accident would just magnify the subjective symptoms and make it difficult to recuperate.
The Applicant's counsel submitted that in inquiring into Mrs. Chiacchia's essential tasks, I should make reference to the activities and tasks that she performed before July 1989.
In the alternative, he submitted that where total causation arises out of a number of factors, as long as one of those factors is the motor vehicle accident of November 29, 1991, that is sufficient. He submitted that as long as there is a causal connection between the accident and the injury, even a one per cent connection, that Mrs. Chiacchia should be entitled to weekly income benefits.
I do not view Mrs. Chiacchia's continuing complaints after July 10, 1992, as causally connected to the November 29, 1991 accident. In my view, the November 29, 1991 accident may have caused a minor exacerbation of the problems that Mrs. Chiacchia suffered as a result of the 1989 accident. However, by July 10, 1992, in my view, Mrs. Chiacchia was no longer suffering any symptoms as a result of the 1991 accident.
On reviewing the evidence presented in this case I conclude that, after the lapse of seven and a half months, the second accident in no way measurably compounded the injuries which Mrs. Chiacchia received in the first accident.
Mrs. Chiacchia and her daughter, Lora Cardarelli, depicted Mrs. Chiacchia's condition as having improved markedly prior to the November 1991 accident. However, the medical reports of Dr. Pontarini, Dr. Selchen and Dr. Ameis, dated shortly before the 1991 accident, do not bear this out. Mrs. Chiacchia testified under oath at the hearing that she was always straightforward and truthful with examining doctors. I accept the evidence of the medical practitioners as to Mrs. Chiacchia's condition in the late fall of 1991 in preference to her and her daughter's current recollection of Mrs. Chiacchia's state of recovery.
Housekeeping Expense
Claims for housekeeping expenses are submitted in this arbitration as a result of the provisions of section 6(1)(f) of the Schedule. That section reads as follows:
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.
Section 6(4) is also important to entitlement for such expenses.
(4) Subject to subsections (5) and (6), the insurer, before making a payment for an expense under subsection (1), may require the insured person to submit a statement signed by the insured person's qualified medical practitioner or psychological advisor stating that the expense is necessary for the insured person's treatment or rehabilitation.
With respect to housekeeping expense, Lora Cardarelli is claiming $120 per week from November 30, 1991 to March 23, 1993, and from August 17, 1993 to June 14, 1994. She claims reimbursement for 10 hours of housekeeping services per week, at a rate of $12 per hour. She presented, as proof of her activity, copies of receipts signed by her mother. She presented no diary or other confirming evidence of the hours which she had spent at her mother's residence doing housekeeping, nor any evidence of the precise tasks in which she engaged on a weekly basis. Further, in her testimony, Mrs. Cardarelli stated she worked a minimum of five to six hours per week housekeeping for her mother, but usually more. Mrs. Cardarelli indicated that the rate of $12 per hour was slightly more per hour than she earns, in her salaried employment with the Royal Bank of Canada.
Dr. Pontarini has indicated, as part of a written report, that Mrs. Chiacchia requires housekeeping assistance. However, he was not asked about this at the hearing. In fact, his report of November 30, 1992, indicates that Mrs. Chiacchia should have dailyhelp with her housekeeping activities. In that report Dr. Pontarini wrote as follows:
As an addendum to this report, I may also submit that because of her fibrositis, back pain, recurrent intractable headaches, insomnia and generalized malaise [it] is without a doubt that this lady needs ongoing physiotherapy and she also needs the services of a housekeeper on a daily basis in order to assist her activities of daily living.
I note that a total sum of $13,320 (111 weeks x $120) is being claimed for housekeeping expenses. (No explanation was offered for the five month gap in the claim between March and August 1993.)
This is a large sum of money. I accept that, in principle, a related person should be able to provide paid services for an injured person after an accident. Disputes can arise, however, when an applicant is seeking reimbursement of significant amounts on an ongoing basis.
Moreover, under the terms of the Schedule, it is necessary to determine whether the housekeeping which is being provided is to assist in Mrs. Chiacchia's treatment and rehabilitation or whether it is intended to replace a service which she formerly provided to the other members of the household. As I have stated before (see Carlos and Blanca Ferreyra and Royal Insurance Company of Canada, July 9, 1992, OIC File Nos. A-000301, A-000325 and A-000384) the focus of the Schedule is on the person who has been injured in the accident, not on replacing services which she formerly provided. Accordingly, the only housekeeping expenses which are reimbursable are those which are necessary to assist Mrs. Chiacchia in her treatment and rehabilitation and are required because of the accident.
In his medical-legal report of November 30, 1992, Dr. Pontarini makes no reference to his treatment of Mrs. Chiacchia prior to the November 29, 1991 accident, other then that she "has been a patient in my practice for the past several years". There is no mention of the two and a half years of treatment for chronic pain and depression that pre-dated the November 29, 1991 accident. The language of the November 30, 1992 report is repeated exactly in nine of the 13 paragraphs of his report of February 14, 1994.
I have determined that Mrs. Chiacchia has not proven on a balance of probabilities that she is entitled to further weekly income benefits after July 10, 1992, in that her injuries arising out of the accident of November 29, 1991, no longer substantially disable her from performing her essential tasks. On the basis of Dr. Pontarini's reports, I cannot find her entitled to housekeeping expenses after July 10, 1992. By then she had returned to performing the minimal tasks which she performed just prior to the November 29, 1991 accident. I cannot find entitlement to housekeeping assistance as a result of the second accident. No other health practitioner offered an opinion that Mrs. Chiacchia required housekeeping assistance, as a result of the November 1991 accident, as a necessary part of her treatment and rehabilitation.
I have no additional evidence which would assist me in determining whether, in the earliest months following the November 29, 1991 accident, Mrs. Chiacchia might have required some housekeeping assistance as a result of that accident. In his oral testimony, Dr. Pontarini indicated that there was very little qualitative change in his patient's complaints and symptoms after the November 29, 1991 accident. In fact, the accident was such a non-event, in the doctor's view, that it did not even merit a single reference in his clinical notes.
Dr. Pontarini's report of November 30, 1992, only briefly comments on the issue of housekeeping expenses. He couples the need for this service together with an ongoing need for physiotherapy. Dr. Pontarini's use of the phrase "she also needs the services of a housekeeper on a daily basis in order to assist her activities of daily living" suggests, in my view, that the housekeeper would encourage and support Mrs. Chiacchia in her rehabilitation to perform her housekeeping tasks, rather than replace Mrs. Chiacchia by performing those tasks for her. According to the evidence of both Mrs. Cardarelli and Mrs. Chiacchia, Mrs. Cardarelli has provided replacement housekeeping services for her parents.
In the end, then, I find that the Applicant has failed to provide proof that the housekeeping assistance was required as a result of the accident of November 29, 1991. She also has not proven that the assistance provided by Mrs. Cardarelli, was necessary for Mrs. Chiacchia's treatment and rehabilitation, rather than simply replacing services previously provided by Mrs. Chiacchia to her others in her household.
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.
I exercise my discretion to award Mrs. Chiacchia her expenses as set out in Schedule 1 of the Dispute Resolution Practice Code based on these principles. In the event that the parties cannot agree as to the total amount of expenses, I remain seized of this matter and a party may apply for assessment of the expenses before me.
Order:
Mrs. Chiacchia is not entitled to further weekly income benefits as a result of the accident of November 29, 1991.
Mrs. Chiacchia is not entitled to reimbursement of the housekeeping expenses she has sought. 3.Mrs. Chiacchia is entitled to her expenses incurred in respect to the arbitration.
September 26, 1994
K. Julaine Palmer Arbitrator
Date