ONTARIO INSURANCE COMMISSION
Neutral Citation: 1995 ONICDRG 44
File No. A-004805
BETWEEN:
SUSAN GROUT
Applicant
and
PILOT INSURANCE COMPANY
Insurer
DECISION
The Applicant, Susan Grout, was injured in motor vehicle accidents on September 24, 1990 and May 21, 1991. She applied for statutory accident benefits from the Insurer, Pilot Insurance Company ("Pilot"), payable under Ontario Regulation 6721. Pilot is the responsible Insurer in respect of both accidents. Mrs. Grout received certain medical and rehabilitation benefits under section 6 of the Schedule, and weekly benefits of $185 per week, under section 13 of the Schedule, between September 30, 1990 and August 26, 1992, when benefits were terminated. The issues in this hearing are:
Is Mrs. Grout entitled to weekly benefits after August 26, 1992, under subsection 13(1) and 13(8) of the Schedule?
Is Mrs. Grout entitled to the medical and rehabilitation expenses claimed under section 6 of the Schedule?
Is Mrs. Grout entitled to a special award under subsection 282(10) of the Act?
Is Mrs. Grout entitled to be reimbursed for her expenses incurred in the proceeding?
Mrs. Grout also claims interest on any amounts owing.
Result:
The Applicant is not entitled to weekly benefits after August 26, 1992.
The Applicant is entitled to be reimbursed for: the cost of treatment by Dr. Wood between October 31, 1991 and July 1992 ($369.69); the cost of treatment by Dr. Steel in July and August 1992 ($329); parking expenses and mileage allowance as set out in the decision; and other expenses ($266.60). Interest is to be paid on overdue benefits under section 24 of the Schedule.
The Applicant is not entitled to a special award.
The Applicant is entitled to her expenses incurred in the arbitration.
Hearing:
The hearing was held in Hamilton, Ontario, on August 29, 30 and 31, 1994, before me, Nancy Makepeace, arbitrator.
Present at the hearing:
Applicant:
Susan Grout
Applicant's Representative:
Dermot Nolan Barrister and Solicitor
Stephanie Wannell
Insurer's Representative:
Grant E. Black Barrister and Solicitor
Grace Pang
Witnesses:
Mrs. Grout, the Applicant
Dr. A.R.M. Upton, neurologist
Ms. Ellen Helden, Future Health
Dr. Michel P. Rathbone, neurologist
Dr. A.I. Margulies, psychiatrist
Dr. Joseph Greenbaum, allergist
Exhibits and other documents before the arbitrator are listed in an appendix to this decision.
Weekly benefits:
(i) The test for entitlement
Mrs. Grout is entitled to receive weekly benefits under subsection 13(1) of the Schedule during the period when she is substantially unable to perform "the essential tasks in which she would normally engage". The parties agreed that subsection 13(8) applies to the period after May 21, 1994, the three-year anniversary of the second accident. The more stringent test under subsection 13(8) is whether "the injury continuously prevents [the Applicant] from engaging in substantially all of the activities in which [she] would normally engage".
(ii) The Applicant's activities and condition before the accident
Mrs. Grout is a homemaker in her late forties. She is married and the mother of two grown children who live on their own. Her husband, William Grout, was a full-time bus driver at the time of the first accident.
Mrs. Grout testified about her activities before the first accident. She did almost all the "inside" housework: cooking, cleaning, vacuuming, shopping, laundry, etc. She regularly cut the lawn and maintained the garden, and cleaned the garage several times each season. She testified that she also performed any necessary home repairs and maintenance, including plumbing, tearing down a shed, digging out a pool, and building a deck and a fence.
At the time of the accident, Mr. and Mrs. Grout rented out half of their duplex. Mrs. Grout testified that she handled the business with the tenants and performed any necessary repairs and maintenance work. She was also responsible for handling her family's finances.
Mr. and Mrs. Grout own an 11-acre rural property. Before the first accident, they planned to make it into a tree farm. Mrs. Grout testified that about 5,000 trees had been planted at the time of the accident, about three-quarters of them by her personally. She had once planted 300 trees in one day. The Grouts also planted organic vegetables and tomatoes, which they canned for family use.
Finally, Mrs. Grout testified that she knitted clothing, especially during the winter. She testified that in the winter before the accident, she had placed about 50 pieces on consignment in a store, and had made another 50 for family and friends.
Mrs. Grout concedes that she suffered from a number of chronic health problems before the accident. Her medical records indicate that her complaints before the accident included: sinus congestion, headaches, tinnitus, gastrointestinal problems, fatigue, joint pain, and pain and stiffness in her low back, neck, and shoulders. She also complained of poor memory, poor concentration, and a feeling of being "spaced out".
Mrs. Grout reports that she has been diagnosed with chronic fatigue syndrome, but I heard little evidence about this diagnosis. She now attributes her physical complaints to multiple chemical and environmental sensitivities (or allergies), a diagnosis she was given by Dr. Maclennan, whom she described as a clinical ecologist. Mrs. Grout was treated by Dr. Maclennan until November 1989, when she began seeing Dr. A. Wood, a chiropractor and naturopath who provided naturopathic treatment only. She saw Dr. Wood once every five weeks before the accident. She also saw Dr. Pernfuss, a chiropractor, about once a month before the accident.
Mrs. Grout also suffered from serious and chronic psychiatric problems before the accident, including depression, anxiety, panic attacks, and sleep difficulties. She had been hospitalized for depression in her twenties. At the time of the first accident, she had been taking Elavil, Amitriptyline, and Librium, on and off, for a number of years.
On April 16, 1988, Mrs. Grout suffered a right neck strain, when the car she was in was rear-ended. She went to the hospital, but was discharged home with instructions not to participate in sports for one week, and to return for follow-up in a week. On June 17, 1990, she hit the back of her head against a piece of furniture she was moving. According to Dr. McMillan, her family doctor, she presented with a lump on her head, fever, and a headache. Again she was discharged home, with a diagnosis of minor head injury.
Mrs. Grout claims that she maintained a high level of vigorous physical activity before the accident, despite her many health problems. However, in the years immediately before the first accident, Mrs. Grout's problems were serious enough that in 1986 or 1987, she and her husband had taken the step of buying a rural property, with the intention of eventually moving to the country and growing organic foods. The Applicant believed that this would relieve what she considered her allergy-related problems. At the hearing, she testified that even before the accident, she and her husband did not eat in restaurants because of her food allergies. On April 13, 1989, a year and a half before the first accident, she told Dr. Wood, her naturopath, that she was "very limited to what [she] can do physically". On March 28, 1990, she told Dr. Wood that she had less "incentive to work" because of her continuing health problems. Mrs. Grout testified that she had "improved absolutely" in the year before the accident. However, the only independent contemporaneous evidence supporting her testimony about her pre-accident activity level is found in Dr. Wood's note of September 11, 1990, in which he reported that Mrs. Grout was "working a lot", and "handling and canning a lot of tomatoes".
Mrs. Grout's statements to her doctors after the accidents do not support her testimony about her pre-accident activity level. In February 1991, Mrs. Grout told Dr. Brox, whom she saw at the Insurer's request, that she had not been in good health before the accident; Dr. Brox described her as a homemaker, and reported no other pre-accident activity. Dr. Rathbone's description of Mrs. Grout's pre-accident activities (other than housework) was limited to gardening and using a knitting machine (report of August 19, 1992, Exhibit 1, Tab 1). Growing organic vegetables was also the main pre-accident activity mentioned by Ms. Helden in her reports. In her testimony, Ms. Helden gave a significantly expanded report of Mrs. Grout's activities. I prefer to rely on her earlier written reports.
I felt Mrs. Grout to be a candid witness. I accept that she is happiest when she is outdoors, gardening, and that she has persevered in her activities, both before and after the accident, despite her many problems. However, on balance, I find that her evidence about her level of activity before the accident was inconsistent with the medical evidence. I am also troubled that I did not hear any independent evidence as to the division of labour between Mrs. Grout and her husband. I think it likely that Mrs. Grout's testimony about her pre-accident activities represents what she would have liked to do rather than what she was actually able to do.
(iii) The Applicant's activities and condition after the accidents
On September 24, 1990, Mrs. Grout was the front-seat passenger in her car when it was struck on the driver's side. She does not remember the details of the collision. She was wearing a three-point belt. When removed from the car by the ambulance attendants, she was noted to be conscious, but disoriented, and complaining of chest pain. Mrs. Grout believes that she lost consciousness intermittently after the accident. The car's left arm rest had been pushed into the left side of her chest. She suffered six fractured left ribs and a fractured left clavicle, and her left lung collapsed. The lung was reinflated with a chest tube, and she received physiotherapy for the chest injury while in hospital. She remained in hospital for 11 days, being discharged on October 4.
After going home, Mrs. Grout took Demerol for pain. She continued to complain of pain at the chest tube site, chest pain in the area of the fractured ribs, breathlessness, pain in the area of her spleen and her kidneys, and joint pain. Range of movement was reduced in her left shoulder and arm. Between November 14, 1990 and January 4, 1991, she received physiotherapy treatment at home for her shoulder and arm. Physiotherapy, or any other activity, caused her to become nauseated and fatigued. She also complained of depression, anxiety, irritability, anger, sleep disturbances, and feeling "spaced out". Mrs. Grout contends that the accident aggravated her pre-existing multiple environmental sensitivities. She also began to suffer from driving phobia after the accident.
According to Mrs. Grout, the symptoms related to her chest and shoulder injuries had improved to some extent by the time of the second accident. However, she continued to suffer from a heightened level of what she understands to be her allergy-related symptoms, including fatigue and depression. She contends that she remained unable to perform her pre-accident activities during this period because of her ongoing problems.
On May 21, 1991, Mrs. Grout was seated behind her husband, who was driving a rental car, when the car struck a utility pole and flipped over. She was taken to Collingwood Hospital, where she was found to have seatbelt injuries, a fractured big toe on her right foot, and a sprained and swollen right ankle. She was discharged the same day. Within two or three days, she began to have pain in her neck and tailbone.
In the months after the second accident, Mrs. Grout complained of problems with her right wrist. Her driving phobia was exacerbated. The second accident also aggravated the left shoulder and rib problems resulting from the first accident. Her main limitation was pain in her back, neck and right wrist. She could not sleep, and would have to have a hot bath in the middle of the night to ease her pain.
In addition to these problems, Mrs. Grout contends that the second accident further aggravated her fatigue and depression, and the problems she attributes to her allergies. The records of Dr. Wood and Dr. Krol, who had replaced Dr. McMillan as her family doctor, indicate that Mrs. Grout complained of depression, anxiety, fatigue, sleep problems, memory problems, headaches and other problems during this period.
The Applicant's husband was also injured in the second accident. According to Mrs. Grout, he suffered a brain injury, causing headaches, dizziness and personality change. He was forced to leave his job as a bus driver, and later found work as a security guard. Mrs. Grout's caregivers have reported that Mr. Grout no longer helps with the chores, and no longer supports his wife emotionally, because of his personality change. He cannot drive, so she must drive him everywhere. Mrs. Grout's caregivers have also noted the financial stresses resulting from the accident.
Mrs. Grout testified that in the period immediately following the second accident, she did nothing. By the summer of 1992, when benefits were terminated, she was able to cook, do dishes (every three or four days), and use the vacuum ("usually before seeing the chiropractor"). To avoid carrying laundry up and down stairs to the basement, they bought a washer/dryer for the kitchen. She and her husband began planting trees on their farm again, but whereas before the accident the Applicant could plant 300 trees herself, now she and her husband could plant only about 25 trees together.
At the time of the hearing, Mrs. Grout estimated that she was performing about 40-50% of the housework she did before the accident, and about 25% of all her activities. She had resumed cooking three or four times a week, but she and her husband were still eating at restaurants more often than before the accident. She still could not shop for groceries, or move furniture on her own.
Mrs. Grout also testified that she could not do heavy laundry. Since she now has a washer/dryer in the kitchen, this would presumably reduce the need to carry laundry up and down stairs. She reported vacuuming "once", and stated that she still does this chore before going to the chiropractor. However, she now has central vacuuming, which eliminates the need to carry the vacuum cleaner around the house. I do not accept that Mrs. Grout remains disabled from doing her laundry and her vacuuming as a result of the accident, given these labour-saving changes.
Mrs. Grout testified that she and her husband started a vegetable garden in the summer of 1994, with about 60 tomato plants, as well as beets and kohlrabi. Mr. Grout tilled the soil. Mrs. Grout says that she is unable to weed the garden because of back pain, and needs chiropractic and massage treatment afterwards if she does. She stated that "there is no comparison" between the garden they started in 1994 and the garden they had in 1990.
At the time of the hearing, Mrs. Grout was going out to the farm for one or two hours a day, two days a week. She testified that she spends most of this time walking, riding her bike, or playing with the dog. She admitted that she could weed, and pick vegetables, although she said she cannot carry or can the vegetables herself.
Mrs. Grout testified that she is still unable to do home repairs and renovations. She no longer knits. The Grout's no longer have tenants. Mrs. Grout also testified that she is no longer capable of handling the family's finances.
(iv) Findings and analysis:
The Insurer terminated benefits on the basis of the August 18, 1992 report of Dr. A. Margulies, a psychiatrist who examined the Applicant at the Insurer's request (Exhibit 1, Tab 11). Dr. Margulies testified at the hearing. It was Dr. M's opinion, based on Mrs. Grout's history, that she suffers from chronic depression, and is prone to "develop a variety of distressing emotional or psychological symptoms". In his view, the diagnoses of chronic fatigue syndrome and multiple environmental sensitivity actually reflect a psychiatric disorder. It was his opinion that Mrs. Grout's symptoms reflect her chronic depression, and do not result from the accident. Rather, the accident merely offered a focus for her distress.
In 1994, the Insurer asked Dr. S.S.A. Waldenberg, another psychiatrist, to review the file. Dr. Waldenberg reported that "if pressed [he] would say that about twenty per cent of Mrs. Grout's ongoing personal difficulties are attributable to the motor vehicle accidents".
The Insurer also relied on the report of Dr. J. Greenbaum, an allergist who examined the Applicant at the Insurer's request (report dated February 26, 1992, Exhibit 1, Tab 10). Dr. Greenbaum testified at the hearing. On the basis of his review of Mrs. Grout's history, Dr. Greenbaum concluded that she does not have allergies. He stated that the sort of mental symptoms Mrs. Grout attributes to mould allergy are not allergic symptoms. Dr. Greenbaum does not accept the diagnosis of "multiple sensitivities" as a valid diagnosis. It is his opinion that people with this type of problem have "a psychiatric illness, usually either depression, or somatitisation [sic]". He noted that Mrs. Grout refused to undergo standard allergy testing.
Mrs. Grout relies on the reports and testimony of Dr. M.P. Rathbone, a neurologist to whom she was referred by Future Health. In his report of August 19, 1992, Dr. Rathbone reported that Mrs. Grout continued to suffer from cervicogenic headaches caused by the second accident, frozen shoulder syndrome caused by the first accident, soft tissue injuries to the cervical and lumbar spine caused by both accidents, possible cervical radiculopathy caused by the second accident, and possible age-related degenerative changes in the spine. He also diagnosed neuropsychological deficits in speech and verbal memory as the result of a head injury suffered in the first accident (Exhibit 1, Tab 1).
In his testimony at the hearing, he agreed that Mrs. Grout's soft tissue injuries had largely resolved by the time he last saw her in May 1993, and that an EMG and cervical spine x-ray were negative for cervical radiculopathy. At the hearing, he focused on his view that Mrs. Grout had suffered a brain injury in both accidents, and these injuries reduced her capacity to deal with her accident-related problems and her pre-existing problems. He also testified that her tendency to "somatize" (perceive pain where it has no organic basis) is a neurophysiological process, not a psychological one, and that it results from her brain injuries. Dr. Rathbone conceded that his opinion depended on his understanding that her fatigue, memory problems and other pre-accident symptoms had resolved or improved before the accident.
Mrs. Grout was examined by Dr. A.R.M. Upton, another neurologist, in January 1994 (report dated January 12, 1994, Exhibit 1, Tab 5), and Dr. Upton testified at the hearing. Dr. Upton believes that Mrs. Grout suffered a concussion and brain injury in each of the accidents. However, Dr. Upton agreed that while headaches, memory problems, loss of concentration, fatigue, mood change and irritability are typical post-concussion symptoms, they may also be attributed to other problems. His report does not include these symptoms in the list of Mrs. Grout's "past medical problems".
There seems little doubt that Mrs. Grout suffered a concussion in the first accident, and possibly in the second as well. Dr. Margulies conceded this point on the basis of his review of the medical reports. However, the medical experts agreed that a concussion does not necessarily indicate a closed head injury. Neither Dr. Rathbone nor Dr. Upton understood the seriousness of Mrs. Grout's pre-accident problems. In any event, their neurological examinations of her were normal. Moreover, in June 1992, on referral from Future Health, Mrs. Grout saw Dr. W. Fulton, a psychologist, for a neuropsychological assessment. Dr. Fulton reported that "[h]er performance across a wide range of neuropsychological tests was within the normal range, and there are no indications of significant neuropsychological deficits evident in the current test results." The only abnormalities identified were a mild deficit in verbal memory, a deficit in "fine motor speed", and "some mild difficulties in managing distractions and interference". It was his opinion that none of Mrs. Grout's neuropsychological deficits was likely to result in any functional disability. Dr. Fulton could find no evidence of head injury. I am not persuaded that Mrs. Grout suffered a disabling brain injury as a result of the two accidents in issue.
An alternative explanation for the Applicant's disability was post-traumatic stress disorder, a suggestion made by Drs. Brox and Waldenberg, both of whom examined Mrs. Grout at the Insurer's request. However, Dr. Brox is an orthopaedic surgeon, not a psychiatrist, and he stated only that it was his "impression that there may be an element of a post-traumatic stress disorder" (February 25, 1991 report, Exhibit 1, Tab 6). Dr. Waldenberg reported that Mrs. Grout had some features of post-traumatic stress disorder, but he had the impression the symptoms were "not particularly severe", and would probably improve without treatment within a year or so (July 31, 1991 report, Exhibit 1, Tab 8). No expert opinion supports a diagnosis of post-traumatic stress disorder after August 1992.
Mrs. Grout was injured in two motor vehicle accidents in the space of eight months. She suffered serious injuries in the first accident. The second accident was less serious, but still involved considerable trauma, and undoubtedly prolonged her recovery from the first accident. In order to establish the necessary causal connection, Mrs. Grout does not have to show that the accident was the only cause of her disability. In several decisions, arbitrators have stated that the test is whether the accident "significantly" or "materially" contributed to the insured person's disability. No submissions were made supporting any other test for causal connection. I find it appropriate in this case to apply the significant contribution test.
Three factors in this case make it very difficult to assess the severity and cause of Mrs. Grout's problems after August 26, 1992. Both before and after the accidents, she reported multiple and non-specific symptoms involving virtually every system of the body. Her medical records indicate that these problems have been chronic and variable in frequency and severity, both before and after the accidents. Second, "chronic fatigue syndrome" and "multiple sensitivities" are controversial diagnoses. Some experts think they describe a discrete physical problem, while others think they refer to psychiatric problems. Finally, Mrs. Grout has chosen to pursue nonconventional homeopathic and naturopathic treatment, and to avoid conventional medical treatment. The terminology used by these practitioners is difficult to interpret, and unfortunately, I heard no expert evidence as to the goals, benefits or methods of these treatments.
All of Mrs. Grout's caregivers have noted her longstanding psychiatric problems, including several episodes of severe, even suicidal, depression. Dr. Krol, her family doctor since early 1991, felt she suffered from "somatization disorder" (note of October 16, 1991). Dr. Fulton noted that "Mrs. Grout's overall personality style is one which is likely to convert stress into increases in physical symptoms." Dr. Rathbone accepted that her complaints were genuine, but stated that "she has difficulty on focusing on things other than her complaints". In his May 19, 1993 report, he opined that an accident of the kind she had "is unlikely to have produced the multiplicity of organic problems that Mrs. Grout now has." In his view, "[t]he behavioural components of illness, and in this I include the psychosocial family stress, are currently a significant negative factor." As noted above, these problems had significantly affected Mrs. Grout's activities before the accidents at issue in this case.
I accept that the accidents significantly aggravated Mrs. Grout's problems for some time. However, the Insurer paid benefits in this case until August 26, 1992, which was almost two years after the first accident and 15 months after the second. Considering all the evidence, I am not satisfied that Mrs. Grout's problems after August 1992 were substantially different in nature, severity or frequency from her pre-accident problems. I find that she had substantially returned to her pre-accident level of activity by the time benefits were terminated, and that the accidents of September 24, 1990 and May 21, 1991 did not significantly contribute to her ongoing problems after that date.
Given my finding on this point, it is not necessary for me to consider whether Mrs. Grout satisfies the more stringent definition of disability for post-156 week benefits under subsection 13(8).
Medical and rehabilitation benefits:
Section 6 of the Schedule requires the Insurer to pay all reasonable medical and rehabilitation expenses resulting from the accident.
At the outset of the hearing, Applicant's counsel presented a summary of Mrs. Grout's claim. He advised that medical and rehabilitation expenses after June 1993 are not in dispute. Receipts for claimed expenses were filed. Following the hearing, the Insurer paid certain of the expenses claimed (letter of October 17, 1994 to Applicant's counsel, copied to me).
(a) Treatment - Dr. Wood and Dr. Steel
Mrs. Grout claimed $1,656.56, for naturopathic treatment by Dr. Wood, with interest. Following the hearing, the Insurer paid $1,228.17, covering Dr. Wood's treatment to October 31, 1991, plus interest.
In August 1991, the Insurer asked Dr. Wood to report on Mrs. Grout's environmental sensitivity condition and "if the accident has worsened this condition". In his Form 4 report of October 15, 1991, Dr. Wood said:
Mrs. Grout is now back to monthly assessments. The severity of environmental sensitivity is extremely difficult to assess on its own let alone in relationship to other events. Certainly the added stress of the accidents and her husband's not being able to drive have aggravated her condition. The frequency of her reactions greatly increased but are now back to that prior to the accident but with increased intensity particularly with reference to her labile moods....She is not being treated for any physical injury sustained in either accidents [sic].
For the reasons given above, I find that Mrs. Grout's medical and rehabilitation expenses after August 26, 1992 did not result from the accidents of September 24, 1990 and May 21, 1991 and are therefore not compensable. However, considering all the evidence, I am prepared to accept that expenses incurred before that date resulted from the accident.
I have concerns about the efficacy of Dr. Wood's treatment. However, I accept the evidence of Ms. Helden and Dr. Rathbone that nonconventional treatment methods can have therapeutic effect, especially where the patient has confidence in the methods used. In my view, Mrs. Grout is entitled to choose nonconventional treatment, and I find that the expenses claimed in connection with Dr. Wood's treatment are not unreasonable. In allowing this expense, I am also mindful that no other form of treatment was proposed by the Insurer. Mrs. Grout's claimed expenses of $369.69, covering three visits (May, June 10 and July 15, 1992) are allowed.
Mrs. Grout also claims $1,741.40, plus interest, for treatment by Dr. Steel. Dr. Steel is a chiropractor who began treating Mrs. Grout in the summer of 1992, after she stopped seeing Dr. Wood. Mrs. Grout testified that Dr. Steel treated her with chiropractic and "total body modification".
I heard little evidence about Dr. Steel's treatment of Mrs. Grout. Again, I have concerns about the efficacy of that treatment. However, for the reasons I gave with regard to Dr. Wood's treatment, I am prepared to allow Dr. Steel's treatment costs to August 26, 1992 ($329, for four visits: July 22, July 29, August 8, and August 21, 1992).
(b) Treatment - Dr. Pernfuss
Mrs. Grout claimed $280 plus interest for treatment by Dr. Pernfuss, her chiropractor, after the accident. The Insurer paid this claim following the hearing.
(c) Parking and Mileage
Mrs. Grout claims parking expenses of $541.55, and mileage allowance of $6,455.90, both with interest. She provided parking receipts and a detailed mileage chart. Following the hearing, the Insurer paid parking expenses of $25.75 and mileage allowance of $2,805 (10,200 km at 27.5 cents/km), plus interest. However, no information was provided as to the basis for these payments. Since it is not clear what has been paid, I leave it to the parties to calculate what remains to be paid following my order.
Mrs. Grout is clearly entitled to be reimbursed for claimed parking expenses and mileage relating to medical examinations requested by the Insurer: Dr. Brox, Dr. Waldenberg, Dr. Margulies and Dr. Greenbaum.
I find that she is also entitled to be reimbursed for claimed parking expenses and mileage allowance for visits to the following doctors until August 26, 1992: Drs. McMillan, Katz and Krol (family doctors), Dr. Reaume (the emergency room physician who treated her at Hamilton General Hospital), Dr. Rathbone, Dr. Upton, Dr. Fulton, Dr. Giamichele (an orthopaedic specialist whom she saw about her toe), and Dr. Doh Cin (a plastic surgeon whom she saw about injuries to her right arm and wrist).
The Insurer takes issue with Mrs. Grout's mileage claims in connection with visits to Dr. Wood (in Shelburne, 266 km per trip) and Dr. Steel (in Chatham, 470 km per trip). Given her long relationship with Dr. Wood before the accident, I find that Mrs. Grout was entitled to choose to continue attending Dr. Wood to be treated for her accident-related problems. However, I find 266 km somewhat excessive. Shelburne is near the Grouts' farm. I find it likely that Mrs. Grout often coordinated her trips to Dr. Wood with her trips to the farm. On balance, I find that 133 km (50% of the distance claimed) is a fair rate of reimbursement for this travel. Mileage allowance should be paid on this basis for visits to Dr. Wood until the end of August 1992. I am not satisfied that it was reasonable for her to travel 470 km to see Dr. Steel, and again I will allow 133 km per visit.
Certain parking receipts and mileage expenses were submitted without supporting evidence, and I do not allow these expenses: Dr. Travis (a psychologist to whom Mrs. Grout and her husband were sent by Mr. Grout's employer), Dr. Millet (a chiropractor), and Dr. Braziel (an ophthalmologist, who saw Mrs. Grout for an eye problem which was unrelated to the accident).
Mrs. Grout claims reimbursement of her parking expenses and mileage allowance in connection with her attendances at Future Health and the reactivation activities recommended by Future Health: the Champions gymnasium, Tai Chi classes, and volunteer work at the Red Cross and the Royal Botanical Gardens. Mrs. Grout participated in this reactivation program on the advice of Future Health. In my view, the recommendations of Future Health were sound, and Mrs. Grout should not bear the cost of following this advice. Her parking expenses and mileage claims for these attendances are allowed to the date of the hearing.
Parking expenses and mileage allowance for physiotherapy are allowed. However, I heard no evidence supporting the need for massage therapy. I am not satisfied that the mileage expenses claimed were necessary as a result of the accident.
The Applicant's parking and mileage expenses for trips to see her lawyer are not medical and rehabilitation expenses. In addition, expenses incurred by or for the Applicant's husband are not allowed.
(d) Other expenses
Mrs. Grout claims $868.43, plus interest, for a number of miscellaneous expenses. I allow the following expenses: two pairs of exercise shoes ($149.47); a padlock for her gym locker ($6.27); and office supplies ($110.86), for a total of $266.60.
I am not satisfied that the following expenses were reasonable or necessary as a result of the accidents: homeopathic medication and a subliminal tape prescribed by Dr. Steel, a battery charger and batteries for her walkman for use during exercises, and an exercise bike. Mrs. Grout claims the cost of a day bed. She testified that because of his brain injuries, her husband sleeps poorly, and she has had to sleep in another room. I heard no expert evidence about William Grout's injuries, and accordingly, I am unable to conclude that these expenses resulted from the accident.
Special award:
Mrs. Grout seeks a special award under subsection 282(10) of the Act, which provides as follows:
(10) If the arbitrator finds that an insurer has unreasonably withheld or delayed payments, the arbitrator, in addition to awarding the benefits and interest to which an insured person is entitled under the Statutory Accident Benefits Schedule, shall award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.
The parties agreed that some of the Applicant's medical and rehabilitation claims were submitted in September 1992, and others in June 1993. Applicant's counsel requested payment pending dispute by letter of December 14, 1993 (Exhibit 17). Some of these expenses were reimbursed following the hearing, and a portion remain outstanding.
Many of the expenses claimed relate to treatment by Dr. Wood and Dr. Steel. Although Drs. Wood and Steel are chiropractors, they were not providing Mrs. Grout with chiropractic services. I heard no evidence as to whether "medical" or "chiropractic" services include homeopathic or naturopathic services, and these doctors' clinical notes do not support Applicant's counsel's submission that the services provided were "psychological". In these circumstances, I accept the submission of Insurer's counsel that treatment and transportation expenses relating to Drs. Wood and Steel are not "pay now, dispute later" expenses because Drs. Wood and Steel were not providing "medical" or "chiropractic" services under subsection 6(1)(a).
Moreover, Insurer's counsel twice requested "supporting documentation for parking and mileage expenses, as well as medical justification for the other expenses" (letters of April 18, 1994, Exhibit 15, and June 22, 1994, Exhibit 16). The Insurer is entitled to request reasonable documentation before paying medical and rehabilitation expenses. The receipts were not provided in this case until the hearing. I find that the Insurer did not unreasonably delay payment of these medical and rehabilitation expenses.
The Insurer initially paid for Future Health's services, then terminated funding in August 1992. According to Ms. Helden, funding was reinstated a couple of months before the hearing. The Insurer did not dispute Mrs. Grout's entitlement to Future Health's services at the hearing. I accept the Insurer's submission that the rehabilitation services provided by Future Health are not covered by the "pay now, dispute later" provisions of section 6(7). Further, as has been stated in several arbitration decisions, an insurer's decision to withhold or delay benefits is not "unreasonable" just because it is found by an arbitrator to be wrong. In this case, I do not find the Insurer's decision to terminate Future Health's payments unreasonable, considering all the medical evidence available at the time.
The Applicant and her counsel did not receive a copy of Dr. Margulies' report until shortly before the hearing. Subsection 24(8) of the Schedule requires insurers to provide written reasons for denying or terminating an insured person's benefits. In my view, when an insurer terminates benefits on the basis of a medical report, the report forms part of the insurer's reasons for termination, and should generally be provided to the insured person. However, I received no evidence as to what the Insurer told the Applicant about its reasons for terminating benefits. In the circumstances of this case, no special award is payable.
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.
Although the Applicant did not succeed in her claim for weekly benefits, I accept that she has ongoing problems as a result of the accident, and she has established her entitlement to certain medical and rehabilitation benefits. I find it appropriate in this case to exercise my discretion to order the Insurer to reimburse her for expenses incurred in the arbitration proceeding. I will remain seized of the issue of the amount of expenses, in the event the parties are unable to agree on the amount owing.
Order:
The Applicant is not entitled to weekly benefits after August 26, 1992.
The Applicant is entitled to be reimbursed for: the cost of treatment by Dr. Wood between October 31, 1991 and July 1992 ($369.69); the cost of treatment by Dr. Steel in July and August 1992 ($329); parking expenses and mileage allowance as set out above; and other expenses ($266.60).
The Applicant is not entitled to a special award.
The Applicant is entitled to her expenses incurred in the arbitration.
May 4, 1995
Nancy Makepeace Arbitrator
Date
APPENDIX
Exhibits:
Exhibit 1
Joint Medical Brief, Tabs 1 - 20
Exhibit 2
Joint Medical Brief, Tabs 21 - 25
Exhibit 3
Dr. Steel's clinical notes and records
Exhibit 4
Hamilton Wentworth Homecare clinical notes and records
Exhibit 5
Dr. Wood's clinical notes and records
Exhibit 6
Curriculum Vitae - Dr. A.R.M. Upton
Exhibit 7
Curriculum Vitae - Dr. Rathbone
Exhibit 8
Curriculum Vitae - Dr. Greenbaum
Exhibit 9
Curriculum Vitae - Dr. Margulies
Exhibit 10
Expense receipts
Exhibit 11
Summary of Claims
Exhibit 12
Photos of activities
Exhibit 13
Photos of car
Exhibit 14
Letter dated August 26, 1994 from Dr. Waldenberg
Exhibit 15
Letter dated April 18, 1994 from Grace Pang to Mr. Nolan
Exhibit 16
Letter dated June 22, 1994 from Grant E. Black to Mr. Nolan
Exhibit 17
Letter dated December 14, 1993 from Mr. Nolan to Pilot
Other documents before the arbitrator:
Report of Mediator, dated July 2, 1993
Application for Appointment of an Arbitrator, dated December 14, 1993
Response by Insurer, dated January 1994
Pre-hearing letter, dated March 14, 1994