Neutral Citation: 1995 ONICDRG 52
File No. A-009917
ONTARIO INSURANCE COMMISSION
BETWEEN:
ESTHER MCLEAN
Applicant
and
ALGOMA MUTUAL INSURANCE
Insurer
DECISION
Issues:
The Applicant, Esther McLean, was injured in a motor vehicle accident on December 21, 1991. She applied for and received statutory accident benefits from Algoma Mutual Insurance (Algoma), under Ontario Regulation 6721. Weekly benefits were terminated by Algoma on April 4, 1992.
The issues in this arbitration are:
Is Ms. McLean entitled to weekly benefits from April 4, 1992 and thereafter, under section 13 of the Schedule?
Is Ms. McLean entitled to payment of expenses in the amount of $2,070 for chiropractic services and $25.81 for the cost of prescription medication?
McLean also claims interest on any outstanding amounts owing, and her expenses incurred in the hearing.
Result:
Ms. McLean is not entitled to weekly benefits under section 13 of the Schedule after April 4, 1992.
Ms. McLean is entitled to reimbursement of expenses incurred for chiropractic services in the amount of $2,070, and the cost of prescription medication in the amount of $25.81, and to the cost of such other rehabilitation as is reasonably necessary.
Ms. McLean is entitled to her expenses of the arbitration.
Hearing:
The hearing was held in North Bay, Ontario, on November 23, 1994, before me, Susan Naylor, Arbitrator.
Present at the Hearing:
Applicant:
Esther McLean
Applicant's Representative:
Paul Murray Barrister and Solicitor
Insurer's Representative:
Graham Bennett Barrister and Solicitor
Two witnesses testified: Ms. McLean and Elisabeth Markham. Six exhibits were filed.
Evidence and Findings:
At the time of the accident in December 1991, Ms. McLean was 35 years old. She was a single mother, taking care of her four young children, who ranged in age from 7 to 13 years old.
In addition to coping with the demands of being a single parent and homemaker, Ms. McLean was a full-time student at Canadore College in North Bay. By all accounts, she was an excellent student and received a glowing testimonial at the hearing from her academic advisor, Elisabeth Markham.
Ms. McLean completed a diploma in microcomputer management in May 1991 and planned to obtain a further double diploma in business and medical office systems. Her goal was to get a job in management or administration in a small office setting. She intended to do the required courses for both diplomas concurrently in two years, rather than consecutively over three years. This involved a heavy course load and fortuitous scheduling, but according to Ms. Markham, it was a goal that was achievable in Ms. McLean's case. At the time of the accident on December 21, 1991, Ms. McLean had successfully completed the fall 1991 semester, with the next semester due to start in January 1992. The upcoming semester included a 16 week practicum work experience, involving part-time clerical work in the college's special needs office.
When the accident occurred, the family was travelling to visit Ms. McLean's father, during the Christmas holidays. Ms. McLean was a passenger in the front seat of the car. A vehicle slowly approaching in the other direction lost control in wintry conditions, and spun into the McLean car, sliding head-on and then down the driver's side.
Ms. McLean saw the collision coming, and remembers the crunch of the cars. She was taken by ambulance to the emergency department of the local hospital, where the doctor noted that her lower abdomen was badly bruised, apparently from the seatbelt. No x-rays were taken, and Ms. McLean was released that day, and given some pain medication. Some days later, she went to see a doctor, complaining of neck and back pain and of severe headaches. When she returned to North Bay, she began seeing her family doctor, Dr. Dellandrea, on a regular basis, with the same complaints. Ms. McLean also reported fatigue, depression, short-term memory loss and blurred vision.
At Dr. Dellandrea's initiative, Ms. McLean has seen a number of specialists, including a neurologist and an ophthalmologist. They have been unable to pinpoint a cause for her continuing problems. Ever since the accident, she has received chiropractic treatment two or three times a week and, during some periods, on a daily basis. She reports no real improvement in her symptoms over time, although she thinks that the chiropractic treatment relieves her headaches, albeit on a transient basis.
At the end of May 1992, Ms. McLean was seen by Dr. Feige, a family practitioner who assessed her at the request of Algoma. He recommended active physiotherapy rather than passive chiropractic therapy and suggested psychiatric intervention to treat Ms. McLean's depression. Unfortunately, it seems that Dr. Feige's sensible recommendations were not acted upon, and it is not clear whether Dr. Dellandrea was ever made aware of them. It seems that it was not until November 1992 that Ms. McLean started a course of physiotherapy. She did not receive medication to help with her depression and sleeping problems until later on, in March 1993, after she started seeing Dr. Murray Mitchell, an expert in physical medicine and rehabilitation.
Dr. Mitchell placed Ms. McLean on a reconditioning program and recommended the services of a rehabilitation counsellor, a request reiterated by Dr. Dellandrea in the fall of 1993. Unfortunately, Ms. McLean was not able to capitalize on the improvements she had made during this time, and quickly lapsed back to an inactive and deconditioned state. She was not provided with the services of a rehabilitation counsellor. When he saw her again the following year, Dr. Mitchell noted that Ms. McLean was deconditioned and had not done anything to maintain her strength over the year. He felt that he could do nothing more for her.
Ms. McLean moved to Alberta with her children and new common-law spouse in the fall of 1994, and changed doctors at that time. She felt that the move aggravated her physical problems.
There is no question that Ms. McLean suffered soft tissue injuries in the accident on December 21, 1991. These injuries have continued to cause her pain and discomfort and have limited her level of functioning. Before the accident, for the most part, Ms. McLean was in good health. The doctors are in agreement that her neck and back pain and the emotional component of her problems - depression and fatigue - result from the motor vehicle accident. They have described her condition in various ways - Dr. Feige suggested a possible diagnosis of fibrositis, while Dr. Snider, her chiropractor in Alberta, described symptoms of myofascitis - however,