Neutral Citation: 1995 ONICDRG 99

File No. A-012765

ONTARIO INSURANCE COMMISSION

BETWEEN:

CILKA JANSA

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Cilka Jansa, was injured in a motor vehicle accident on May 31, 1993. She applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company ("the Insurer"), payable under Ontario Regulation 672¹. Weekly benefits were terminated by the Insurer on August 8, 1994. Supplementary medical and rehabilitation benefits for housekeeping expenses were terminated at the end of November 1994. 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:

1. Is Mrs. Jansa entitled to weekly benefits under section 13 of the Schedule from August 8, 1994 onwards? (I was not asked to decide entitlement after 156 weeks)

2. Is Mrs. Jansa entitled to benefits under section 6(1)(f) of the Schedule for housekeeping expenses after November 1994?

3. Mrs. Jansa claims her expenses incurred in the hearing. Mrs. Jansa's counsel specifically indicated that interest on overdue payments was not being sought by Mrs. Jansa.

Result:

1. Mrs. Jansa is not entitled to further weekly benefits.

2. Mrs. Jansa is not entitled to further benefits for housekeeping expenses.

3. Mrs. Jansa is entitled to her expenses incurred in the hearing.

Hearing:

The hearing was held in Toronto, Ontario, on June 26 and June 28, July 4 and 6, 1995, before me, Beth Allen, arbitrator.

Present at the Hearing:

Applicant:

Cilka Jansa

Applicant's Representative:

Mauro Marchioni Barrister and Solicitor

Insurer's Representative:

Phillipa Samworth Barrister and Solicitor

Witnesses:

For the Applicant Joseph Jansa Terry Jansa Maria Jansa

For the Insurer Dr. Samuel Soriano

Exhibits:

A list of exhibits is found in Schedule "A".

Evidence:

The evidence was recorded by a court reporter, Ms. Michelle Pahl, provided by the Insurer.

BACKGROUND

Cilka Jansa was born in Europe and emigrated to Canada in 1955 with her husband, Joseph Jansa, and their first son, Boris. Mrs. Jansa has three children, Boris born in 1953, a son Terry born in 1966 and a daughter Debbie born in 1971. After arriving in Canada, Mrs. Jansa worked for nine years in a shoe factory. She left that job in 1966, just before the birth of her son Terry. She became a homemaker, never returning to work outside her home.

MRS. JANSA'S LIFE BEFORE THE ACCIDENT

Household Duties and Activities

Just before the accident, the Jansa's lived in Richmond Hill in a 2,000 square foot bungalow, with four bedrooms, a kitchen and three bathrooms. Mrs. Jansa did all the cooking, cleaning and laundry. She also planted and cared for flower and vegetable gardens. In her spare time she made decorative crafts and baskets. Her youngest child, Debbie, was the last to leave home when she married in February 1993. Mrs. Jansa was a very sociable and active person before the accident. She went to Vic Tanny's health club to exercise three times a week. She jogged and swam. She went to lunch with friends, and went dancing with friends and family on Saturdays.

In the winter of 1992, the Jansas purchased a mobile home in Florida. Each year Mrs. and Mr. Jansa would drive to Florida in late fall and return to Canada in early summer. The Florida home consisted of two principal rooms, two bathrooms, a kitchen and a sunroom. Before the accident, Mrs. Jansa also undertook all household responsibilities while in Florida.

THE ACCIDENT - MAY 31, 1993

On May 31, 1993, Cilka Jansa and her husband were driving together on a highway in South Carolina en route from Florida to Ontario. Mrs. Jansa's husband was the driver and Mrs. Jansa was a front seat passenger when their vehicle was forced off the road by another vehicle in the left lane. The Jansa's automobile went over an embankment into a ditch and struck a concrete wall. The car was totally destroyed and Mrs. and Mr. Jansa were both injured. This was a very frightening and shocking experience for the Jansas. They were taken by ambulance to the emergency unit at Chester County Hospital in South Carolina where they spent three or four hours. The emergency report from the Chester County Hospital, dated May 31, 1993,² indicates that Mrs. Jansa complained of pain in her back. The emergency report indicates a diagnosis of lower back strain and a denial by Mrs. Jansa of any other pain. In testimony, however, Mrs. Jansa complained that she suffered from pain in her neck and right shoulder as well.

For three months after returning to Ontario in early June 1993, Mr. and Mrs. Jansa stayed at the home of Terry and his wife, Marie, and their granddaughter, Lauren. While in Florida Mrs. and Mr. Jansa had sold their Richmond Hill home and bought a lot in Stroud, Ontario. A house was being built on the lot but was not completed by June 1993. They moved into their Stroud home on August 25, 1993 and remain there today. This house is a 1,500 square foot bungalow with three bedrooms, two bathrooms, a kitchen and a basement.

ENTITLEMENT TO SECTION 13 BENEFITS

The Requirements of Section 13

Mrs. Jansa claimed that she can no longer do the things she used to do before the accident. For this reason, she claims entitlement to accident benefits. However, for Mrs. Jansa to be entitled to weekly benefits, she must show that she meets the requirements of section 13(1) of the Schedule which provides that an insurer will pay a weekly benefit to a person:

1. who sustains physical, psychological or mental injury

2. as a result of an accident and

3. who suffers a substantial inability to perform the essential tasks in which he or she would normally engage

Mrs. Jansa's Injury

Shortly after returning to Canada from Florida, x-rays of Mrs. Jansa's back and neck were taken.

The x-ray report, dated June 4, 1993³, indicates degenerative changes in the lumbar spine and "anterior wedging of the body of T-12" in the thoracic spine. This report indicates that the T-12 condition is "probably long standing." There are also degenerative changes in the cervical spine. A further x-ray was done and a report, dated November 2, 1994, was prepared. This report⁴ reveals a 50% compression fracture at T-12 as well as "degenerative change" at T-12 and in the lumbar spine.

Section 13(1) requires that the injury result from the accident. Therefore, the medical evidence must be assessed in this light. Some of the x-ray evidence appears to suggest that Mrs. Jansa's conditions at the cervical, thoracic and lumbar spine areas are all of a long standing nature.

However, Dr. Soriano, an orthopaedic surgeon, was called as an expert witness by the Insurer. He had conducted an independent medical examination on Mrs. Jansa on November 18, 1994. During the independent medical appointment he reviewed the November 2, 1994 x-ray. His opinion was that Mrs. Jansa's compression fracture at T-12 "probably" resulted from the accident. However, Dr. Soriano testified that the degenerative changes in the cervical and lumbar spine suggest longer standing conditions that might have been aggravated by the accident. Dr. Soriano pointed out that Mrs. Jansa is 63 years of age and that it is not unusual for degenerative changes such as these to occur in elderly people. Although I have difficulty with Dr. Soriano's evidence in other areas, I accept his opinion that Mrs. Jansa's thoracic spine injury and the degenerative conditions likely resulted from the accident.

There is also conflicting evidence as to whether the cervical and lumbar conditions were asymptomatic before the accident and became symptomatic after the accident due to aggravation by the accident. However, I do not find it necessary to resolve the latter conflict, since my ultimate decision is that Mrs. Jansa has the capacity to substantially perform her essential tasks, irrespective of which conditions have been affecting her.

Medical Treatment After the Accident

At the time of the accident, Dr. L. Kliman had been Mrs. Jansa's family doctor for eight years. She last saw him in November 1994. Mrs. Jansa visited him for the first time after the accident on June 4, 1993. At first she saw him every day, then once a week, then once a month. He prescribed pain medication for her, Tylenol III, which Mrs. Jansa has taken on a regular basis.

After the accident, Mrs. Jansa also saw Dr. Horowitz, a chiropractor, who she had previously been attending over an eight year period. Dr. Horowitz' clinical notes and records indicate that, on June 9, 1993, Mrs. Jansa complained of neck and back pain. She received treatment from Dr. Horowitz everyday for three months after the accident. He treated her with massage, heat and a TENS machine. He gave her back supporting and neck contoured pillows. He also recommended an exercise program.

Mrs. Jansa returned to Florida in November 1993. Her family doctor in Florida is Dr. Carratt. Dr. Carratt's clinical notes and records⁵ reveal that he prescribed Darvocet for pain in her back and neck. A consultation note by an orthopaedic specialist, Dr. Martin⁶ states that Mrs. Jansa complained of neck and back pain. In 1994 she began to receive massage therapy on various parts of her body from the Body Anew Therapeutic Massage Clinic in Florida. After her return from Florida in 1994, Mrs. Jansa began to see a new family doctor, Dr. McFarland, in August 1994. His clinical notes and records⁷ contain a note in which he prescribed Tylenol III for pain.

Essential Tasks

Mrs. Jansa must show that, due to the injury, she has a substantial inability to perform the essential tasks in which she would normally engage. Arbitrators have looked at the question of which activities in an insured's life can be considered essential tasks. One case observed that an individualized inquiry into each applicant's case is required to compare pre-accident and post-accident activities."⁸ A finding that a task is essential requires that it be viewed in the context of the particular applicant's circumstances. Another case⁹ distinguishes between "activities" and "tasks" and held that "casual social activities" which contribute to the quality of an applicant's life are not essential tasks. The latter case also points out that it is not the intention of the statutory accident benefits scheme to compensate individuals for loss of enjoyment in life or a reduction in the general quality of life.

I found these cases useful in deciding which of Mrs. Jansa's duties and activities meet the test of "essential tasks". Mrs. Jansa submitted into evidence a hand-written list¹⁰ of what she considered to be her pre-accident essential tasks. According to this document and Mrs. Jansa's testimony, after the accident Mrs. Jansa could no longer prepare meals or do such housecleaning as dusting, vacuuming, washing windows, washing the floors and bringing the laundry upstairs from the basement. She could no longer take a "proper shower" or a bath. Nor could Mrs. Jansa do her gardening, go to Vic Tanny's to workout and swim, or go for lunch or dinner with friends because she had difficulty sitting for long periods of time. She pointed out that she once loved to sew and do arts and crafts, but the sitting, involved makes this impossible. If she has to lean forward while sitting she experiences pain. Mrs. Jansa claims that bending, lifting, stretching, pulling, prolonged sitting and being in awkward positions, cause her pain.

After reviewing this list and hearing Mrs. Jansa's evidence, I find that Mrs. Jansa's essential tasks, as required by section 13(1) of the Schedule, are:

1. personal hygiene such as taking a shower or a bath

2. housekeeping such as dusting, washing windows, washing the floors, doing laundry

3. preparing meals

4. gardening and planting

5. attending Vic Tanny's health club

Mrs. Jansa's activities at Vic Tanny's seem to have been fairly central to her life. For this reason I include this involvement among her essential tasks. However, I adopt the reasoning in the Edgar Cowie case in coming to the conclusion that dining out, visiting with friends, sewing, and doing arts and crafts are "activities" rather than "essential tasks". It is clear from Mrs. Jansa's testimony that these activities enhanced the quality of her life. These excluded activities are of a more casual and voluntary nature, undertaken for pastime or pleasure. So, to decide whether Mrs. Jansa is entitled to benefits, I have to look at her substantial ability or inability to perform the tasks listed above.

Substantial Inability

Arbitrators have looked at the question of what meaning should be given to the words "substantial inability". It has been held that the requirement of "substantial inability" does not require proof of "total disability".¹¹ The arbitrator found in this case that, although the applicant experienced "pain and some difficulty" in doing tasks around the house, this was not sufficient to show substantial disability. Another case¹² held that, although the applicant experienced "discomfort and some limitation of function" in carrying out essential tasks, he did not meet the requirement of being substantially disabled. It is not "some inability to perform tasks, but a sizable inability which is compensable".¹³ These decisions recognize that it is not the purpose of the statutory accident benefits scheme to compensate the insured for pain, as is the case with tort actions, but rather to compensate only for pain to the extent that the pain results in substantial disability.

It is also important to consider whether the insured can reasonably modify or change a task in order to accomplish it. An arbitration case looked at the flexibility which is possible in the performance of household duties. The arbitrator concluded that it is appropriate to consider whether the insured's pre-accident essential tasks can be accomplished with "reasonable and practical modifications."¹⁴

Mrs. Jansa's Evidence

I found that Mrs. Jansa made rather broad, sweeping statements when testifying about her physical abilities after the accident. She boldly asserted that she has been able to do "nothing" as a result of her injury from the accident. She made this statement in her examination-in-chief and attempted to maintain this position under cross-examination. This made the credibility of her oral evidence problematic.

Persistent cross-examination resulted in Mrs. Jansa retreating from her original broad denial. She admitted that she can still take a daily shower, although, in her words not a "proper shower." Now her husband has to wash her back. She indicated, also due to her back pain, that her husband helps her enter and leave the bath-tub when she takes a bath. Mrs. Jansa also stated that she can no longer cook large meals. She did, however, admit that she and her husband cooperate in preparing meals. Her husband helps with breakfast and she prepares less elaborate lunches and dinners. The evidence shows that Mrs. Jansa still engages in these activities but has had to change the way she does them.

Mrs. Jansa testified that she was a meticulous housekeeper before the accident. She put a great deal of effort and pride into this work. I accept this as a fact. However, the test is not whether Mrs. Jansa is able to maintain her pre-accident standard, but whether the housework can be done with reasonable modifications. She stated that she relies totally on her housekeeper, who comes once a week, and her husband to keep her Stroud and Florida homes in order. Her children and their spouses help on weekends and during vacations in Florida.

Mrs. Jansa testified that her bungalow at Stroud and her Florida home have only one storey, so vacuuming is only required on one floor. Despite this, Mrs. Jansa stated that she has not even tried to vacuum because of fear of back pain. Mrs. Jansa indicated that she does some dusting, but cannot dust low surfaces or items that require bending. She admitted that she dusts the dining room table because she does not have to bend.

Mrs. Jansa stressed in testimony that she cannot wash floors because the only way she ever washed floors was on her hands and knees. To crouch or bend will cause her pain, so she will not even attempt this. Counsel for the Insurer asked Mrs. Jansa whether she had ever tried to use a mop to wash her floors. She answered with a firm "No. European people wash their floors on their hands and knees." This attitude has led Mrs. Jansa to refuse to use a mop to accomplish the task - in my view, a reasonable modification of her floor washing task.

Regarding window washing, Mrs. Jansa testified that she cannot wash the higher windows because reaching up would cause back pain. She admitted that she can wash the lower windows, however. As far as laundry is concerned, she admitted that she can sort and load the laundry, and put the lighter loads into the dryer, unload the clothes from the dryer and fold them. Mr. Jansa carries the laundry to the basement, loads heavy loads into the dryer and carries the finished laundry back upstairs. I think this evidence shows that Mrs. Jansa has reasonably modified her laundry chore from doing the total task herself to sharing it with her husband. Mrs. Jansa used to do all of the gardening herself, including planting and weeding. She has never tried this since the accident for fear of experiencing back pain.

Mrs. Jansa basically admitted that, since the accident, she can do the majority of or a substantial number of her essential tasks. She can also substantially perform the tasks she does undertake, although they may be undertaken in a modified form. Consistently, Mrs. Jansa stated that she did not want to even attempt tasks like vacuuming or gardening, and that she changed her approach to other tasks because of pain. However, complaints of pain alone do not entitle an insured to weekly benefits. Mrs. Jansa has to show that she is substantially disabled from doing her tasks.

Mrs. Jansa testified that after the accident, she stopped going for exercise at Vic Tanny's. She claims that it would be too painful to continue this activity. However, Mrs. Jansa might reasonably alter the pre-accident routine at Vic Tanny's to include the remedial exercise routine prescribed for her by her chiropractor.

The Testimony of Mrs. Jansa's Witnesses

Overall, I got the impression that the Jansas are a close, caring family. Mrs. Jansa's husband, Joseph, her son, Terry and his wife, Marie, came to testify for Mrs. Jansa. Their evidence was that they visited Mrs. Jansa every Saturday for several hours and vacationed in Florida with Mr. and Mrs. Jansa. Mr. Jansa and Marie viewed the videotapes and made certain observations. Generally, the evidence of these witnesses was in agreement with that of Mrs. Jansa. They described her pre-accident life and concluded that after the accident, she could do very little of what she was accustomed to doing before.

There were, however, some problems with the witnesses' evidence which affected their credibility. In weighing the witnesses' evidence, I considered that their observations could only reasonably be based on Mrs. Jansa's activities when they were present for limited periods of time. Even at that, after the accident, when the family members were with Mrs. Jansa, their evidence is that they did nearly everything for her. Of course, Mr. Jansa, Terry and Marie could never have direct knowledge of what Mrs. Jansa could do or would do for the bulk of the time when they were not present. I cannot attach a great deal of weight to the witnesses' oral evidence because I do not find them to be disinterested, independent witnesses; but rather, because of their family ties to Mrs. Jansa, they are personally interested in the outcome of the hearing. In fact, Terry represented Mrs. Jansa as her agent at the pre-hearing discussion to support her claim for benefits.

GENERAL CREDIBILITY PROBLEMS

Mrs. Jansa's evidence on her ability to do her essential tasks failed to convince me of her entitlement to benefits. However, my decision was also influenced by general credibility problems throughout Mrs. Jansa's evidence. I have concluded that her admissions under cross-examination about her household chores have amounted to a substantial ability to do these tasks. However, other evidence makes it reasonable to infer that her ability to perform her essential tasks might be even greater than she has admitted.

Mrs. Jansa's Response to Cross-examination on Medical Evidence

There were numerous occasions when Mrs. Jansa claimed medical records were "wrong" or that she could not remember. It is noteworthy that these instances were not restricted to her comments about the records of doctors appointed by the insurance company. Mrs. Jansa also testified that aspects of the medical records of her own family doctors and chiropractor, both in Ontario and Florida, were also incorrect or that her memory had failed her. Generally, Mrs. Jansa displayed a selective memory when questioned about medical records, remembering only that which seemed favourable and forgetting the less favourable. I will mention a few examples of this problem.

I have already mentioned Mrs. Jansa's denial of pre-accident medical conditions. She emphasized during testimony that before the accident she never had problems with pain in her back, neck or shoulders. When the relevant medical documents were shown to Mrs. Jansa, she flatly denied making the 1986 and 1990 complaints to her family doctor and chiropractor. She stated that the medical records were either "wrong" or that she did not recall making the complaints.

Under cross-examination, Mrs. Jansa testified that she only recalls Dr. Soriano speaking to her for about seven minutes before his examination on November 18, 1994. Dr. Soriano's oral evidence was that he consulted with Mrs. Jansa for 25 minutes before the examination, asking the questions reflected in his report. Mrs. Jansa insisted that she clearly remembers that he asked her nothing at all about her daily activities, her past health or her medical treatment for pain. He only asked her about her age and the accident.

Dr. Soriano's report, dated November 28, 1994,¹⁵ suggests that he asked Mrs. Soriano about far more than her age and the accident. For instance, the report states that Mrs. Jansa told him about pre-accident problems with her neck and lower back, about post-accident treatment and her daily activities. Mrs. Jansa stated that she did not remember giving this information. When asked, she stated that she could think of no reason why Dr. Soriano would lie in his report. I accept Dr. Soriano's evidence about his consultation with Mrs. Jansa. I find it reasonable under the circumstances that Dr. Soriano would request the information in question. This was not the only area of Dr. Soriano's report that Mrs. Jansa said was inaccurate.

Mrs. Jansa also strongly denied ever making certain post-accident medical complaints to a Florida physiotherapist. Counsel for the Insurer directed Mrs. Jansa to treatment sheets¹⁶ indicating that Mrs. Jansa complained, among other things, about pain in her shoulders, arms and hips. Mrs. Jansa also insisted that she never told Dr. Martin that she had pain in her left elbow as he indicates in his report¹⁷. Again, it does not seem that the physiotherapist or Dr. Martin would have any interest in wrongly reporting Mrs. Jansa's medical complaints. However, Mrs. Jansa does have an interest in denying the contents of the records because she does not want to admit that some of her present complaints may have resulted from post-accident problems.

Video Surveillance

Three videotapes¹⁸ were submitted into evidence and viewed at the hearing. Two of the tapes show Mrs. Jansa, Mr. Jansa, Marie Jansa and Marie's daughter, Lauren, in Florida and the third tape shows Mrs. Jansa and her husband back in Ontario. I was most persuaded by the Florida videos, so I will refer only to aspects of those videos. The video evidence convinced me of the possibility that Mrs. Jansa can actually accomplish more than she admitted under cross-examination on her household chores. This evidence might not have been so influential were it not for the credibility problems with other aspects of Mrs. Jansa's evidence. There is other evidence in this case that supports the findings in the videos.

It is Mrs. Jansa's evidence that she cannot bend, lift, stretch, pull, sit without back support, sit while bending forward or hold awkward positions. She cannot carry heavy objects. Recorded nearly a year after the accident, the Florida video shows Mrs. Jansa performing many of these movements repetitively over a relatively short period of time. For instance, on April 19, 1994, Mrs. Jansa is seen walking at a very brisk pace for 25 minutes with family members. Mrs. Jansa took no pain medication before the walk, and yet, she was able to keep up this pace through the entire walk. Mrs. Jansa rested for an hour and took pain medication before departing for the lake and the beach.

Mrs. Jansa and her family spent over two hours at the lake and the beach. During this period, Mrs. Jansa continuously bent down at the waist and crouched to play with her granddaughter and to take pictures. She picked up her 18 pound granddaughter at least six times in her right arm, where she claims she suffers disabling pain. Mrs. Jansa sat in the sand for 11 minutes continuously without back support. For only minutes at a time, she leaned against the car bumper to rest on several occasions. All the while, throughout the two-hour stay at the beach, the child's mother lay sunning on the beach, allowing Mrs. Jansa to entertain her daughter. This behaviour is inconsistent with Marie's testimony that she and family members do everything for Mrs. Jansa and inconsistent with Marie's testimony about her concern over Mrs. Jansa's back pain after their earlier walk. On cross-examination, Mrs. Jansa admitted that she could bend and crouch, but not without pain.

Mrs. Jansa stated that she was in extreme pain and stayed home to rest for the balance of this strenuous day. When asked about her massage therapy appointment for that day, Mrs. Jansa said she cancelled it. Counsel for the Insurer then referred Mrs. Jansa to the massage treatment record for April 19, 1994.¹⁹ This treatment sheet shows that Mrs. Jansa did attend the centre on April 19, 1994 and that she complained of "moderate" neck pain, "mild" thoracic pain and "moderate" low back pain. It appears that Mrs. Jansa did not report severe pain after such an active day, and that she had only "mild" pain in her thoracic spine, the site of her injury from the accident, and "moderate" neck and back pain.

I find that the video evidence shows Mrs. Jansa's ability to engage in most of the body movements required to accomplish her household chores. Mrs. Jansa can lift, bend, stretch and carry heavy objects as well as sit comfortably without difficulty. Overall, Mrs. Jansa's movements and actions in the videos support her ability to accomplish her duties, even if she experiences some pain while doing them.

Other medical evidence supports the opinion that Mrs. Jansa's claim to disability might be somewhat exaggerated. Dr. Sridhar, in his independent medical report from Florida, dated March 29, 1994²⁰ notes that Mrs. Jansa fails to put forth effort on examination; chiropractor, Dr. Horowitz in a report, dated June 20, 1994²¹ notes that she exaggerates feelings of pain; and family doctor, Dr. L. Kliman in a note, dated July 20, 1994²², states that Mrs. Jansa exaggerates limitation in her back movement.

CONCLUSION ON ENTITLEMENT TO SECTION 13 BENEFITS

Mrs. Jansa has clearly failed to prove she is substantially disabled from performing her essential tasks. The inconsistencies between her evidence, the documentary medical evidence, the oral evidence of Dr. Soriano and the video surveillance evidence weaken her credibility. While I am prepared to recognize that Mrs. Jansa suffers some pain in her attempts to do her household duties, the evidence seems to show that she is capable of accomplishing more than she is prepared to admit. For these reasons, I find that Mrs. Jansa is not entitled to weekly benefits under section 13(1) of the Schedule after August 8, 1994, the benefit termination date.

ENTITLEMENT TO SECTION 6 BENEFITS FOR HOUSEKEEPING

Section 6(1)(f) of the Schedule restricts payments for expenses to reasonable expenses resulting from the accident. These expenses also have to be required by the applicant because of the accident. I find, on the basis of my conclusions as to her ability to perform essential tasks, that Mrs. Jansa does not reasonably require housekeeping services as a result of the accident. Therefore, I find that Mrs. Jansa is not entitled to benefits for housekeeping expenses after November 1994, when these benefits were terminated.

EXPENSES

Mrs. Jansa seeks an award of the expenses she has incurred in this arbitration. Under section 282(11) of Insurance Act, an arbitrator may exercise discretion in awarding expenses. It has been held that it is appropriate to award an applicant his or her expenses unless it is established that the application for arbitration was "manifestly frivolous or vexatious, or that the applicant's conduct unreasonably prolonged the proceedings."²³

I find in this case, that Mrs. Jansa was involved in a serious car accident and has suffered pain as a result. I, therefore, find that she is entitled to her expenses as set out in Schedule 1 of the Dispute Resolution Practice Code. If the parties cannot agree on the total amount of expenses, I will remain seized of this matter and either party may apply for assessment of the expenses before me.

Order:

1. Mrs. Jansa is entitled to her expenses incurred in the hearing.

July 24, 1995

Beth Allen Arbitrator

Date

SCHEDULE "A"

Exhibits

Exhibit 1

Joint Brief of Documents, Book I, prepared by the Insurer, with Index and 43 Tabs of documents:

1. Emergency record from Chester County Hospital

2. Undated note from Unionville Massage and Therapy Centre

3. Note from Dr. A. Horowitz, dated November 9, 1993

4. Report from Dr. M. Kliman, dated July 15, 1993

5. Note from Dr. A. Horowitz, dated Juy 16, 1993.

6. Note from Dr. L. Kliman, dated September 10, 1993.

7. Letter from Dr. L. Kliman, dated September 21, 1993.

8. Note from Dr. B. Gryfe, dated October 4, 1993.

9. Letter from Dr. L. Kliman, dated November 9, 1993.

10. Letter from Dr. L. Kliman to Dr. J. Carratt, dated December 2, 1993.

11. Orthopaedic consultation from Dr. G. Martin, dated December 6, 1993.

12. Note from Dr. G. Martin to whom it may concern, dated December 6, 1993.

13. Note from Dr. J. Carratt to whom it may concern, dated, December 24, 1993.

14. Clinical notes and records of Dr. G. Martin, January 1994 to February 8, 1994.

15. Monthly progress summaries of physiotherapist, dated January 11, 1994, February 8, 1994, March 14, 1994.

16. Notes from Dr. G. Martin, dated April 26, 1994.

17. Treatment sheets from physiotherapist, dated March 28, 1994, April 4, 1994, April 11, 1994, April 19, 1994, April 25, 1994.

18. Independent medical from Dr. Sridhar, dated March 29, 1994.

19. Report form from Active Physiotherapy Rehabilitation Group (3 pages). 20.Report form Dr. A. Horowitz dated June 20, 1994.

20. Letter from Dr. A. Horowitz dated August 27, 1994.

21. Note from Dr. M. Kliman dated October 3, 1994.

22. Note from Dr. D. McFarland dated October 5, 1994.

23. Report from Dr. S. Soriano dated November 28, 1994.

24. Note from Dr. D. McFarland to whom it may concern, dated November 16, 1994.

25. Note from Dr. G. Martin, dated March 15, 1994.

26. Note from Dr. A. Horowitz dated November 23, 1994.

27. Note from Dr. M. Kliman dated November 24, 1994.

28. Note of office visit from Dr. G. Martin, dated December 15, 1994.

29. Note from Dr. J. Carratt, dated January 3, 1995.

30. Unidentified note but possibly Dr. J. Carratt's re: visit January 3, 1995.

31. Note from Dr. G. Martin, dated January 5, 1995. 33.Note from Dr. A. Horowitz, dated January 9, 1995.

32. Report from Dr. G. Martin, dated January 25, 1995.

33. Note to whom it may concern from Dr. Martin, dated January 26 1995.

34. Clinical notes and records from Dr. M. Kliman.

35. Clinical notes and records from Dr. J. Fasone (Body Anew).

36. Records from the Orthopaedic Clinic of Daytona Beach.

37. X-ray from Stevenson Memorial Hospital, dated November 2, 1994.

38. Clinical notes and records of Dr. L. Kliman.

39. Clinical notes and records of Dr. A. Horowitz.

40. Clinical notes and records of Dr. G. Martin.

41. Clinical notes and records of Dr. J. Carratt.

Exhibit 2

Joint Brief of Documents, Book II, prepared by the Insurer, without an Index, with 7 Tabs of documents:

1. At Index Tab, Handwritten letter from, Dr. L. Kliman, dated June 10, 1995.

2. Letter from Dr. Luciani, dated September 28, 1987.

3. Handwritten list, undated and unsigned, of "essential tasks".

4. Letter from Dr. J. Carratt, dated April 25, 1995.

5. Letter to whom it may concern from Dr. G. Martin, dated April 21, 1995.

6. Clinical notes and records from Dr. D. McFarland from unknown date to November 22, 1994.

7. Report from Dr. S. Soriano, dated June 19, 1995.

Exhibit 3

Receipts (14) for housekeeping expenses in Florida.

Exhibit 4

Receipts (7) for housekeeping in Stroud, Ontario.

Exhibit 5

The handwritten notes of Dr. S. Soriano taken in relation to viewing videotapes.

Exhibit 6

Clinical notes of Dr. Luciani, dated September 23, 1987.

Exhibit 7

Three videotapes, two recorded in Florida, April 19, 1994, one recorded in Ontario, June 6 and June 12, 1995.

Footnotes

1. 1Prior to January 1, 1994, Ontario Regulation 672 was called the No-Fault Benefits Schedule. After that date it became the Statutory Accident Benefits Schedule - Accidents Before January 1, 1994. In this decision, the term "Schedule" will be used to refer to Regulation 672.
2. 2Exhibit 1, Tab 1.
3. 3Exhibit 1, Tab 40, page 15.
4. 4Exhibit 1, Tab 39.
5. 5Exhibit 1, Tab 43, page 6, March 15, 1994.
6. 6Exhibit 1, Tab 42, December 6, 1993, page 20.
7. 7Exhibit 2, Tab 6, October 5, 1994.
8. 8Norman Downs and Allstate Insurance Company of Canada, July 18, 1991, OIC File No. A-000064, pages 22 and 23.
9. 9Edgar Cowie and the Non-Marine Underwriters, Members of Lloyd's, March 9, 1993, OIC File A-001159, page 15 (under appeal).
10. 10Exhibit 2, Tab 3.
11. 11John Beenen and Continental Insurance Company of Canada, December 10, 1992, Commission File No. A-001239, page 16.
12. 12Chor Ting Lui and Wellington Insurance Company, April 28, 1993, OIC File No. A-001894, page 18.
13. 13Lily Steele and Zurich Insurance Company, December 3, 1992, OIC File No. A-001024 case, page 32.
14. 14Eric Simpson and Royal Insurance Company of Canada, April 6, 1994, OIC File No. A-003863, (under appeal) page 13.
15. 15Exhibit 1, Tab 24.
16. 16Exhibit 1, Tab 17, pages 2, 3 and 4.
17. 17Exhibit 1, Tab 16, dated April 26, 1994.
18. 18Exhibit 7.
19. 19Exhibit 1, Tab 17, page 4.
20. 20Exhibit 1, Tab 18, page 4.
21. 21Exhibit 1, Tab 41, page 28.
22. 22Exhibit 1, Tab 40, page 8.
23. 23Ralph McCormick and Economical Mutual Insurance Company, October 2, 1991, OIC File No. A-000139.