Neutral Citation: 1997 ONICDRG 121

OIC A95-000510

BETWEEN:

CLAUDIA NORRIS

Applicant

and

JEVCO INSURANCE COMPANY

Insurer

DECISION

The Applicant, Claudia Norris, was injured in a motor vehicle accident on June 1, 1993. She applied for and received statutory accident benefits from Jevco Insurance Company ("Jevco"), payable under Ontario Regulation 672.¹ Jevco terminated weekly income benefits on May 31, 1994. Ms. Norris was paid weekly income benefits in the sum of $336.18 from June 8, 1993 until May 31, 1994. She claims payment of additional weekly income benefits from June 1, 1994 until June 1, 1996, medical and rehabilitation expenses, a special award, interest on any benefits found to be outstanding and her expenses of the proceeding. Jevco also claims its expenses. The parties were unable to resolve their disputes through mediation and Ms. Norris applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

Is Ms. Norris entitled to weekly income benefits from June 1, 1994 until June 1, 1996 on the basis that she suffers a substantial inability to perform the essential tasks of her occupation or employment pursuant to section 12(1) of the Schedule?
Is Ms. Norris entitled to her expenses for nutritional counselling invoices dated August 15, 25, 1994 and December 20, 1994, meal replacements expenses on November 16, 1994 and for a dental x-ray dated February 20, 1995, pursuant to section 6 of the Schedule?
Is Ms. Norris entitled to a special award pursuant to section 282(10) of the Insurance Act?
Is Ms. Norris entitled to interest on any amounts owing?
Is Ms. Norris entitled to her expenses of this proceeding?
a) Is Jevco entitled to its expenses pursuant to section 34(8) of the Automobile Insurance Rate Stability Act, S.O. 1996, c. 21.

b) In the alternative, is Jevco entitled to a return of its assessment pursuant to section 282(11.2) of the Insurance Act?

Jevco shall pay Ms. Norris weekly income benefits in the sum of $336.18 per week for the period from June 1, 1994 until June 1, 1996 pursuant to section 12(1) of the Schedule.
Ms. Norris' claim for payment of nutritional counselling invoices dated August 15, 25, 1994 and December 20, 1994, meal replacements expenses on November 16, 1994 and for a dental x-ray dated February 20, 1995 is denied.
Ms. Norris' claim for a special award pursuant to section 282(10) of the Insurance Act is denied.
Jevco shall pay Ms. Norris interest at the rate of 2% per month on any weekly income benefits outstanding pursuant to section 24 of the Schedule.
Jevco shall pay Ms. Norris her expenses of this arbitration proceeding as set out in Schedule F of the Dispute Resolution Practice Code—1995.
a) Jevco's claim for its expenses pursuant to section 38(4) of the Automobile Insurance Rate Stability Act is denied.

b) Jevco's claim for a return of its assessment pursuant to section 282(11.2) of the Insurance Act is denied.

The hearing was held at the offices of the Ontario Insurance Commission in North York, Ontario, on February 17, 18, 19, 20, and 21, 1997, before me, Fern Kirsch, Arbitrator.

Present at the Hearing:

Applicant:

Claudia Norris

Ms. Norris' Representative:

Joseph Caprara, Barrister and Solicitor

Jevco's Representative:

Lori Visconti, Barrister and Solicitor

The proceedings were recorded by Raymond P. MacDonald.

Witnesses:

Claudia Norris, Dr. William Russell, Dr. R.G. Vanderlinden, Richard Allman

Exhibits:

28 exhibits were filed in this proceeding.

Cases before the arbitrator at hearing:

Worthman and AXA Insurance (Canada) (January 30, 1997), OIC A96-000486

Erikson and The Guarantee Company of North America (July 16, 1992), OIC A-000560

Snell v. Farrell 1990 CanLII 70 (SCC), [1990] 2 SCR 311.

Smith v. Leach Brain & Co. Ltd. and Another [1962] 2 Q.B. 405.

Wieland v. Cyril Lord Carpets, Ltd. [1969] 3 All E.R. 1006 (Q.R.B.).

A. Preliminary Matter:

Ms. Norris sought to include the issue of her entitlement to weekly income benefits from the motor vehicle accident for the period after the first 156 weeks. Jevco did not consent. This matter was neither mediated nor pre-heard during the pre-hearings held on January 8, 1996 or June 6, 1996. In addition, several weeks prior to the hearing, Ms. Norris advised Jevco that she was only seeking benefits up to the three year limit. Given these circumstances, I ruled at the hearing that it would be prejudicial to Jevco to allow Ms. Norris to proceed with this issue. Accordingly, the question of whether Ms. Norris is entitled to weekly income benefits from June 2, 1996 onwards is not an issue before me.

EVIDENCE AND FINDINGS:

B. Entitlement under section 12(1):

The Accident and its aftermath:

Ms. Norris is 41 years of age. On June 1, 1993, the motorcycle upon which she was riding with her common-law spouse, Richard Allman, was struck by a motor vehicle. Ms. Norris was thrown to the ground onto her right side and was injured. She was taken by ambulance to the Etobicoke General Hospital.

The ambulance call report showed that Ms. Norris was not bleeding, nor did she suffer a loss of consciousness. At the hospital, Dr. L. Sidenberg x-rayed her pelvis, right hip and ribs, lumbar spine and chest. These x-rays were normal. Ms. Norris complained of dizziness and lower back, and right-sided hip, and leg pain. Dr. Sidenberg prescribed Tylenol and ice packs for Ms. Norris, and told her to attend for a follow-up treatment by her family physician.

Ms. Norris testified that she continues to suffer from headaches, memory and concentration loss, anxiety, pain and stiffness on the right side of her face, jaw and neck, pain and weakness in her right shoulder, arm and hand, and pain in her right lower back and right leg.

Law:

Ms. Norris claims weekly income benefits pursuant to section 12(1) of the Schedule for the period from June 1, 1994 until June 1, 1996. To be successful in this claim she must establish that she sustained a physical, psychological or mental injury as a result of the motor vehicle accident, and that she suffers a substantial inability to perform the essential tasks of her occupation or employment as a result of these injuries.

In order for there to be a "substantial inability," there must be a "sizeable inability" to perform the essential tasks of her employment.²

The essential tasks of the Applicant's employment:

I heard evidence regarding Ms. Norris' duties. At the time of the accident, Ms. Norris was working five days a week, for Jet-a-Way Airport Parking. Her hours were 7:00 a.m. until 5:00 p.m. Her office was a 12 foot by 40 foot long trailer. Washroom facilities were in another building, and there were steps to negotiate to get into her trailer and into the washroom facilities.

Ms. Norris duties were varied. She was the assistant to the general manager as well as a dispatcher/clerk. On an administrative level, Ms. Norris was responsible for screening new employees, setting up interviews, and training. She prepared monthly reports for outside agencies and correspondence for advertising, and she prepared and reconciled cash reports and deposits for three shifts. Ms. Norris assisted personnel with work schedules and time cards, and she located replacement drivers as needed.

Her main daily duties consisted of answering the telephone, working a computer and microphone dispatching buses, registering and checking customers in and out, assigning parking spots and performing cash functions on a cash register. She answered three different telephones, often dealt with hostile customers, typed correspondence and arranged meetings. Ms. Norris worked both "in" and "out" sliding windows located on each side of the trailer, as customers came and went. Ms. Norris was required to do several of these tasks at once. Her employment required her to be able to sit, stand and move about the office between the "in" and "out" windows. In addition, Ms. Norris was required to key information into the computer with one hand while talking to a driver on the telephone.

Ms. Norris' job necessitated the use of fine finger movements when providing change and when operating a cash register, sitting for prolonged periods of time, walking from one end of the trailer to another, twisting her trunk and neck, repetitive bending, repetitive arm and hand motions and some minimal lifting. She was right-handed.

I find that Ms. Norris' essential tasks of her employment prior to the accident, as required by section 12(1) of the Schedule, are as noted above.

Ms. Norris' Post-Accident Complaints:

Dr. Russell, Ms. Norris' family doctor since 1981, testified at the hearing. I found him to be a credible, forthright witness. He has treated Ms. Norris on an ongoing basis, both prior to and after the accident, and was thoroughly aware of her pre- and post-accident medical condition. Accordingly, I place substantial weight on his testimony, and his clinical notes.

Ms. Norris initially met with Dr. Russell on June 5, 1993 and then again on June 10, 1993. She attended at Dr. Russell's offices two to three times a month after that. Dr. Russell's notes reflect that during these appointments Ms. Norris consistently complained of right hand, arm and shoulder pain and weakness, neck pain, right hip, buttock and leg pain, headaches, memory and concentration problems, anxiety and depression. Later she also complained of right-sided facial pain. Ms. Norris testified that these complaints have continued to the present. I found Ms. Norris to be a credible individual and accept her statement as to her complaints.

Dr. Russell prescribed active and passive physiotherapy for Ms. Norris at Rexdale Physiotherapy and Community Clinic ("Rexdale"). She attended this facility regularly from June 21, 1993 until September 24, 1993, and again from November 2, 1993 until January 25, 1994.

Jevco sent Ms. Norris to see Dr. Mascarenhas, a disability evaluating physician. In his report dated September 17, 1993, Dr. Mascarenhas confirmed that Ms. Norris complained of diminished grip strength in her right hand, and an aching sensation in her right shoulder which was aggravated with overhead motion. He also confirmed her complaints of neck pain and right sided hip discomfort with radiation to the paralumbar region. She had some limitation of full flexion of her right hip, and limitations to her forward flexion, extension and lateral bending due to pain. She was unable to bear weight on both lower extremities, she had diminished grip strength on her right side, she walked with an antalgic gait and tended to favour the left side.

Dr. Mascarenhas concluded that there was no element of symptom magnification. He opined that Ms. Norris had sustained myofascial strain to her cervical area, and right glenohumeral area as well as a contusion injury to her right hip. He made no findings about her mental status as he did not conduct a formal mental status examination.

Dr. Russell referred Ms. Norris for counselling to Humber Green Counselling & Career Development Inc. ("Humber") for her anxiety. She met with Suzanne M. Ouellette, a psychologist, initially on January 4, 1994. Ms. Ouellette recommended that Ms. Norris attend for neuropsychological testing and individual counselling for effective coping strategies for pain, as well as group therapy for mutual support.

Ms. Oullette's clinical notes show that Ms. Norris experienced stress related to her physical pain and trauma from the motor vehicle accident. Ms. Oullette concluded that Ms. Norris was suffering from frequent headaches, loss of memory, sleep disturbances, chronic fatigue and feelings of depression. She had numbness in her arm which caused her to drop items. She was unable to eat because of her jaw pain. Ms. Oullette also concluded that Ms. Norris had difficulty concentrating, was distressed and anxious about her forgetfulness, and was fearful of driving a motor vehicle and of falling. Ms. Norris continued to be counselled by Ms. Oullette until April 1995.

Ms. Norris' continuing complaints were also noted in the report of Albina Zavaglia, physiotherapist at Rexdale, dated January 12, 1994. This report confirmed that Ms. Norris continued to suffer muscle weakness and decreased ambulation. Ms. Norris' complaints were also noted in Dr. Russell's medical report dated May 25, 1994, where he continued to diagnose Ms. Norris with a right hip contusion, myofacial strain, and right hand weakness of unknown origin.

In April 1994, Dr. Russell put Ms. Norris on new medication for headaches.

Dr. Russell referred Ms. Norris to Dr. R.S.Yufe, a neurologist, for her complaints of headaches, pain in her jaw and shoulder, stiffness in her neck and weakness in her right arm. In his report of June 15, 1994, Dr. Yufe noted that Ms. Norris was suffering from collapsing weakness in the right upper limb. He diagnosed that Ms. Norris' headaches, neck stiffness, the pain in her right arm as well as the pain in her jaw were likely myofascial in etiology. He opined that the collapsing weakness in her arm normally suggests that an emotional disturbance is playing a role.

In his later report of August 19, 1994, Dr. Yufe found that Ms. Norris had "segmental demyelinating polyneuropathy" (significant symmetrical slowing of the motor conductions), which he believed was inherited rather than acquired. He did not believe that Ms. Norris' present symptoms had anything to do with this neuropathy, which was an incidental finding as a result of her seeing a neurologist. He goes on to state as follows:

Whether her underlying neuropathy is aggravating or preventing recovery is an arguable point. However, her symptoms involved the right upper limb and I therefore do not believe that the neuropathy is either causative, delaying recovery or was responsible for her injury in the first place.

Jevco submits that Ms. Norris' right limb problems were caused by this condition. I disagree. I find only three entries in Dr. Russell's notes,³ that Ms. Norris suffered from neck pain prior to the motor vehicle accident. Accordingly, I find that even if Ms. Norris suffered from segmental demyelinating polyneuropathy, it was asymptomatic at the time of the motor vehicle accident.

Jevco hired Ms. R.S. Miller, a psychologist to perform an insurer's examination of Ms. Norris. In her report dated August 9, 1995, Ms. Miller met with Ms. Norris and found no evidence of malingering. She also found her to be significantly depressed, anxious and angry at the time of their meeting. She reported that "Ms. Norris' pain problems significantly interfere with her ability to carry out day to day tasks and she remains fearful that she may fall again and injure herself." She recommended further psychological treatment to help decrease her levels of anger, depression, and anxiety about driving.

Ms. Norris also saw Dr. M. Hall, an orthopaedic surgeon, at the request of Jevco. He prepared three reports. In his reports of May 9, 1994, Dr. Hall stated that Ms. Norris was not suffering from any physical disability. He stated that "there seems to be a very large element of voluntary behaviour intended to deceive or confuse the examiner and I do not think that this is something that is outside her control or understanding." Upon review of this report, I find it difficult to ascertain how Dr. Hall arrived at these conclusions. He simply states this as his "impression." In addition, he opines on areas outside his expertise, for example with respect to whether Ms. Norris suffers from thoracic outlet syndrome and whether she needed counselling. Accordingly, I place little weight on Dr. Hall's reports and his evidence contained in the reports.

I received medical evidence from Dr. L. Leach, a neuropsychologist, Dr. L. Freedman, a psychologist, Dr. R.G. Vanderlinden, a neurosurgeon, and Dr. J.T. Marotta, a neurologist. This evidence dealt with opposing views as to whether Ms. Norris' cognitive symptoms resulted from a mild traumatic brain injury, and also whether her problems with her arm resulted from thoracic outlet syndrome.⁴ The Insurer submitted that Ms. Norris' symptoms were generally myofascial in origin and could not be attributed to mild traumatic brain injury or thoracic outlet syndrome.

It is unnecessary for me to determine whether her symptoms were the result of a mild traumatic brain injury or by thoracic outlet syndrome. If Ms. Norris has complaints which can be attributed to the accident, and these complaints cause her to be substantially unable to perform the essential tasks of her employment, then she is entitled to weekly income benefits regardless of whether her complaints were due to mild traumatic brain injury or thoracic outlet syndrome or were myofacial in origin.

Although Dr. Leach and Dr. Freedman disagreed as to the basis of Ms. Norris' cognitive complaints, they both found objective evidence of cognitive impairment with testing. Dr. Leach confirmed in his neuropsychological report of February 13, 1995, that Ms. Norris has unusual difficulty attending to two or more sources of information at one time. He stated that this difficulty could be a result of either a dysfunction of the neural systems or processing capacity. He also confirmed that Ms. Norris' mood and general psychological functioning revealed the presence of numerous symptoms of depression and anxiety as well as somatic complaints. He stated that her testing showed the presence of an acute reactive depression.

Jevco hired Dr. M. Bail, a psychiatrist, to examine Ms. Norris. In his report of January 24, 1996, he diagnosed Ms. Norris as suffering from a "Depressive Disorder, Not Otherwise Specified."

Dr. Freedman prepared a report of July 15, 1996. He suggested that the basis for Ms. Norris' cognitive impairments was multi-factoral and presumably could be linked to musculoskeletal discomfort and psychological mechanisms, thereby confirming Dr. Bail's earlier "Depressive Disorder" diagnosis.

Ms. Norris was referred to Dr. R.G. Vanderlinden by Dr. Yufe to consider her right arm complaints. He met with Ms. Norris on September 18, 1995. On examination, Dr. Vanderlinden found that Ms. Norris exhibited weakness of her right grip due to pain and jerking tremors of her right limb. He noted that she exhibited pain in her right shoulder with paresthesia radiating down to her right hand. By November 14, 1995, he noted a continued functional weakness of her right grip. In July 1996, he noted that Ms. Norris continued to complain of headaches. Dr. Vanderlinden recommended physiotherapy for her neck.

Ms. Norris also saw Dr. Marotta at the request of Jevco on December 18, 1996. He concluded at pages 12 and 13:

In my view, the picture is one of perpetuating soft tissue complaints. The reason for the perpetuation of symptoms cannot be pin-pointed. In the perpetuation of symptoms after a minor injury one would consider premorbid personality, emotional impact of injury, emotional repercussions of injury, environmental factors and iatrogenic influences.

The repetitive consultations may serve as a continuing source of anxiety.

As noted above, the pain symptoms are myofascial in origin and in my opinion, this includes the so-called temporo-mandibular joint syndrome. The TMJ syndrome is considered by most neurologists to be myofascial in origin unless there is a proven structural abnormality of the temporo-mandibular joints.... The final diagnosis would be a) mild soft tissue injury far exceeding the expected healing time for the originally described injuries, and b) non-organic neurologic findings on clinical examination.

I find that the combined objective evidence of Dr. Leach, Dr. Freedman, Dr. Bail, Dr. Miller, Dr. Marotta and Dr. Russell states that at the time of their respective meetings with Ms. Norris, she continued to complain of various symptoms, including pain in her neck, and shoulder, headaches, numbness and tingling of her right arm and hand, anxiety, depression and cognitive impairments. In addition, I find that these symptoms continued to plague Ms. Norris beyond June 1, 1996.

Do Ms. Norris' injuries result from the accident or some other cause?

Ms. Norris suffered from many complaints prior to the accident. She had significant problems with her left knee prior to the accident, and she was told that she was overweight. She also had some right-sided low back tenderness, experienced occasional hand tremors and pain, and suffered from reoccurring low back pain. She also went bankrupt and suffered from anxiety caused by family and financial problems.

Jevco claims that if Ms. Norris is substantially unable to perform the essential tasks of her employment it is due to these complaints. Jevco claims that Ms. Norris' anxiety and depression were caused by her family and financial problems. In addition, it claims that her injuries were caused by a 1992 motor vehicle accident or pre- and post accident falls. I do not agree.

Bankruptcy and financial problems:

Jevco argues that Ms. Norris' anxiety was a pre-existing problem as a result of her bankruptcy and her problems with her daughter. Dr. Russell's notes indicated that Ms. Norris suffered from some anxiety prior to the accident. I received no evidence that Ms. Norris required therapy for these problems prior to the accident. After the accident, Ms. Norris' anxiety was more significant and pronounced. It centred around her fears that she might fall due to increased right leg instability, as well as the fact that she was afraid of driving. She required counselling for these anxieties after the accident. Accordingly, I find that her anxiety arose as a result of the motor vehicle accident and no other cause.

Ms. Norris' 1992 motor vehicle accident:

Jevco suggests that Ms. Norris sustained her ongoing injuries in the 1992 motor vehicle accident. Ms. Norris had a motor vehicle accident on February 15, 1992. Ms. Norris testified that the accident left her shaken and sore. She did not have any immediate pain from that accident, nor was she seen at the hospital. Although Dr. Russell found some tenderness on the base of Ms. Norris' neck, she returned to work, and was not showing any distress, although she was still tender.⁵ I received no evidence that Ms. Norris suffered longstanding injuries in this accident. Accordingly, I find that this accident has no relevance to the issues I must decide.

Ms. Norris' falls before and after the motor vehicle accident:

Jevco also claimed that Ms. Norris sustained the injuries complained of in her pre- and post-accident falls, and that such injuries were the reason for any inability she might have had to perform the essential tasks of her employment. I do not agree.

Prior to the motor vehicle accident, Ms. Norris suffered from ongoing left leg instability, which caused her to fall twice immediately before the accident. She fell at home on March 2, 1993. Her left ankle joint, left tibia and fibula were x-rayed.⁶ There may have been a further accident on May 5, 1993.⁷ The hospital notes are unclear and illegible as to whether or not Ms. Norris was attending the hospital as a result of a new fall.

One of Ms. Norris' main complaints from the motor vehicle accident, was that her right leg was injured. I received no evidence that Ms. Norris' right leg ever caused her problems prior to the motor vehicle accident.

In addition, I received no evidence that prior to the motor vehicle accident, Ms. Norris was unable to perform the essential tasks of her employment due to either her left leg instability or problems with her right leg. Accordingly, I find that the falls which pre-dated the accident were not the cause of the injuries Ms. Norris complained of after the accident.

In addition, Ms. Norris' had two post-accident falls. Jevco claims that these falls and a pre-existing condition caused Ms. Norris' TMJ facial pain, memory deficits, and concentration problems, and not the motor vehicle accident. I do not agree.

Ms. Norris first post-accident fall was on July 19, 1993. She was going down some stairs. She put weight onto her left leg to avoid her sore right leg, and her left knee gave out. She fell down some stairs, bruised herself, and fractured her left toe. On October 13, 1993 Ms. Norris was leaving through the front door of her home when she fell down some stairs after her right leg "gave out." She fell and hit the side of her head against a brick wall. She bruised her hip and fractured her left ankle.

Dr. Mascarenhas concluded in his report of September 17, 1993 that "following the accident, due to ongoing pain in her right, upper and lower extremities, she has over-compensated on the left side, and this has caused her further problems." I agree with this conclusion and find it more likely than not that Ms. Norris fell as a result of pain in her right upper and lower extremities, for which she over-compensated on the left side. I find that the injuries she sustained to her right leg in the motor vehicle accident combined with her already unstable left leg, caused her to be unstable on her feet. She clearly would have been more stable on her feet if her right leg had not been injured in the motor vehicle accident.

Accordingly, I find that the fall on October 13, 1993 and Ms. Norris' injuries therefrom occurred as a consequence of the motor vehicle accident in question. In my view, Ms. Norris' increased leg instability caused her to suffer increased anxiety and fear of falling. Accordingly, I find that Ms. Norris' anxiety did not result from repetitive consultations, as suggested by Dr. Marotta, but was a direct result of the accident.

In addition, Jevco argues that Ms. Norris' headaches, facial pain, TMJ and jaw pain resulted from her fall on October 13, 1993, when Ms. Norris fell and struck her head, or in the alternative these problems were due to her pre-existing bruxism. I do not agree.

The first indication of Ms. Norris' facial pain appears in Dr. Russell's notes on March 22, 1994, some nine months after the accident. Suzanne Oullette also noted that Ms. Norris had problems with her jaw in March 1994 as did Dr. Russell who noted "severe pain right [sic] TMJ" in October 1994.

Ms. Norris' dentist referred her to Dr. Grushka, an oral surgeon. Dr. Grushka first met with Ms. Norris on November 10, 1994. Ms. Norris reported pain in her right TMJ joint area, she had difficulty opening her mouth, chewing her food and was aware of tooth pain associated with sleeping. She was unable to chew on her right side due to the pain. She was grinding and clenching her teeth at night and she had changed her diet to softer foods.

Dr. Grushka had an opportunity to meet with Ms. Norris several more times after their initial meeting, specifically on May 30, 1995 and May 30, 1996. I was impressed by the thoroughness of Dr. Grushka's reports, and by her curriculum vitae. She has obviously had extensive background in dealing with TMJ disorders. In addition, she met with Ms. Norris on several occasions and treated her.

Her initial clinical examination was contained in her report dated December 1, 1994. Her examination showed that Ms. Norris had severe to very severe pain to palpation on the right side of her jaw and right masseter muscle area, and bilateral jaw clicking. Dr. Grushka stated that Ms. Norris had "bilateral disc displacement with reduction (with the right disc significantly worse than the left) associated with a mostly right-sided myofascial pain dysfunction and a right-sided capsulitis, secondary to the motor vehicle accident on June 1, 1993." She recommended bite splint therapy.

Dr. Grushka states as follows at pages 6 and 7 of her report:

The clinical signs and history with which Ms. Norris presented are consistent with the literature with regard to acute and chronic TMJ pain subsequent to a traumatic injury. As a result of the injury, it is felt that the TMJ ligaments, capsule and articular tissues are subjected to loading or stretching which can exceed their tolerance and can cause symptoms such as joint pain and noises, TMJ catching and reduced condylar movement...

Over the longer term, however, other slowly-developing changes are thought to occur, including reflex postural alterations of the craniovertebral and craniomandibular relationships... that can in turn lead to a forward head position... or to altered occlusal contacts... and thus stress the masticatory musculature funchen [sic]...

Ms. Norris's clinical history suggests that she has experienced both acute injury to her TMJ's which was present soon after the accident as well as more slowly developing changes which have resulted in more sustained muscle pain and TMJ tenderness. The combination of these changes may explain her increasing awareness of her TMJ injury and the slow recovery often seen in other post-traumatic TMJ patients...

In her report of April 18, 1995, Dr. Grushka explained that a history of delay in seeking treatment for jaw pain following trauma is relatively common as initially the jaw problems may seem minor compared with severe headache and neck pain. Often jaw symptoms get worse with time. She stated that this increase in symptoms and pain is thought to be due to increasing spasticity of the jaw closing muscles. She states as follows on page 3 of this report:

Ms. Norris' history is consistent with that of many other post trauma patients and there is no reason to believe that her symptoms with relation to her jaw were not caused by the accident.

Dr. Grushka reports that when she met with Ms. Norris on May 30, 1996, on clinical examination, Ms. Norris continued to have severe pain to palpation of the muscles of the right side of her jaw, neck and joint. She stated that there had been a significant change in Ms. Norris' condition over the past year with the onset of crepitus in the joint, suggestive of osteoarthritic or degenerative joint changes. Her prognosis for Ms. Norris was guarded. She indicated that Ms. Norris suffered the possibility of increased pain and dysfunction. She recommended that Ms. Norris obtain physiotherapy for her jaw.

Dr. T.W. McKean, a dentist, was retained by Jevco to independently examine Ms. Norris, which examination was conducted by him and noted in his report of June 14, 1996. Unlike Dr. Grushka, Dr. McKean did not have an opportunity to see Ms. Norris over time. He prepared his report on the basis of one clinical examination of Ms. Norris. Dr. McKean concluded that the TMJ disorder did not result from the motor vehicle accident⁸ but from a longstanding parafunctional habit of clenching-grinding and bruxism, without stating his reasons.

There was little evidence before me that Ms. Norris contacted her dentist for TMJ, facial pain or problems from her bruxism prior to the accident.

I found Dr. McKean's reports difficult to read and his conclusions sketchy. I heard no submissions as to why his article was provided to me nor how it is relevant to the issue before me.

Accordingly, I prefer the evidence of Dr. Grushka over that of Dr. McKean where their evidence differs. Although there was evidence of Ms. Norris having struck her head in the second post-accident fall, I heard little evidence as to how this caused her TMJ and facial problems. I rely on the evidence of Dr. Grushka, accept her opinions as to why Ms. Norris' TMJ did not exhibit itself for nine months, and I find that the motor vehicle accident and no other cause led to Ms. Norris' TMJ, headaches, facial and jaw pain.

Hand pain and tremors, low back pain, and overweight:

Dr. Russell's notes indicated that in January 1992, Ms. Norris suffered from bilateral hand pains. This was the only time this problem was noted prior to the accident. Dr. Russell noted that Ms. Norris suffered from low back pain in late 1992, and there was the occasional note about her weight. Nevertheless, there is no evidence that any of these symptoms were significant in nature at the time of the motor vehicle accident.

In addition, I heard no evidence that the existence of the bilateral hand pains, low back pain or the fact that she might have been overweight, limited Ms. Norris functioning in her employment at the time of the accident.

Conclusions:

I heard no evidence to suggest that Ms. Norris was malingering or that she was not suffering from the injuries complained of from the motor vehicle accident. The evidence of Dr. Russell, Ms. Oullette, Dr. Leach, Dr. Freedman, Dr. Bail, and Dr. Miller conclusively shows that Ms. Norris continued to be anxious and depressed and suffered from cognitive impairments. Dr. Marotta confirmed the ongoing nature of Ms. Norris' soft tissue complaints and her emotionally linked complaints in December 1996. The evidence of Dr. Russell, and Dr. Vanderlinden confirmed Ms. Norris ongoing right arm, and hand weakness, tremors and pain. Dr. Russell confirmed ongoing pain in her right side and buttock. Dr. Grushka confirmed Ms. Norris ongoing TMJ, headaches, facial and jaw pain.

Accordingly, I find the evidence overwhelming that Ms. Norris' pain and weakness of her right shoulder, arm and hand, right leg, facial pain, TMJ, headaches, anxiety and related symptoms continued until and past June 1, 1996. I also find that they were linked to musculoskeletal discomfort and psychological mechanisms, were myofascial in origin and resulted from the motor vehicle accident and no other cause.

Was Ms. Norris substantially unable to perform the essential tasks of her employment?

Ms. Norris made several attempts to return to work after the motor vehicle accident. She testified that she attempted to return to work on June 7, 8, 9, and 10, 1993. She worked a full day on June 7, however, she was unable to cope with a full day's work on the subsequent days, so she reduced her hours. By June 10, 1993, Ms. Norris indicated that her pain had worsened so that she was unable to cope with her job at all.

Ms. Norris' inability to cope during this return to work was confirmed by Mr. Allman, Ms. Norris' partner. He stated that Ms. Norris exhibited problems with pounding headaches, concentration and mobility, and appeared to be suffering from pain in her neck, shoulder, arm and hand. She was unable to type, answer the telephone or move between the "in" and "out" windows as efficiently as before the accident. She had difficulty turning towards customers, and checking what was happening in the lot. He also testified that she was unable to perform the concurrent tasks of working her telephone, computer, microphone and windows as she had prior to the accident.

Rexdale performed a Work-Specific Conditioning Programme Assessment on August 10, 1993 and September 10, 1993. The report indicated that by September 10, 1993 Ms. Norris was able to sit approximately 15 minutes (which varied), stand for 15 minutes, walk for 15 minutes, and was able to twist slowly, but she was limited by her neck pain. It also reported that she had problems with grip strength and finger movements of her right hand, which was starting to improve.

By October 4, 1993, Rexdale noted that Ms. Norris was fit for modified light duties possibly two to three times per week for four hours, with no prolonged static postures, no heavy lifting no prolonged weight bearing, and no walking over rough ground. It recommended ongoing physiotherapy.

In his report of September 17, 1993, Dr. Mascarenhas anticipated that Ms. Norris would continue to be symptomatic into the future. He states as follows at page 7:

Realistically she will graduate from her physical reconditioning program to part-time and/or modified duties, following which she will then return to her pre-accident employment. I am optimistic that this will occur over the next two to three months.

Specifically with respect to her 'essential' tasks, I discussed with her and Mr. Allman what her duties were at Jet Away [sic], where she worked as a dispatcher/cashier. I note that her responsibilities included attending to customers, dispatching calls to drivers, and performing cashier functions. This could be classified as a job that required a fair amount of standing and doing office and administrative work, and given the quick pace and demands, it would be reasonably physically and mentally stressful.

FIT for Work Centres ("FIT") performed a Work Tolerance Screening of Ms. Norris on September 29 and 30, 1994. This assessment was performed by Cathy Butler, physiotherapist, and Terry Honigsberg, occupational therapist, as outlined in their report dated October 12, 1994.

The report showed that Ms. Norris exerted herself maximally during the tests. They concluded that Ms. Norris was able to sit or stand for periods of up to half an hour. The authors state on pages 8 and 9:

Due to a decreased upper extremity function, particularly her poor right hand grip, she is limited in handling loads, fine finger movements, handling, and repetitive arm/hand motions. In addition, walking and climbing speeds are below normal limits and she is unable to bend repetitively...

Assessment findings suggest that Ms. Norris would not be able to tolerate the physical demands of her former job on a full-time regular basis. If she is allowed frequent changes in body position (sitting, standing, walking) and to work at her own pace, she may be able to return to work gradually on a part-time basis. ⁹

Although Dr. Mascarenhas was "optimistic" that Ms. Norris could return to her duties of her employment in the next two to three months, he did not perform a follow-up examination of her, nor did he give a basis for this conclusion in this report. In addition, Ms. Norris' functional ability was reviewed by FIT which reports that a year later Ms. Norris was still unable to tolerate the demands of her job on a full-time regular basis. Accordingly, I place little weight on Dr. Mascarenhas' opinion that he was optimistic that Ms. Norris could return to her duties of her employment in the two to three months after the writing of his report.

One of the essential elements of Ms. Norris' job was that she be able to do several tasks at once. Dr. Leach, a neuropsychologist stated in his report of February 13, 1995, that Ms. Norris had unusual difficulty attending to two or more sources of information at one time. He also noted impairments of grip strength and fine motor dexterity with her right hand. Accordingly, I find that Ms. Norris would have had difficulty performing the multi-tasks her job required. This was confirmed by Ms. Norris herself when she attempted to go back to work in September 1995 for four days, and again in June 1996 for four days, but she was unable to continue working.

In Dr. Bail's report of January 24, 1996, he confirmed that "from a psychiatric point of view, it is possible that Ms. Norris is experiencing some partial disability to return to her previous occupation as a result of her current Depressive Disorder." He went on to state at page 9:

Perhaps her subjective experience of decreased concentration and memory, and depressive feelings, is inhibiting her ability to perform the required tasks of her job. I would suggest that she receive a trial of antidepressant medication such as Manerix 450 mg. per day to see if there can be some improvement in these symptoms.

An updated Functional Capacities report was prepared by Cathy Butler of FIT on January 24, 1997. The testing results indicate that Ms. Norris was currently able to perform sedentary to light work, which is self-paced and does not require repetitive fingering or handling, as her right hand remained irritable and became painful and swollen after sustained activity. The report went on to state as follows at page 9:

Ms. Norris' performance levels do not meet the full range of physical demands of her previous job. In particular, she would be restricted from repetitive finger and arm/hand motions required in her job as a cashier and dispatcher.

This evidence was uncontradicted.

I find that the report of Dr. Bail shows that in January 1996 Ms. Norris was restricted in her work due to her emotional injuries.

The ongoing effect of her disabilities from the motor vehicle accident on Ms. Norris' function was confirmed by Ms. Norris' evidence, and through the FIT report commissioned by her lawyer in January 1997. I find Ms. Norris to be a credible witness. She worked hard prior to the motor vehicle accident and made several attempts after the accident to return to her work.

The FIT report indicates that as a result of her physical and emotional injuries, particularly her right arm weakness and ongoing anxiety, Ms. Norris was only able to work modified duties on a part-time basis.

I find that Ms. Norris' main disabilities were the continued pain and weakness in her right arm, her headaches, anxiety, and depression as well as her right leg instability. I find that her right arm pain and weakness caused her to be unable to perform repetitive fingering required to do the cashier's work and typing. In addition, she was unable to concentrate sufficiently on the multiplicity of her duties such as working the telephones and checking individuals "in" and "out" and her other multi-tasks, due to her depressed and anxious state. In addition, she continued to have difficulty with her walking and climbing speeds required to move her about the trailer between the various work stations on a continued basis as a result of her right leg instability. These duties were essential in Ms. Norris' position as a cashier/dispatcher, and I find that Ms. Norris was substantially unable to perform these duties.

There was little evidence that Ms. Norris' TMJ and jaw pain caused her to be substantially unable to perform the essential tasks of her work. Accordingly, I do not find for Ms. Norris on this basis.

In all the circumstances, I find that Ms. Norris suffered a substantial inability to perform the essential tasks of her employment as a dispatcher/cashier between June 1, 1994 and June 1, 1996 as a result of her injuries sustained in the motor vehicle accident. Ms. Norris is entitled to weekly income benefits pursuant to section 12(1) of the Schedule for this period of time.

I am advised by the parties that quantum is not in issue. Accordingly, Ms. Norris is entitled to weekly income benefits in the sum of $336.18 per week for this period.

C. Nutritional Counselling, Meal Replacements and Dental X-Ray:

Ms. Norris claims the sum of $81.15 for nutritional counselling for August 15, 1994 and August 25, 1994, $60.00 for December 20, 1994, and $102.50 for meal replacements submitted on November 16, 1994, and the sum of $74.00 for a dental x-ray as expenses pursuant to section 6 of the Schedule.

Section 6 of the Schedule states:

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.

In the case of Plows,¹⁰ with which I agree, the Senior Arbitrator sets out the criteria which must be met before an insurer can be found liable to pay for an item under subparagraph 6(1)(f) of the Schedule. The arbitrator finds that the expense must be a reasonable expense resulting from the accident, and required because of the accident.

Ms. Norris testified that she was having problems chewing her food as a result of her TMJ, and was eating very little. She saw a dietician, Gayle Jackson, who recommended that she eat vitamins and foods which did not require too much chewing. Ms. Norris testified that she purchased these foods and submitted the invoices to the Insurer. She also testified that to date these invoices have not been paid.

I received little evidence from the nutritionist to explain the nature of the nutritional counselling or the requirement of the meal replacements. I received only the invoices for these items, together with Ms. Norris' limited testimony and the short note from Ms. Jackson.

In addition, I received no evidence why Woodbine Dental Office took a dental x-ray and how it was related to the motor vehicle accident. Accordingly, I had insufficient evidence before me to determine whether these were reasonable expenses required as a result of the accident. Ms. Norris' claim for these expenses is therefore denied.

D. Special Award:

Section 282(10) provides that the Arbitrator shall order a special award, in addition to awarding benefits and interest owing, if the Arbitrator finds that the Insurer "unreasonably withheld or delayed payments."

Ms. Norris claims a special award on the basis that Jevco unreasonably withheld or delayed her weekly income benefits. I find there was insufficient evidence to corroborate this claim.

In addition, Ms. Norris claims a special award on the basis that Jevco unreasonably withheld or delayed her medical and rehabilitation benefits. Cases at the OIC have held that a special award can only be granted in cases where benefits are found to be due and owing and the Insurer has unreasonably withheld payments. I agree with this line of decisions.

In this case, I have not found medical and rehabilitation benefits to be owing. Accordingly, no special award is ordered. In any event, even if medical and rehabilitation benefits were found to be owing, I heard no evidence that Jevco unreasonably withheld or delayed these benefits from Ms. Norris.

Accordingly, Ms. Norris' claim for a special award pursuant to section 282(10) of the Insurance Act is denied.

E. Expenses:

Jevco claims that it is entitled to its expenses pursuant to section 38(4) of the Automobile Insurance Rate Stability Act, S.O. 1996, c.21 and seeks to have its expenses determined in accordance with this legislation which became effective on or after November 1, 1996. Jevco also advised me of the fact that there was an Offer to Settle which ought to be taken into account in this regard. Although counsel for the Insurer advised me of the existence of this Offer to Settle, the offer was properly not before me at the time of hearing. If I find that the new legislation applies, then it would apply to both the Applicant and the Insurer.

Section 38 (4) repeals section 282(11) of the Insurance Act and substitutes the following section in its stead, effective November 1, 1996:

(11) The arbitrator may award, according to criteria prescribed by the regulations, to the insured person or the insurer, all or part of such expenses incurred in respect of an arbitration proceeding as may be prescribed in the regulations, to the maximum set out in the regulations.

Section 38(4) permits an arbitrator to grant an insurer expenses in respect of an arbitration proceeding according to criteria to be prescribed by regulation. These criteria are set out in section 12 of Ontario Regulation 464/96 which came into force on November 1, 1996, and indicate that an arbitrator may award expenses to an insurer or insured person if the arbitrator is satisfied that the award is justified having regard to the enumerated criteria.

In addition, section 74 of the Dispute Resolution Practice Code ("Code"), third edition, which came into effect on April 15, 1997, indicates that an adjudicator will consider an Offer to Settle in connection with an award of expenses in certain circumstances. The offer must have been made in writing, served on the other parties and must contain the full terms of the Offer to Settle, the date when the offer was served and the time period during which it remained open for acceptance. In addition, the offer must have been made after the conclusion of mediation and before the conclusion of the hearing. Particular consideration will be given to any Offer served after the conclusion of the pre-hearing discussion or preliminary conference up to five days before the commencement of the hearing.

The question here is whether these sections can be applied retroactively. I heard little in the way of submissions from either counsel as to why this Regulation and the Code provisions concerning Offers to Settle should be applied retroactively in this case. Both counsel were asked to make submissions on the case of Worthman which concluded that the regulation does not have retroactive effect, a finding with which I agree.¹¹

In the subsequent case of Pinto¹² the arbitrator also determined that the legislation did not have retroactive application despite the fact that the arbitration proceeding continued beyond the November 1, 1996 commencement date for the legislation.

I agree with the arbitrator in Pinto that one must look to the effective date of the application in determining the rules which apply. Otherwise as the arbitrator in Pinto stated, there would be an "attempt to reach into the past and alter the law or the rights of persons as of an earlier date."

Here although the date of the Application for Arbitration is unclear, it would have had to have been dated prior to November 6, 1995, the Response date, a full year prior to the legislation becoming effective. I agree with the arbitrator in Pinto who suggests that it would be arbitrary and unfair to change the rules upon which the applicant commenced her arbitration.

My jurisdiction to award expenses is exercised in accordance with the law as it stood prior to November 1, 1996. Accordingly, I find that the expense regulation does not have retroactive effect to the case before me. The Insurer's request for expenses in accordance with section 38(4) of the Automobile Insurance Rate Stability Act is denied.

In addition, section 74 of the Code must be read in conjunction with section 73, which indicates that in awarding expenses at the request of either party, any written Offer to Settle made in compliance with sections 74 and 75 may be taken into account. In my view, this section clearly only has effect if the November 1, 1996 legislation is applicable. This conclusion was also reached in the decision of Grewal.¹³ As the amended statute is not applicable, it is unnecessary for me to hear submissions on the effect of the Insurer's Offer to Settle vis-a-vis the Insurer's expenses. I am applying the legislation as it existed at the time of the Application for Arbitration in determining the issue of expenses.

Ms. Norris seeks an award of the expenses she has incurred in this arbitration. Under section 282(11) of the 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 Ms. Norris' conduct unreasonably prolonged the proceedings.¹⁴

I choose to exercise my discretion in this case and find that Ms. Norris is entitled to her expenses as set out in Schedule F of the Dispute Resolution Practice Code-1995 version. If the parties cannot agree on the total amount of the expenses, they may apply to the Registrar to have the expenses assessed.

Section 282 (11.2) of the Insurance Act provides that an Insurer is entitled to an amount that does not exceed its assessment, if the insured person commences an arbitration that is frivolous, vexatious or an abuse of process. There is no evidence before me that Ms. Norris commenced an arbitration that is frivolous, vexatious or an abuse of process. Accordingly, the Insurer is not entitled to a return of its assessment pursuant to this section of the legislation. Jevco's claim for a return of its assessment is denied.

Order:

Jevco shall pay Ms. Norris weekly income benefits in the sum of $336.18 per week for the period from June 1, 1994 until June 1, 1996 pursuant to section 12(1) of the Schedule.
Ms. Norris' claim for payment of nutritional counselling invoices dated August 15, 25, 1994 and December 20, 1994, meal replacements expenses on November 16, 1994 and for a dental x-ray dated February 20, 1995 is denied.
Ms. Norris' claim for a special award pursuant to section 282(10) of the Insurance Act is denied.
Jevco shall pay Ms. Norris interest at the rate of 2% per month on any weekly income benefits outstanding pursuant to section 24 of the Schedule.
Jevco shall pay Ms. Norris her expenses of this arbitration proceeding as set out in Schedule F of the Dispute Resolution Practice Code—1995.
a) Jevco's claim for its expenses pursuant to section 38(4) of the Automobile Insurance Rate Stability Act is denied.