Neutral Citation: 1997 ONICDRG 165

OIC A-015998

BETWEEN:

JANA M. GAGNON

Applicant

and

GUARANTEE COMPANY OF NORTH AMERICA

Insurer

DECISION

The Applicant, Jana M. Gagnon, was injured in a motor vehicle accident on October 19, 1993. She applied for and received statutory accident benefits from Guarantee Company of North America ("Guarantee"), payable under Ontario Regulation 672.¹ Guarantee terminated weekly income benefits on March 27, 1995. It also denied certain supplementary medical and rehabilitation benefits. The parties were unable to resolve their disputes through mediation, and Mrs. Gagnon applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended ("the Act").

The issues in this hearing are:

Is Mrs. Gagnon entitled to weekly income benefits after March 27, 1995, under subsection 12(1) of the Schedule?
Is Mrs. Gagnon entitled to housekeeping services from September 1, 1995, under subsection 6(1)(f) of the Schedule?
Is Mrs. Gagnon entitled to chiropractic treatment after November 6, 1995, under subsection 6(1)(a) of the Schedule?
Is Mrs. Gagnon entitled to expenses for investigations, assessments and treatment she received at the University of Michigan Medical Center, under subsection 6(1)(a) of the Schedule?
Is Mrs. Gagnon entitled to expenses for transportation (including parking) to and from the offices of Dr. Gary N. Kuprowski, Dr. Richard N. Pascoe, Dr. Antoon A. Leenaars, Dr. J. Rodrigues and Dr. John Bell, under section 6(1)(d) of the Schedule?
Is Mrs. Gagnon entitled to a special award under subsection 282(10) of the Act?

Mrs. Gagnon also claims interest on any amounts owing and her expenses incurred in respect of the arbitration proceeding.

Mrs. Gagnon is not entitled to weekly income benefits after March 27, 1995.
Mrs. Gagnon is not entitled to housekeeping services after September 1, 1995.
Mrs. Gagnon is not entitled to chiropractic treatment after November 6, 1995.
Mrs. Gagnon is not entitled to expenses for investigations, assessments and treatment she received at the University of Michigan Medical Centre.
Mrs. Gagnon is not entitled to be paid for mileage and parking for her visits to and from the offices of Dr. Kuprowski (September 1995 - February 1996), Dr. Pascoe (September 1995 to November 6, 1995), Dr. Leenaars (September 1995 to February 1996), Dr. Bell (January 1996) and Dr. Rodrigues (January 1996).
Mrs. Gagnon is not entitled to a special award.
Mrs. Gagnon is not entitled to her expenses incurred in respect of the arbitration proceeding.

The hearing was held in Windsor, Ontario, on February 20, 21, 22, 1996 and June 24, 25, 26, 27, 28, 1996, before me, Shemin Manji, Arbitrator.

Present at the Hearing:

Applicant:

Jana M. Gagnon

Mrs. Gagnon's Representative:

Michael De Biase

Barrister and Solicitor

Valda Woodward (articling student)

Guarantee's Representative:

W. Colin Osterberg

Barrister and Solicitor

Witnesses:

Mrs. Jana Gagnon

Dr. Gary N. Kuprowski

Mr. Richard Gagnon

Ms. Helen Caza.

Dr. Richard N. Pascoe

Mr. Hugh Vallee

Ms. Patricia A. Morand

Dr. Steven W. Bartol

Exhibits and other documents before the arbitrator are listed in an appendix to this decision.

Reasons for Decision:

1. Background:

At the time of the accident on October 19, 1993, Mrs. Gagnon was 40 years old, self-employed and lived with her husband in Windsor, Ontario. She was stopped at a red light in Jackson, Michigan, when her mini-van was rear ended by another vehicle. Mrs. Gagnon testified that the force of the impact caused her vehicle to be pushed into the intersection and also caused her upper body to be slammed on the steering wheel and then thrown back.

Mrs. Gagnon testified that she did not feel any pain at the time of the accident; she was dazed and in shock. Following the arrival of the police, she felt severe pain in her right shoulder. However, she did not attend at a hospital because she was concerned about the cost of medical care in the United States.

Mrs. Gagnon attended at her family physician, Dr. Kuprowski's office, on October 21, 1993. Dr. Kuprowski's clinical notes indicate that during her visit Mrs. Gagnon complained of right shoulder, right neck and hand pain, pain in the right lower ribs and daily headaches. After examining Mrs. Gagnon, Dr. Kuprowski concluded that she had suffered a cervical strain and a right shoulder strain. X-rays ordered by Dr. Kuprowski indicated that Mrs. Gagnon had muscle spasm in her cervical spine, and an old right shoulder fracture. Dr. Kuprowski prescribed medication and referred Mrs. Gagnon to the Uptown Physiotherapy Clinic ("the Uptown Clinic").²

Mrs. Gagnon attended at the Uptown Clinic from October 26, 1993 to November 9, 1993,³ when she started receiving chiropractic treatments three times a week from Dr. Pascoe.

Sometime in November 1993, Crawford & Company Health and Rehabilitation ("Crawford") was retained by Guarantee to provide case management services in Mrs. Gagnon’s case. Ms. Heather Batson, Medical Services Consultant, felt that until Mrs. Gagnon was able to participate in active physiotherapy, it was unlikely she would improve much.⁴

Dr. Pepin, an orthopaedic surgeon, examined Mrs. Gagnon at Guarantee's request on December 17, 1993. He concluded that she was suffering from a moderate acceleration-deceleration soft tissue injury of the cervical spine and a jarring injury to her right upper extremity with probable brachial plexus contusion⁵ with resultant arm pain and paresthesia.⁶ He recommended that Mrs. Gagnon be assessed at an active physiotherapy clinic such as AIM and be "streamed into (its) various programs." Dr. Pepin was concerned that if this was not done, Mrs. Gagnon would have a prolonged disability and "...might even fall into the realm of a chronic pain syndrome which is essentially non-curable."⁷

Mrs. Gagnon was assessed at AIM on March 31, 1994. It was recommended that she participate in a 13 week functional restoration program geared towards improving and monitoring her overall conditioning and activity levels.⁸

Mrs. Gagnon attended at AIM from April 4, 1994 to July 20, 1994.⁹ While she attended at AIM, Mrs. Gagnon continued with her chiropractic treatments. At the end of June, she also began seeing Dr. Antoon A. Leenaars, a psychologist, once a week.

During the 13 week program at AIM, Mrs. Gagnon made minimal progress. Because of this, Guarantee requested that she be assessed by a number of health care practitioners: Dr. William Ross, a psychologist, on May 9, 13 and June 1, 1994, Ms. Patricia Morand, an occupational therapist on May 18, 23 and June 1, 1994, Dr. Robert Durnin, a physiatrist, on July 7, 1994, Dr. Steven Bartol, an orthopaedic surgeon, on November 14, 1994, and Dr. Brad Walls, a chiropractor, on January 30, 1995.¹⁰ All of these assessors noted a significant emotional or psychological component to her symptoms. In respect of her physical impairment, they felt that emphasis should be placed on functional recovery and an active therapeutic program.¹¹

Dr. Kuprowski referred Mrs. Gagnon to Dr. Dana Fleming, an orthopaedic surgeon, who assessed her on September 28, 1994.¹² Dr. Fleming concluded that her complaints were largely muscular in origin, and suggested an exercise oriented program of a more classic nature than the AIM program, with specific back exercises.¹³

Dr. Kuprowski also referred Mrs. Gagnon to the University of Michigan Medical Centre. There she was seen by several specialists including at least two orthopaedic surgeons. These specialists, among other things, requested MRIs of her cervical spine and brain and nerve conduction tests of her right arm. The MRIs and nerve conduction tests were found to be normal. The specialists concluded that Mrs. Gagnon was suffering from myofascial pain syndrome with additional probable thoracic outlet syndrome and post traumatic stress disorder. They recommended a change of medication and physiotherapy which would include stretching and strengthening of the upper extremity and shoulder girdle.¹⁴

On March 27, 1995 a "team conference" was held, at the request of Guarantee, with all the health care providers who had assessed and/or treated Mrs. Gagnon in Windsor. Present at the conference were Dr. Kuprowski, Dr. Leenaars, Dr. Pascoe, Dr. Fleming, Dr. Bartol, Ms. Morand, the medical consultant from Crawford, the accident benefits examiner from Guarantee and the independent adjuster. At the team meeting, all of the doctors except Dr. Leenaars agreed that Mrs. Gagnon had sustained soft tissue injuries to her cervical spine, lumbar spine and right shoulder girdle, which had healed. Dr. Leenaars could not comment on the physical injuries. He was of the opinion that Mrs. Gagnon’s post-traumatic stress disorder was resolving but that she continued to suffer from anxiety and depression. All of the doctors recommended that Mrs. Gagnon should continue to receive chiropractic treatments from Dr. Pascoe and psychological counselling from Dr. Leenaars and that she undergo an individualized physiotherapy program at Tecumseh Physiotherapy Clinic.¹⁵

Following the team conference, Mrs. Gagnon attended at Tecumseh Physiotherapy Clinic to review the facility but subsequently decided that she would not attend at the Clinic for treatment.

On April 28, 1995, Mrs. Gagnon started to see a psychologist, Dr. Bachman, at the Multidisciplinary Pain Centre. Mrs. Gagnon continued with psychological counselling with Dr. Leenaars at the same time.

On May 11, 1995,¹⁶ Mrs. Gagnon was involved in a second motor vehicle accident. She was stopped at a red light, in Windsor, when a city truck "bumped" her vehicle from behind. No damage was sustained by either vehicle. However, following the accident, Mrs. Gagnon complained of feeling even more neck, right arm pain, upper back pain and lower back pain.

On June 20, 1995, Mrs. Gagnon started physiotherapy at the Multidisciplinary Pain Centre, University of Michigan Medical Centre, two times a week. She was discharged from physiotherapy at the Multidisciplinary Pain Centre on August 30, 1995. The Physical Therapy Discharge Note of September 1, 1995 states that at the end of the program Mrs. Gagnon reported increased flexibility but there was no change in her pain level.

In August 1995, Dr. Kuprowski referred Mrs. Gagnon to two rheumatologists - Dr. Rodrigues and Dr. Bell, who she saw in January 1996. Both concluded that she had developed a chronic pain/fibromylgia syndrome. Both suggested that she needed to implement strategies to cope with her pain and increase her level of function.

Mrs. Gagnon continues to complain of neck, right arm pain, upper back and lower back pain. However, since September 1, 1995 she has not been involved in an active treatment program. She stopped seeing both Dr. Leenaars and Bachman in March 1996 and has not received any psychological counselling since. She continues to receive chiropractic treatments from Dr. Pascoe.

2. Ongoing Entitlement to weekly income benefits

Mrs. Gagnon is entitled to weekly income benefits under subsection 12(1) of the Schedule after March 27, 1995 if she establishes that as a result of the injuries she sustained in the motor vehicle accidents on October 19, 1993 and May 11, 1995, she continued to suffer a substantial inability to perform the essential tasks of her occupation or employment.

In her examination-in-chief, Mrs. Gagnon testified that before the accident of October 19, 1993 she was feeling "terrific" and that she was fully functional. She was able to perform her business activities (infra), her housework and engage in her hobbies (grooming and showing cats and painting). However, since her accident of October 19, 1993 she has been in constant pain. She is also frustrated, angry and depressed. She testified that since October 19, 1993, she has been unable to engage in any of her pre-accident activities, including her business activities.

There is evidence that Mrs. Gagnon suffered from post traumatic stress syndrome and depression following the October 19, 1993 accident and that this was affecting her ability to cope with life. However, I accept the opinion of Mrs. Gagnon’s treating psychologist, Dr. Leenaars, that as of March 28, 1995, Mrs. Gagnon was not suffering from a substantial inability to perform the essential tasks of her employment from a psychological stand point.¹⁷

In respect of the physical injuries that Mrs. Gagnon sustained in the accident of October 19, 1993, the bulk (if not all) of the medical evidence indicates that these injuries were soft tissue in nature, involving the neck, back and right shoulder girdle.¹⁸ The medical evidence also indicates that the soft tissue injuries sustained in the accident of October 19, 1993 had healed by March 27, 1995.¹⁹

There is no objective medical evidence that Mrs. Gagnon sustained any new injuries in the accident of May 11, 1995, or that this accident exacerbated the injuries Mrs. Gagnon had sustained in the accident of October 19, 1993.

Previous arbitration decisions have held that although pain on its own is not compensable under the Schedule, an insured person can still qualify for weekly benefits under section 12(1) of the Schedule if he or she can prove, on a balance of probabilities, that he or she suffers from pain, that the pain is a result of the motor vehicle accident and that the pain prevents him or her from being able to perform the essential tasks of his or her occupation. Where there is, however, a lack of objective evidence of impairment, the insured person's credibility becomes especially important. Therefore, in this case, my assessment of Mrs. Gagnon's credibility is central to my determination of whether she meets the requirements of subsection 12(1) of the Schedule after March 27, 1995.

I did not find Mrs. Gagnon to be a credible witness and based on my assessment of her credibility, I am unable to find that she meets the requirements of subsection 12(1) of the Schedule. I found her evidence to be problematic in many areas. The following are some of the areas:

a) She lied about her pre-accident employment activities and the time she spent on these activities

I found that Mrs. Gagnon significantly exaggerated the extent of her pre-accident employment or business activities. Her testimony in her examination-in-chief was inconsistent with her testimony in cross-examination and the documentary evidence adduced at the hearing.

Mrs. Gagnon testified that she became involved with Advantage Auto Club Emergency Services ("AACES"), a New York based roadside service company, in June 1993. She had bought into the company at the time and just prior to the accident had purchased the exclusive right to sell memberships in the State of Arizona. She had plans to set up an office in Tucson, Arizona.

Mrs. Gagnon also testified that she was working as an agent for AACES just prior to the accident of October 1993. In early 1994, Mrs. Gagnon provided a verbal description of her duties as an AACES representative to Ms. Marie Coslovich, a kinesiologist. Ms. Coslovich drafted a job description based on the information provided by Mrs. Gagnon, which Mrs. Gagnon signed on March 23, 1994, after she had had an opportunity to review it and make any changes. In her examination-in-chief, Mrs. Gagnon testified that the job description accurately reflected her duties as an AACES representative. The job description stated that the job required that Mrs. Gagnon travel throughout the State of Michigan almost every weekend "...(to meet) with various clients/business co-workers in their homes or in specific meeting places" to discuss the services offered through AACES and recruit members."²⁰

The documentary evidence indicates that Mrs. Gagnon was neither a shareholder nor an agent or representative of AACES prior to the accident of October 19, 1993. A promissory note given to Mrs. Gagnon indicates that she purchased shares in the company on October 28, 1993, approximately a week after the accident.²¹ Further, a letter from the President of AACES dated June 19, 1995 states that Mrs. Gagnon's association with the company, presumably as an agent, began on September 15, 1994, almost one year after the accident.²²

In cross-examination, Mrs. Gagnon acknowledged that she was not doing the job set out in the job description prior to the accident. She testified that her agent papers were in the mail at the time and the job was waiting for her. She testified that the letter from the President of AACES dated June 19, 1995 was incorrect and that she became an agent for AACES before September 1994.

Mrs. Gagnon also testified that she started working as an agent/distributor for another company, Advantage Partnership, in May 1993 and was so employed at the time of the accident of October 1993.

The job description prepared by Ms. Coslovich based on information provided by Mrs. Gagnon states that the job consisted of selling membership for services at discount prices and recruiting distributors/agents for the company. This required Mrs. Gagnon to spend a lot of time on the telephone speaking with existing and prospective clients and distributors; setting up and co-ordinating business meetings once a month; and assembling and distributing business kits to clients by mail or in person. The job also required Mrs. Gagnon to drive to clients' homes to market the services of Advantage Partnership, which could take up to an hour. She could end up spending up to three hours with a client, depending on the client’s needs.²³ Mrs. Gagnon testified that her remuneration depended upon the number of members and distributors she recruited.

In the Employer's Confirmation of Income form which she submitted to Guarantee dated October 29, 1993, Mrs. Gagnon indicated that she was working full-time with Advantage Partnership at the time of the accident.²⁴ The job description also gives this impression.

However, the documentary evidence indicates that Mrs. Gagnon recruited only three members and one distributor in the five months before the accident.²⁵ Further, in this period she arranged and attended only three meetings which took place in the evenings and lasted for approximately an hour each.²⁶

In her cross-examination, Mrs. Gagnon testified that she was involved in intensive training by Advantage Partnership until July 1993 and did not start soliciting memberships until after her training had been completed. Nevertheless, based on the very few number of members that she recruited between July and the date of the accident and the few meetings she organized and attended, I am not satisfied that Mrs. Gagnon was working full time at this job prior to the accident. I also find that in her work with Advantage Partnership, Mrs. Gagnon had flexibility in determining her hours and method of work.

Mrs. Gagnon further testified that she also worked with Jon Van Holdings Inc. at the time of the accident.²⁷ Mrs. Gagnon testified that Jon Van Holdings Inc. was an agent for Cantel and sold cellular phones. She testified that her job was to deal with sales invoices and deposits.

Ms. Coslovich drafted a job description of Mrs. Gagnon’s work with Jon Van Holdings Inc. based on information orally provided by Mrs. Gagnon and Mrs. Gagnon signed the job description on March 23, 1994, after she had had an opportunity to review it and make any changes. In her examination-in-chief, Mrs. Gagnon testified that the job description accurately reflected her duties with Jon Van Holdings Inc. The job description states that Mrs. Gagnon was required to deposit cheques in the bank. This could take up to two hours a week in total. She was also required to record cheques deposited in the bank into the computer. This could take up to six hours a day. She was also required to type documents, including letters. This could take two to three days per week and it could take up to four hours a day. Mrs. Gagnon was also required to input data into the computer which could take several hours at one time.

The job description also states that that the job involved contacting clients and co-ordinating business meetings. However, on cross-examination Mrs. Gagnon conceded that this was not the case. Mrs. Gagnon initially explained this on the basis that she had a memory problem. She subsequently testified, on re-examination, that Jon Van Holdings Inc. and Advantage Partnership were interrelated and there was an overlap in duties. However, Mrs. Gagnon was unable to explain the relationship between the companies and how Advantage Partnership related to her job with Jon Van Holdings Inc.

Mrs. Gagnon also overstated the number of hours that she worked at Jon Van Holdings Inc. The job description implies that this position required Mrs. Gagnon to work eight to nine hours a day. However, on cross-examination, Mrs. Gagnon agreed that in a good week her job essentially consisted of depositing cheques from the sales of the three to five phones, recording the cheques in the computer and doing some bookkeeping in regard to these sales. Mrs. Gagnon was unable to give an adequate explanation for why these simple tasks took so long to accomplish.²⁸

Mrs. Gagnon's work with Jon Van Holdings Inc. is not supported by any independent evidence. However, I am prepared to accept that she worked a few hours a week for this company. However, as was the case with her work for Advantage Partnership, she had flexibility in determining her hours and method of work.

c) She lied about her pre-accident income

I found that Mrs. Gagnon also significantly exaggerated her pre-accident income to Guarantee. In her Application for Accident Benefits²⁹ which she submitted to Guarantee shortly following the accident, she stated that her net income from employment was $640.00 per week [$800.00 (gross income) - $160.00 (expenses)]. And, in the Employer's Confirmation of Income form, which she completed on the basis that she was self-employed, she noted that she had worked for 28 weeks prior to the accident and that her net income for the four weeks before the accident was as follows: Week 1: $640.00; Week 2: $640.00; Week 3: $640.00 and Week 4: $2,560.00.³⁰However, Mrs. Gagnon reported no employment or business income in her 1993 tax return. At the hearing, Mrs. Gagnon further admitted that in the year prior to the accident she only earned $20.00 through Advantage Partnership and that she was not paid for the work she did for Jon Van Holdings Inc.

Mrs. Gagnon testified that if she had completed the Application for Accident Benefits and Employer's Confirmation of Income forms incorrectly it was the fault of the independent adjuster, Mr. Hugh Vallee. She testified that he gave her the forms to complete and he asked her to insert in the boxes relating to income what Advantage Partnership told her she would have earned in a year, if she had been paid a salary. She testified that "...the (Insurer) wanted a scenario based on what an employee in head office would make" doing similar work. Mrs. Gagnon testified that she followed these instructions. She testified that after she submitted the figures the Insurer told her that she was only entitled to $185.60. Mrs. Gagnon testified that she did not take issue with this amount because the figures that she had given to the Insurer were speculative.

I find Mrs. Gagnon’s explanation implausible. First of all, it is clear from the forms themselves that the information that was being solicited was in respect of her gross weekly income for last 4 weeks preceding the accident and the gross income for 52 weeks preceding the accident.³¹Secondly, her explanation is inconsistent with a letter that she wrote to Mr. Vallee. In the letter she clearly states that she was earning $640.00 net at the time of the accident:

This letter is to act as my official income statement. I am a Key Leader-Partner with Advantage Partnership Organization. I am in charge of Windsor and Essex county for all the company’s Distributor' s. I pay myself a wage of $640.00 net. I am responsible for all my own expenses. I absorbe [sic] some of my wages through my expenses since I am independent.

The company pays me on a commission basis and I give myself a wage... [Emphasis added]³²

Thirdly, Mr. Vallee testified at the hearing, and I accept his testimony because I found him to be a credible witness, that he did not advise Mrs. Gagnon to complete the income sections of the forms by estimating how much she could earn through Advantage Partnership because this is not the criterion for determining the amount of the weekly income benefit to which she would be entitled under the Schedule.

d) She failed to disclose her post-accident employment activities

In her examination-in-chief, Mrs. Gagnon testified that she had not returned to work since the accident of October 19, 1993. This is also what Mrs. Gagnon told her treating health care professionals and the health care professionals who assessed her after the accident.³³ The documentary evidence indicates that Mrs. Gagnon returned to her job as a distributor (Key Partner) with Advantage Partnership very shortly following this accident. She arranged and attended "Opportunity Nights" on October 28, 1993, November 19, 1993 and December 10, 1993.³⁴ She also chaired distributors meetings on November 12, 1993 and December 3, 1993³⁵, and recruited members and distributors after the accident.³⁶

Mrs. Gagnon also acknowledged in cross-examination that she and her husband travelled to Arizona, California and British Columbia, between January 22, 1994 and March 4, 1994, where they successfully promoted the services of AACES. Further, in a letter dated June 19, 1995, the President of AACES wrote to Mrs. Gagnon that her association with AACES had been ongoing since September 1994 and as a result of her many sales leads and successful efforts to personally promote the company, she was to assume the "responsible role" of State Marketing Director for the State of Arizona as of mid-April 1995.³⁷

Mrs. Gagnon’s testimony as to why she failed to advise her health care professionals that she had worked after the accident was inconsistent. She stated first that she could not recall them asking her if she had worked following the accident. Later, she acknowledged telling Dr. Kuprowski that she had not worked since the accident because she had been experiencing difficulty even though she had been attempting to do the job.

I do not accept Mrs. Gagnon’s explanation. She may have been experiencing some difficulty performing her pre-accident employment activities following the accident. However, the evidence (supra), in particular the letter from the President of AACES, indicates that she was capable of performing them and she was performing them well. Mrs. Gagnon withheld this important information (her immediate return to work) from her health care professionals.

e) She failed to disclose her pre-accident health problems

Mrs. Gagnon also did not disclose her pre-accident problems with her back, shoulders, neck, migraines, anxiety and depression to those health care professionals who assessed her.³⁸ On the contrary she advised them that she had no problems in those areas prior to the accident. She, further testified in her examination-in-chief that she had no pain in her lower back, neck or right arm before the accident. The clinical notes and records of Dr. Kuprowski and Dr. Pascoe contradict this.

At the hearing, Dr. Kuprowski reviewed his clinical notes from when he first started seeing Mrs. Gagnon in 1977. These indicate that Mrs. Gagnon had longstanding problems with anxiety prior to the accident. Dr. Kuprowski had been prescribing Serax for anxiety and depression intermittently since 1977 right up to shortly before the accident (July 16, 1993). They also indicate that Mrs. Gagnon complained of back pain from 1979 to 1981.³⁹ Dr. Pascoe's clinical notes indicate that Mrs. Gagnon continued to suffer from back problems after 1981. His records indicate that she attended frequently for chiropractic treatment of back and neck problems in 1986 (24 visits), 1987 (35 visits), 1988 (36 visits), 1989 (36 visits), 1990 (26 visits), 1991 (23 visits), 1992 (27 visits) and 1993 (17 visits before October 19, 1993).⁴⁰

There is also evidence that indicates that Mrs. Gagnon had problems with her shoulders prior to the accident, including x-rays taken on October 22, 1993 which identified a previous avulsion fracture at the right acromioclavicular joint (right shoulder).⁴¹

In cross-examination, Mrs. Gagnon denied ever having a shoulder injury before the accident, notwithstanding the x-rays of October 22, 1993. Further, she testified that before the accident she did not have any back pain, only "back aches." In respect of her visits to her chiropractor between 1982 and October 1993, she testified that all her visits to Dr. Pascoe before the accident were for preventative/maintenance care of all parts of her body.

I do not accept Mrs. Gagnon’s testimony that all of her visits to Dr. Pascoe before the accident were for preventative/maintenance care. Dr. Pascoe testified that his treatment of Mrs. Gagnon from October 1982 to October 1993 was preventative in nature "...similar to someone going to a dentist". However, on cross-examination, he agreed with Guarantee that until August 1993 Mrs. Gagnon was attending at his office at least two times a month for problems with her neck and low back and the frequency of these visits (more than once a month) suggested that she was not attending at his office for maintenance care but for active treatment. Dr. Pascoe, however, could not recall the reason(s) for the active treatment.

Mrs. Gagnon explained her failure to disclose these pre-accident problems by saying that she did not have any functional problems before the accident.

Due to Mrs. Gagnon’s failure to advise the health practitioners who treated and assessed her, of her prior related problems, they proceeded on the assumption that all of her complaints after the first accident were related to that accident. Mrs. Gagnon’s failure to disclose this important information calls into question their opinions regarding causality.⁴²

f) She failed to comply with advice or recommendations of her assessors and treatment providers

From the beginning of her claim, Mrs. Gagnon has failed to comply with the recommendations of her treatment providers. Dr. Kuprowski initially referred Mrs. Gagnon for physiotherapy to Uptown Physiotherapy Clinic. Mrs. Gagnon only attended at that Clinic for ten days. Mrs. Gagnon testified, in her examination-in-chief, that this was because Dr. Kuprowski only prescribed the treatment for ten days. She testified that after that, because her condition had not improved she started receiving chiropractic treatments because no physiotherapy had been prescribed. However, the records of Uptown Physiotherapy state that Dr. Kuprowski prescribed physiotherapy for between eight to ten weeks.⁴³

Dr. Kuprowski testified that Mrs. Gagnon stopped going to Uptown Physiotherapy not because he prescribed the treatment only for ten days but because she felt that she was not improving and she wanted to go to her chiropractor, Dr. Pascoe, instead. Dr. Kuprowski’s recollection of why Mrs. Gagnon stopped going to Uptown Physiotherapy is consistent with the reason Mrs. Gagnon gave Dr. Pepin, AIM, Dr. Ross and Dr. Clifford for discontinuing treatment at Uptown Physiotherapy.⁴⁴

On cross-examination, Mrs. Gagnon acknowledged that she may have quit the program at Uptown Physiotherapy. She testified that she thought initially that she would benefit from physiotherapy, but after two weeks she was in severe pain. She felt that she needed chiropractic treatments. She testified that she told Dr. Kuprowski this, he agreed and he sent her to Dr. Pascoe.

Based on the records of Uptown Physiotherapy, I find that if Mrs. Gagnon was as disabled as claimed, she did not get much benefit from the program at Uptown Physiotherapy because she did not actively or fully participate in the program.⁴⁵

In April 1994, Mrs. Gagnon began a functional restoration program at AIM. Mrs. Gagnon's attendance at AIM was approved by Dr. Kuprowski.⁴⁶ Mrs. Gagnon was discharged from AIM on July 20, 1994. AIM's records indicate that during the 13 weeks of the program, Mrs. Gagnon's progress was poor. The discharge summary summarizes the reasons for Mrs. Gagnon's lack of progress as follows:

Ms. Gagnon participated in the A.I.M. Functional Restoration Program 2 and Program 3, which extended from April 4 to July 20, 1994. Her compliance with respect to attendance and punctuality was poor and she attended 56% of her scheduled days. Her interpersonal behaviour and motivation were also poor and she did not demonstrate an active interest in her rehabilitation.

During the course of her 13 week exercise program, Ms. Gagnon made minimal physical gains. If [she] had been putting a full effort into her program, this would be inconsistent with normal physiological response to progressive exercise.⁴⁷

Initially in cross-examination, Mrs. Gagnon denied that her attendance at AIM was poor. She testified that even though the exercises were very painful she attended all the days that she was supposed to and only missed Tuesdays when she went for painting lessons which the people at AIM agreed was good therapy for her. Later on, in her cross-examination, Mrs. Gagnon acknowledged that she skipped some days. She stated that the reason for this was that she did not have the impression that she was going to a place which would help her. She testified that her symptoms were worse after AIM.

I do not accept Mrs. Gagnon’s testimony and her counsel’s submission that the reason for her lack of progress at AIM was that she did not trust or have confidence in the program. As in the case of Mrs. Gagnon’s failure to complete the program at Uptown Physiotherapy, her refusal to cooperate with the treatment or rehabilitation initiative through AIM indicates to me that she was not as disabled as she claimed. This is reinforced by AIM’s Progress Report #6 which, after noting that Mrs. Gagnon’s progress remained very slow and compliance poor for the period May 2 to May 13, 1994, states: "She says she is very busy with her painting, has meetings to attend and is supervising her work replacement. Rehabilitation does not seem a priority in Jana’s life right now. "⁴⁸

Mrs. Gagnon also failed to follow up with the physiotherapy program at the Tecumseh Physiotherapy Clinic that was recommended by, amongst others, Dr. Kuprowski and Dr. Fleming, at the team conference on March 27, 1995 (supra).

Mrs. Gagnon testified that she did not attend at Tecumseh Physiotherapy because, after reviewing the facility, she was not comfortable with the clinic. It had no treatment plan for her. She testified that Tecumseh Physiotherapy wanted to use the physiotherapy treatment plan that was in place for her at the University of Michigan Medical Centre. Mrs. Gagnon testified that she refused to allow Tecumseh Physiotherapy to use the plan from the University of Michigan Medical Centre because Guarantee refused to pay for that plan. Mrs. Gagnon testified that instead of going to Tecumseh Physiotherapy she decided to continue with physiotherapy treatment at the University of Michigan Medical Centre because it was helping her.

One of Mrs. Gagnon's reasons for her refusal to attend at Tecumseh Physiotherapy, i.e., that the treatment she was receiving at the University of Michigan Medical Centre was helping her, is inconsistent with the fact that she did not commence that program until June 20, 1995,⁴⁹ which was several weeks after she was offered and she refused treatment at Tecumseh Physiotherapy. How could she say that one of the reasons why she refused to attend at Tecumseh Physiotherapy was that the physiotherapy program at the University of Michigan Medical Centre was helping her when she had not even commenced that program at the time she refused to attend at Tecumseh?

Even though Mrs. Gagnon attended at the University of Michigan Medical Centre for assessment and treatment on her own initiative and testified that she had confidence in the treatment she received and was pleased with everything that was happening there, the Medical Centre's records indicate that her progress at that Centre was poor. She did not meet her treatment goals.⁵⁰ Dr. Bachman's (the psychologist that Mrs. Gagnon was seeing at the Centre) progress notes indicate that the reason for Mrs. Gagnon's poor progress was that she was not complying with suggested treatment.⁵¹

g) On assessments, she demonstrated inappropriate and inconsistent pain behaviour

Lastly, Mrs. Gagnon demonstrated inappropriate and inconsistent behaviour at her assessments. This was noted not just by the assessors who assessed Mrs. Gagnon on behalf of Guarantee, but also those who assessed her at her own request, including those professionals involved in treating her at the University of Michigan Medical Centre. They indicated in their assessments that they were not seeing a true picture of what she was able to do functionally because she was self-limiting. They also noted inappropriate and inconsistent pain behaviour. For example, most assessors noted that on physical examination, her pain reaction (extreme pain) varied little regardless of which part of the body she was asked to move or type of resistance applied. Her responses were very extreme for the amount of force applied - very light palpation was reported as very painful.⁵² Many assessors also noted that physical findings were inconsistent.⁵³

Conclusion

I accept that Mrs. Gagnon sustained injuries to her right shoulder, neck, hand and lower ribs in the accident of October 19, 1993. However, I find based on the preponderance of the evidence, that these injuries had healed by the time her weekly income benefits were terminated on March 27, 1995. I also accept that the accident probably aggravated Mrs. Gagnon’s ongoing problems with anxiety and depression and that she may have suffered from post-traumatic stress disorder following the accident. However, based on her treating psychologist’s (Dr. Leenaars) opinion, I find that these problems did not disable her from performing the essential tasks of her part-time pre-accident employment with Advantage Partnership and Jon Van Holdings Inc.

I also accept that notwithstanding that her physical injuries had healed, Mrs. Gagnon may still have suffered from pain and discomfort after March 27, 1995, and that pain may have affected her functioning. However, as has been said in numerous arbitration decisions, pain in itself is not compensable under the Schedule. The pain which is compensable under subsection 12(1) of the Schedule is pain which renders an insured person substantially unable to perform the essential tasks of his or her pre-accident employment or occupation. All of the health practitioners who treated or assessed Mrs. Gagnon based their opinions, in respect of the extent of her disability after the October 1993 accident, principally on her description of her pre-accident activities and her post-accident symptoms and restrictions.

Therefore, as I noted at the outset, Mrs. Gagnon’s credibility is critical to my determination of whether she meets the requirements of subsection 12(1) of the Schedule after March 27, 1995. I did not find Mrs. Gagnon to be a credible witness. I found that she misrepresented her pre- and post-accident employment or business activities and her pre-accident income and health. I also found that she failed to comply with the advice or recommendations of her treatment providers and during assessments demonstrated inappropriate and inconsistent pain behaviour. I agree with Guarantee that the only logical explanation for these misrepresentations and her failure to comply with the advice and recommendations of her treatment providers is that she is not as disabled as she claims, and she wanted to optimize or inflate her claim for statutory accident benefits.

A substantial portion of the part-time work that Mrs. Gagnon performed for Advantage Partnership and Jon Van Holdings Inc. was not heavy work and she had flexibility in determining her hours and methods of work. I am not satisfied that the pain and discomfort that Mrs. Gagnon suffered after March 27, 1995 prevented her from being substantially unable to perform the essential tasks of her pre-accident part-time work with Advantage Partnership and Jon Van Holdings Inc. I find, therefore, that she is not entitled to weekly income benefits under subsection 12(1) of the Schedule after March 27, 1995.

3. Entitlement to Supplementary and Medical Benefits

The requirements for entitlement under subsection 6(1) of the Schedule were discussed by Senior Arbitrator Frederika Rotter in the decision Richard Mark Plows and Jevco Insurance Company, January 16, 1992, OIC File Nos. A-000175 and A-000588, as follows:

... the criteria which must be met before ...the Insurer is liable to pay for an item...are the following:

(1) it must be a reasonable expense resulting from the accident

(2) it must be required because of the accident

(3) [the applicant's qualified] medical practitioner must provide a signed statement that the expense is necessary for the insured's treatment or rehabilitation, if the Insurer so requires.

I agree with these comments.

I propose to consider separately whether these criteria apply to Mrs. Gagnon's various claims for supplementary and medical benefits enumerated at the outset of this decision.

a) Housekeeping expenses:

Mrs. Gagnon received payment for the weekly services of Molly Maid, in the amount of $65.00 per week, from March 1994 to September 1, 1995.

Mrs. Gagnon disputed the termination of these services on September 1, 1995. She claims that she is entitled to these services after September 1, 1995 to the present and ongoing. She relies on the written statements and viva voce evidence of Dr. Kuprowski in support of her claim. In his statements and testimony, Dr. Kuprowski indicated that he felt that housekeeping services were necessary because Mrs. Gagnon was unable to perform all of her essential household activities.⁵⁴

I do not accept Dr. Kuprowski's opinion. His opinion appears to be based primarily on Mrs. Gagnon's representations to him that she could not perform household chores and required housekeeping services. I did not find Mrs. Gagnon to be a credible witness. I prefer to rely on the opinion of Ms. Morand, occupational therapist. It is Ms. Morand's opinion that Mrs. Gagnon was capable of performing her essential housekeeping activities after September 1, 1995 and that the continuation of these services after this date would compromise Mrs. Gagnon's functional recovery. Ms. Morand’s opinion is not based exclusively on representations made to her by Mrs. Gagnon. It is based on her assessment of Mrs. Gagnon’s ability to perform household activities in Mrs. Gagnon’s home on three days - May 18 and 23, and June 1, 1994. Ms. Morand’s opinion is consistent with that of Dr. Bartol, orthopaedic surgeon.

Further, I note that Guarantee consulted with both Dr. Kuprowski and Dr. Leenaars, Mrs. Gagnon’s treating practitioners, before terminating housekeeping services. Housekeeping services were not terminated abruptly. Before terminating housekeeping services on September 1, 1995, on the basis of a recommendation of Dr. Bartol, Guarantee asked Ms. Morand to develop a program to allow Mrs. Gagnon to gradually increase her level of functioning within her home and to return to her essential household activities. Ms. Morand developed a program according to which after week seven, Mrs. Gagnon was to have taken on all essential household tasks. She would be provided with assistive devices to make vacuuming, floor washing and tub cleaning less physically demanding. Guarantee (through Crawford) consulted with Dr. Kuprowski and Dr. Leenaars before implementing this program. Dr. Kuprowski advised that the program was physically achievable for Mrs. Gagnon, although he felt that her mental condition would limit her physical activities.⁵⁵ Mrs. Gagnon’s treating psychologist, Dr. Leenaars, however, advised that Mrs. Gagnon’s mental condition would not hinder her in performing housekeeping activities.⁵⁶

The program developed by Ms. Morand was implemented and all assistive devises were delivered by Crawford to Mrs. Gagnon at the beginning of August 1995. Guarantee felt that Ms. Morand should meet with Mrs. Gagnon to ensure that she was able to use the devises in a proper way. However, Mrs. Gagnon refused all assistance.

Based, on Dr. Leenaars', Dr. Bartol's and Ms. Morand's opinions, I find that housekeeping services were properly terminated by Guarantee on September 1, 1995, and she is not entitled to housekeeping services after this date.

(b) Expenses for chiropractic treatments

Mrs. Gagnon received payments for expenses she incurred for chiropractic treatments from November 3, 1993 to November 6, 1995, under subsection 6(1)(a) of the Schedule. She disputes Guarantee's termination of payment for these expenses on November 6, 1995 and relies on Dr. Pascoe's testimony in support of her claim.

Dr. Pascoe, testified that after November 6, 1995, Mrs. Gagnon continued to attend for treatment three times a week. He testified that Mrs. Gagnon told him that he is her only source of relief. She advised him that she felt better after the treatment although sometimes this lasts only for a few days. Dr. Pascoe testified that in his opinion the chiropractic treatments are reasonable and necessary and required as a result of the accident.

I am not satisfied chiropractic expenses after November 6, 1995 are reasonable expenses resulting from the accident.

Dr. Pascoe testified that he had administered the same type of chiropractic treatment since the accident of October 19, 1993 - spinal manipulation. He testified that it has been difficult to get Mrs. Gagnon's symptoms to subside. One would think that a lack of expected improvement after a reasonable period of time would necessitate a re-evaluation and a change in the treatment approach or a referral for a second opinion, but Dr. Pascoe has done neither. The evidence indicates to me that instead of improving Mrs. Gagnon's condition, the repeated use of chiropractic treatments has fostered chronicity and dependance on Dr. Pascoe.

I accept Dr. Bartol's recommendation of December 1, 1994 that there should be an avoidance of all passive modalities in the further treatment of Mrs. Gagnon. Dr. Bartol did not feel that manipulations and other passive physical modalities were likely to be of any benefit to Mrs. Gagnon. On the contrary, he felt that they would likely aggravate her symptoms.⁵⁷ I also note that Dr. Walls who saw Mrs. Gagnon at the request of Guarantee on January 30, 1995 recommended a gradual cessation of chiropractic treatments and termination of the same prior to November 6, 1995.⁵⁸ I find, therefore, that Mrs. Gagnon is not entitled to be paid for chiropractic treatments after November 6, 1995.

(c) Payment for expenses incurred for investigations, assessments and treatment at the University of Michigan Medical Centre

Mrs. Gagnon also requested payment for the expenses she incurred for investigations, assessments and treatment at the University of Michigan Medical Centre. Specifically, she requested reimbursement for payment of the following services:

Orthopaedic office visits (Dr. Blasier and Dr. Graziano) ($290.00 U.S.)

MRIs (1 for Cervical Spine and 1 for the Brain) ($3,480 U.S.)

X-rays (shoulder) ($122.00 U.S.)

EMGs ($57.00 U.S.)

Nerve conduction studies (motor and sensory) ($396.00 + $95.00 U.S. = neurology)

Vascular office visits - Dr. Greenfield ($175.00 U.S.)

Anesthesia consultations and office visits (Dr. Green; Dr. Rosenberg) ($1065.00 U.S.)

Anesthesia - counselling/psychotherapy (Dr. Bachman; Dr. Roth) ($2,063.00 U.S.)

Chronic pain treatment ($320.00 U.S.)

Outpatient evaluation ($160.00 U.S.)

The total amount of Mrs. Gagnon’s claim for payment (excluding mileage and parking) is $9,503.00 U.S.

Guarantee refused to pay for any of these expenses.

Dr. Kuprowski made the initial referral to Dr. Graziano, an orthopaedic surgeon, at the University of Michigan Medical Centre. However, I find that this referral was made not at Dr. Kuprowski’s own initiative, but on Mrs. Gagnon’s request.

A significant portion of the treatment that Mrs. Gagnon received at the University of Michigan Medical Centre duplicated the treatment she received or was receiving in Ontario. Even while Mrs. Gagnon was receiving psychotherapy or psychological counselling from Dr. Bachman at the Centre, she continued to see her psychologist Dr. Leenaars, in Ontario. Further, the physiotherapy which was offered to Mrs. Gagnon at the Centre, in my view, was not very different from that offered to Mrs. Gagnon at Uptown Physiotherapy and AIM, and also that suggested to Mrs. Gagnon by the physicians at the team conference in March 1995.⁵⁹

Mrs. Gagnon submitted that her treatment at the University of Michigan Medical Centre was superior to what was available in Ontario. She provided no evidence to support this, and to establish that she needed extensive investigations and treatment for the soft tissue injuries she sustained in the accidents of October 1993 and May 1995. On the contrary, Dr. Bartol testified that she did not.

None of the specialists from the University of Michigan Medical Centre who assessed and/or treated Mrs. Gagnon were called to testify at the hearing. Based only on their reports, and in light of the extensive assessments and treatment that had already been made available to Mrs. Gagnon in Ontario (with which she had not complied), I am unable to conclude that the expenses that Mrs. Gagnon incurred for investigations, assessments and treatment that she underwent at the University of Michigan Medical Centre were reasonable expenses resulting from the motor vehicle accidents of October 1993 and May 1995. Therefore, I find that she is not entitled to these expenses. I also find that she is not entitled to be reimbursed for mileage and parking expenses which she incurred by her attendance at the University of Michigan Medical Centre.

(d) Transportation expenses to and from treatment

Mrs. Gagnon also claims reimbursement for mileage and parking expenses she incurred for attendance of the offices of Dr. Kuprowski (mileage only), Dr. Leenaars (mileage and parking) and Dr. Pascoe (mileage only) from September 1995 to February 1996. She also claims reimbursement for mileage and transportation expenses to and from the offices of Dr. Bell (mileage and parking) and Dr. Rodrigues (mileage only) in January 1996.

As is the case in respect of the application of other provisions of section 6 of the Schedule where a dispute arises regarding the application of subsection 6(1)(d) of the Schedule, the burden of proof lies with the insured person. He or she must prove on a balance of probabilities that the expense falls under subsection 6(1)(d), the expense is required because of the accident, and it is a reasonable expense resulting from the accident. In this case, no specific evidence was adduced by Mrs. Gagnon on this issue. Accordingly, I find that Mrs. Gagnon is not entitled to reimbursement for mileage and parking expenses she incurred for attendance at the offices of Dr. Kuprowski (mileage only), Dr. Leenaars (mileage and parking) and Dr. Pascoe (mileage only) from September 1995 to February 1996. I also find that she is not entitled to reimbursement for her expenses for mileage and parking expenses for her attendance at the offices of Dr. Bell (mileage and parking) and Dr. Rodrigues (mileage only) in January 1996.

4. Special Award

Mrs. Gagnon seeks a special award under subsection 282(10) of the Act on the basis that Guarantee did not comply with the requirements of subsection 6(7) of the Schedule in respect of payment of expenses for medical services and transportation expenses, including the payment of expenses for chiropractic treatment and expenses for investigations, assessments and treatment at the University of Michigan Medical Centre and related travel expenses. Mrs. Gagnon claims that these expenses fall within subsections 6(1)(a) and (d) of the Schedule and Guarantee failed to pay these expenses pending resolution of the dispute.

Subsection 6(7) of the Schedule states that "in the case of a dispute concerning an expense described in clause (1)(a)..(d), the insurer will pay the expense pending resolution of the dispute".

A special award under subsection 282(10) of the Act is based on "...the amount to which the person was entitled at the time of the award...". I have determined in this case that Mrs. Gagnon is not entitled to any expenses under section 6 of the Schedule. Therefore, I need not consider whether Guarantee failed to comply with subsection 6(7) of the Schedule.

5. Expenses

Mrs. Gagnon seeks an award of the expenses she has incurred in respect of this arbitration. Guarantee submits that it would be inappropriate to award Mrs. Gagnon her expenses.

The awarding of expenses incurred in an arbitration proceeding is a matter of discretion under subsection 282(11) of the Act. Arbitrators have declined to award expenses in cases such as this where applicants have advanced fraudulent or less than genuine claims. I agree with Guarantee that this is not an appropriate case in which to award Mrs. Gagnon her expenses. Accordingly, I am declining to award Mrs. Gagnon her expenses of this arbitration.

Order:

Mrs. Gagnon is not entitled to weekly income benefits after March 27, 1995.
Mrs. Gagnon is not entitled to housekeeping services after September 1, 1995.
Mrs. Gagnon is not entitled to chiropractic treatment after November 6, 1995.
Mrs. Gagnon is not entitled to be paid expenses for investigations, assessments and treatment she received at the University of Michigan Medical Centre.
Mrs. Gagnon is not entitled to be paid for mileage and parking for her visits to and from the offices of Dr. Kuprowski (September 1995 - February 1996), Dr. Pascoe (September 1995 to November 6, 1995), Dr. Leenaars (September 1995 to February 1996), Dr. Bell (January 1996) and Dr. Rodrigues (January 1996).
Mrs. Gagnon is not entitled to a special award.
Mrs. Gagnon is not entitled to her expenses incurred in respect of the arbitration proceeding.

September 5, 1997

Shemin Manji

Arbitrator

Date

APPENDIX A

Exhibits

Exhibit 1

Medical Expenses Brief of Jana Gagnon

Additional Medical Expenses Brief

Exhibit 2

Arbitration Brief of Guarantee - Volumes 1, 2 & 3

Exhibit 3

Medical Brief of Jana Gagnon

Exhibit 4

Investigation Brief

3 Videotapes

Exhibit 5

Brochure - Advantage Partnership

Exhibit 6

Business Card of Jana Gagnon

Exhibit 7

Document Brief of Jana Gagnon

Exhibit 8

Note dated November 8, 1994 from Dr. Kuprowski

Exhibit 9

Letter dated August 28, 1995 from Dr. Kuprowski with a note dated August 22, 1995 attached

Exhibit 10

Report of Dr. Bell dated January 22, 1996

Exhibit 11

Advantage Partnership Members Applications (13)

Advantage Partnership Distributor Applications (3)

Exhibit 12

Advantage Partnership Meeting Agendas (September 10, 1993, October 15, 1993, November 12, 1993 and December 3, 1993)

Exhibit 13

Report of Dr. Leenaars dated March 11, 1996

Exhibit 14

Photograph of Jana Gagnon (August 1993)

Exhibit 15

Letter dated May 8, 1993 from Guarantee to Adjusters Canada Inc.

Exhibit 16

Curriculum Vitae of Dr. Steven Bartol

Footnotes

Prior 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 On or Between June 2, 1990 and December 31, 1993. In this decision, the term "Schedule" will be used to refer to Regulation 672.
Clinical notes and records of Dr. Kuprowski - Exhibit 2, Volume I, Tab C
Intake Sheet Uptown Clinic dated October 26, 1993 and Final Report November 9, 1993 - Exhibit 2, Volume I, Tab H
Initial Medical Evaluation, Crawford, dated December 9, 1993 - Exhibit 2, Volume II, Tab J1
A bruise affecting the network of nerves or veins in the arm.
According to Dorland's Illustrated Medical Dictionary, 28th Edition, W.B. Saunders Company, 1994, "paresthesia" is defined as "an abnormal touch sensation, such as burning, prickling, or formication, often in the absence of an external stimulus.
Report of Dr. Pepin dated December 17, 1993 - Exhibit 2, Volume 1, Tab C
Report of AIM dated April 6, 1994 - Exhibit 2, Volume 1, Tab I2
Discharge Summary, AIM, dated July 27, 1994 - Exhibit 2, Volume 1, Tab I7
The actual report was dated 1994, but it is clear from the report that the date should be 1995.
Report of Dr. William Ross - May 9, 13 & June 1, 1994, Report of Ms. Morand dated June 10, 1994, Report of Dr. Durnin dated July 7, 1994, Report of Dr. Bartol dated December 1, 1994 and Report of Dr. Brad Walls, B.Sc, D.C. dated January 30, 1995 - Exhibit 2 and 3
Clinical notes of Dr. Kuprowski dated October 6, 1994
Report of Dr. Fleming dated October 12, 1994 - Exhibit 2, Volume I, Tab C
Report of Dr. Yashar and Dr. Graziano dated November 18, 1994, Out-Patient Notes of Dr. Blasier dated January 2, 1995, Report of Dr. Donley and Dr. Graziano dated January 6, 1995, Report of Dr. Gardner and Dr. Blasier dated January 19, 1995, Electroneuromyography Report of Dr. Wald dated January 23, 1995, University of Michigan Hospitals Department of Radiology (MRI of Brain) dated January 23, 1995, Report of Dr. Greenfield dated February 16, 1995, Physical Therapy Initial Evaluation, Coordinated Chronic Pain Program dated March 31, 1995, Report of Dr. Green and Dr. Lundgren dated April 24, 1995 - Exhibit 2, Volume III, Tab N
March 29, 1995 Summary of Team Meeting of March 27, 1995 - Exhibit 3, P-1
Clinical notes of Dr. Kuprowski dated May 30, 1995
Letter to Dr. Leenaars from Guarantee dated March 28, 1995 (Signed by Dr. Leenaars on April 7, 1995) -Exhibit 2, Volume III, Tab 6
Report of Dr. Bartol dated December 1, 1994, Report of Dr. Walls dated January 30, 1995, Dr. Carmen Green (Report dated April 24, 1995), Team Meeting dated March 27, 1995, Multidisciplinary Pain Clinic at University of Michigan Medical Centre (Discharge Note September 1, 1995)
March 29, 1995 Summary of Team Meeting of March 27, 1995 - Exhibit 3, P-1
Found in the clinical notes and records of Dr. Kuprowski - Exhibit 2, Tab C
Promissory Note dated October 28, 1993 - Exhibit 7, Tab 1
Letter dated June 19, 1995 to Mrs. Gagnon from Mr. McClure - Exhibit 7, Tab 7
Found in the clinical notes and records of Dr. Kuprowski - Exhibit 2, Tab C
Exhibit 2, Volume II, Tab L2
Advantage Partnership, Members Application, signed May 7, 1993 August 31, 1993 and October 6, 1993 - Exhibit 11 and Advantage Partnership Distributor Application dated August 31, 1993 - Exhibit 11
A Distributor's meeting at a Donut Shop on September 10, 1993, an "Opportunity Night" at Mackay Group Inns on September 24, 1993 and a Distributor's meeting at a Donut Shop on October 15, 1993 - Exhibit 7, Tab 15 and Exhibit 12
Mrs. Gagnon testified that this company is no longer in existence
i.e., why it could take two hours a week to deposit three to five cheques, six hours a day to record the three to five cheques deposited in the bank a week, two to three days per week typing documents relating to the sales of the phones and several hours at a time inputting data into the computer.
The Application is dated October 29, 1993 - Exhibit 2, Volume II, Tab L4.
Employer's Confirmation of Income dated October 29, 1993 - Exhibit 2, Volume II, L2
Application for Accident Benefits dated October 29, 1993 - Exhibit 2, Volume II, Tab L4 and Employer’s Confirmation of Income dated October 29, 1993 - Exhibit 2, Volume II, L2
Letter to Mr. Vallee from Mrs. Gagnon dated October 29, 1993 - Exhibit 2, Volume II, Tab L3
She told Dr. Kuprowski on numerous occasions including October 29, 1993 and December 7, 1993 that she was not able to do work since the accident. See Clinical Notes and Records of Dr. Kuprowski. She also said the same thing to Dr. Pepin on December 17, 1993, the AIM Clinic on March 31, 1994 , Dr. Bartol on November 14, 1994 and Dr. Rodrigues on January 9, 1996. See Reports of Dr. Pepin dated December 17, 1993, AIM Clinic dated April 6, 1994, Dr. Bartol dated December 1, 1994 and Dr. Rodrigues dated January 9, 1996 - Exhibit 2, Volumes I and III
Exhibit 7, Tab 21
Exhibit 12 - Advantage Partnership Meeting Agendas, Distributor's Meeting, November 12, 1993 and December 3, 1993
Exhibit 11 - Advantage Partnership Member's Application signed November 20, 1993, November 24, 1993 (2) and November 26, 1993; Advantage Partnership Distributor's Application dated November 27, 1993
Letter dated June 19, 1995 to Mrs. Gagnon from Mr. David G.McClure, President AACES - Exhibit 7, Tab 7
For example, Report of Dr. Pepin dated December 17, 1993 (Exhibit 2, Volume I, Tab C); Report of Dr. Rodrigues dated January 7, 1996 (Exhibit 2, Volume III, Tab O), Report of Dr. Bell dated January 22, 1996 (Exhibit 10); Report of Dr. Clifford dated June 7, 1995 (Exhibit 2, Volume I, Tab C); Report of Dr. Leenaars dated March 11, 1995 (Exhibit 2, Volume III, Tab M ); Report of Dr. Greenfield dated February 16, 1995. @ (Exhibit 2, Volume I, Tab C); Report of Dr. Bartol dated December 1, 1994 (Exhibit 2, Volume I, Tab B); Report of AIM dated April 6, 1994 (Exhibit 2, Volume 1, Tab 12)
Exhibit 2, Volume 1, Tab C
Exhibit 2, Volume 1, Tab D
Clinical notes and records of Dr. Kuprowski of November 4, 1993 - Exhibit 2, Volume 1, Tab C
For example, although the onset of Mrs. Gagnon’s back pain following the accident was delayed, most of the health practitioners who treated or assessed Mrs. Gagnon assumed that she injured her lower back in the accident of October 19, 1993 because they were not aware that she had problems with her lower back before the accident. However, Mrs. Gagnon’s complaints of back pain subsequent to the accident could be related to the back problems that she was experiencing before the accident and not to the accident. However, none of the health practitioners including Drs. Kuprowski and Pascoe addressed this issue.
Uptown Physiotherapy Initial Assessment, dated October 1993, Exhibit 2, Volume I, Tab H
Reports of Dr. Pepin dated December 17, 1993, Dr. Ross dated May 9, 13 and June 1, 1994
Uptown Physiotherapy, Final Report, November 9, 1993 (Exhibit 2, Volume I, Tab H)
Letter dated December 10, 1993 to Dr. Kuprowski from Crawford (signed by Dr. Kuprowski on January 5, 1994) - Exhibit 2, Volume II, Tab 2
Discharge Summary, AIM, dated July 27, 1994 - Exhibit 2, Volume I, Tab I7
AIM Progress Report dated May 16, 1994 - Exhibit 2, Volume I, Tab I4
Physical Therapy Progress Note (Multidisciplinary Pain Centre) dated June 30, 1995
Multidisciplinary Pain Centre, Physical Therapy Discharge Note, September 1, 1995.
Outpatient notes of Dr. Bachman dated July 11, 1995 and November 13, 1995. Also Report of Dr. Leenaars dated March 1996 (Exhibit 13) outlining conversation between Dr. Leenaars and Dr. Bachman. There are other examples of Mrs. Gagnon failing to comply with recommendations for treatment which I will not review. They include to recommendations made by Dr. Fleming, Dr. Leenaars, Dr. Rodrigues and Ms. Morand (the Occupational Therapist).
Testimony of Patricia Morand, Occupational Therapist and Dr. Bartol. See also Reports of Ms. Morand dated June 10, 1994, Dr. Bartol dated December 1, 1994, AIM dated April 6, 1994, June 15, 1994 and July 27, 1994, Physical Therapy, Multidisciplinary Pain Clinic, University of Michigan Medical Centre dated March 31, 1995 and September 1, 1995, Dr. Green, University of Michigan Medical Centre, dated June 30, 1995 and Outpatient notes of Dr. Bachman dated May 23, 1995 - Exhibit 2, Volume I, Tabs B, C, G and I and Volume III, Tab N
Testimony of Patricia Morand and Dr. Bartol. See also Reports of Ms. Morand dated June 10, 1994, Dr. Bartol dated December 1, 1994, AIM dated April 6, 1994, June 15, 1994 and July 27, 1994 and Outpatient notes of Dr. Bachman dated June 6, 1995
Exhibits 8 and 9
Letter dated June 20, 1995 to Dr. Kuprowski from Crawford confirming discussions held June 13, 1995 and signed by Dr. Kuprowski on September 28, 1995
Report of Dr. Leenaars dated July 17, 1995
Report of Dr. Bartol dated December 1, 1994
The chiropractor retained by Guarantee to conduct an independent medical examination of Mrs. Gagnon. His opinion is set out in his report dated January 30, 1995.
Physical Therapy Initial Evaluation, Coordinated Chronic Pain Program, dated May 31, 1995: Treatment plan: recommendations for comprehensive physical therapy to restore functional mobility. In his report of April 24, 1995, Dr. Green recommended the physiotherapy include stretching and strengthening techniques of the right upper extremity and shoulder girdle.

Jana M. Gagnon v. Guarantee Company of North America, 1997 ONICDRG 165

Case Summary