Neutral Citation: 1997 ONICDRG 214

OIC A96-001257

ONTARIO INSURANCE COMMISSION

BETWEEN:

SHANNON HARPER

Applicant

and

LIBERTY MUTUAL INSURANCE COMPANY

Insurer

DECISION

Issues:

Shannon Harper was injured in a motor vehicle accident on November 22, 1994. She received statutory accident benefits from Liberty, payable under the Schedule,¹ until March 26, 1996. Mrs. Harper believed she was entitled to further benefits. After the parties were unable to resolve their disputes through mediation, Mrs. Harper applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended. During the dispute resolution process Liberty resumed paying Mrs. Harper weekly caregiver benefits from March 13, 1997 to July 27, 1997.

The issues in this hearing are:

1. Were Mrs. Harper's benefits properly suspended on March 26, 1996 as a result of her failure to submit to an insurer's examination?

2. Is Mrs. Harper entitled to caregiver benefits after March 26, 1996? If yes, for what period of time?

3. Is Mrs. Harper entitled to the housekeeping and home maintenance expenses she claims?

4. Is Mrs. Harper entitled to the vehicle modifications she claims?

5. Is Mrs. Harper entitled to the other supplementary medical expenses and rehabilitation expenses she claims?

6. Is Mrs. Harper entitled to a special award?

7. Is Mrs. Harper entitled to interest on any amounts owing and her expenses incurred in the hearing?

Result:

1. Mrs. Harper's benefits were not properly suspended on March 26, 1996.

2. Mrs. Harper is entitled to caregiver benefits until November 22, 1996.

3. Mrs. Harper is entitled to housekeeping and home maintenance expenses of $135.00 per week from November 22, 1994, ongoing.

4. Mrs. Harper is entitled to modification of both her family vehicles to automatic transmissions.

5. Mrs. Harper is entitled to other supplementary medical expenses and rehabilitation expenses as set out in the body of this decision.

6. Mrs. Harper is entitled to a special award of forty per cent of certain amounts, as set out in the body of this decision.

7. Mrs. Harper is entitled to interest on most of the amounts owing, as set out in the body of this decision. She is also entitled to her expenses of the arbitration.

Evidence and Findings:

Background

Shannon Harper was injured in a motor vehicle accident on the afternoon of November 22, 1994 while driving her Jeep Cherokee on Highway 504 near Apsley. She was returning home with her son, Steven, then age 22. Mrs. Harper testified that she was travelling at a speed of 65 to 70 kilometres per hour before the collision, when a van suddenly reversed out of a driveway directly into her path. She was not sure if she braked prior to the impact. She testified that, anticipating the collision, she reached out to her son with her right hand to bring him toward her. Both she and her son wore seatbelts.

After the accident Mrs. Harper went home, but the next morning, because of her symptoms, including a very stiff neck and numbed sensation on the right side of her face and down her right arm to her fingers, she went to see her family doctor, then to hospital for x-rays. The Jeep Cherokee could not be driven and required approximately $4,000.00 in repairs.

I find that Mrs. Harper suffered multiple impairments in the accident, including a flexion-extension injury to her neck resulting in pain in her neck and right shoulder, numbness and weakness in her right arm and hand, and headaches. The symptoms persisted, becoming chronic. As time passed, with little improvement in her physical symptoms, I find Mrs. Harper experienced depression and psychological upset as well. In March 1995 she attempted suicide.

At the time of the accident Mrs. Harper was the primary caregiver to her daughter, Christina, then age 62, and her son, Steven. In January 1995 she applied for weekly caregiver benefits from Liberty, which she received at the prescribed rate of $300.60 per week until March 26, 1996. On that date Liberty stopping paying all the accident benefits it had been paying Mrs. Harper. The first issue to be considered is whether the suspension of her benefits was proper.

1.0 Were Mrs. Harper's benefits properly suspended on March 26, 1996?

Liberty purported to suspend Mrs. Harper’s various accident benefits based on her failure to attend a series of insurer examinations. It relied on the provisions of section 65(5) and section 65(5.1) of the 1995 Schedule² in support of its decision. The insurer's examinations had originally been scheduled for March 13, 14, and 15, 1996. When she received notice of the examinations, Mrs. Harper asked that different dates be arranged, because the first dates were scheduled during the March Break from school when both her children would be home all day. The examinations were rescheduled for March 26 and 27, 1996 in Mississauga, without further consultation with Mrs. Harper. Ultimately, Mrs. Harper did not attend those examinations and the insurer terminated or suspended her accident benefits.

1.1 The legal framework: which version of section 65 applies?

When Liberty suspended Mrs. Harper’s accident benefits on March 26, 1996, it purported to follow the terms of section 65(5) and 65(5.1) of the 1995 Schedule, that is Ontario Regulation 776/93 as amended by Ontario Regulation 781/94. These amendments came into effect on January 1, 1995, well after Mrs. Harper's accident of November 22, 1994. This timing is important because there are substantial differences between section 65 of O.R. 776/93, as it existed when Mrs. Harper had her accident, and section 65, as amended. The question is, which section 65 applies to Mrs. Harper?

Section 65, as it existed at the time of Mrs. Harper's accident, is entitled "Insurer Examination for Supplementary Medical Benefits, Rehabilitation Benefits or Attendant Care Benefits." The amendments changed section 65 into an all-purpose insurer examination section, covering benefits under any of Parts 2 to 8, 10, and 13, including weekly caregiver benefits under section 18.

The letter notifying Mrs. Harper to attend an insurer's examination advised that her "current disability" was to be assessed and that her "Caregiver Benefits" would be withheld, according to the provisions of section 65(5.1) of the Schedule if she did not attend. Thus, it is clear that Liberty was sending Mrs. Harper for an examination under the terms of the amended 1995 Schedule, and purported to have the legal right to withhold her weekly benefits if she did not comply.

The general rule in interpretation of legislation and regulations is that their provisions should not be interpreted as having retroactive or retrospective effect, especially where the provisions are substantive in nature, unless such an interpretation is expressly required by the language of the statute.³ The provisions of section 14 of the Interpretation Act, R.S.O. 1990, c.I.11, dealing with repealed and amended legislation and regulations make this clear.

In determining this issue, the distinction between procedural provisions and substantive provisions is important. If the change in the law is procedural, then the amendments apply immediately "to both pending and future facts.... [and to] on-going proceedings, including those commenced but not completed before its coming into force."⁴ Here that would mean the provisions of the 1995 Schedule could apply to Mrs. Harper's insurer examination, which was scheduled well after the change in the regulation. On the other hand, if the change is seen as involving substantive rights, then it is presumed that, without express language to the contrary, the legislation is not intended to have a retroactive application.

When Mrs. Harper’s accident occurred, on November 22, 1994, the statutory accident benefits scheme of the 1994 Schedule conferred on both her and Liberty certain rights and obligations. One of Mrs. Harper's rights related to eligibility for weekly caregiver benefits; one of Liberty's rights was the right to terminate those benefits, on appropriate evidence, by following a prescribed course of conduct. One of Mrs. Harper's obligations was to attend at insurer's examinations, in certain circumstances, at certain times. I find the power to require an insured person to attend for a medical examination and to withhold benefits where there is no compliance is substantive in nature, that is from "that part of law which creates defines and regulates rights,"⁵ as distinct from being procedural in nature.

Arbitrator Beth Allen has recently dealt with the issue of retroactivity in relation to entitlement to disability benefits in David Lehman and GAN Canada Insurance Company, (OIC A96--001417, October 27, 1997) where an applicant, also injured in a 1994 accident, sought to have his entitlement to income replacement benefits, from the termination date in 1996 until a loss of earning capacity⁶ rate was fixed, determined by the provisions of section 23(8) of the 1994 Schedule, and not section 23(8) as amended by the 1995 Schedule. Arbitrator Allen accepted Mr. Lehman’s argument that his right to claim LEC benefits flowed from the injuries suffered as a result of the accident and that his rights, including his rights to LEC benefits, crystallized on that date. She rejected the insurer's argument that the amendments were strictly procedural and that they affected no substantive rights since Mr. Lehman could not qualify to claim LEC benefits until after the amendments came into effect. I agree with Arbitrator Allen.

I have determined that the applicable Schedule for determining the substantive rights of Mrs. Harper and Liberty, respectively, is the 1994 Schedule. Accordingly, the notice sent to Mrs. Harper can be of no effect, since it purported to examine her relating to disability issues, under statutory provisions governing her claims for supplementary medical and rehabilitation benefits.

The Insurer's counsel submitted that most of the amendments to the 1994 Schedule fall into the procedural category and that the changes to section 65 "did not purport to change the insured's substantive rights to benefits, it merely changed the method of enforcing the insurer's rights to medical disclosure." Recognizing that some amendments to the 1994 Schedule are procedural in nature, and some reorganizing and renumbering occurred, the fairest approach is to look beyond the wording of the notice to Mrs. Harper, to see if the Insurer, acting within its powers under the 1994 Schedule, had the right to act in the way that it did, even if got the section numbers "wrong" by using the provisions of the 1995 Schedule in its notice.

Under the 1994 Schedule, Liberty did have the power to require Mrs. Harper to attend for an insurer's examination to assess her disability. However, in order to accomplish this, it was required to follow a completely different procedure, found in old section 64, entitled "Stoppage of Weekly Benefits." The format and language of section 64 suggest, in the normal course of an insured person's recovery from injuries received in an accident, that an Insurer that is regularly receiving a treating health practitioner's certificates stating that the "insured person continues to suffer from the disability in respect of which weekly benefits are paid" is to abide by those certificates until it decides for some other reason that the insured person is likely no longer disabled, as defined under the 1994 Schedule.

The procedure to be followed, then, includes a notice to the claimant that her weekly benefits will stop after 30 days, unless she provides a certificate from her health practitioner confirming the disability. An examination by a health practitioner of the insurer's choice is allowed, and suspension of weekly benefits is permitted if she fails to attend (old s.64(19)), just as in the 1995 Schedule (section s.65(5.1)). Weekly benefits can be terminated, not after that insurer's examination, but only after a further negative report from a designated assessment centre (DAC), unless the claimant accepts the insurer’s examination’s conclusion and does not wish to be further assessed at a DAC. A delay of fourteen days until weekly benefits can be stopped is provided, after the insured person receives the (second) notice, following the insurer’s examination.

In my view, it is important that Liberty correctly set out under which section of which Schedule Mrs. Harper was to be assessed, because of the potential to affect Mrs. Harper's substantive rights. In the 1995 Schedule an insurer's examination for almost any benefit is permitted as a matter of right. Contrastingly, the 1994 Schedule's provision of the insurer's examination (for disability issues) is permitted only as a response to a treating health practitioner’s certificate stating that the disability continues and as a first (and optional) step in the proper sequence leading to a stoppage of weekly benefits. Under the 1994 Schedule the Insurer is not permitted to collect information or receive medical disclosure at will, as it is in the 1995 Schedule (subject to the reasonableness provisions). Thus, I do not find that Liberty merely "got the section number wrong," nor that its error should be overlooked as insignificant and technical.

For these reasons I find that Mrs. Harper's statutory accident benefits were suspended or terminated on March 26, 1996 without lawful right. In addition, I observe that the letters sent to Mrs. Harper advising her of the examinations indicated that her "Caregiver Benefits" would be withheld if she failed or refused to attend, until she submitted to an examination. In view of that warning, I find it difficult to understand why the insurer felt within its rights to terminate "medical and rehabilition (sic) treatment, attendent (sic) care benefits or any housekeeping..." as well. This decision was communicated in the insurer's letter of April 8, 1996 to the consultant, Joy Harwood, whom Mrs. Harper had engaged.

1.2 Failure to submit to an examination

If I am in error in concluding that the notice from Liberty to Mrs. Harper to attend a disability assessment was a nullity, I need to consider the issue whether Mrs. Harper "fail[ed] or refuse[d] to submit to an examination"as provided in the language of section 65(5.1) of the 1995 Schedule [and section 64(19) of the 1994 Schedule].

I find, for the reasons set out below, that Mrs. Harper did not "fail or refuse to submit to an examination" because the Insurer did not fulfill its own obligations under section 65(2), which is a precondition of requiring the examination. In this case Liberty did not "make reasonable efforts to schedule the examination for a time that is convenient for the insured person." To understand how this occurred, it is necessary to look at the facts of this case in detail.

Various letters from Liberty to Mrs. Harper and to her consultant, Joy Harwood, R.N., were filed at the hearing. I also received copies of Ms.Harwood's correspondence to Liberty. In addition, Mrs. Harper, Ms.Harwood, and Rosemary Grimaldi, Liberty's claims adjuster, testified at the arbitration.

I find that by January 1996 the relationship between Mrs. Harper and Liberty had deteriorated. Mrs. Harper retained Ms. Harwood about this time to help her deal with the insurer. Mrs. Harper and Liberty’s adjuster had disagreed about several issues. Many conflicts, including subsequent attendance at the insurer’s examinations, involved transportation problems. Concerning her attendance at the insurer’s examinations, Mrs. Harper was anxious to know how she would travel from her home, northeast of Peterborough, to the location of the insurer's examinations, in Mississauga. The attempt to send Mrs. Harper to an insurer’s examination in Mississauga was contemporaneous with attempts to arrange a DAC⁷ assessment in Peterborough, then Oshawa. Mrs. Harper had previously submitted to an insurer’s examination by an orthopaedic surgeon on September 26, 1995 in Oshawa and by a neurologist on September 27, 1995 in Peterborough. She was also examined, at the insurer’s request, by a psychiatrist on November 6, 1995 in Peterborough.

Mrs. Harper's home is 14 km. east of Apsley, in a sparsely-inhabited rural area of central Ontario. To travel by car from her home to the closest larger centre, Peterborough, a distance of about 75 km., takes approximately 12 hrs. Mrs. Harper testified that sometime after the accident, due to weakness and numbness in her right arm and hand, she was unable to drive vehicles with a standard transmission, since she was unable to shift gears. Both Harper vehicles, a Jeep Cherokee with four-wheel drive and a Mercury Lynx, had standard transmissions. Because of the condition of Losway Road, abutting the Harper home, four-wheel drive was necessary for safe transportation during winter and spring. Mrs. Harper testified that the Lynx was not suitable transportation except in summer and fall and during optimum conditions in the winter and spring.

For the insurer's examinations, the adjuster arranged hotel accommodation in Mississauga, across the street from the assessment centre. She sent Mrs. Harper a cheque for meals and the cost of the bus from Peterborough to Toronto return. She told Mrs. Harper that Liberty would pay for a taxi to take her from the Toronto bus terminal to the Mississauga hotel, if Mrs. Harper paid for the taxi, then submitted a receipt. The taxi was supposed to be arranged by the assessment centre. Liberty would also pay a kilometre allowance from Mrs. Harper's home to Peterborough, return, after the examinations, when Mrs. Harper submitted an expense form. The rate which Liberty reimbursed Mrs. Harper at the time was 8.4 cents per kilometre. The adjuster also unilaterally decided to pay Mrs. Harper $50.00 per day for three days, which she thought would cover any added expense to care for Mrs. Harper's children while their mother was away.

The adjuster testified she believed it was Mrs. Harper's responsibility to arrange transportation from her home to Peterborough and return. She denied that she ever told Ms. Harwood that for all she cared, Shannon Harper could "hitchhike" to get to Peterborough, as Ms. Harwood testified.

Mrs. Harper testified that she could not drive her own vehicles, with their standard transmissions, to Peterborough, because of the condition of her right arm. She did not know how she would find anyone to drive her to Peterborough or pick her up for $5.46 each way.⁸

The insurer was required by section 65(2) of the 1995 Schedule [or 64(6) of the 1994 Schedule] to "make reasonable efforts to schedule the examination for a time that is convenient for the insured person and shall provide the insured person with reasonable notice of the examination." The insurer at least partly complied with that obligation in rescheduling from March 14, 15, and 16, 1996 during the school break to March 25 and 26, 1996. I say "partly" because the second set of dates, like the first, was set without consulting Mrs. Harper. However, on March 22, 1996 (the Friday before the examination scheduled to begin on the following Monday) Liberty received the following facsimile communication from Dr. Eugene Telka, a psychologist who had been treating Mrs. Harper after the accident for about one year:

I am writing to inform you that I have advised Shannon Harper against attending the IME scheduled for March 26-27-28, 1996. (sic) I saw this woman in my office on Thursday March 21, 1996 along with her husband for a regularly scheduled therapy session. She presented in a markedly depressed state, complaining of pain in her right shoulder and arm, and feeling overwhelmed by a number of significant stressors in her life. ... Shannon, at times feels so despondent and hopeless that she contemplates suicide.

In my opinion, Shannon Harper is under too much stress at this time to participate in any investigative procedures. There is considerable brittleness in her emotional state such that participation in the IME at this time would be detrimental to her well-being. Her level of depression and upset is much too high to remove her from the meaningful sources of support such as her husband and children. My concern is that her clinical state could deteriorate, thereby unnecessarily prolonging her therapy and eventual recovery.

I trust that you will give this recommendation your utmost attention.

In my view, this letter is good evidence that the timing of the IE⁹ for Mrs. Harper in March of 1996 was not "convenient for the insured person." No evidence was offered by the Insurer that controverted Dr. Telka’s opinion. Dr. Telka had previously reported to Liberty that his diagnosis of Mrs. Harper was that she was suffering from an adjustment disorder with depressed mood and pain disorder associated with both psychological factors and a general medical condition.

Ms. Harwood testified that she recalled speaking to Dr. Telka on the issue of Mrs. Harper's attendance at the examinations and, upon hearing his concerns, advised him to write to the insurer. Mrs. Harper testified that she did not solicit Dr. Telka's letter. I accept this evidence. No evidence suggested the letter was a contrivance, written in bad faith to unduly delay the insurer's examination, or that the letter formed part of a pattern of avoidance of insurer's examinations by Mrs. Harper. Dr. Telka was not called to testify by either party. I find that Mrs. Harper had attempted suicide earlier in her recovery, and Dr. Telka knew this history--in fact, the suicide attempt was the event that had precipitated Mrs. Harper becoming his patient after the accident.

The impression left by the insurer's adjuster in her testimony was that in once rescheduling the examination from the March Break to the end of the month, the insurer had gone as far as it should go to accommodate Mrs. Harper. The adjuster admitted she told Ms. Harwood that the appointments "weren't going to be rescheduled again." In fact, the adjuster testified that it was her belief that an insured person should be compelled to attend an insurer's examination even if it were detrimental to her health. Her file notes confirm these sentiments. The adjuster seemed to have missed part of the point of Dr. Telka's letter in stating that she was sure that the IE doctors seeing Mrs. Harper on intake assessment would determine if she were capable of undergoing the assessment. The adjuster admitted she never communicated with the IE doctors to seek their opinion about the advisability of maintaining the scheduled dates in the light of Dr. Telka's advice, nor did she forward to them his letter. She testified that "Dr. Telka's report did say she needed not to be away on her own. There was no reason the husband couldn't have attended with her." However, Liberty never arranged for Tim Harper to attend over the two or three days of examinations in Mississauga or offered to compensate him for time lost from work.

I find Mrs. Harper was in a precarious emotional state in March 1996 because of the injuries she suffered in the accident of November 22, 1994. I have no hesitation in finding the examination should have been postponed, then later rescheduled, if necessary. I find that Liberty did not make reasonable efforts to schedule the examination for a time "convenient for the insured person." In my opinion, the concept of "convenience" to the insured person includes the notion that she does not have to put her mental health at risk when advised by her psychologist that he recommends against her attending at the scheduled time. Further, in my view, the fact that they had already rescheduled the examination, once, is irrelevant, since they never consulted Mrs. Harper as to a time that would be convenient for her to attend for either the original or rescheduled appointment.

In my view, it would have been preferable to arrange the IE for a venue closer to Mrs. Harper’s home (e.g. Peterborough or Oshawa), or arrange for Mr. Harper (and perhaps the children) to travel with Mrs. Harper to Mississauga (thereby eliminating most of the thorny travel problems) and stay with her at the hotel. However, my views with respect to the preferable means of conducting the IE are irrelevant to the finding that the examination time was not convenient.

1.3 Conclusion

The withholding of Mrs. Harper’s weekly caregiver and other benefits after March 26, 1996 was unlawful. Unfortunately, neither the 1994 Schedule and 1995 Schedule provides a distinct remedy in this situation. The provisions dealing with insurer examinations and the resumption of benefits and payment of outstanding benefits only address the situation where a person has not submitted to an examination, then later does submit to an examination. In a situation where the insurer has followed the "stoppage in weekly benefits" procedures, section 64(18) of the 1994 Schedule and section 64(13) of the 1995 Schedule prescribe that the insurer shall resume payment of the benefits and pay the benefits that were not paid, if it is finally determined that the payment of the benefits should not have been stopped.

If Liberty wished to stop Mrs. Harper’s benefits in March 1996, it should have followed the provisions of section 64 of the 1994 Schedule. It should have sent her a proper 30-day notice of termination and given her an opportunity to present a certificate from a health practitioner. Had that been the case, Liberty could then have required her to be examined either at an IE or a DAC. Since it did not follow such a procedure, I find that Mrs. Harper’s weekly benefits should be reinstated from March 26, 1996 until I decide that Mrs. Harper is no longer eligible for caregiver benefits, according to the provisions of section 18. The appropriate interest should also be paid, according to section 68 of the Schedule. In the particular circumstances of this case, I understand weekly caregiver benefits have already been paid for the period March 13, 1997 to July 27, 1997.

2.0 Entitlement to caregiver benefits from March 26, 1996 to Nov.22, 1996

To be eligible for caregiver benefits after March 26, 1996 Mrs. Harper must have sustained an "impairment" as a result of an accident. The meaning of "impairment" is defined in section 1 of the Schedule as "a loss or abnormality of psychological, physiological or anatomical structure or function." If impairment is found, then an applicant must meet at least one of two further tests. She must suffer either a "partial or complete inability to carry on a normal life as a result of the accident" or she must suffer "a substantial inability to engage in the caregiving activities in which ...she engaged at the time of the accident" according to section 18(1).

I find that Mrs. Harper suffered multiple impairments in the accident of November 22, 1994, including a flexion-extension injury to her neck resulting in pain in her neck and right shoulder, numbness and weakness in her right arm and hand, and headaches. The symptoms persisted, becoming chronic. As time passed, with little improvement in her physical symptoms, I find Mrs. Harper experienced depression and psychological upset as well.

" Partial inability to carry on a normal life" is defined in section 2 of the Schedule. To meet this test the impairment must result in a "substantial inability" to engage in personal care activities, mobility activities, household activities, activities in which cognitive powers are exercised, activities in which the ability to control emotions or behaviour is required or activities in which the person requires communication abilities.

The precise language used in section 2 requires that a person must suffer a substantial inability to engage in at least one of these categories of activities to qualify as partially unable to carry on a normal life. It is insufficient for the person to suffer only some inability to engage in any or all of the specified activities.

I find that Mrs. Harper suffered from a substantial inability to engage in "household activities in which... [she] ordinarily engaged before the accident" during the period up to November 22, 1996. The evidence in support of this finding is reviewed in the following section, where Mrs. Harper's caregiving activities are more particularly addressed. The tasks comprising "household activities" overlap the tasks included in caregiving. She also may have qualified during this time under other subparagraphs of section 2, but I have not addressed myself to those headings because it would be superfluous and result in an even lengthier decision.

2.1 Entitlement to caregiver benefits after November 22, 1996

To be eligible for caregiver benefits after November 22, 1996 Mrs. Harper must have sustained an "impairment" as a result of an accident and meet one of two further tests. She must suffer either a "complete inability to carry on a normal life as a result of the accident" or "a substantial inability to engage in the caregiving activities in which ...she engaged at the time of the accident."¹⁰ The accident's impact on any "partial inability to carry on a normal life" is not taken into account. That less onerous test is only relevant during the first 104 weeks after the insured person first qualified for weekly caregiver benefits.

The phrase "complete inability to carry on a normal life as a result of the accident" is defined in section 3 of the Schedule. Neither party alleges that Mrs. Harper has been impaired to this degree as a result of the accident and I do not find she meets that test.

2.2 Substantial inability to Caregive Test

The test of section 18—" substantial inability to engage in the caregiving activities in which ...she engaged at the time of the accident"—is not further defined in the Schedule. The term "substantial inability" has been the subject of interpretation since 1990 with its debut in the No-Fault Benefits Schedule, in force from mid-1990 to the end of 1993, and subsequently in the 1994- and 1995 Schedules. Arbitrators have concluded that this term means more than some inability. It equates to sizeable inability. By using the words "caregiving activities in which...she engaged," the Schedule contemplates a purely subjective test of caregiving activities. An insurer or arbitrator must consider the caregiving activities carried out by the insured person at the time of the accident, determine how able the insured person is to engage in them at a point after the accident, and come to a conclusion whether the disability amounts to substantial inability.

Prior to the accident, Mrs. Harper was a very active young mother and an accomplished baker, a jack-of-all-trades home renovator, dry stone wall builder, and rock gardener. The effects of the accident have affected her abilities in many of these areas. Understandably, she resents this impingement profoundly. At the arbitration little attention was focussed on defining the duties or tasks Mrs. Harper performed as a caregiver at the time of the accident and separating them from Mrs. Harper's many other pre-accident roles and activities. In none of the material before me do I find any evidence of any attempt by Liberty or its rehabilitation consultants to clarify this distinction for Mrs. Harper. That kind of information is critical to an insured person's understanding of the extent of the weekly benefits provided by the Schedule.

Mrs. Harper is proud of her abilities as a cook. She takes pride in maintaining a clean home. She is especially careful with respect to cleaning her son's room because he suffers from asthma. She and her family have chosen to live "off the beaten track," and purchased an isolated, rural home that was not completely finished, a year and a half before the accident. Her reported domestic activities prior to the accident are daunting. Mrs. Harper testified that she felt it was important for her children that she should stay at home and not work full-time outside the home until Steven was attending school full-time. Mrs. Harper enjoyed sewing and doing other work around the home to create a pleasant environment for her family without spending much money. Mrs. Harper's ability to perform many of these activities has been impaired by the accident. However, my task is to sort out from among all Mrs. Harper's activities before the accident those which can be reasonably said to be "caregiver activities" and to evaluate how impaired she is in those activities.

In viewing what can reasonably be said to be encompassed by the term "caregiver activities" it is important to note that the Schedule fixes the point in time artificially at "the time of the accident." At the time of the accident, Mrs. Harper was caring for a 22 year old son and six year old daughter, who attended school during the normal school year. My evaluation focuses on the caregiving activities Mrs. Harper engaged in then, rather than how those caregiving activities might change over time, as a result of the children's growth or other factors. Sometimes such an analysis becomes problematic, since the caregiving activities engaged in "at the time of the accident" are no longer performed or relevant. However, this is the test the Schedule sets out. Mrs. Harper's children are now nine and five years old. She no longer needs to perform the same manoeuvres to bathe Steven, for example, as she did when he was 22. Other factors which have changed since the accident also cannot be taken into account. For example, after the accident, Mrs. Harper bought a dog for her son Steven. This dog causes additional work for her. In my view, even if caring for Steven's pet could be considered a caregiver activity because of the dog's connection to Steven, it would not qualify under the Schedule because of the time constraints built into the definition of caregiver activities.

Many of Mrs. Harper’s activities prior to and since the accident have also been directed toward caring for her husband, who was employed full-time outside the household at the time of the accident. Those activities, like Mrs. Harper’s personal activities and hobbies, are not caregiver activities. The Schedule defines a person who qualifies for a caregiver benefit as someone who cares for children under the age of sixteen or those who suffer mental or physical incapacity.

I find Mrs. Harper's caregiver activities at the time of the accident included the following:

• preparing a hot breakfast, lunch, and full four-course dinner for the children including providing a packed lunch for her daughter. Cooking was Mrs. Harper’s major occupation and she baked bread in quantity and made baked goods from scratch. Convenience foods were not commonly used. Clean up and dishwashing and drying. Grocery shopping.

• full-time supervision of her 22 year old son and of her 6 year old daughter at all times other than during school hours; playing with the children and nurturing them.

• bathing the children and cutting their hair

• provision of vehicle transportation or supervision of walking for her daughter from home to the school bus stop (a distance of 1 kilometre) and return, in all weather, on schooldays

• helping daughter with school work (grade one)

• cleaning of the home, excluding her bedroom, but including the two children's bedrooms, including washing exterior windows twice each year

• extraordinary cleaning of her son's bedroom five times weekly, including dusting by vacuuming all surfaces, and vacuuming the mattress to remove as much dust from the sleeping environment as possible (a process which reportedly takes one hour)

• changing bed linens - twice weekly for Steven and once weekly for Christina

• laundry for the children, including filling the washer with a hose and draining the water into the bathtub; cleaning the bathtub; hanging clothes to dry outside or inside on racks in front of woodstove in heating season and using dryer only exceptionally

• canning and preserving fruit from Mr. Harper's uncle's farm

• during heating months, bringing wood from outside to heat the home (a shared responsibility with Mr. Harper)

• transporting the children by motor vehicle to health practitioner visits and on social outings, ballet lessons

• shopping for children's clothes and other needs

What is the evidence as to Mrs. Harper's ability to perform these caregiving activities after November 22, 1996?

The formal medical and psychological evidence here is meagre from the spring of 1996 until the DAC's in the summer of 1997, except for a report from Dr. V.L. Powell, a clinical associate of the Rothbart Pain Management Clinic in February 1997. The dearth of medical information may be partly explained by the chronicity of Mrs. Harper's complaints, and the fact that the insurer had terminated its funding for treatment as of March 26, 1996. In general, the reports do not address the effect of Mrs. Harper's injuries on her functional abilities, except to report her answers to their questions. The responses are similar to her testimony at the arbitration in September 1997.

At Dr. Sydney M.N. Jaikaran's examination of Mrs. Harper on January 19, 1996, he observed that 14 tender points were present and diagnosed "fibromyalgia syndrome (pain disorder)." He reconfirmed these observations on December 9, 1996 and assessed Mrs. Harper as suffering from fibromyalgia syndrome. He discharged Mrs. Harper from his care at that visit. Dr. Jaikaran is a specialist in both orthopaedics and physical medicine and rehabilitation. He had been treating Mrs. Harper since May 1995 when he performed EMG studies on her and diagnosed a right C5 root lesion and soft tissue injury to her neck. No comprehensive, narrative report from Dr. Jaikaran was produced.

The diagnosis of "chronic soft tissue pain syndrome - fibromyalgia by the American College of Rheumatology criteria with all 18 tender points positive" was separately rendered by Dr. R.I.L. Sutherland, rheumatologist, in his examination of Mrs. Harper on May 2, 1996. He reported to Dr. Rayes, Mrs. Harper’s family doctor in Apsley, that he had given her some literature on the condition. He recommended a holistic approach to her treatment.

In February 1996, Mrs. Harper was assessed by Dr. Ross K. Andersen, D.C. and received four treatments. Dr. Anderson wrote as follows in a health practitioner’s certificate:

Severe restriction of right arm due to cervical neuralgia. Positive C5 & 6 doorbell sign on the right side. Grip R[right]5 L[eft]30 strength down 50% on R[ight] arm. Foraminal compression positive on R[ight] for C5-6 levels.

He recommended chiropractic treatment for three months, three times weekly. His notes reflect that Mrs. Harper was not able to attend his clinic at that frequency, because of the distance from her home (three hours travel time for each visit).

Mrs. Harper’s need for intensive chiropractic care (daily for 6 weeks) was supported by the recommendations of the Regional Evaluation Centre of the Oshawa General Hospital in its DAC assessment in July 1997. In his report, Dr. Kevin McAllister, D.C. recorded Mrs. Harper's complaints of neck, right shoulder and right arm pain and numbness in her right hand. She also complained of severe headaches, which sometimes lead to nausea. Dr. McAllister wrote further:

Mrs. Harper was asked if there is anything specifically that she could no longer do subsequent to the motor vehicle accident. To this Mrs. Harper responded that she is able to do most of her activities of daily living at this time, but she has had to modify both the pace and the intensity of her activity...

Dr. McAllister tested Mrs. Harper's muscle strength in her arms and the grip strength of her hands and found "significant reduction in right arm strength when compared to left arm strength." She exhibited positive signs on tests designed to elicit facet irritation and symptomatology, thoracic outlet syndrome, radicular symptomatology over the right side of the neck (doorbell sign) and T1 nerve root involvement. I accept Dr. McAllister's evidence.

The Shared Services DAC Centre, Peterborough, assessed Mrs. Harper in July 1997. She was examined by a rheumatologist, physiotherapist, psychologist, and performed a functional abilities evaluation supervised by the physiotherapist and a kinesiologist. Mrs. Harper was unable to participate in a complete physical assessment. The physiotherapist summarized their findings as follows:

Mrs. Harper continues to suffer from considerable neck, right shoulder, low back pain, and headaches, as a result of the motor vehicle accident... Functionally, pain limits her ability to lift, reach and carry with the right arm, however inconsistencies within the functional testing results suggest psychological and functional overlay (pain out of proportion to injury, healing time, and mechanism of injury).

Specifically with respect to the SABS criteria for disability, Mrs. Harper is partially, and minimally, disabled from personal care activities, minimally disabled from mobility activities, partially disabled from household activities, not disabled from cognitive function, partially to substantially disabled from emotional/behaviour control activities, and disabled from communication abilities. Overall, she is PARTIALLY and NOT substantially unable to perform her pre-accident activities as a homemaker/caregiver. Specifically, she would have difficulty with heavy homemaking activities, and any activities requiring use of the right arm at or above shoulder level.

I accept this evidence of the experts at this DAC centre as to their evaluation of Mrs. Harper's disability as at July 1997.

No formal report from Mrs. Harper's family doctor was produced. However Dr. Rayes did provide a summary of his chart from November 22, 1993 forward, with his clinical notes and records. Dr. Rayes billed OHIP for two examinations of Mrs. Harper in January 1996, one in March, two in April and one on September 3, 1996, where the OHIP records stop. The April visits Dr. Rayes summarized as "chest cold cough" and "cough." The September visit is noted "poison ivy rash. "According to his chart summary, Dr. Rayes saw Mrs. Harper again in 1996, on November 27 complaining of back pain. He then saw her once in January 1997 and once in February 1997 for neck pain complaints.

The onus of proof of disability in this arbitration rests on Mrs. Harper. For her to succeed on this issue the evidence must show, on a balance of probabilities, or, more likely than not, that after November 22, 1996 she suffered a substantial inability to perform the caregiving activities in which she engaged at the time of the accident. With respect to each activity outlined before, I conclude as follows, for the period after November 22, 1996:

I find Mrs. Harper is substantially able to perform the tasks of preparing a hot breakfast, lunch, and full four-course dinner for the children including providing a packed lunch for her daughter. I find she is substantially able to clean up, wash and dry dishes. I find she is substantially able to shop for groceries. I find she has some inability to manually open cans or large preserving jars. I find she has difficulty to cut hard food items and an inability to knead large quantities using 2 hands. I find she is unable to lift or carry heavy items like large pots, loaded roast pans, heavy food items. I find she has some difficulty in cleaning large, heavily soiled dishes and pots. I find she requires assistance with heavy items and pushing a fully loaded grocery cart, especially outdoors in winter.

I find Mrs. Harper is substantially able to supervise her son and daughter at all times other than during school hours. I find she is substantially able to play with the children and nurture them. I find her ability to play active, outdoor games with the children is diminished.

I make no determination with respect to Mrs. Harper’s ability to bathe the children and cut their hair because I received little evidence regarding this activity. The lack of evidence may stem from the fact that the bathing activity is no longer performed as it was at the time of the accident because children are now five and nine years of age. I heard no evidence about Mrs. Harper's ability to cut hair. I find she is able to french-braid her daughter’s hair, with difficulty.

I find Mrs. Harper is substantially able to drive her daughter to the school bus stop, or walk with her daughter to the bus stop (a distance of 1 kilometre) and return, when the weather is good. During cold, winter weather I find she is able to do this with an appropriate vehicle.

I find Mrs. Harper is substantially able to help her daughter with school work. I find that her ability to sustain such activity depends upon fatigue, headaches and patience.

I find Mrs. Harper is substantially able to perform the day-to-day cleaning of the interior of her home, excluding her bedroom, but including the two children's bedrooms. I find Mrs. Harper is substantially unable to vacuum using her present vacuum cleaner. I find that with an appropriate vacuum, she would be able to perform most the vacuuming, using pacing techniques. I find she is unable to move heavy furniture by herself for thorough cleaning. I find she is substantially able to mop floors. I find she has some difficulty with scrubbing of floors and bathtub stains caused by hard water, although she can clean the bathtub using a long handled tub scrub. I find she is unable to clean windows above shoulder height. I find she is able to dust and wipe most surfaces. I find she is unable to reach up to put up/take down curtains for laundering.

I find Mrs. Harper is substantially disabled from performing the extraordinary cleaning of her son's bedroom required several times weekly, including dusting by vacuuming all surfaces, and twice weekly vacuuming her son's mattress. I find Mrs. Harper is unable to thoroughly clean her son's room due to her inability to manipulate the mattress alone. (I make no allowance for extra cleaning, etc. due to the new pet dog.)

I find Mrs. Harper is substantially able to change bed linens - twice weekly for Steven and once weekly for Christina. I find her able to remove sheets. I find she has some difficulty with lifting mattress corners to put fitted sheets on and tuck top sheets under.

I find Mrs. Harper is substantially disabled from performing the tasks necessary to do the children's laundry. I find she is able to fill the washer with a hose and drain the water into the bathtub. I find she is able to clean the bathtub. I find she is substantially disabled from retrieving the wet clothes from the washing machine, and from loading and unloading the dryer, as these machines are presently positioned. I find she is unable to hang the clothes outside to dry. I find she is able to arrange the clothes inside on racks in front of woodstove in heating season. I find the dryer is used as infrequently as possible, as a family preference, to save money. I find Mrs. Harper has difficulty carrying laundry baskets. I find she is able to fold dry clothes.

I find Mrs. Harper is substantially unable to can and preserve fruit from Mr. Harper’s uncle’s farm.

I find Mrs. Harper is substantially unable to carry firewood into the house, in a reasonable fashion. I find she is able to carry wood, one-handed, in small quantities. As I also find this to be a shared responsibility with Mr. Harper I do not give Mrs. Harper’s inability in this area the weight accorded to the same task as if it were her sole responsibility.

I find Mrs. Harper is substantially able to drive the children in a suitable motor vehicle to health practitioner visits and on social outings, and to shop for children’s clothes and other items.

I find that not all the activities listed above should be accorded equal weight in determining their relative importance in establishing Mrs. Harper’s ability to engage in caregiving activities after November 22, 1996. I accord slightly more weight to her ability to supervise, nurture, and play with the children, prepare daily meals, wash dishes and grocery shop, and transport her daughter to the bus stop on foot or by car, than to the heavier cleaning and laundry chores. The children’s quality of life is not affected much by the person who performs cleaning and laundry, so long as the task is done. The same cannot be said for reading to the children, playing with them, supervising them, nurturing them and preparing and serving their food. The most important caregiver activities are those where the caregiver’s personal presence and participation have a direct impact on the children.

In summary, I find that after November 22, 1996 Mrs. Harper exhibits some inability to engage in the caregiving activities in which she engaged at the time of the accident. I find that she exhibits a moderate, but not substantial, degree of disability, especially in tasks that require the most physical effort. Most caregiving activities are within her abilities, especially the important regular ones of providing supervision, nurturing, and preparing food. Mrs. Harper is more fatigued by these activities than formerly; however, I find she is still able to provide care and engage in those activities. After November 22, 1996 I find Mrs. Harper's level of impairment is insufficient to meet the test of substantial inability to engage in caregiving, which has to be more than a moderate or modest level of inability.

I understand that Mrs. Harper received weekly caregiver benefits from March 13, 1997 to July 27, 1997. I heard no evidence regarding these payments. No issue is before me with respect to repayment of benefits.

3.0 Housekeeping and home maintenance expenses

Mrs. Harper claims housekeeping and home maintenance expenses. Section 55 of the Schedule reads as follows:

55. If an insured person sustains an impairment as a result of an accident, the insurer shall pay for additional expenses reasonably incurred by or on behalf of the insured person as a result of the accident for housekeeping and home maintenance services.¹¹

I find that Mrs. Harper has suffered both a physical and psychological impairment as a result of the accident. Since she incurred no housekeeping expenses prior to the accident, all the expense has been "additional." Mrs. Harper has engaged housekeeping help regularly since the accident. The real question is what amount of expense or level of assistance is reasonable?

I find that the eligibility test is broader for reasonable housekeeping and home maintenance expenses, or at least a different test, than that considered under the caregiver test. For example, in assessing Mrs. Harper's caregiver activities, I deliberately excluded cleaning of her own bedroom. It must be included here. Some items logically overlap, since family laundry is reasonably done together, not the children's laundry separately. Still, it seems to me that some areas of the Harper family lifestyle and Mrs. Harper’s former household activities are not covered, for example home renovations and rock garden building, although assistance with applying wallpaper borders and annual outdoor flower planting, in my opinion, could reasonably fall under "home maintenance services." This distinction is necessary because, in my opinion, maintenance is related to the upkeep, repair, preservation and modest enhancement of the home as it exists, not new construction or renovation.

The applicant offered in evidence the report of Karen A. Bowen, Occupational Therapist, dated August 27, 1997. In a careful and thoughtful report, Ms. Bowen concluded that Mrs. Harper required 8 hours of assistance with house cleaning each week; 4.5 hours of assistance with laundry; 2 hours of assistance with shopping; 2 hours of assistance with food preparation and cleanup; and 1.5 hours of assistance with a miscellaneous category of work, such as bringing in wood, gardening, window cleaning, and renovation projects.

I find Ms. Bowen’s observations and conclusions to be generally sound, although I regret that she did not outline in more detail how she arrived at the estimated number of hours of assistance per week, except for stating that she had given that issue "much consideration." She did recommend several additional assistive devices which would make Mrs. Harper more independent in her household activities.

I find that Ms. Bowen's estimate with respect to housecleaning is reasonable, given the size of the Harper’s home and the extraordinary cleaning required to keep dust levels at a minimum to preserve Steven’s good health. However, I do not find it reasonable to allow an additional 4.5 hours for laundry (6 loads per week @ 45 minutes per load), given Mrs. Harper's partial abilities in this area and the fact that the assistant's full attention is not engaged in performing laundry services over the total time allocated. I understand the "unique" configuration and difficulties of the present laundry arrangements in the Harper household, but I feel it reasonable that the assistant could accomplish the aspects of this task that Mrs. Harper finds overwhelming while helping with house cleaning, food preparation or cleanup, or the miscellaneous housekeeping and home maintenance activities. I find Ms. Bowen's estimates of hours for the other categories of assistance, when the time allocated to laundry is factored in, to be reasonable. Accordingly, I am prepared to order that Mrs. Harper be provided with 13.5 hours per week of housekeeping and home maintenance.

I heard evidence from Mr. David Reddick and Mrs. Harper about Mr. Reddick's assistance since the time of the accident. Unfortunately, neither he nor Mrs. Harper kept any records at all of his hours or duties over the time he has provided housekeeping and home maintenance services. Both Mr. Reddick and Mrs. Harper estimated he provided 20 to 25 hours weekly. Some of Mr. Reddick's time was spent driving the children to or from the bus stop and providing other chauffeuring services. Mr. Reddick is a good friend of Mrs. Harper. He is a handy person and has not been employed much since the accident. He used to visit the Harper home frequently even prior to the accident. He and Mrs. Harper planned to establish a housecleaning business.

I can understand that, given this background, Mr. Reddick has been willing to help Mrs. Harper with her housecleaning and home maintenance. However, both he and Mrs. Harper hoped and expected that, at the end of the day, Mr. Reddick would be paid for his work. Some payments were made by Liberty early in the history of the claim. Given that expectation, it would have been reasonable to keep some records of Mr. Reddick's hours and duties. In my view, in the circumstances of this case, it is unreasonable to conclude based solely on vague estimates provided by Mr. Reddick and Mrs. Harper that Mr. Reddick should receive $200 to $250 per week for an estimated 20 to 25 hours of work.

I find no evidence that Mrs. Harper’s ability to reasonably perform heavier household chores has greatly improved since the accident. I find that Mrs. Harper has been entitled to 13.5 hours of housekeeping and home maintenances services per week since the accident on November 22, 1994. Some amounts have already been paid on this account. The parties will need to determine the amount that is outstanding, plus interest according to the provisions of the Schedule. The evidence I received showed that Mrs. Harper expected to pay $10.00 per hour for such services in her area. I find that amount per hour is reasonable for energetic cleaning and home maintenance services, especially considering the Harper’s relatively isolated home situation and the need for the assistant to provide his own transportation.

4.0 Vehicle modification

Mrs. Harper requests that her family vehicles, a 1988 Jeep Cherokee, and a 1989 Mercury Lynx be modified so that she can drive them. The sections of the Schedule dealing with such claims fall within Part 8, entitled "Rehabilitation Benefits." In considering Mrs. Harper's claims for vehicle modifications, the philosophy of rehabilitation set out in section 40 of the Schedule is important. The Schedule provides that Liberty must pay for reasonable measures to reduce or eliminate the effects of any disability Mrs. Harper has arising from the accident and to facilitate her reintegration into her family and society. It also provides that Liberty should pay for reasonable expenses for vehicles and vehicle modifications to accommodate her needs and return her, as much as possible, to the family and social situations in which she lived before the accident.¹²

Several health practitioner reports comment on Mrs. Harper’s inability to drive a standard transmission vehicle, including two reports commissioned by the insurer in September 1995 from a neurologist and an orthopaedic surgeon. Both of these specialists concurred that Mrs. Harper could not do this in safety, given the symptoms she described, which they linked to the motor vehicle accident. Ms. Bowen, the occupational therapist, observed Mrs. Harper drive as late as mid-August, 1997. She recommended a formal Rehabilitation Driving Assessment, since Mrs. Harper primarily uses a one-handed approach to driving.

I find, based on her testimony and the evidence of the experts, that Mrs. Harper cannot safely drive her present vehicles with their standard transmissions. I find that this inability arises from impairments she received in the accident. I find Mrs. Harper is entitled to have both vehicles modified so that she may drive either, as was the "family situation"¹³ prior to the accident. I reject the insurer's submission that only one vehicle should be modified and find of no relevance the fact that she was listed on the automobile policy as the principal driver on one vehicle. I find it is important to the Harper's lifestyle that Mrs. Harper be able to drive either vehicle.

I accept the evidence advanced by Mrs. Harper that it is not practicable or reasonable to modify the existing vehicles by changing their transmissions from manual to automatic.¹⁴ The insurer offered no contrary evidence. Having accepted the Applicant’s evidence that her present vehicles should not be modified, at first glance the language of section 42 might lead one to conclude that new vehicles must be purchased, although this was not argued by her counsel. When the language of section 42 is compared with the language of section 41 (relating to home modifications) I observe that while section 41 speaks of renovating "the insured person's existing home," section 42 speaks of modifying "an existing vehicle." In my opinion, the existing vehicle need not necessarily belong to the insured person. In the circumstances of this case I find that the provisions of the Schedule can best be followed by trading-in the Harper's existing vehicles to purchase similar vehicles with automatic transmissions. I find it would not be reasonable, in this case, to expect the Insurer to purchase a new vehicle for Mrs. Harper so that she could have a vehicle with an automatic transmission.

Almost no evidence was provided to me at the hearing regarding the value of the Harper vehicles or the cost of obtaining suitable replacements. The only evidence from Mrs. Harper was exhibit 1.27, a quotation for a 1991 automatic Jeep Cherokee available in Peterborough in late July 1997. The Greater Toronto Area market was not canvassed for replacement vehicles nor were the relative book values of the vehicles offered in evidence. An Autosource Market Search solicited by the insurer in November 1995 that was filed is obsolete.

Given this paucity of evidence, it is difficult to formulate the order with respect to this claim by the Applicant. The objective of sections 40 to 42 of the Schedule and of my order is, in so far as is possible, to put Mrs. Harper in the position of owning two automatic vehicles, similar to what the family now owns, as soon as possible, without any additional cost to her. The parties must determine the means by which they will accomplish this, although I suggest that Liberty hire an independent party to investigate available vehicles and facilitate the transfer. In the alternative, the goals of the Schedule might be accomplished by the insurer paying to Mrs. Harper the retail value of an available, similar, automatic 1988 Jeep Cherokee at the date of this decision and the retail value of an available, similar, automatic 1989¹⁵ Mercury Lynx automobile, plus taxes and transfer costs, "less the trade-in value of the existing vehicles." In either alternative, interest on the difference in value will also be added from February 26, 1996 to July 20, 1997 and from September 11, 1997 to the date of payment, which represent the periods Mrs. Harper was without a suitable vehicle.

The insurer did provide Mrs. Harper with a rental vehicle with automatic transmission from the spring of 1995, following a deterioration in Mrs. Harper's condition, until February 26, 1996. After that, until July 20, 1997 she had no regular access to a vehicle with automatic transmission and was obliged, according to her evidence, to find others to take her places, where possible. She was often left stranded at home unable to get to medical appointments, chiropractic care, her support group in Lindsay, or to collect her children at school twice when they were injured during the school day. These facts are important to my consideration of a special award for this portion of Mrs. Harper's claim. After July 20, 1997 Liberty agreed to pay up to $30.00 per day for a rental vehicle, if I decided that vehicle modification was a reasonable and necessary expense. I understand Mrs. Harper had the rental vehicle until September 11, 1997. The insurer should pay this expense.

Another facet of the transportation claim revolves around an interim agreement between Liberty and Mrs. Harper to provide transportation for the Harper children to and from the bus stop during the winter of 1996-97, since Mrs. Harper had no vehicle which she could drive. One of the Harper’s neighbours, Helen Parberry, agreed to provide this service, twice daily, at a weekly rate of $100.00. She has yet to be paid, although the insurer had agreed to pay Mrs. Parberry pending a decision at the arbitration. I accept Mrs. Harper’s evidence that this arrangement continued for "almost exactly 8 weeks." Her evidence is supported by Mrs. Parberry's letter of August 21, 1997. Mrs. Harper testified that walking any distance outdoors in cold weather exacerbates the symptoms she feels in her right arm and shoulder. The bus stop was 1 kilometre from the Harper home and Mrs. Harper would be required to walk that distance four times daily. I find that it is reasonable that the insurer should pay Mrs. Helen Parberry $800.00, plus interest, as part of the vehicle modification claim.

5.0 Other supplementary medical expenses and rehabilitation expenses

5.1 Cost of Fruit

Mrs. Harper claims $200.88 for the cost of fruit purchased because she was unable to can Mr. Harper’s uncle’s fruit, provided to them at no cost prior to the accident. I have allowed this claim under section 55 of the Schedule by providing for 2.0 hours per week for food preparation (re baking, preserving) by a housekeeper, as set out in Ms. Bowen's report from the time of the accident, and ongoing.

5.2 Cost of Electricity

Mrs. Harper claims $280.00 per year in extra electricity costs for more extensive use of the dryer since the accident. No electric bills were provided as evidence, although Mrs. Harper testified that she had gathered this evidence once for the insurer and it had, apparently, been lost or never received. I am not prepared to allow this claim without any documentary evidence as to the correct amount. Some of the extra cost, at least, is recognized in the housekeeping allowance of time for the assistant to participate in laundry activities. Mrs. Harper could allocate some of the housekeeper's time to include hanging the clothes outside, as before the accident.

5.3 Vacuum Cleaner

Mrs. Harper claims $250.00 (net) for a new, lighter vacuum cleaner. A light weight vacuum cleaner was identified as a recommended assistive device by Rosemary Dracup, an occupational therapist, early in Mrs. Harper's recovery. However, Mrs. Harper was unwilling to accept that the model recommended, at a cost of $39.98, was suitable. I concur that the more expensive model is a better match to the needs of the Harper residence and allow this under the provisions of section 40.

5.4 Shelves

Additional shelving for Mrs. Harper's kitchen was recommended early in her recovery. The cost of labour only is claimed, since formerly Mrs. Harper would have made the shelves herself. This expense of $300.00 is allowed under the provisions of section 40.

5.5 Mixmaster

Mrs. Harper claims the cost of a Mixmaster, at $199.99, which will allow her independence in making stiff batters and cookie dough. This expense is allowed under the provisions of section 40. The mixer provided earlier by Liberty was not suitable to Mrs. Harper's needs and should be returned, if demanded.

5.6 Transportation Costs

Mrs. Harper claims transportation costs to therapy provided by Dr. Telka, a psychologist, after the accident until February 1996, and to Dr. Jaikaran, a specialist in both orthopaedics and physical and rehabilitation medicine. Both health providers have offices in Peterborough. Mrs. Harper claims for 28 visits at 150 km per round trip. Liberty disputed that the visits to Dr. Telka arose from an impairment sustained in the accident. It raised no defence with respect to the visits to Dr. Jaikaran. Clearly, Mrs. Harper's visits to Dr. Jaikaran resulted from the accident, and I so find. I find further that the accident contributed significantly and materially to Mrs. Harper’s need to seek Dr. Telka’s assistance. I find that Liberty has failed to fulfill its obligations under section 36 of the Schedule to pay this claim "pending resolution" of the dispute.

At the hearing the insurer's adjuster testified that Liberty paid $0.084 (i.e. 8.4 cents) per kilometre to Mrs. Harper for transportation expenses approved. The adjuster allowed that this was one rate (the middle one) paid by the insurer for transportation at the time. She did not recall the higher rate or the lower rate. She testified that the present rate was $0.0908, which presumably was for the middle category. Even given the restricted parameters of section 36(3) of the Schedule, the rate for transportation expense paid to Mrs. Harper seems inordinately low, given her remote location and the size and type of her vehicle. I order the insurer to pay $0.10 per kilometre for this transportation claim, for a total of $420.00, plus interest.

5.7 Chiropractic, Naturopathic products, Massage Therapy

The Insurer still owes balances of $48.00, $43.87, and $260.00 to the chiropractor, naturopath, and massage therapist for treatment or products provided before March 26, 1996, which it shall pay, based upon its previous undertakings. In addition, Mrs. Harper claims massage treatments which continued after March 26, 1996 as the records of exhibit 8 show. Mrs. Harper testified that she received temporary pain relief from these treatments and that they were accessible to her either locally or in her own home. She testified that the treatments were of assistance in relieving the effects of driving to and from Peterborough for medical consultations, other health treatments and otherwise for pain relief. The treatments were provided to Mrs. Harper, usually twice weekly, mainly at her home. Other physiotherapy and chiropractic treatment was only available to Mrs. Harper at a considerable distance from her home, in Peterborough or Bancroft. Many treatments were provided during the months that Mrs. Harper was without her own suitable transportation to attend office or hospital-based treatment of any type.

The registered massage therapist charged $60.00 for an office visit and $80.00 for a home visit. I find these fees to be reasonable. Mrs. Harper testified that she stopped receiving the treatments in January 1997, not because of any diminished therapeutic benefit to her, but because the amount of the outstanding account had become so large. I find that the accounts of the massage therapist should be paid, with interest as prescribed under section 68 of the Schedule. I find that the massage therapy at such regular, frequent intervals was, in this case, a reasonable and necessary expense arising from the injuries Mrs. Harper received in the accident. Mrs. Harper's remote location and the accessibility of this treatment are important factors in my analysis of the reasonability and necessity of this particular form of treatment. It would appear that the outstanding amount is $6,760.00,¹⁶ which may have to be adjusted to take into account $160.00 that appears to relate to the visits of March 22 and March 26, 1996, which I have separately ordered to be paid, as set out above.

5.8 Case Management Services

Mrs. Harper has asked for the payment of the account of Joy Harwood, a registered nurse, who intervened on her behalf with Liberty and represented her from January 1996 onward. Although the parties addressed this account under the rubric of expenses, I do not find this account to be in that nature, at least from January to May 31, 1996. I find the services Ms. Harwood provided to Mrs. Harper in the early months of 1996 more akin to the services of a rehabilitation caseworker or case manager "related to the coordination of medical, rehabilitation, and attendant care services for the insured person," as set out in section 40(5)(c) of the Schedule, than any role as a legal representative.

Ms. Harwood testified at the hearing. Her first intervention with Mrs. Harper in January 1996 involved the desire by Liberty to have a form relating to "attendant care" completed, when Mrs. Harper had asked for housekeeping expenses to be paid. A subsequent intervention was with respect to Mrs. Harper’s need for accessible transportation and vehicle modification. She also interacted with the insurer about the scheduling of a potential DAC examination in Peterborough, then the insurer’s examination in Mississauga in March 1996. The insurer had previously engaged first one, then another case manager to take an administrative role in the coordination of Mrs. Harper's rehabilitation until at least the end of October 1995. Ms. Harwood's interventions filled the gap left after the discharge of the case manager. She was an intermediary with a professional understanding of the medical issues involved in Mrs. Harper's case, who had her confidence and was engaged by her, rather than by the insurer.

I consider that Ms. Harwood’s intervention was necessary, given the deterioration in communication between the insurer and Mrs. Harper, and in the face of Mrs. Harper's increasing level of frustration and psychological distress. In the circumstances it was reasonable that Mrs. Harper engage a professional intermediary, trained in a health profession, to help her in sorting out the treatment and rehabilitation issues, which included provision of adequate transportation and arrangements for insurer's medical examinations. In my opinion, Ms. Harwood played a critical facilitation role in attempting to help Mrs. Harper understand and cope with the effects of the accident and reintegrate into her pre-accident family and social situation.

At some point in her retainer, Ms. Harwood's activities took on more of the characteristics of a legal representative than of a rehabilitation professional. I consider that until May 31, 1996 her activities could reasonably be said to be those of a rehabilitation caseworker or intermediary. After that, her status changed, until finally her role was supplanted by the law firm which represented Mrs. Harper at mediation and arbitration. Accordingly, I allow Ms. Harwood's account to the end of May 31, 1996 under the heading of rehabilitation benefits.

I do not find that the insurer was in default under the Schedule for failing to pay this expense pending this arbitration, since Mrs. Harwood's appointment was not agreed to before the expense was incurred, as required by section 40(8) of the Schedule. I do allow interest, however, under section 68, from June 15, 1996.

6.0 Special award

Section 282(10) obliges an arbitrator to make a special award to an applicant where an insurer unreasonably withholds or delays benefits. That section is worded as follows:

282.--(10) If the arbitrator finds that an insurer has unreasonably withheld or delayed payments, the arbitrator, in addition to awarding the benefits and interest to which an insured person is entitled...shall award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award, together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.

I find that Liberty did unreasonably withhold caregiver benefits from Mrs. Harper for several reasons. First, the benefits were terminated or suspended without lawful authority. Secondly, Liberty refused to consider Dr. Telka’s report when determining what was a "convenient" time for the examination and refused to make reasonable efforts to accommodate Mrs. Harper in that regard.

The only significant claim for unpaid treatment specifically advanced in this arbitration is for the massage therapy, discussed below. Liberty’s advice to Mrs. Harper that her supplementary medical benefits were suspended, following her non-attendance at the IE in March 1996 is particularly troubling. The Schedule requires that the notice given to the insured person "state the expense to which the examination relates." The IE was specifically arranged to deal with disability issues, not treatment. This is clear in the written notice to Mrs. Harper of February 16, 1996, which was not varied by the rescheduling letter of March 5, 1996. Only a short, subsequent letter dated March 13, 1996, addressed to Ms. Harwood, stated that "the assessment will address treatment as well as Shannon's current disability." It is difficult to understand Liberty's desire to have further IE opinions on Mrs. Harper’s treatment when it had not investigated or arranged the treatment recommended by Dr. Jamieson in his IE report of the previous September. I have found that Liberty did not follow its obligations in arranging the insurer’s examinations, and, accordingly its suspension of Mrs. Harper's treatment benefits as a result of her non-attendance is likewise unreasonable and attracts a special award of those payments outstanding.

With respect to the vehicle modification expenses, I find that Liberty has unreasonably delayed this payment. In my view it is unconscionable for Liberty to knowingly leave Mrs. Harper in a situation where she was unable to leave her home for treatment or any other reason, because of weather conditions, her isolation, and her inability to drive either of the family vehicles. It was unreasonable to make an offer to Mrs. Harper of the actual cash value of one of her motor vehicles and presume that in this manner it had satisfied its obligations under the Schedule. The adjuster admitted she and her supervisors were unfamiliar with the insurer’s obligations with respect to vehicle modification. In the face of Mrs. Harper's reluctance to settle this issue in the manner offered, and in the face of its claims department's inexperience, the insurer should have reviewed its interpretation of its obligations with its legal advisors.

On the other supplementary medical expenses and rehabilitation expenses I order that a special award be paid: that is, on the net cost of the new vacuum cleaner ($250.00); the $300.00 for labour costs to add additional shelving to Mrs. Harper's kitchen (recommended early in her recovery); on the cost of a mixmaster, at $199.99; on the $420.00 in transportation costs most unreasonably withheld; on the balances of $48.00, $43.87, and $260.00 to the chiropractor, naturopath, and massage therapist for treatment or products provided before March 26, 1996, (which were left unpaid even though they predated the suspension date and previous services had been paid); and on the accounts of the massage therapist after March 26, 1996 for the reasons set out above.

I do not order that a special award be paid on the account of Ms. Harwood to May 31, 1996.The services provided by a case manager do not fall under the "pay pending dispute" provisions of the Schedule, as set out in section 40(8).

I consider the insurer's unreasonable behaviour in this case to be serious and order a lump sum special award of 40% on all of the categories of benefits set out above, for which a special award has been granted.

7.0 Expenses

The Application for Arbitration in this case was filed in August 1996 prior to Ontario Regulation 464/96 coming into force. That regulation amended the expense provisions respecting arbitration. Since counsel made submissions at the hearing with respect to expenses, I assume that the provisions of section 73 of the Dispute Resolution Practice Code—April 15, 1997 (3rd edition) pertaining to written Offers to Settle do not apply here. Although success has been mixed in this case, I exercise my discretion to grant Mrs. Harper her expenses of the arbitration, including the hotel account of $170.48. I consider that many of the steps and positions taken by Liberty in the adjustment of Mrs. Harper's claims were manifestly unfounded, oppressive, and inflexible. If the parties cannot agree on the amount of expenses, they should follow the procedure set out in the Code.

Order:

1. Liberty Mutual Insurance Company shall pay Shannon Harper caregiver benefits in the sum of $300.60 per week from March 27, 1996 to November 22, 1996, plus interest as set out in section 68 of the Schedule.

2. Liberty Mutual Insurance Company shall pay Shannon Harper housekeeping and home maintenance expenses of $135.00 per week from November 22, 1994, ongoing, plus interest as set out in section 68 of the Schedule, less any payments already made on this account.

3. Shannon Harper is entitled to the modification of both her family vehicles to automatic transmissions. Liberty Mutual Insurance Company shall provide two automatic vehicles, similar to what the Harper family now owns, as soon as possible, without any additional cost to her. In the alternative, Liberty Mutual Insurance Company shall pay the retail value of an available, similar, automatic 1988 Jeep Cherokee at the date of this decision and the retail value of an available, similar, automatic 1989 Mercury Lynx automobile, plus taxes and transfer costs, "less the trade-in value of the existing vehicles." In either alternative, interest on the difference in value will also be added from February 26, 1996 to July 20, 1997 and from September 11, 1997 until payment. Liberty Mutual Insurance Company shall also pay the cost of the vehicle rented from July 20 to September 11, 1997.

4. Liberty Mutual Insurance Company shall pay $800.00, plus interest as set out in section 68 of the Schedule, for the services of Helen Parberry.

5. Liberty Mutual Insurance Company shall pay Shannon Harper the following supplementary medical expenses and rehabilitation expenses, plus interest as set out in section 68 of the Schedule: $250.00 (vacuum cleaner), $300.00 (shelving labour), $199.99 (mixmaster), $420.00 transportation expense, $351.87 (treatment or products provided before March 26, 1996), and $6,760.00 (massage therapy).

6. Liberty Mutual Insurance Company shall pay Shannon Harper $2,976.36 for the services of Joy Harwood, R.N., to May 31, 1996, plus interest from June 15, 1996, as set out in section 68 of the Schedule.

7. Liberty Mutual Insurance Company shall pay a lump sum special award of 40% on the amounts calculated under paragraphs 1, 3, 4, and 5 of this order, plus interest, as calculated under section 282(10) of the Insurance Act, R.S.O. 1990 c.I.8, as amended.

8. Liberty Mutual Insurance Company shall pay Shannon Harper her expenses of the arbitration.

December 19, 1997

K. Julaine Palmer

Arbitrator

Date

Appendix "A"

Part 8 of the Schedule Rehabilitation Benefits

Entitlement to Benefits

40.-(1) If an insured person sustains an impairment as a result of an accident, the insurer shall pay for reasonable measures,

(a) to reduce or eliminate the effects of any disability resulting from the impairment; and

(b) to facilitate the insured person's reintegration into his or her family, the labour market and the rest of society.

(4) The payments required by subsection (1) for the purpose of facilitating the insured person's reintegration into his or her family and the rest of society include payment for social rehabilitation measures that are reasonably necessary to,

(a) return the insured person as much as possible to the family and social situations in which he or she lived before the accident;

(b) assist the insured person to adjust to family and social situations as a result of the accident; and

(c) maintain the insured person's level of function within the home and family.

(5) The payments required under this section include payment of all reasonable expenses incurred by or on behalf of the insured person as a result of the accident for a purpose referred to in clause (1)(a) or (b) for,

(a) social rehabilitation, including life skills training, family counselling, social rehabilitation counselling, financial counselling, home renovations and home devices to accommodate the needs of the insured person, vehicles, vehicle modifications to accommodate the needs of the insured person, and communications aids for the insured person's home;

(d) transportation for the insured person to and from counselling sessions, training sessions and assessments, including transportation for an aide or attendant;

(e) other goods and services that the insured person requires.

(6) Transportation expenses under clause (5)(d) in respect of an insured person's automobile are limited to expenses for fuel, oil, maintenance, tires and parking.

(7) Subject to subsection (8), clause 45(11)(b) and subsection 45(12), the insurer shall pay an expense under subsection (5) pending resolution of a dispute relating to the expense in accordance with sections 279 to 283 of the Insurance Act.

Vehicle Modifications

42.-(1) If it is more reasonable to purchase a new vehicle to accommodate the needs of an insured person than to modify an existing vehicle, the insurer shall contribute to the cost of a new vehicle in an amount equal to the cost of the new vehicle, less the trade-in value of the existing vehicle.

(2) Expenses incurred to purchase or modify a vehicle to accommodate the needs of an insured person shall be deemed not to be reasonable expenses for the purposes of this Part if they are incurred within five years after the last expenses incurred for that purpose in respect of the same accident.

Appendix "B"

1994 Schedule

Stoppage in Weekly Benefits

64.-(1) An insurer shall not stop payment of weekly benefits under Part II, section 15, Part IV or Part V on the ground that the insured person no longer suffers from the disability in respect of which the benefits are paid, except in accordance with this section.

(2) An insurer may, as often as reasonably necessary, give an insured person a notice requiring the person to provide the insurer with a certificate from a health practitioner of the insured person's choice stating that the insured person continues to suffer from the disability in respect of which weekly benefits are paid under Part II, section 15, Part IV or Part V.

(3) The insurer may stop payment of the weekly benefits thirty days after the insured person receives the notice unless, before that date, the insured person provides the insurer with a certificate from a health practitioner of the insured person's choice stating that the insured person continues to suffer from the disability in respect of which the benefits are paid and the notice referred to in subsection (2) shall inform the insured of this information.

(4) If an insurer stops payment under subsection (3) and the insured person subsequently provides the insurer with a certificate from a health practitioner stating that the insured person continues to suffer from the disability in respect of which the benefits were paid, the insurer shall,

(a) resume payment of the benefits; and

(b) pay any benefits that were not paid.

(5) If the insured person provides the insurer with a certificate under subsection (3) or (4), the insurer may, on notice to the insured person, require the insured person to be examined by,

(a) a health practitioner of the insurer's choice; or

(b) a person selected in accordance with subsections (11) and (12).

(6) An examination under clause (5)(a) by a health practitioner of the insurer's choice shall be scheduled by the insurer and, for that purpose, the insurer shall make reasonable efforts to Schedule the examination for a time that is convenient for the insured person and shall provide the insured person with reasonable notice of the examination.

(7) The health practitioner who conducts an examination under clause (5)(a) shall prepare a report and provide a copy of the report to the insurer and to the insured person.

(8) If a report under subsection (7) states that the insured person is no longer suffering from the disability in respect of which the benefits are paid, the insurer may give the insured person notice that the insurer will stop paying the benefits on a date specified in the notice and the notice shall provide the information contained in subsections (9) to (12).

(9) The insurer may stop payment of the weekly benefits on or after the date specified in the notice unless the insured person gives the insurer written notice that he or she wishes to be examined by a person selected in accordance with subsections (11) and (12).

(10) Despite subsection (9), the insurer shall not stop payment earlier than fourteen days after the insured person received the notice under subsection (8).

(11) If the insurer gives a notice under clause (5)(b) or the insured person gives a notice under subsection (9), the insurer and the insured person shall endeavour to agree on a health practitioner to conduct the examination.

(12) If the insurer and the insured person cannot agree on a health practitioner to conduct the examination within fourteen days after the insured person received notice from the insurer under clause (5)(b) or within fourteen days after the insurer received notice from the insured person under subsection (9), the examination shall be conducted by the designated assessment centre nearest to the insured person that is authorized to assess impairments of the type sustained by the insured person.

(13) If the examination is required to be conducted by a designated assessment centre,

(a) the insurer shall, within fifteen days, notify the designated assessment centre; and

(b) the centre shall promptly notify the insured person and arrange for the examination.

(14) For the purpose of the examination,

(a) the insured person and the insurer shall provide the person or persons who conduct the examination with such information as is reasonably necessary; and

(b) the insured person shall submit to such reasonable physical, psychological and mental examinations as are requested by the person or persons who conduct the examination.

(15) After conducting the examination, the person or persons who conducted the examination shall prepare a report and provide a copy of the report to the insurer and to the insured person.

(16) If the report states that the insured person is no longer suffering from the disability in respect of which the weekly benefits are paid, the insurer may stop paying the benefits.

(17) If the report states that the insured person continues to suffer from the disability in respect of which the weekly benefits are paid, the insurer may dispute the obligation to pay the benefits in accordance with sections 279 to 283 of the Insurance Act and, pending resolution of the dispute, the insurer shall pay the benefits.

(18) Nothing in this section prevents an insured person from disputing a stoppage in the payment of weekly benefits in accordance with sections 279 to 283 of the Insurance Act and, if it is finally determined that payment of the benefits should not have been stopped, the insurer shall,

(a) resume payment of the benefits; and

(b) pay any benefits that were not paid.

(19) If the insured person fails or refuses to submit to an examination under subsection (5) or (9), the insurer may withhold payment of the weekly benefits until the person submits to the examination and, when the person submits to the examination, the insurer shall,

(a) resume payment of the benefits; and

(b) pay any benefits that were not paid.

Insurer Examination for Supplementary Medical Benefits, Rehabilitation Benefits or Attendant Care Benefits

65.-(1) An insurer may, for the purposes of Part VII, VIII or X and as often as reasonably necessary, give an insured person notice requiring the person to be examined by one or more persons specified by the insurer, each of whom is a member of a health profession or a person with expertise in vocational rehabilitation.

(2) An examination under subsection (1) shall be scheduled by the insurer and, for that purpose, the insurer shall make reasonable efforts to Schedule the examination for a time that is convenient for the insured person and shall provide the insured person with reasonable notice of the examination.

(3) The person or persons who conduct the examination shall prepare a report and provide a copy of the report to the insurer and to the insured person.

(4) A notice referred to in subsection (1) shall state the expense to which the examination relates.

(5) If the insured person fails or refuses to make himself or herself reasonably available for an examination under subsection (1), the insurer is not required to pay for the expense set out in the notice under subsection (1) until the person submits to the examination.

Appendix "C"

Changes to 1994 Schedule, as Reflected in O.R. 635/94, i.e 1995 Schedule

(Note: new provisions are set out in bold face type, e.g. all of section 64)

Stoppage in Weekly Benefits

64. (1) An insurer shall not stop payment of weekly benefits under Part II, section 15, Part IV, or Part V on the ground that the insured person no longer suffers from a disability as a result of the accident in respect of which weekly benefits are paid, except in accordance with this section.

(2) The insurer may give notice to the insured person that the insurer will stop paying benefits on a date specified in the notice and the notice shall provide the information contained in subsections (3) to (7) and the reasons for the stoppage in payment.

(3) The insurer may stop payment of the weekly benefits on or after the date specified in the notice unless the insured person gives the insurer written notice that he or she wishes to be assessed in accordance with subsections (5) and (6).

(4) The insurer shall not specify a date for stopping payment under subsection (3) earlier than 14 days after the insured person receives the notice mentioned in subsection (2).

(5) If the insured person gives a notice under subsection (3) and if, within 100 kilometres of the residence of the insured person, there is no designated assessment centre that is authorized to assess impairments of the type sustained by the insured person, the insurer and the insured person shall endeavour to agree on one or more people, at least one of whom shall be a health practitioner, to conduct the assessment.

(6) If there is a designated assessment centre within 100 kilometres of the residence of the insured person or if, within 14 days after the insurer received notice under subsection (3), the insurer and the insured person cannot agree under subsection (5) on who shall conduct the assessment, the designated assessment centre nearest to the residence of the insured person shall conduct the assessment.

(7) If, before the assessment has commenced, the designated assessment centre nearest to the residence of the insured person has disclosed to the insurer and the insured person that it has a conflict of interest with either of the parties within the meaning of that term in the guidelines established by the accident benefits advisory committee under subsection 38 (2),

(a) the designated assessment centre or another centre shall conduct the assessment, if the parties agree; or

(b) the designated assessment centre that is next nearest to the residence of the insured person shall conduct the assessment, if the parties do not agree under clause (a).

(8) If a designated assessment centre is required to conduct the assessment,

(a) the insurer shall, within 15 days, notify the designated assessment centre; and

(b) the centre shall promptly notify the insured person and arrange for the assessment.

(9) For the purpose of the assessment,

(a) the insured person and the insurer shall provide the person or persons who conduct the assessment with such information as is reasonably necessary; and

(b) the insured person shall submit to such reasonable, physical, psychological and mental examinations as are requested by the person or persons who conduct the assessment.

(10) After conducting the assessment, the person or persons who conducted the assessment shall prepare a report and provide a copy of the report to the insurer, the insured person and the insured person's health practitioner.

(11) If the report states that the insured person is no longer suffering from a disability resulting from the accident in respect of which the weekly benefits are paid, the insurer may stop paying the benefits.

(12) If the report states that the insured person continues to suffer from a disability resulting from the accident in respect of which the weekly benefits are paid, the insurer may dispute the obligation to pay benefits in accordance with sections 279 to 283 of the Insurance Act, and, pending the resolution of the dispute, the insurer shall pay the benefits.

(13) Nothing in this section prevents an insured person from disputing a stoppage in the payment of weekly benefits in accordance with sections 279 to 283 of the Insurance Act and, if it is finally determined that payment of the benefits should not have been stopped, the insurer shall,

(a) resume payment of the benefits; and

(b) pay the benefits that were not paid.

(14) If the insured person does not submit to an assessment that he or she requests under subsection (3) or does not comply with the requirements of subsection (9), the insurer may withhold payment of the weekly benefits until the person submits to the assessment or complies with subsection (9) respectively, after which time the insurer shall,

(a) resume payment of the benefits; and

(b) pay the benefits that were not paid if the assessment report determines that benefits should continue to be paid.

Insure Examination

65.—(1) An insurer may, for the purposes of any of Parts II to VIII, X and XIII and as often as reasonably necessary, give an insured person notice requiring the person to be examined by one or more persons specified by the insurer, each of whom is a member of a health profession or a person with expertise in vocational rehabilitation.

(2) An examination under subsection (1) shall be scheduled by the insurer and, for that purpose, the insurer shall make reasonable efforts to Schedule the examination for a time that is convenient for the insured person and shall provide the insured person with reasonable notice of the examination.

(5) If the insured person fails or refuses to make himself or herself reasonably available for an examination under subsection (1), the insurer is not required to pay the benefits under section 16 or Part VII, VIII, X, or XIII, as specified in the notice under subsection (1), until the person submits to the examination.

(5.1) If the insured person fails or refuses to submit to an examination under subsection (1), the insurer may withhold payment of the weekly benefits under Part II, section 15 or Part IV, V or VI until the person submits to the examination and, when the person submits to the examination, the insurer shall,

(a) resume payment of the benefits; and

(b) pay the benefits that were not paid.

Appendix "D"

Hearing:

The hearing was held in Peterborough on September 2, 3, 4, and 5, 1997, before me, K. Julaine Palmer, Arbitrator. Following the hearing I received written submissions until September 30, 1997.

Present at the Hearing:

Applicant:

Shannon Harper

Mrs. Harper's

Robert W. Becker

Representative:

Barrister and Solicitor

Liberty Mutual's

Wayne G. Edwards

Representative:

Barrister and Solicitor

Liberty Mutual’s

Tina Gicas

Officer:

Sr. Claims Specialist

The proceedings were recorded by Sherry McHady, Taylor Reporting Services.

Witnesses:

Shannon Harper, David Reddick, Tim Harper, Joy Harwood, Rosemary Dracup, Rosemary Grimaldi

The parties filed 27 exhibits at the hearing, including 3 medical briefs and 1 document brief.

Footnotes

1. 1The Schedule is Ontario Regulation 776/93, as amended by Ontario Regulation 635/94 and 781/94. It is called the Statutory Accident Benefits Schedule - Accidents after December 31, 1993 and before November 1, 1996. In order to distinguish the two versions of the Schedule, where this is important, the terms 1994 Schedule and 1995 Schedule have been used in this decision. 1994 Schedule refers to O.R. 776/93 and 1995 Schedule refers to O.R. 776/93 as amended by O.R. 635/94 and O.R. 781/94.
2. 2Please refer to footnote 1 for an explanation of this term. The full text of the provisions of the 1994 Schedule and 1995 Schedule which are applicable are set out in Appendix "B" and Appendix "C," respectively.
3. 3Ruth Sullivan, Driedger on the Construction of Statutes, 3rd Edition, Toronto: Butterworths, 1994, p.552
4. 4Ibid, pp.543-544.
5. 5Black's Law Dictionary "substantive law."
6. 6Loss of Earning Capacity benefits = LEC benefits
7. 7DAC = Designated Assessment Centre, established under the Schedule.
8. 8I calculate 75 km. x $0.084 per km. as $6.30 each way. In my opinion, the difference is not significant. $5.46 corresponds to a distance of 65 km.
9. 9IE = insurer’s examination; also sometimes called IME = insurer’s (or independent) medical examination
10. 10See section 18(1) to (4) of the Schedule
11. 11In this case, some of the provision for housekeeping and home maintenance services might well be considered to fall under the category of Part 8, "Rehabilitation Benefits," since to a significant degree, the assistance which has been provided by Mr. Reddick has been more in the vein of the measures contemplated by section 40(1) and (4) of the Schedule, than pure housekeeping or maintenance expense. However, neither counsel fashioned his submissions in that manner. More discussion of section 40 follows with respect to Vehicle Modifications.
12. 12The full text of section 40 and section 42 is set out in Appendix "A"
13. 13to quote the language of section 40(4)(a) of the Schedule
14. 14See exhibits 1.26 and 1.27
15. 15The oral evidence was that this vehicle was a 1989 model. Exhibit 17, however, refers to a 1986 model.
16. 16The invoice balance is $6,840 but the $80.00 treatment of December 9, 1996 seems to have been charged twice.