Neutral Citation: 1997 ONICDRG 216

OIC A97-000194

BETWEEN:

BELLA KATS

Applicant

and

AXA INSURANCE (CANADA)

Insurer

DECISION

Bella Kats was injured in a motor vehicle accident on April 4, 1996. She received weekly caregiver benefits from AXA Insurance ("AXA"), payable under section 18 of the Schedule¹AXA terminated these benefits effective June 20, 1997. The parties were unable to resolve their disputes through mediation, and Mrs. Kats applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended. The issues in this hearing are:

Is Mrs. Kats entitled to weekly caregiver benefits after June 20, 1997, because she suffers either (a) a substantial inability to engage in the caregiving activities in which she engaged at the time of the accident, or (b) a partial or complete inability to carry on a normal life?
Is Mrs. Kats entitled to amounts claimed for the cost of a massager, an orthopaedic mattress and box spring, housekeeping services, and a case manager.
Is Mrs. Kats entitled to interest on any amounts owing and her expenses incurred in the hearing?

Mrs. Kats is entitled to weekly caregiver benefits after June 20, 1997, ongoing, because she suffers a partial inability to carry on a normal life.
Mrs. Kats is entitled to $279.60 for the cost of a massager, $1,097.18 for an orthopaedic mattress and box spring, $65.00 per week for housekeeping services from the date of the accident to July 31, 1997. She is not entitled to the services of a case manager at this time.
Mrs. Kats is entitled to interest on any amounts owing and her expenses incurred in the hearing.

Background

Bella Kats, now age 44, is the mother of two teenage children, a son, born September 22, 1980, and a daughter, born November 17, 1983. Her son turned sixteen in 1996. This arbitration concerns only entitlement to caregiver benefits after June 20, 1997 for Mrs. Kats' care of her daughter, because of the provisions of section 18(5)3. of the Schedule. That subsection bases payments for weekly caregiver benefit on the number of persons residing with the insured person who are under sixteen years of age or who require care because of physical or mental incapacity. No allegation of incapacity has been made.

1. Claim for Weekly Caregiver Benefits

The Tests for Eligibility

To qualify for most benefits under the Schedule, a person must first be found to suffer an "impairment," as a result of an accident. An impairment is defined in section 1 as "a loss or abnormality of psychological, physiological or anatomical structure or function." To be entitled to weekly caregiver benefits after June 20, 1997, until anytime up to April 4, 1998, Mrs. Kats must be found to suffer either "substantial inability to engage in the caregiving activities in which...she engaged at the time of the accident," or a "partial or complete inability to carry on a normal life." Both tests require a detailed examination of Mrs. Kats' activities prior to the motor vehicle accident of April 4, 1996.

Pre-Accident Caregiver Activities—Substantial Inability

"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 (1990-1993) and subsequently in Ontario Regulation 776/93, as amended (the Schedule). Arbitrators have concluded that this term means more than some inability. It equates to a sizeable inability. The words "caregiving activities in which...she engaged" clearly contemplate a purely subjective test of caregiving activities. In addition, the Schedule defines the caregiving activities as those actually engaged in "at the time of the accident." Sometimes such an analysis becomes problematic, since the caregiving activities engaged in "at the time of the accident" may no longer be performed or relevant. In this case, for example, the Kats' family moved after the accident and Mrs. Kats no longer had to drive her daughter to school. However, this is the test the Schedule sets out.

The evidence at the hearing did not distinguish between the duties or tasks Mrs. Kats performed as a caregiver at the time of the accident and her other pre-accident roles and activities. In order to determine Mrs. Kats' eligibility for caregiver benefits after June 20, 1997 I must decide which of her pre-accident activities can reasonably said to be "caregiver activities," evaluate how impaired she is in those activities, and come to a conclusion about whether the degree of disability amounts to a substantial inability.

In my view, certain of Mrs. Kats's pre-accident activities, such as her personal activities and hobbies, are not caregiver activities. Neither is caring for her husband, who, as he is neither under age sixteen or suffering any incapacity, is not included in the definition.

Mrs. Kats's testimony about her caregiver activities at the time of the accident was not seriously challenged by the insurer. I find that at that time Mrs. Kats was doing all the household chores. She prepared all her daughter's meals, did all the work in the kitchen and prepared meals in advance for Saturday and special Friday night dinners. She shopped for groceries approximately twice per week. She did her daughter's laundry, changed her bedding, vacuumed, dusted and cleaned her room. She drove her to school, to karate lessons and to a centre for religious studies. She also tutored her in mathematics, because of her background as a mathematics teacher.

Mrs. Kats also did other chores which I would not categorize as caregiver activities, strictly speaking. She prepared the garbage for removal from the house by her husband. She assisted her husband in cleaning their car approximately once a month, except in winter, by vacuuming the inside of the car. She washed windows twice a year.

Partial Inability to Carry on a Normal Life

A "partial inability to carry on a normal life" is defined in section 2 of the Schedule. To qualify for weekly benefits under this definition, a person must suffer an impairment from an accident. This impairment must be significant enough to result in a "substantial inability" to engage in at least one of six areas of activity: personal care, mobility, household, activities requiring the exercise of cognitive powers, activities requiring the ability to control emotions or behaviour, or activities requiring communication abilities. A person must suffer a substantial inability to engage in at least one of these categories of activity 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 heard evidence of Mrs. Kats' abilities in each of these six areas of activity.

Personal Care Activities after June 20, 1997

Mrs. Kats does not assert that she has any substantial inability to engage in personal care activities.

Mobility Activities after June 20, 1997

The term "mobility activity" is not defined in the Schedule. Besides the ability to walk or run, mobility activities might also include the ability to lift, carry, push, pull, sit, stand, climb, balance, stoop, kneel, crouch, crawl, reach forward, reach above the shoulder, reach below the waist, grasp, or finger. It may be that the drafters of the Schedule also intended this term to encompass activities like the ability to drive a vehicle, or to ride a bicycle, and be mobile in this manner. Mrs. Kats claims that she suffers a substantial inability to engage in mobility activities. She testified mainly about two mobility activities, involving her dog and with respect to driving.

Mrs. Kats testified that at the time of the accident she owned a German shepherd dog, which she identified as her dog, as opposed to it being a family pet. In order to keep the house tidy, she vacuumed every day when the dog was shedding its hair. Every evening she took the dog for a lengthy walk lasting about forty to sixty minutes. Walking the dog was often somewhat of a social activity, as well, when Mrs. Kats grouped with other dog walkers. Mrs. Kats also brushed the dog almost every day and washed the dog at least once a month. According to Mrs. Kats, she now has very little interaction with the dog. Her husband now walks it as she is unable to do this. This inability arises more from Mrs. Kats' inability to control a strong dog pulling on a leash than from any inability to simply walk. In addition, she no longer washes the dog.

Mrs. Kats developed a phobia about driving following the accident, which she claims leaves her substantially unable to drive.² She was encouraged by her husband and others to drive during the period from May to early July 1996, but was nearly involved in another accident in mid-July, 1996. Only in April 1997 did Mrs. Kats begin to drive again, on a once or twice weekly basis, according to her testimony. She drives only in daylight, in good weather, in her neighbourhood, where a trip would take between five and ten minutes to accomplish. Mrs. Kats testified that prior to the accident she had no driving restrictions. She would drive her children whatever distance was required in the city for their activities, drive herself to go shopping, and would share the driving with her husband when travelling to the southern United States on family vacations.

Household Activities after June 20, 1997

Mrs. Kats alleges that she suffers from a substantial inability to engage in household activities in which she ordinarily engaged before the accident. Mrs. Kats says that she is no longer able to prepare Saturday meals, which in the past required 8-10 hours of advance preparation and cooking. She testified that her mother now does most of this work. She is able to prepare sandwiches and can warm up food which has already been prepared by her mother or which has been purchased. She can put dishes in the dishwasher and can wash a few dishes by hand. Mrs. Kats testified that now she can dust a little bit and she can do the laundry if someone takes the laundry baskets to the basement and up again. She does laundry just once per week now, rather than every two days. Mrs. Kats testified that she can only change the bed linen if someone else helps her lift the mattresses. She no longer vacuums the car. She says that she can vacuum in the house and that she tries her best to do other household chores. Often, she says, she starts a job and cannot finish it.

Cognitive Powers after June 20, 1997

With respect to cognitive powers, Mrs. Kats claims that she has some difficulty with her memory now. She has headaches—not every day, but about twice a week, which impair her ability to think. She also suffers from back pain, neck pain and jaw pain which prevents her from sleeping. She does not sleep the whole night: she retires about midnight and does not fall asleep until about 1:00 a.m. She wakens about 5:30 a.m. Her sleep is not refreshing and she wakes up tired, which also impairs her mental agility. She is no longer able to tutor the children in mathematics.

Controlling Emotions and Behaviour; Communication after June 20, 1997

Mrs. Kats also alleges that she suffers from a substantial inability to engage in activities in which she was required to control her emotions or behaviour. She testified that she is very irritated these days and she does not talk much with anyone. She also testified that she cries frequently. She claims that she has lost friends because she no longer telephones them or interacts with them, and they have stopped calling her, too. She testified that because she is always tired, she has difficulty controlling her emotions. She loses her temper easily.

Mrs. Kats stated that someone must now accompany her when she does her shopping: either her husband, her mother or her daughter. She rarely socializes with her family anymore. They have stopped going out weekly for restaurant meals. They have stopped going out to movies, or even renting videos, because she is not able to concentrate or stay for the entire movie. Mrs. Kats also testified that she no longer goes to synagogue services because it is too long a time for her to sit. She testified that, occasionally, she feels able to attend a Friday evening service because it is shorter than the Saturday service.

Mrs. Kats also testified about her fears and resultant inability to drive a motor vehicle at will to whatever destination she pleases. The evidence relating to this disability was set out in greater detail above.

Assessment of Credibility

I found the testimony of both Bella Kats and Alexander Kats to be credible. Although Mr. Kats' loving concern for his wife was evident in his testimony, and he could not be said to be an impartial witness, I found his evidence, nonetheless, to be valuable because it substantially confirmed his wife's testimony. Mr. Kats' evidence corroborated his wife's in most important respects regarding her restrictions since June 20, 1997 and in describing her behaviour and disability since the accident.

At the time of the accident, Mrs. Kats testified that she had just begun a new job as an accounting clerk. She had passed a short period of probation and was to begin fulltime work shortly after the accident. She had come through a period of unemployment and successfully completed an accounting course at Seneca College. I believe that she was a busy woman, with many household and family responsibilities. However, it appears she was coping with the demands upon her and enjoying her family, social, and religious activities until the accident. She had no apparent psychological or physical problems before.

Medical Evidence

Since the accident Mrs. Kats has been examined and tested by many doctors and health providers. The period of time which is of particular concern in this arbitration, however, is the time around June 20, 1997 and thereafter, as far as eligibility for weekly caregiver benefits is concerned.

Most of the reports presented at this arbitration predate June 20, 1997 by several months. Their value, accordingly, is diminished, so far as they are able to provide information about Mrs. Kats' condition in June 1997 and thereafter. I have considered them, however, in following the course of Mrs. Kats' treatment and recovery following the accident and the opinion of various professionals at different points in time. I find the most relevant reports to be those written in June 1997 or later: Dr. Howard Jacobs, physician specializing in pain management (August 27, 1997); Dr. John Thornton, psychiatrist (August 26, 1997); Dr. Mark Brodsky, Mrs. Kats' family doctor (July 9 and 21, 1997); Dr. Lawrence Switzman, psychologist (June 13, 1997); Teresa Riverso, occupational therapist (June 13, 1997); and Dr. Judith Pilowsky, psychologist (August 21, 1997).

Some of these reports address Mrs. Kats' ability to function as caregiver to her teenage children. All of the reports describe Mrs. Kats' mental state. Some of the reports give information about her ability to drive and her driving phobia. Regrettably, none of the reports actually addresses the expert’s opinion of the extent of Mrs. Kats abilities to carry on a normal life in the manner in which the Schedule dictates. This means that I must take the various opinions, couched in various terms, and attempt to situate them on the continuum of disability in the various categories covered by the Schedule’s definitions.

Arbitrators have stated on innumerable occasions previously that it is not our function to medically diagnose the applicant in an arbitration. Among health providers, disagreement exists as to whether Mrs. Kats suffers from a post-traumatic stress disorder, a pain disorder (associated with both psychological factors and a general medical condition), or whether she suffers from depression. Most of the professionals who examined her do agree that she suffers from a driving phobia. They disagree only with respect to how disabling this phobia truly is. Since April 1997, Mrs. Kats has returned to some driving in her local area but I find she still does not drive to any degree approaching her previous ability.

Dr. Howard Jacobs examined Mrs. Kats in August 1997, wrote a report, and testified at the hearing. His curriculum vitae was filed. I accepted him as an expert to give opinion evidence in the field of head, neck, and facial pain management.

Dr. Jacobs testified about his extensive physical examination of Mrs. Kats, particularly her head, neck, and face. His diagnosis was that Mrs. Kats suffers from occipital neuralgia, post-traumatic headache and cervical zygapophyseal joint pain. He also was of the opinion that Mrs. Kats met the criteria for a diagnosis of pain disorder associated with both psychological factors and a general medical condition, code 307.89 in the DSM-IV.³ Dr. Jacobs testified about the aggressive pharmacological treatment, diagnostic nerve blocks, and rhyzolysis (burning a branch of the occipital nerve) which he would like to attempt to relieve Mrs. Kats occipital head and neck pain.

Dr. Jacobs was critical of the lack of care in the examination of Mrs. Kats' neck by other practitioners. Tenderness of Mrs. Kats' sub-occipital region, including marked tenderness at the site of the greater occipital nerve, has been observed by previous examiners dating from as early as 12 days after the accident. However, it appears that this symptom has largely been ignored in Mrs. Kats' diagnosis and treatment. Dr. Jacobs testified that the underlying pathology needs to be addressed but that psychological treatment should continue as part of Mrs. Kats' treatment.

Dr. Jacobs testified that he would have expected, based on his clinical experience and given his examination of Mrs. Kats, that she would be quite disabled from repetitive physical activities. He stated that when Mrs. Kats spoke to him the areas of disability she focussed on were how her symptoms impacted on her home activities and her ability to attend services at the synagogue.

Dr. John F. Thornton, psychiatrist, examined Mrs. Kats on August 25, 1997 at her lawyer's request. He concluded that Mrs. Kats met the criteria for a psychiatric diagnosis of major depressive disorder and specific phobia - driving. He also felt she had symptoms suggestive of post concussive syndrome and post traumatic stress disorder (with the exception of being unable to recall that the situation was life-threatening). He made several recommendations with respect to future treatment. Dr. Thornton was of the opinion that:

Psychiatrically this lady demonstrates a substantial inability to perform the essential tasks of her own occupation and her own normal activity. At the present time this is a total disability which, with the appropriate treatment, will hopefully be temporary.

Dr. Mark Brodsky, Mrs. Kats' family doctor, wrote a report to her lawyer on July 21, 1997. Dr. Brodsky was of the opinion that Mrs. Kats was making slow progress in recovering from the accident. He was of the view that it was becoming clearer that Mrs. Kats "is suffering mostly from psychological aspects of MVA sequelae." He observed that her physical symptoms were still persisting, despite "persistent physiotherapy and medications treatment." He recommended "continuation of Mrs. Kats' Rehabilitation services, as well as home care and housekeeping assistance would be highly advisable helpful and reasonable expenses in order to support her in her slow process of recovery from the MVA sequelae."

Dr. Lawrence Switzman, psychologist, assessed Mrs. Kats on March 4, 1997 and reported further to AXA on June 13, 1997 following his review of some surveillance videotapes and a further interview with Mr. and Mrs. Kats. Dr. Switzman diagnosed Mrs. Kats to be suffering from a "Major Depression with phobic anxiety related to driving." He wrote: "I have no evidence of preexisting psychopathology and so I can only conclude that her present condition is related to the MVA and its sequelae. I suspect that her present psychological state is a combination of her reaction to the MVA in the initial months and continuing to languish in a state of helplessness with a lack of appropriate treatments." Dr. Switzman expressed the view, in March 1997, that "I do not believe that she is disabled from carrying out essential parental responsibilities to her thirteen-year-old daughter with one exception: she would not be able to drive her daughter at present." Dr. Switzman did not outline further what he considered to be "essential parental responsibilities." He made several recommendations for treatment.

Dr. Perry S. Tepperman, physiatrist, examined Mrs. Kats for physical disability as part of the disability DAC assessment on January 21, 1997. He did not believe it would be harmful for Mrs. Kats to resume her household and caregiver chores. He stated he was unable to determine if she still had accident-related psychological disability.

Teresa Riverso, occupational therapist, reported on June 13, 1997 after meeting with Mrs. Kats at her home the previous month. Ms. Riverso recorded Mrs. Kats complaints at the time, evaluated her body mechanics in performing several tasks around the home and made specific recommendations about instruction in pacing, proper body mechanics and memory aids for her. In Ms. Riverso’s professional opinion, Mrs. Kats was "somewhat able to perform her activities."

Dr. Judith Pilowsky, psychologist, treated Mrs. Kats during the summer and autumn of 1996, over nine sessions of psychotherapy "consisting of cognitive behavioural interventions, relaxation techniques, pain management, and driver desensitization exercises." She also re-assessed her on August 21, 1997, at Mrs. Kats' counsel's request, and testified at the arbitration. Dr. Pilowsky's opinion was that Mrs. Kats' psychological condition had changed little since her first assessment "and her level of despair and hopelessness has elevated." Dr. Pilowsky wrote:

As far as her daily tasks of living, Ms. Kats cannot provide caregiving activities due to her depressed state; she is very limited with respect to driving independently; she completes no tasks at home; her marriage continues to deteriorate, and she socializes very little. Her emotional distress derives from the impact of the accident as there is no prior history of depression in Ms. Kats' background.

I conclude that, in the main, those practitioners who have examined Mrs. Kats from a psychological perspective would agree that after June 20, 1997, she meets the test of section 2(e) of the Schedule. That is, that as a result of the accident, Mrs. Kats does "suffer an impairment that results in a substantial inability to engage in ... (e) activities in which the person ordinarily engaged before the accident that required the ability to control emotions or behaviour." In my opinion, that test is a very broad one that can include manifestation of symptoms leading to a diagnosis of depression, adjustment disorder with depressed mood, or post-traumatic stress disorder. Mrs. Kats testified as to her feelings of depression and low mood, her teariness, profound fatigue, lack of interest in social activities and in communicating with friends.⁴ I would also include in this category Mrs. Kats' inability to drive a motor vehicle, except under specific, optimal conditions. Mrs. Kats' testimony is consistent with the findings of most of those who have assessed her mental health.

Dr. Jacobs has also diagnosed Mrs. Kats as suffering from several specific physical conditions which he believes have been overlooked by other examiners. If Dr. Jacobs' treatment is successful, Mrs. Kats will be motivated to increase her level of activity, because she will no longer suffer as much head pain.

One contrary opinion was provided by Dr. A. Daniel Costa, psychiatrist, who prepared a report for the insurer after examining Mrs. Kats on October 3, 1996. He also testified at the arbitration. Dr. Costa was particularly concerned with the level of motivation and cooperation displayed by Mrs. Kats and by the validity of the data he collected, as well as the data collected by others. Dr. Costa described the questionnaire that he used to assist him in reaching his clinical diagnosis of Mrs. Kats. This was the SCID-1-P, version 2.0 (for DSM-IV) relating to post traumatic stress disorder. Dr. Costa was of the opinion that Mrs. Kats did not meet the diagnostic criteria for post traumatic stress disorder when he examined her. Although Mrs. Kats scored 29 on the Beck Depression Inventory, Dr. Costa questioned the validity of some of her endorsements. In his report he gave examples. He concluded that Mrs. Kats' depressive symptoms were of mild to moderate intensity. He concluded that her score of 14 on the Beck Anxiety Inventory was consistent with very mild symptoms of anxiety.

Dr. Costa questioned Mrs. Kats' level of cooperation in his examination of her mental status. He felt that she performed within normal limits on tests for attention, concentration, mental tracking and memory. Yet she complained of cognitive difficulties, such as impaired concentration. When he asked her to perform the Rey 15-item Visual Memory Test (translated into Russian), she scored 6--at the fourth percentile, below the cut off for the test (fifth percentile), whereas acutely ill psychiatric patients are able to achieve a score of nine. In the last section of a two-choice visual memory test, Mrs. Kats scored below the level seen in persons with either genuine brain injury or seen in normal persons instructed to feign. To Dr. Costa these scores were suggestive of a significant problem with Mrs. Kats' level of cooperation in the testing, when combined with his observations of Mrs. Kats earlier in the assessment and during other tests.

On the Global Assessment of Functioning (GAF) Scale, relating to psychological, social, and occupational functioning, Axis 5, Dr. Costa rated Mrs. Kats at 75 out of a maximum ideal level of psycho-social adjustment of 100. In his view, this was consistent with "symptoms that are transient and expectable reactions to psychosocial stressors and no more than slight impairment in social and occupational functioning." He felt that Mrs. Kats' psychological impairments were prevailingly the result of non-accident related psychosocial factors and any impairment was not disabling, either occupationally or in any other way. His diagnosis was one of adjustment disorder, which would fade in intensity after the initiating stressor (the motor vehicle accident) had ceased.

In his testimony Dr. Costa agreed with Dr. John Thornton, psychiatrist (who interviewed Mrs. Kats on August 25, 1997), that Mrs. Kats met the criteria for an Axis 1 diagnosis of driving phobia. He disagreed, however, with Dr. Thornton's diagnosis of major depressive disorder. Dr. Costa was of the view that Mrs. Kats did not suffer from a significant driving phobia. When he learned that she had returned to some driving in 1997, he commented that this behaviour was like a self-initiated exposure type of treatment.

In his cross-examination, Dr. Costa indicated that he had assumed a multifactorial approach to his diagnosis. He attributed more emphasis to the upheavals and stressors in Mrs. Kats' pre-accident life than the motor vehicle accident of April 1996 in Mrs. Kats' development of psychological problems. He was of the opinion that her background predisposed her to develop the kinds of symptoms that she displayed and that the accident was the triggering mechanism. When he saw her, the accident was not active any longer as a stressor and, in his view, the other factors in her background took precedence.

I have considered the views of Dr. Costa and weighed them against the views of the other mental health professionals who have interacted with Mrs. Kats and considered them vis-a-vis my own assessment of Mrs. Kats and one test for eligibility for caregiver benefits (partial inability to carry on a normal life). I am not persuaded that as of October 1996 the motor vehicle accident could be dismissed as no longer being a stressor in Mrs. Kats' life. I accept Dr. Costa's evidence that Mrs. Kats exhibited problems of cooperation in his testing. However, I do not equate this evidence of some lack of cooperation as proof that Mrs. Kats was substantially able to carry on a normal life in activities which require the ability to control emotions or behaviour, communicate, or exercise cognitive powers. Whereas Dr. Costa is more inclined to view Mrs. Kats pre-accident background as the key to her problems in October 1996, I am persuaded by the totality of the evidence that her background made her more vulnerable to the psychological problems she developed after the accident, as a result of the accident. The case law as it has developed at the Commission does not require that the accident be the sole cause of the disability, rather it must be a "significant" or "material" contributing factor to the condition. I find that to be the case here.

Conclusion

I find that Mrs. Kats meets the test of eligibility for caregiver benefits after June 20, 1997, ongoing, on the basis of a psychological impairment resulting from the accident that has left her suffering from a partial inability to carry on a normal life, due to her substantial inability to engage in activities that require the ability to control emotions or behaviour. As I have found sufficient basis for Mrs. Kats' disability because of the accident's psychological effects on her, it is unnecessary for me to express any opinion about the extent of her physical abilities. Further, it is unnecessary for me to consider whether she might also qualify for benefits under the test of section 18(1)3.i. "substantial inability to engage in the caregiving activities in which ... she engaged at the time of the accident."

Transportation Claims

During the course of this arbitration, the parties settled several important issues which were in dispute, including treatment issues and transportation to treatment. Mrs. Kats had been unable to attend psychology treatments from the end of November 1996 forward because of an inability to drive at that time, and the expense of taxis, payment of which was then denied by the Insurer. The parties were able to resolve this dispute and, after the hearing, Mrs. Kats was to continue the treatment which has long been recommended for her.

Since the dispute was resolved, I did not hear much direct evidence on the issue, including the manner in which the denial of the transportation expense was communicated or why the claim had not been paid, pending resolution of the dispute, as section 36(4) of the Schedule provides. I remain concerned, however, that AXA may not have complied with the provisions of Part 7 of the Schedule in its dealings with Mrs. Kats on this very significant issue. Almost every report filed in the proceeding commented on the interruption in her psychological treatment. Every insurer should be scrupulously vigilant to observe the Schedule’s rules for assessments, in all cases, including specifically an insurer’s obligation to pay certain expenses pending the resolution of a dispute relating to it.

2. Claims for a massager, an orthopaedic mattress and box spring, housekeeping services, and a case manager.

High Intensity Massager: $279.60

At the time Dr. Brodsky prescribed this device for Mrs. Kats, she was in the earliest stage of her recovery and suffering from myofascial strain. She was being treated with interferential therapy, chiropractic and acupuncture. She testified she used this device until the Kats' household moved in March 1997, when it was lost. I find the amount in dispute is relatively small, given the number of months Mrs. Kats made use of the device. I find that this item qualifies under section 36(1)(h): "other goods and services of a medical nature that the insured person requires."The Insurer called no evidence that it required a certificate under section 37 of the Schedule stating that the expense was "reasonable and is necessary for the persons's treatment." No explanation was offered by the Insurer as to why this expense was not paid, according to the provisions of section 36(4) of the Schedule, pending this dispute, and no written explanation was presented for the reasons for the refusal to pay.⁵ I find Mrs. Kats to be entitled to the cost of this item, plus interest.

Orthopaedic Mattress

On August 26, 1996 Dr. Brodsky prescribed an orthopaedic mattress for his patient. He wrote:

Bella is suffering from chronic fibromyalgia and back pain due to MVA sequellae. (sic) Orth mattress will be reasonable and necessary expense in order to help her to cope with her health problems. (emphasis added)

In this italicized language Dr. Brodsky mirrors the words of the section 37(1), which suggests either knowledge on his part of the precise language required by the Schedule, or some input from either the Insurer or the Applicant’s counsel with respect to this recommended purchase.

By the time of Dr. Brodsky's note, nearly five months had passed since the accident and Mrs. Kats was still suffering symptoms and receiving treatment, which had progressed to more active exercise and physiotherapy as well as massage. Mrs. Kats testified that since the accident her sleep had been disturbed, shortened, and that she suffered from insomnia. She testified that she replaced the mattress which she purchased on her arrival in Canada in November 1988, which had rested on a wooden platform, with a two-piece orthopaedic set of the same size. She testified that she thought the orthopaedic mattress was harder and that it had helped her neck and back pain. The delivery date of the mattress and box spring appears from the documents filed to be November 14, 1996.

The Schedule includes a so-called "basket clause" for payment of items such as this, which a health provider believes will be of therapeutic benefit to an insured person. I find that the mattress qualifies under section 36(1)(h): "other goods and services of a medical nature that the insured person requires."

The Insurer called no evidence that it required a certificate under section 37 of the Schedule stating that the expense was "reasonable and is necessary for the persons's treatment." However, the language of Dr. Brodsky's note mirrors the language of the section. In fact, a copy of a Certificate for Medical/Rehabilitation (OCF-15), dated December 6, 1996 referencing the mattress, among other recommendations, was filed by the Applicant. No explanation was offered by the Insurer as to why this expense was not paid, according to the provisions of section 36(4) of the Schedule, pending this dispute, and no written explanation was presented for the reasons for the refusal to pay, as is required by section 39.1(6).

The Insurer may have chosen to include this matter as part of the issues to be determined at a medical-rehabilitation DAC⁶ assessment performed at Assessment Works of North York on January 9, 10, and 16, 1997 because Dr. E. English, orthopaedic surgeon comments on it: "I do not recommend that she have an orthopaedic mattress as I do not feel that this device is necessary." Dr. English thought Mrs. Kats' orthopaedic problems, that he diagnosed as a "myofascial injury to her cervical and lumbar spine," had resolved. He reported that she has mechanical lower back pain whenever she bends, lifts or does any physical activity. He reported that she sleeps poorly.

From Dr. English's report I can gather no sense of whether he would ever recommend an orthopaedic mattress as a reasonable and necessary expense for a person’s treatment. I have no evidence that he questioned Mrs. Kats about the kind of mattress she was sleeping on before the accident or about whether she attributed any improvement in her condition (which she reported at 80% better as far as her neck was concerned and 70% better as far as her lower back is concerned) to the purchase of the orthopaedic mattress in mid-November, almost two months earlier.

I have no evidence or submissions as to whether the Insurer disputes the reasonableness of the cost of the mattress and box spring. Its focus appeared to be solely on the necessity of the purchase. No one testified about the amount which was spent on the mattress and box spring: $1,097.18. The purchase was made from a major department store. No one testified about the necessity of purchasing both a box spring and mattress, except Mr. Kats, who testified that they had no experience with such two-piece sets prior to moving to Canada. The Applicant filed a report from a rehabilitation specialist/disability claims case manager who suggested that an orthopaedic mattress would provide Mrs. Kats with "appropriate sleeping accommodation and may reduce her pain and discomfort, thus enhancing her sleep patterns." He estimated the cost at $475.00. The case manager's report to the Insurer is dated September 13, 1996, but his services were not retained and form part of the claim of the Applicant (see below). Accordingly, if the case manager knew where to purchase a less expensive, yet suitable mattress, Mrs. Kats was not able to benefit from this expertise.

I accept Dr. Brodsky's opinion, as Mrs. Kats' family doctor, that the purchase of the orthopaedic mattress was a reasonable and necessary expense to attempt to alleviate Mrs. Kats sleep problems that arose as a result of the accident. I accept Mrs. Kats' evidence that it was recommended that a box spring be purchased with the mattress. I find the price of the set to be reasonable, particularly in view of the health benefit that improved sleep would confer on Mrs. Kats. The Insurer should pay this expense, plus interest.

Housekeeping Services

Mrs. Kats claims the cost of housekeeping services in the approximate sum of $3,960.00 until August 1997. From the submissions of her counsel, I understand that the Insurer has paid $910.00 for housekeeping services. The amount claimed in the original Application for Arbitration was $2,015.00, for 31 weeks from April 19 to November 15, 1996 at $65.00 per week. Copies of invoices for this period were provided. At $65.00 per week, 14 weeks has been paid. Further time records from November 22, 1996 to July 28, 1997, claiming $75.00 per week, were also filed. The Insurer’s counsel’s submissions referenced a period from August 9, 1996 to August 1997 as in dispute.

The availability of housekeeping and home maintenance services under the Schedule is described in section 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.

This section is found in Part 13 "Compensation for Other Pecuniary Losses," and not in Part 7 "Supplementary Medical Benefits." The Schedule imposes no requirement for a health practitioner to opine on the reasonableness and necessity of the services. Presumably, this is because the necessity for these services does not fall under the heading of "treatment." However, the insurer may ask for an examination by a health professional, under section 65, in connection with such claims. In the former Schedule in effect from June 20, 1990 to December 31, 1993, such claims were often handled under the so-called "basket clause" of section 6(1)(f) which granted payment for "other goods and services, whether medical or non-medical in nature, which the insured person requires because of the accident." Then an insurer could call for a certificate from a physician or a psychologist stating that "the expense is necessary for the insured person’s treatment or rehabilitation." In other cases, some housekeeping services were handled under the heading of "Care Benefits." In the Schedule under consideration in this case, the "basket clause" of section 36(1)(h) has been modified to include only "other goods and services of a medical nature that the insured person requires."

The manner in which housekeeping and home maintenance was treated in the former Schedule created confusion, especially regarding replacing services formerly provided by the insured person that benefitted the whole family. For example, in the 1990-93 regime, in order to provide meals to the injured homemaker, for example, someone would be hired to cook the family’s evening meal. However, what was required to be paid were only services that the insured person required because of the accident, and which were necessary for her treatment or rehabilitation. This resulted in tortuous accounting to deduce the proper amount to be paid.

It is my sense of the language of section 55 and its placement within Part 13 that housekeeping and home maintenance services formerly provided by an insured person are to be replaced, where an insured person sustains an impairment as a result of an accident and additional expense is reasonably incurred. However, if you as an able-bodied person, or otherwise, each winter before the accident paid to have your driveway and walks shovelled, the Insurer will not now pay solely because you are now personally unable to perform the work. Only additional expenses are payable and only where reasonably incurred. The section also seems to contemplate that the services required may change over time, demanding no static test, such as housekeeping services required "at the time of the accident."

In my view, it is also noteworthy that physical impairment is not the only reason such services will be provided. Psychological impairment also qualifies. That is important in this case, especially since about fourteen weeks of housekeeping services has now been paid, covering the initial period after the accident.

From my perspective, in this case two problems with the claim for housekeeping services are apparent:

the services were provided by Mrs. Kats mother, Mrs. T. Itkis, who, admittedly, spent many hours at the Kats home even prior to the accident. Mrs. Itkis did not testify at the arbitration. Rudimentary logs were filed of her activity at the Kats' home, beginning November 18, 1996.
Little health provider, medical or psychological evidence addresses the claim for housekeeping. There is a note from Mrs. Kats family doctor, dated July 1996. Dr. Pilowsky wrote in November 1996 that she felt housekeeping assistance for Mrs. Kats was "reasonable and necessary" because she could not lift heavy pots or engage in heavy housekeeping duties. Dr. Brodsky made further brief reference to this issue in his report of July 21, 1997 and his certificate of July 9, 1997.

Mr. and Mrs. Kats both testified about what duties Mrs. Itkis performed at their home. She did laundry, house cleaning, cooking, and grocery shopping. On several occasions she gardened. Both testified that Mrs. Itkis spent many more hours at their home than the hours claimed for housekeeping activities. She also prepared meals at her own home, which Mr. Kats would pick up. Neither party called Mrs. Itkis as a witness. Mrs. Kats' counsel asked me to draw an adverse inference on this point against the insurer. On the contrary, was I so minded, the adverse inference would be drawn against Mrs. Kats, who asserts the claim that her mother has been paid for her services.

Mrs. Kats admitted in her testimony that the record of housekeeping may contain errors. For example, on one day in April 1997 when Mrs. Kats and her mother are seen on videotape to be grocery shopping, it is not recorded that Mrs. Itkis was assisting Mrs. Kats that day at all. On the other hand, Mrs. Kats also testified that all Mrs. Itkis hours were never recorded, "because the insurance company would never pay for it."

On various occasions Mrs. Kats reported about her mother’s assistance to those who were examining or interviewing her. In May 1997, she reported to the occupational therapist that her mother, who had come daily, initially after the accident, now only came occasionally, "perhaps 1-2x/week." Mrs. Kats commented that her husband and children have had to do more around the house since her accident.

On the other hand, Mrs. Kats apparently reported to Dr. Thornton in August 1997 that her mother came "daily to help."

Mr. and Mrs. Kats testified that Mrs. Itkis broke some toes in August 1997 and had not provided housekeeping services since that time. Some housework has been left undone since then.

Mrs. Kats testified that prior to the accident she enjoyed homemaking activities and prepared large meals, in advance, for Friday evenings and Saturdays. She did all the household cleaning and prepared the meals. She vacuumed the family vehicle on a regular basis during the summer months. After the accident, Mrs. Kats testified she could make small meals or sandwiches and warm up food that was already prepared. She testified that she tried to do some housecleaning tasks, but that she tired easily and would not finish tasks. She testified that she now had trouble carrying laundry baskets and bending to empty the clothes washer completely. She said she was able to do dishes and load and empty the dishwasher.

Mrs. Kats testified that her mother helped her. She would do the housework along with her. Mrs. Kats said that her mother kept her company.

The claim for housekeeping assistance, at $65.00 or $75.00 dollars each week, is a relatively modest one, considering the substantial degree of support it would appear that Mrs. Itkis has given her daughter, and her family, since the accident in April 1996 by providing her personal support, housecleaning help, and meal preparation. To the extent that Mrs. Itkis works alongside her daughter, encouraging her, or travelling with her in the car, her support could be likened more to social rehabilitation facilitation to "assist the insured person to adjust to family and social situations as a result of the accident; and... maintain the insured person's level of function within the home and family," as provided in section 40 of the Schedule, than pure housekeeping.

I allow the claim for housekeeping services at $65.00 per week from the date of the accident to July 31, 1997, plus interest, less what has already been paid by the insurer.

Case Manager Services

I heard almost no evidence with respect to the provision of a case manager in this claim. Such services may be paid by an insurer, under section 40(5)(c) of the Schedule. A referral certificate from Dr. Brodsky, dating from August 1996 was filed, as was Mr. Roland Spiegel’s Case Management Assessment Report, dated September 13, 1996. I do not find that Mrs. Kats requires the services of a case manager at this time, if she receives the recommended course of psychological treatment to which she is entitled, and if Dr. Jacobs continues to investigate and treat her head pain.

Expenses

The Application for Arbitration in this case was filed in January 1997. I heard submissions from the Applicant’s counsel at the hearing with respect to expenses, and therefore assume that counsel were thereby intimating that the provisions of section 73 of the Dispute Resolution Practice Code—April 15, 1997 (3rdedition) pertaining to written Offers to Settle do not apply here. I exercise my discretion to grant Mrs. Kats her expenses of the arbitration, including one counsel fee.

Order:

AXA Insurance (Canada) shall pay Bella Kats caregiver benefits from June 21, 1997, ongoing, plus interest as set out in section 68 of the Schedule.
AXA Insurance (Canada) shall pay Bella Kats housekeeping and home maintenance expenses of $65.00 per week from April 4, 1996 to July 31, 1997, plus interest as set out in section 68 of the Schedule, less any payments already made on this account.
AXA Insurance (Canada) shall pay Bella Kats $279.60 for a massager and $1,097.18 for an orthopaedic mattress and box spring, plus interest as set out in section 68 of the Schedule.
AXA Insurance (Canada) shall pay Bella Kats her reasonable expenses of the arbitration, including one counsel fee only.

December 22, 1997

K. Julaine Palmer

Arbitrator

Date

Appendix "A"

Hearing:

The hearing was held at the offices of the Ontario Insurance Commission in North York on September 15, 16, 17 and 18, 1997, before me, K. Julaine Palmer, Arbitrator.

Present at the Hearing:

Applicant:

Bella Kats

Mrs. Kats’s Representative:

Henry Goldentuler

Barrister and Solicitor

AXA’s Representative:

Chris Blom