Neutral Citation: 1997 ONICDRG 40

OIC A95-000469

ONTARIO INSURANCE COMMISSION

BETWEEN:

LOUISE FORTIN

Applicant

and

COSECO INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Louise Fortin, was injured in a motor vehicle accident on May 25, 1991. She applied for and received statutory accident benefits from Coseco Insurance Company ("Coseco"), payable under Ontario Regulation 672.¹ Coseco paid weekly income benefits for more than three years and then terminated them on September 25, 1994. The parties were unable to resolve their disputes through mediation and Mrs. Fortin applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is the Applicant entitled to weekly income benefits pursuant to section 12(5)(b) of the Schedule after September 25, 1994?

2. Is the Applicant entitled to housekeeping and hairdressing expenses pursuant to section 6 of the Schedule?

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

Result:

1. The Applicant is not entitled to weekly income benefits pursuant to section 12(5)(b) of the Schedule after September 25, 1994.

2. The Applicant is not entitled to housekeeping and hairdressing expenses pursuant to section 6 of the Schedule.

3. The Applicant is entitled to 75 per cent of her reasonable expenses for legal fees and all of her reasonable expenses for disbursements pursuant to section 282 (11) of the Insurance Act.

Hearing:

The hearing was held in Ottawa, Ontario, on January 28, 29 and 30, 1997.

Present at the Hearing:

Applicant:

Louise Fortin

Mrs. Fortin's

Stuart W. Konyer

Representative:

Barrister and Solicitor

Coseco's Representative:

Theodore P. Charney

Barrister and Solicitor

Coseco's Officer:

Vinti Sansanwal

Before:

William J. Renahan

Arbitrator

Overview:

Mrs. Fortin claims that she is disabled from injuries she suffered in a motor vehicle accident on May 25, 1991. Most of the doctors who have treated or examined Mrs. Fortin have described her as suffering from chronic pain syndrome. For the most part, they came to this opinion based on Mrs. Fortin's subjective complaints of virtual total body pain and headaches which are resistant to treatment and which have become worse over the last few years. Mrs. Fortin underwent a number of diagnostic tests and, except for a neuropsychological test, these tests did not reveal any disease or abnormality in her physical structure. Mrs. Fortin claimed that she suffered from disabling chronic pain syndrome which was caused by the injuries she sustained in the motor vehicle accident.

Dr. Ely performed neuropsychological tests in December 1996 and January 1997. He reported that the test results took into account credibility and the possibility that the patient was malingering. His opinion that Mrs. Fortin was unemployable due to cognitive impairment was not challenged. However, he admitted in testimony that he could not tell whether the results were due to traumatic brain injury or prescription drug dependency.

The main issues are: (1) was Mrs. Fortin disabled after September 25, 1994 on account of chronic pain; (2) if she was disabled by chronic pain, did the injuries she suffered in the motor vehicle accident significantly contribute to her chronic pain; and, (3) did the injuries Mrs. Fortin sustain in the motor vehicle accident significantly contribute to her cognitive impairment?

Background:

Mrs. Fortin is 39 years old, married and has two teenaged children. She completed grade 9 and part of grade 10. For the first year of her marriage she worked as a hairdresser's assistant. She quit that work because she developed an allergy to the chemicals she used at work and because she wanted to stay at home to raise her two children.

I heard and received a great deal of evidence that Mrs. Fortin suffered from chronic pain syndrome as a result of injuries she suffered when her vehicle was struck from behind in 1982. She commenced a tort action and at her examination for discovery in 1985 she testified under oath that her pain was getting worse. However, Mrs. Fortin testified that she gradually and completely recovered from those injuries after 1987. Since Mrs. Fortin returned to physically demanding work for seven months in 1990 without any evidence of chronic pain, I do not consider this chronic pain as a pre-existing condition which caused or significantly contributed to her disability.

In May 1990, Mrs. Fortin applied to work as a health care aide at Lapalme Nursing Home. She said she was trained for the job in two days and that her work involved the feeding, cleaning, dressing and moving of elderly, disabled or bedridden patients. On December 10, 1990, Mrs. Fortin was attempting to assist a patient in his bed when the patient kicked Mrs. Fortin with both feet. Mrs. Fortin is petite and slender. She attempted to avoid the blow and in the attempt twisted her back and received the blow to the side of her ribs. This was the last day Mrs. Fortin worked. She applied for and received workers' compensation benefits and was receiving benefits when she was involved in the motor vehicle accident of May 25, 1991.

On May 25, 1991, Mrs. Fortin was driving at the speed limit of 100 km/h on Highway 417, a divided four-lane highway. She was in the passing lane when the driver of a vehicle in the slow lane lost control, drove onto the shoulder and back onto the highway and into Mrs. Fortin's vehicle, striking it two or three times. Mrs. Fortin's vehicle left the roadway and came to rest on the median dividing the north and southbound lanes of traffic. Mrs. Fortin struck her head and shoulder on the dashboard. She testified that she woke up in the ditch, pulled her son and a few parcels out of the car and then fell into the arms of a witness. Her son testified that she paced until the authorities arrived. She told the ambulance attendant that she preferred to wait for her husband and go to the hospital with him.

Mr. Fortin arrived and took Mrs. Fortin to the hospital.

From 1990 onwards, Mrs. Fortin was treated by Dr. Hudon and Dr. Lamoureux, family doctors, Dr. Atack, neurologist, Dr. Natarajan, physiatrist and Dr. Reesor and Mr. Hebert, psychologists. She was examined by Dr. Quinn, cardiologist, Dr. Gordon, orthopaedic surgeon, Dr. Ely, psychologist, Dr. Chandrasena, psychiatrist, Dr. Simard, physiatrist, Dr. Kraag, rheumatologist, Dr. Agapitos, physiatrist and Dr. Mascarenhas, general practitioner.

She underwent a number of investigative procedures including x-rays of her skull, cervical spine and chest, CT scans of her head and cervical spine, a general bone scan, electromyographic studies, ECG and echocardiogram studies, and blood tests for vitamin B12 deficiency and hypothyroidism, thyroid function tests and a neuropsychological test. Except for the neuropsychological test, all of the tests were essentially normal.

Mrs. Fortin underwent a number of therapies including TENS, laser and needle acupuncture, physiotherapy, hydrotherapy, occupational home activity therapy, electromagnetic field therapy, wrist splints, psychological counselling, a chronic pain management program and drug therapy, none of which significantly decreased her pain.

She underwent assessments to measure and assess transferability of skills, work capacity, vocational opportunities, psychovocational aptitude and functional abilities.

Analysis:

The test for entitlement to weekly income benefits beyond 156 weeks is whether Mrs. Fortin has established that her injuries continuously prevent her from engaging in suitable employment. If Mrs. Fortin establishes disability, the test of whether the accident caused her disability is whether the accident significantly or materially contributed to her disability.²

Most of the medical evidence described Mrs. Fortin as suffering from soft tissue injuries to the neck and shoulder and headaches with minimal physical findings. Neck and shoulder pain developed into complaints of total body pain, headaches and a diagnosis of chronic pain syndrome.

Mrs. Fortin also testified that she suffered a dislocated shoulder as a result of the motor vehicle accident. She testified that the ambulance attendant told her that she had dislocated her shoulder. She told Dr. Natarajan and the Canada Pension Plan that she had dislocated her shoulder. I heard no evidence on how or when the shoulder joint was put back into place. Dr. Simard, a physiatrist, testified that if Mrs. Fortin had dislocated her shoulder she would have been in extreme pain. I heard no explanation why the first reference in the medical records to a shoulder dislocation is that of Dr. Natarajan, more than two years after the alleged injury. I do not accept that Mrs. Fortin suffered a dislocated shoulder in the motor vehicle accident.

Dr. Simard testified that chronic pain syndrome is unexplained pain that lasts for more than six months with no medical diagnosis. He said that Mrs. Fortin could not have what is described as fibromyalgia because she had total body pain and fibromyalgia requires localized pain at specific trigger points. Dr. Natarajan, a physiatrist, did diagnose fibromyalgia, but she described it as a collection of symptoms, not a disease.

It appears that the doctors who diagnosed chronic pain syndrome accepted Mrs. Fortin’s subjective complaints of pain. However, the Insurer questions Mrs. Fortin’s credibility and I must determine whether her complaints of total body pain and disability are credible, and if so, whether the accident significantly contributed to her disabling pain.

In examining credibility I considered conflicting evidence concerning Mrs. Fortin’s health both before and after the motor vehicle accident. I also considered two other areas of contradictory evidence.

1. Mrs. Fortin's Health before the Motor Vehicle Accident

Mrs. Fortin testified that she was in "perfect" health for the seven-month period, May to December 1990, when she worked at Lapalme Nursing Home. She said that she had to be in good health to lift patients. However, one of her family doctors referred her to a cardiologist during this period to investigate her complaints of heart palpitations and chest pains. She described the pains as a tightness and sharp knife-like discomfort accompanied by shortness of breath which could last for hours. In his referral note, the family doctor wrote that he was referring Mrs. Fortin for reassurance and noted that Mrs. Fortin had always been a nervous person. After testing and examining Mrs. Fortin, the cardiologist agreed that Mrs. Fortin’s chest pain was clearly of a non-cardiac origin.

After her work-place accident, the Workers' Compensation Board ("WCB") required Mrs. Fortin and her family doctor, Dr. Hudon, to complete and file reports monthly. In the five-month period between the nursing home injury and the motor vehicle accident, Mrs. Fortin consistently reported to the Workers' Compensation Board that she had severe back and neck pain. Six weeks before the motor vehicle accident, a physiatrist with the Workers Compensation Board reported:

Gradually the pain has spread to the entire spine, from the cervical to the lumbar region and bilaterally to the hips. She states that the pain is constant and that there is nothing that helps the pain. She has difficulty sleeping, standing in one position, and has difficulty doing her household chores. She is taking Tylenol #2, 2 tabs every 4 hours. She did not report any improvement in symptoms thus far. She did not report any neurologic symptoms in the upper or lower limbs.

Post-traumatic diffuse soft tissue thoracolumbar pain probably consistent with myofascial pain or fibromyalgia. It is difficult to understand how a focal injury to the ribcage would spread to the entire spine.

Two days before the motor vehicle accident Mrs. Fortin reported to the Workers Compensation Board that she was:

still having severe back and neck pain. Having trouble sleeping because of neck pain. Having trouble positioning myself on pillow to sleep. Waiting for physio appointment.

Also, two days before the motor vehicle accident Mrs. Fortin reported constant low back pain and intermittent leg pain to the Embrun Physiotherapy Clinic.

In contrast to this evidence of persistent and spreading pain noted in the WCB records, Mrs. Fortin testified that at the time of the motor vehicle accident she was preparing to return to work. She testified that she was "getting a lot better" but she had not reached perfect health and she needed perfect health to lift patients.

2. Mrs. Fortin's Health after the Motor Vehicle Accident

After the motor vehicle accident Mrs. Fortin continued to report monthly to the Workers Compensation Board. In her report of June 18, 1991, the first after the motor vehicle accident, she reported "Still having back pain, muscular pain and problems sleeping." In his report of June 18, 1991, Dr. Hudon continued to report "chest wall pain," "soft tissue injury to chest wall" and he continued to check off boxes on the WCB form to indicate that improvement and complete recovery were expected and that there were no significant factors delaying recovery.

The WCB forms do not reflect Mrs. Fortin’s testimony that her condition deteriorated immediately after the motor vehicle accident. She testified that the day after the accident she was in unbearable pain. In her application for accident benefits signed two days after the motor vehicle accident she stated:

I hit my head on the dashboard and cracked the dashboard with my shoulder. I couldn’t do anything. My husband had to wash, dress and undress me.

Dr. Hudon noted in his first report to the Insurer that Mrs. Fortin complained of pain and limitation of movement of the right shoulder, headaches and pain in the left shoulder. He diagnosed a contusion of the right shoulder, sprain of the left shoulder, headaches and cervical sprain.

Three months after the motor vehicle accident, the Lapalme Nursing Home wrote to the WCB and informed it of the May 1991 motor vehicle accident. This is the first clear evidence that the WCB was aware of the motor vehicle accident. A WCB memo dated August 28, 1991 states:

Worker states that the car accident in May/91 resulted in a very minor injury to her shoulder for which she received no treatment or x-rays.

At the hearing, Mrs. Fortin denied that she told the WCB that the injury was very minor.

On October 17, 1991, the WCB wrote to the Ottawa General Hospital and asked for the emergency department record of the motor vehicle accident.

Over the next seven months up to January 1992, Mrs. Fortin continued to report the same pre-motor vehicle accident problems to the WCB, and Dr. Hudon continued to report that he expected Mrs. Fortin to recover completely and that there were no significant factors delaying recovery. It was not until March 24, 1992, ten months after the motor vehicle accident, that Dr. Hudon gave the WCB any indication that the motor vehicle accident might have some bearing on Mrs. Fortin’s recovery when he placed a question mark after the question "Any significant factors delaying recovery?"

The WCB terminated Mrs. Fortin’s benefits in April 1992. She objected on the grounds that she still had a "lot of pain" because of the injury she sustained at the nursing home. A WCB note dated April 30, 1992 relates, "She said that her motor vehicle accident has nothing to do with her on going problems." Her appeal was rejected due to lack of evidence of a residual organic impairment caused by the work-related accident.

In September 1991, while she was receiving workers' compensation benefits on the basis that she was disabled because of her work-related injury, Dr. Hudon referred Mrs. Fortin to Dr. Germain, an orthopaedic surgeon, and to Dr. Atack, a neurologist. The orthopaedic surgeon noted that Mrs. Fortin complained of pain about the right shoulder and the base of the neck and pain all over. He diagnosed a cervical brachial strain on the right side and contusions to the right forearm. Mrs. Fortin explained that she did not tell this doctor about the work injury because he was treating her for the motor vehicle accident injury. Dr. Atack, the neurologist, noted that Mrs. Fortin complained of headaches that lasted all day, and that for weeks after the accident she was not able to lie down or get up without her husband helping her. It appears that he was not aware of what Mrs. Fortin had described at various times to the WCB as a disabling work-related injury because he noted that there was no other important history.

Counsel for the Insurer asked Mrs. Fortin to explain why she told the WCB that she was disabled from the work injury and that the motor vehicle accident was very minor while at the same time she told the Insurer that the motor vehicle accident was the sole cause of her disability. She replied that she "wrote the truth" and the work-related injuries were not the same as the motor vehicle accident injuries and that she never told the Workers Compensation Board that her motor vehicle accident injuries were minor.

3. Other Discrepancies in Evidence

Mrs. Fortin’s two main interests before the motor vehicle accident were baking and driving. She testified that she was terrified of driving after the motor vehicle accident. On April 7, 1994 she wrote to the Insurer and her doctors "I can not describe the feeling I get when I'm in a car as a driver or passenger. I panic when a car comes too close to us or when a car cuts me off." The Insurer retained Gilles Hebert, a doctoral candidate in psychology, to treat this phobia as well as provide other counselling. Starting in January 1994, and monthly thereafter, Mr. Hebert met Mrs. Fortin at her home because she had difficulty driving to his office. On April 21, 1994 he recorded in his progress notes that Mrs. Fortin could sit in the car with the engine running in the driveway for only ten minutes, during which time she experienced rapid heart beat, sweaty palms and flashbacks to the accident scene. Mr. Hebert suggested that Mrs. Fortin spend ten minutes in the car twice daily with the engine running. He reported that she had a great deal of anxiety about advancing to the next step of placing the car in gear and driving in the driveway. On May 5, 1994 Mr. Herbert reported that Mrs. Fortin had not practised his anti-anxiety techniques since the last appointment although she said her prime objective was to decrease her driving-related anxiety. On May 19, 1994, Mr. Hebert met with Mrs. Fortin at her home "with the plan of going out driving with her in the car, however she chose not to pursue this particular line of treatment."

One week later, on May 26, 1994, a caseworker attended on Mrs. Fortin at her home for a scheduled appointment. The caseworker reported that Mr. Fortin greeted her and told her that his wife had driven to the store. The caseworker reported that Mrs. Fortin arrived home from the store 20 minutes late for the appointment. She also reported that Mr. Hebert told her on June 2, 1994 that Mrs. Fortin had refused to drive with him.

Mrs. Fortin testified that she is terrified of driving and that if she has to travel anywhere by car she insists on driving because she has more fear as a passenger. The surveillance videotape shows Mrs. Fortin getting into and out of her vehicle in November and December 1996, cleaning the car windows, filling the gas tank and driving the vehicle. I saw no signs of fear or distress, nor was I directed to any. Counsel for the Insurer asked Mrs. Fortin if she could drive long distances and she answered that she never said she could not drive long distances.

Mrs. Fortin and her husband also testified that their niece comes in once a week to do her housework and that the niece still does the housework. However, Mrs. Fortin’s 18-year-old son testified that he and his sister do the house cleaning and that the niece has not done it for two years.

4. Conclusion on Credibility

The Workers Compensation file contains two notes dated August 28, 1991 and April 30, 1992 which record Mrs. Fortin’s assertion to the WCB that the motor vehicle accident was minor and had nothing to do with her ongoing problems. I do not accept Mrs. Fortin’s claim that she did not say this to the WCB. The WCB had no motive to fabricate notes and I expect that if Mrs. Fortin had advised the WCB that she had suffered significant or serious injuries in the motor vehicle accident, the WCB would have recorded that. As well, for seven months Dr. Hudon continued to report to the WCB that there were no significant factors delaying recovery.

I find that Mrs. Fortin gave different versions of her problems to the different benefit providers. She told the WCB that her disability was solely caused by the work-related accident and that the car accident was a minor factor and had nothing to do with it, while at the same time, she told the automobile insurer that the motor vehicle accident was the sole source of her pain and disability. She compounded this deception by testifying that immediately before the motor vehicle accident she was getting better and was on the verge of returning to work, contrary to what she reported to the WCB.

I find that she did not tell Dr. Germain and Dr. Atack about her work-related injury because she hoped to use their reports in her accident benefits claim. I find that she told these two doctors what she thought was best for the presentation of her claim, not what was best for her treatment.

This is not a case of an insured being confused, forgetful or unable to express herself. The numerous statements Mrs. Fortin made to the Workers Compensation Board, the Insurer, her doctors and at this hearing with respect to her pain and disability from the time of the motor vehicle accident until her workers compensation benefits were terminated 11 months later are contradictory, irreconcilable and not credible.

Whether Chronic Pain Syndrome disabled Mrs. Fortin from Suitable Employment:

Because of Mrs. Fortin's lack of credibility, I do not accept her assertions that she is disabled as a result of injuries sustained in the motor vehicle accident.

After the motor vehicle accident of May 25, 1991, Dr. Hudon continued to report to the Workers' Compensation Board on seven separate occasions over the next seven months that he expected Mrs. Fortin to make a complete recovery and that there were no "significant factors delaying recovery." It was not until March 24, 1992, ten months after the motor vehicle accident, that Dr. Hudon placed a question mark after the question "Any significant factors delaying recovery?" In my view, if the injuries Mrs. Fortin suffered in the motor vehicle accident were significant, Dr. Hudon would have said so when he was asked on a monthly basis for a period of at least seven months. Further, I accept the two Workers' Compensation Board memos as credible evidence that Mrs. Fortin told the WCB that the injuries she sustained in the motor vehicle accident were very minor.

Mrs. Fortin testified that all her doctors say she is disabled. The reports prepared by Mrs. Fortin's doctors indicate that Mrs. Fortin suffers from chronic pain syndrome and that her prognosis is guarded (Dr. Natarajan) and that they are "not optimistic for improvement" (Dr. Hudon). In general they do not express an opinion as to whether the injuries she suffered in the motor vehicle accident prevent her from engaging in suitable employment. However, they generally agree that Mrs. Fortin’s primary problem is psychological.

Dr. Gordon, an orthopaedic surgeon, reported his opinion that she was disabled . He wrote:

This woman at present is demonstrating symptoms of chronic pain neurosis. This is not my area of expertise.

It is my feeling that her primary problem at present is a psychological problem overlaying a minor physical problem of persistent neck discomfort as a result of her motor-vehicle accident.

Dr. Natarajan reported in November 1994 that Mrs. Fortin’s attitude towards her symptoms was a great barrier to her vocational rehabilitation.

Dr. Simard, a physiatrist, diagnosed somatoform³ pain and reported on January 13, 1997:

She tells me that she is not depressed, that she has accepted her disability, is quite contented with it and does not feel that she can do anything else in the future, either looking into upgrading, or retraining, or job searching, or job on site or to return to any type of work in whatever capacity.

Dr. Reesor and Mr. Hebert, psychologists, treated Mrs. Fortin on about ten occasions from November 1993 to July 1994. They reported:

Finally, unless Mrs. Fortin takes a much more active role in her rehabilitation process, prognosis for successful rehabilitation is extremely guarded. I have tried to explain this to her on several occasions, and I am still not quite sure that she fully understands that those involved in her rehabilitation appear to be at a loss for helping her at this point. I hope she is able to identify realistic goals that will help her maximize her level of physical and emotional functioning.

I find that the physical injuries Mrs. Fortin suffered in the motor vehicle accident were relatively minor. Most of the doctors who examined Mrs. Fortin indicated that her primary problem is psychological and I accept that opinion.

The only expert psychological opinion on disability is that of Dr. Chandrasena, a psychiatrist. He reported in December 1996 that Mrs. Fortin’s psychological symptoms alone do not prevent her from returning to gainful employment. He testified that she can and should go back to work and that by doing so, she would focus on her abilities and not her disabilities. In all the circumstances, this opinion seems reasonable, and, subject to any disability Mrs. Fortin may have as a result of cognitive impairment, I accept it.

The other relevant opinion on disability in favour of Mrs. Fortin is expressed in a functional capacity assessment dated November 19, 1996 which indicated that Mrs. Fortin was deconditioned and could only tolerate working four hours a day. It appears that the assessment depended to a large extent on Mrs. Fortin's subjective complaints of pain and willingness to cooperate. In view of my finding that Mrs. Fortin is not credible, I am not satisfied that this assessment is reliable. As well, the examiner did not express an opinion as to whether the deconditioning or inability to work full-time were caused by the motor vehicle accident.

In view of my finding that Mrs. Fortin has failed to establish that she is disabled as a result of chronic pain, I do not need to consider the next issue which was whether the motor vehicle accident significantly contributed to her chronic pain.

Whether the Motor Vehicle Accident significantly contributed to Cognitive Impairment:

Dr. Ely’s neuropsychological assessment that Mrs. Fortin was unemployable due to cognitive impairment was not challenged. The only question is whether the injuries sustained in the motor vehicle accident significantly contributed to the impairment.

A nurse recorded in the hospital emergency department record that Mrs. Fortin hit her right temple and injured her right scapula. She reported no loss of consciousness. The examining doctor in the emergency department diagnosed a trapezius strain and wrote no loss of consciousness followed by a question mark. Three days after the accident Dr. Hudon recorded "no loss of consciousness." The next mention of loss of consciousness or any cognitive impairment related to the motor vehicle accident appears to be that of Dr. Natarajan, who wrote in January 1994 that loss of consciousness at the time of the accident was "questionable." In December 1996, Dr. Ely assumed in his neuropsychological report that Mrs. Fortin "regained consciousness" in time to pull her son out of the vehicle.

Mrs. Fortin testified that she thinks she lost consciousness as a result of the accident. When asked to explain the discrepancies between her more contemporaneous statements both at the hospital and to Dr. Hudon concerning her loss of consciousness with her much later statements to Dr. Natarajan and Dr. Ely that she lost consciousness, she explained that the examination at the hospital was not very thorough.

Dr. Ely testified in cross-examination that the test results showing cognitive deficit may have been due to Mrs. Fortin’s dependency on prescription drugs. At the time the tests were administered he was not aware of what he described as a "cocktail" of medications Mrs. Fortin was taking. He testified that the amount of Tylenol #2 and Ativan she was taking indicated that she was addicted to amounts that would put a non-user of these medications in hospital. He testified that the medications Mrs. Fortin took might have affected the test results which demonstrated cognitive impairment and that he would have to perform the tests again, after the drugs had cleared Mrs. Fortin’s body, to obtain reliable results.

In January 1994 Mr. Hebert reported that he thought Mrs. Fortin would benefit from education regarding medication intake.

In August 1995 Dr. Hudon reported that Tylenol #2 is:

. . . likely an addiction type of problem, and the patient had been advised about this and she had been offered help as far as this was concerned. She is however not ready to do any move at this point. She denies addiction. It is however my feeling that if we do not prescribe those medication the patient will easily get it somewhere else and therefore we will loose [sic] control over the above.

Dr. Beaulieu, a neurologist who saw Mrs. Fortin for her headaches, recommended in April 1996 that Mrs. Fortin stop taking Tylenol #2, and gave her a pamphlet on medication induced headaches.

Finally, just prior to the hearing, Dr. Hudon wrote that Mrs. Fortin was using in excess of 200 Tylenol #2 every month and that "This of course has been a concern as there is almost certainly an element of addiction."

I am not satisfied that Mrs. Fortin suffered a loss of consciousness at the time of the accident. In view of the three year delay before Mrs. Fortin claimed that she suffered a head injury and in view of the evidence which tends to show drug dependency, I find that the neuropsychological test results showing cognitive impairment were more likely due to Mrs. Fortin’s drug dependency than any traumatic brain injury suffered in the motor vehicle accident.

In 1990 Dr. Lamoureux noted that Mrs. Fortin had been taking multiple medications since 1982. I heard no evidence or argument that the motor vehicle accident significantly contributed to Mrs. Fortin’s drug dependency.

Accordingly, I am not satisfied that the motor vehicle accident significantly contributed to any disability attributable to cognitive impairment.

Housekeeping and Hairdressing Expenses:

The applicant claimed unspecified housekeeping and hairdressing expenses pursuant to section 6 of the Schedule. I have referred to the little evidence I heard on those issues and found it contradictory and not persuasive. The Applicant is not entitled to housekeeping and hairdressing expenses.

Expenses:

Although Mrs. Fortin was not a credible witness, the claim was not totally without merit. Until Dr. Ely was cross-examined, his neuropsychological report provided some credible evidence of disability caused by the injuries sustained in the motor vehicle accident. I would therefore normally award the Applicant her reasonable expenses.

In Allison and Markel Insurance Company of Canada (August 21, 1996), P-001231, Director's Delegate Naylor said "An expense award is principally intended to reimburse an insured, to the extent allowed, for the cost of bringing a legitimate application forward and conducting the case in a reasonable fashion." In my view, the case was not conducted in a reasonable fashion and was unduly prolonged.

The parties filed three volumes of documents prior to the hearing. On the Friday before the hearing I spoke to the parties by teleconference and suggested that because of the large amount of material and because the three volumes were joint exhibits, it would be helpful if one or both parties prepared a compendium for each volume briefly summarizing each relevant tab division. On the first day of the hearing I repeated my suggestion. Neither party prepared a compendium and in my opinion, the hearing was unduly prolonged because of it. The parties frequently referred to the documents in the examination of witnesses and submissions. They spent time looking for the documents and the relevant passages and then spent time reading the document out loud. Counsel for the Insurer spent more time in this manner then counsel for the Applicant, however, the documents were joint exhibits and I believe they each had a duty to prepare compendiums. In my view, the parties would have conducted the case more efficiently if the parties, the witnesses and I had access to compendiums.

Considering that the Applicant could have prepared the compendiums and considering that I award expenses to the Applicant, I reduce the Applicant’s expenses for legal fees by 25 per cent to account for the extra hearing time counsel spent sorting through and summarizing documents.

Order:

1. The Applicant is not entitled to weekly income benefits pursuant to section 12(5)(b) of the Schedule after September 25, 1994.

2. The Applicant is not entitled to housekeeping and hairdressing expenses pursuant to section 6 of the Schedule.

3. The Applicant is entitled to 75 per cent of her reasonable expenses for legal fees and all of her reasonable expenses for disbursements pursuant to section 282 (11) of the Insurance Act.

March 7, 1997

William J. Renahan Arbitrator

Date

Footnotes

1. 1Prior to January 138, 1994, Ontario Regulation 672 was called the No-Fault Benefits Schedule. After that date it became the Statutory Accident Benefits Schedule — Accidents On or Between June 22, 1990 and December 31, 1993. In this decision, the term "Schedule" will be used to refer to Regulation 672.
2. 2See for example Grout and Pilot Insurance Company (May 4, 1995), OIC A-004805 and Furtado and York Fire and Casualty Insurance Company (June 22, 1995), OIC A-008927 (Appeal pending)
3. 3Symptoms resembling those of physical disease but caused by mental factors rather then organic factors.