Neutral Citation: 1998 ONFSCDRS 105

FSCO A97-000209

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

RADE DUKIC

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Rade Dukic, was injured in a motor vehicle accident on November 27, 1995. He applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company ("State Farm"), payable under the Schedule.¹ State Farm terminated the payment of attendant care benefits and housekeeping expenses on March 27, 1996. It has also refused to pay Mr. Dukic's claims in respect of an orthopaedic mattress and a motorized wheel-chair. The parties were unable to resolve their disputes through mediation and Mr. Dukic applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is Mr. Dukic entitled to payment for the cost of an orthopaedic mattress?

2. Is Mr. Dukic entitled to payment for the rental cost of a motorized wheelchair for the months of May, September, October and November, 1996?

3. Is Mr. Dukic's entitled to attendant care benefits after March 27, 1996?

4. Is Mr. Dukic's entitled to payment for housekeeping and home maintenance expenses after March 27, 1996?

Mr. Dukic also claims interest on any amounts owing and his expenses incurred in the hearing.

Result:

1. Mr. Dukic is not entitled to payment for the cost of an orthopaedic mattress.

2. Mr. Dukic is entitled to payment of $1,800 being the rental cost of a motorized wheel-chair for the months of May, September, October and November, 1996.

3. Mr. Dukic is entitled to attendant care benefits at the rate of $117.82 per month after March 27, 1996, calculated by reference to the legislated minimum wage.

4. Mr. Dukic is entitled to payment for housekeeping and home maintenance expenses at the rate of $176.73 per month after March 27, 1996, calculated by reference to the legislated minimum wage.

Hearing:

The hearing was held at the offices of the Ontario Insurance Commission (which became the Financial Services Commission of Ontario in July 1998) in North York, Ontario, on April 27, 28, 29 and 30, 1998, before me, David Leitch, Arbitrator.

Present at the Hearing:

Applicant:

Rade Dukic

Mr. Dukic's

Miles Obradovich

Representative:

Barrister and Solicitor

State Farm's

Ian D. Kirby

Representative:

Barrister and Solicitor

State Farm's

Sandor Ioboni

Officer:

Serbian/English

Interpreter:

Olivera Bankovic

Witnesses:

Rade Dukic

Marjana Drca

Rade Dukic

Dr. Trevor Gray

Pamela Koczerginski

Connie Glenn

Exhibits:

A list of exhibits appears in the Appendix to this decision

Introduction:

The Applicant's claims must be determined in accordance with the test of entitlement created by the applicable sections of the Schedule, namely, section 36, supplementary medical benefits, section 47, attendant care benefits, and section 55, housekeeping and home maintenance expenses, and in accordance with the ordinary rules governing burden and standard of proof. In order to succeed, the Applicant must prove, on a balance of probabilities, that his claims are made in respect of expenses reasonably incurred "as a result of the accident." The resolution of this central issue of causation requires an analysis of the following sub-issues.

1. Injury and History of Investigation and Treatment

Injury and Hospitalization

On November 27, 1995, at the age of 61, Mr. Dukic was struck by a motor vehicle while crossing a street as a pedestrian. The ambulance report describes bleeding from the head and a fracture of the left leg. Mr. Dukic was admitted to St. Michael's Hospital where, the next day, Dr. M. D. McKee inserted a nail in the left tibia and applied casting to the right ankle. Mr. Dukic was transferred to the Riverdale Hospital on December 1, 1995 and stayed until being discharged home on February 20, 1996. The final summary from Riverdale Hospital states that Mr. Dukic was "encouraged to continue his ambulation and basically became independent with a walker and safe with activities of daily living. Arrangements were therefore made with Home Care for his discharge home...". Despite his complaints of paraesthetic-like pain in his left leg, for which medication was prescribed, Mr. Dukic was given "a good prognosis with time" by the discharging physician.

Family Doctors

Mr. Dukic has had three family doctors since the date of his accident: Dr. Morton Shulman, Dr. Daiva Norkus and a Dr. Mihic. I was supplied with and have examined clinical notes and records of the first two only.

Physiotherapists

The records of service providers confirm that Mr. Dukic received physiotherapy at the St. Joseph's Health Centre from June 20 to August 20, 1996 and at the High Park Physiotherapy/Bloor West Therapy & Sports Medicine Clinic from October 2, 1996 to at least March 31, 1997, with indications that treatment continued beyond that latter date. Mr. Dukic testified that he continued to go to High Park Physiotherapy until shortly before the hearing in April 1998.

Dr. McKee

After discharge from the Riverdale Hospital, Mr. Dukic continued to see Dr. McKee for follow-up at St. Michael's Hospital's fracture clinic. Dr. McKee's consultation notes between March and September 1996 confirm that Mr. Dukic's recovery was complicated by pain in the left foot and left shoulder which Dr. McKee could not explain. His last consultation note reads:

Mr. Dukic was reviewed today in the Clinic. He is continuing to have significant pain in his leg. I cannot think of much to offer him as his tibia has healed and the EMG and nerve conduction tests are normal. He will be referred to the Pain Clinic...

Dr. Lithwick

On June 7, 1996, while still seeing Dr. McKee, Mr. Dukic was examined at the Insurer's request by Dr. N. H. Lithwick, an orthopaedic surgeon. Mr. Dukic complained to Dr. Lithwick of dizziness and pain in the left ankle, left foot and left shoulder. With respect to Mr. Dukic's left shoulder, Dr. Lithwick diagnosed frozen left shoulder. With respect to Mr. Dukic's left foot and ankle, Dr. Lithwick observed the "effects of non weightbearing" and diagnosed severe osteoporosis and reflex sympathetic dystrophy. Dr. Lithwick expressed the opinion that the frozen left shoulder and reflex sympathetic dsytrophy of the left foot were "brought on by self induced over protectiveness and inactivity." He strongly recommended vigorous, daily, physiotherapy for both conditions.

Dr. Chan

Dr. Bok M. Chan of the St. Michael's Hospital Pain Management Clinic first saw Mr. Dukic on December 5, 1996 on referral from Dr. McKee. Over the next few months, Dr. Chan conducted two left lumbar sympathetic blocks and injected painkillers into the small joints of his left foot. However, these procedures provided neither an explanation nor lasting relief for Mr. Dukic's foot and ankle pain. In his report of August 26, 1997, Dr. Chan states, "he appeared to have mainly mechanical foot pain possibly secondary to posture and mechanics in his left leg following his leg injury." While Dr. Chan did not make a diagnosis of reflex sympathetic dystrophy, he did make a finding which was, as explained below, supportive of that diagnosis:

On physical examination, his left foot appeared more bluish [in] discolouration. There is an obvious difference in temperature between the left and right foot with the left one particularly colder. There is painful dysesthesia and light touch allodynia on the dorsum and on the side of his left foot.

Dr. Chan also noted that Mr. Dukic complained of adverse reactions to Tylenol #3 and other "strong pain killers which had made him unwell and dizzy."

Dr. Moddel

Mr. Dukic was examined by a neurologist, Dr. Garry Moddel, on four occasions between April, 1996 and February, 1997. Mr. Dukic presented symptoms of headaches, dizziness and pain in his left ankle and shoulder. In his second to the last report, Dr. Moddel observed "significant wasting of his left quadriceps and I think that there may be evidence of nerve damage, although it may also be on the basis of diffuse atrophy." In his last report, Dr. Moddel stated "I really have nothing to offer this gentleman. I think he should continue on with the injections [from Dr. Chan] and this may relieve his pain."

Dr. Curkowskyj

Mr. Dukic was first examined by Dr. Curkowskyj, an orthopaedic surgeon, at the request of his family doctor on September 17, 1997 and "subsequently on several occasions." In his report dated March 10, 1998, Dr. Curkowskyj referred to Mr. Dukic's various pain complaints but only advances one diagnosis: "reflex dystrophy or causalgia" in the left leg and ankle. He noted evidence of disuse denervation, cartilage and bone atrophy in the left leg and foot but did not refer to inactivity as an explanation for reflex sympathetic dystrophy as had Dr. Lithwick. Dr. Curkowskyj made the following comments about reflex sympathetic dystrophy:

Reflex dystrophy or causalgia has been described first over 100 years ago and is classified as a clinical syndrome associated with a lesion of peripheral nerve that contains a sensory fibers [sic] and is characterized by pain in the affected extremity. This is occurring as a complication of a small percentage of major nerve injuries. The exact etiology of above condition is unknown. It is mentioned in the literature that causalgia is occurring most often in incomplete lesions of peripheral nerve, also the syndrome has followed complete nerve lesions.

Dr. Curkowskyj's recommendations for treatment also differ from Dr. Lithwick's. Rather than physiotherapy, Dr. Curkowskyj recommends a further sympathetic block and, in the event that treatment modality failed again, surgery in the form of a sympathectomy division of the nerves at L3-L4 level.

Dr. Gray

Mr. Dukic was examined by Dr. Trevor Gray, a neurologist, at the Insurer's request on April 4, 1997. In his report, dated April 21, 1997, Dr. Gray states that he found no physical basis for Mr. Dukic's ongoing complaints of headaches, dizziness and painful limitations in the right foot, left foot, left ankle, left knee, left shoulder, neck and lower back. Dr. Gray found no objective evidence of any neurological abnormality, nerve damage or vascular impairment in the left foot or ankle. In oral testimony, Dr. Gray stated that his examination revealed no evidence that Mr. Dukic suffered from reflex sympathetic dystrophy. In particular, Dr. Gray did not agree that the diagnosis of reflex sympathetic dystrophy would be supported by evidence of sural and superficial peroneal neuropathies in Mr. Dukic's left leg and ankle. Evidence of this type of nerve damage was found by Dr. Henry Berry in February 1996 and again by Dr. Gyl Midroni in December 1997, both at St. Michael's Hospital.

Dr. Malcolm

Mr. Dukic was examined on January 8, 1998 by Dr. Barry W. Malcolm, an orthopaedic surgeon who conducted a Medical/Rehabilitation examination at a Designated Assessment Centre. In his report of the same date, Dr. Malcolm describes the injuries sustained in the accident, including "probable post-traumatic left lateral popliteal sensory neuropathy" as found by Dr. Henry Berry. Dr. Malcolm expressed no opinion about reflex sympathetic dystrophy and did not provide an estimate of the duration of the ill-effects of the injuries sustained. By way of treatment, Dr. Malcolm recommends "self-directed ambulation, range of motion and strengthening" but no additional physiotherapy.

2. The medical evidence regarding the Applicant's claims for an orthopaedic mattress and a motorized wheelchair

From a medical point of view, the Applicant's claim for an orthopaedic mattress and a motorized wheelchair were supported in February and March 1996 by Dr. Morton Shulman, one of the Applicant’s family doctors. Dr. McKee, on the other hand, indicated to the Insurer in October 1996 that he did not think either request was justified and that, as far as he was concerned, "there are no restrictions on what [Mr. Dukic] can do."

3. The non-medical evidence regarding the Applicant's claims for attendant care and housekeeping and home maintenance expenses

Mr. Dukic has, at material times, lived on the first floor of a three-storey house which he owns. He rents out rooms on the second and third floors and in the basement. Mr. Dukic testified that before the accident, he cooked, shopped, did his own laundry, cleaned the house, took care of the garden and yard, cut the grass and walked the dog, none of which he can do since the accident. He testified that his nephew, Mr. Rade Drca, and Mr. Drca’s wife, Ms. Marjana Drca, started to help him as soon as he was discharged from the Riverdale Hospital. They shopped, cooked, cleaned, shovelled the walk, took out the garbage and walked the dog. Mr. Dukic testified that he also received household assistance from his sister for a year, with a two-month break, until she left Canada, and from one of his tenants, on an occasional, as-needed basis. Neither Mr. Dukic’s sister nor the tenant testified at the hearing.

Marjana Drca testified that she quit her salesperson job to take care of Mr. Dukic when he came home from the Riverdale Hospital. She would go to his house each morning, prepare meals, clean rooms, do laundry, walk the dog and go grocery shopping if necessary. She stayed all day and prepared the evening meal, leaving for home between 7:30 and 9:00 in the evening. She continued to do this until November 1996 when she stopped in order to have her first child, born December 4, 1996. She resumed caring for Mr. Dukic in April 1998 when his sister left Canada.

Rade Drca testified that Mr. Dukic could not care for himself when he arrived home from hospital and fell twice due to dizziness. Mr. Drca was therefore obliged to sleep at his uncle’s house for about a year, helping him to shower and to dress. Mr. Drca would also spend about five hours a day shovelling snow, cutting grass, cleaning the floors and the staircase and dealing with the tenants. He was unemployed until July 1996 when he found work which lasted until November 1996. His mother, Mr. Dukic’s sister, took over from his wife once the baby arrived. Mr. Drca has been working since March 1997 but since he parks his work van at his uncle’s home, he has reason to be at Mr. Dukic’s home twice a day. He continues to cut the grass, shovel the walk, clean the staircase and deal with the tenants and estimates that he now does two hours work a day for this uncle.

On April 1, 1996, about a month after his discharge from the Riverdale Hospital, Pamela Koczerginski, an occupational therapist, visited Mr. Dukic in his home at the request of the Insurer. At page 10 of her report to the Insurer dated April 22, 1996, Ms. Koczerginski notes that "prior to his injury, he lived alone in a 3 level home in Toronto, and maintained his home without substantial assistance." She then lists the "instrumental activities" which he was able to do prior to the accident but observes at the end of her report that she was unable to test Mr. Dukic's ability to perform these activities, post-accident, "due to poor standing tolerance and reliance currently, on a walker for bimanual support." When testifying at the hearing, Ms. Koczerginski produced from her notes a more complete list of these instrumental activities, identified those activities for which Mr. Dukic would have required assistance, and estimated that they would have taken between six to eight hours a week to perform. This estimate was based on the assumption that these chores were not already being carried out by someone other than Mr. Dukic prior to the accident.

4. Mr. Dukic's pre-accident health and family support

Prior to November 27, 1995, Mr. Dukic sustained injuries in three accidents: the 1941 accident in which he injured his left knee, a 1968 work accident in which he injured his low back and a motor vehicle accident on February 2, 1994 in which he claimed to have injured his head, right shoulder, neck and low back.

The records of actual treatment providers were not submitted in respect of the first two accidents. Nor, as regards the second accident, were any workers compensation records submitted though there was evidence that Mr. Dukic receives workers compensation disability benefits for the physical and psychological impairments caused by this accident. Several of the medical reports submitted in connection with the 1994 and 1995 motor vehicle accidents refer back to the first two accidents and to an L2-3 fusion completed by Dr. Wiley in 1977 or 1978. There is evidence of physiotherapy and mineral water treatment with respect to the third accident in February 1994 but a claim for insurance benefits appears to have been dropped when Dr. W. R. Harris examined Mr. Dukic at a Designated Assessment Centre on June 13, 1995 and reported finding "no evidence of significant organic disability."

The Insurer pointed to the following evidence that Mr. Dukic had become dependent on his family for care and household assistance well before the November 1995 motor vehicle accident:

1. The report of Dr. Morton Shulman dated August 9, 1994 to one of Dr. Dukic’s lawyers which reads, in its entirety, as follows:

For your information I first saw Mr. Dukic for the accident which took place of February 2, 1994 on February 4, 1994. At that time he was complaining of a sprained back and a broken dental plate and broken glasses. His back cleared up fairly quickly and as of March 11, 1994 he returned to his previous state of chronic ill health and total disability. [Emphasis added]

2. The written statement made by Mr. Dukic to the responsible insurer in respect of his February 1994 accident. Dated March 9, 1994, the statement reads, in part, as follows:

Before my auto accident my nephew cleans my house for me. I paid him $20-30 wk (depends on work done). He cleaned the bathroom, floors, etc. He does all my housework except laundry, some dishes, cooking, groceries and shopping. Since my accident I can take care of my personal needs except I have difficulty dressing some mornings and I'm not doing meals very much... Since the accident, my nephew does my laundry, bed making and some grocery shopping. I pay him extra money now, $100-150 a month. My nephew doesn't want to accept more money. My nephew is Rade Drca. He lives Dundas & Dufferin St. He comes everyday and helps me. [Emphasis added]

3. The report of the physiotherapist who assessed Mr. Dukic at the Designated Assessment Centre on June 6, 1995. This report states at page 3:

In terms of current activities of daily living, he is independent in terms of personal hygiene. He lives alone. He is able to dress and undress independently, although on occasions he has to rely on his nephew to put on his shoes because of neck, back pain and shoulder pain...He is able to cook for himself on occasion, but his nephew's wife performs most of the cooking or he eats at a local restaurant. His nephew takes out the garbage.

Mr. Dukic admitted that the injuries he sustained in the 1994 accident did, for a time, affect his ability to do some household chores. However, he testified that, following the mineral water treatment he received in September or October 1994, he was much improved, he could do "almost 100%" of his inside housework and he was generally in good health prior to the November 1995 accident. Mr. and Ms. Drca admitted to sometimes helping Mr. Dukic prior to the November 1995 accident with the same household chores they helped him with after the November 1995 accident but testified that he did not physically require such assistance and it was not given on as frequent a basis. They gave it out of affection for him and while he sometimes paid them, these payments were likewise made out of his affection for them.

Findings and Conclusion:

An understanding of reflex sympathetic dystrophy (hereinafter referred to as "RSD") is essential to the resolution of this case. The Applicant relied upon the explanation of RSD contained in a 1986 book entitled "Personal Injury, A Medico-Legal Guide to the Spine and Limbs," written by Drs. D.J. Ogilvie-Harris and G.J. Lloyd. However, Dr. Gray, a medical witness called by the Insurer, refused to recognize this book as an authoritative medical text. Meanwhile, the Insurer had, according to Dr. Lithwick’s report, received from him a 1996 "update" on RSD causes and treatments but a copy of this update was not supplied to the Applicant or entered into evidence at the hearing. Despite my request to be supplied with a copy of this update, post-hearing, I was informed by Insurer’s counsel that none could be located.

In the absence of the RSD update referred to by Dr. Lithwick and notwithstanding Dr. Gray’s reservations about the book from which it is drawn, I accept the explanation of RSD provided by Drs. Ogilvie-Harris and Lloyd. It was the only explanation of RSD presented in evidence.²

I further find that, on balance of probabilities, RSD is the correct diagnosis of Mr. Dukic’s condition. It was made by two doctors, one seen at the request of the Insurer and the other at the request of the Applicant's family doctor. Dr. Chan’s findings of "bluish discolouration" and lower temperature in the left foot were consistent with RSD restricted blood flow and Dr. Gray’s failure to find nerve damage, to the extent nerve damage may explain RSD, was contradicted by the findings of Drs. Berry and Midroni. Drs. McKee and Moddel were unable to treat Mr. Dukic’s symptoms and offered no alternative diagnoses. Despite their apparent disagreement, Dr. Lithwick’s and Dr. Curkowskyj’s comments about RSD are also consistent with the Ogilvie-Harris/Lloyd explanation of that condition: Dr. Lithwick’s references to inactivity, osteoporosis and the need for active physiotherapy and Dr. Curkowskyj’s uncertainty about etiology and support for sympathetic nerve blocks and sympathectomies, are all reflected in the Olgivie-Harris/Lloyd explanation of RSD causes and treatment. Finally, RSD is described by Drs. Ogilvie-Harris and Lloyd as a post-traumatic pain syndrome. The accident of November, 1995 was traumatic and subsequent developments, in terms of the timing and the location of Mr. Dukic’s most serious symptoms in the left foot, point persuasively to the accident as the triggering event.

However, this finding does not fully resolve the central issue of causation identified at the outset. Two questions remain.

The first relates to treatment. The Ogilvie-Harris/Lloyd explanation of RSD states that RSD may be treatable through two techniques: relief of pain and active use of the afflicted extremity. It also states that the condition "will have usually reached a plateau in recovery by approximately two to three years from the time of injury" and that thereafter "no further surgical procedure or therapy is likely to be of significant benefit to the patient." The question arises, therefore, whether Mr. Dukic’s refusal to obtain or engage in treatment during this period severs the causal link between the motor vehicle accident and his ongoing RSD symptomology.

I cannot find that Mr. Dukic refused to undergo the pain-relieving modalities identified by Drs. Ogilvie-Harris and Lloyd as appropriate treatment for RSD. He received both sympathetic nerve blocks and painkiller injections from Dr. Chan. He may have sometimes resisted taking strong painkillers which made him feel unwell but he nevertheless did use pain-relieving medications and otherwise cooperated with medical strategies designed to relieve his pain. Based on Dr. Chan’s report, these strategies were unsuccessful.

But what about the second form of treatment for RSD, active use of the afflicted extremity, identified by both Drs. Ogilvie-Harris and Lloyd in their book and Dr. Lithwick in his report?

On one view of the matter, Mr. Dukic fell into what Drs. Ogilvie-Harris and Lloyd describe as the "significant percentage of patients who will not improve despite these [pain-relieving] modalities of treatment." Once in that category, Mr. Dukic's failure, if any, to engage in the active use of his left foot can be explained or excused by his ongoing pain.

On another view of the matter, Mr. Dukic's complaints of pain were exaggerated and his refusal to use his left foot has been motivated throughout by his desire to build up the relationship of dependence that he had developed with his family, a relationship which pre-existed, and was neither caused nor significantly altered by, the accident of November 1995.

I accept the first over the second view for the following reasons. First, ongoing pain does, at least in part, explain Mr. Dukic's reluctance to actively use his left foot. Second, Mr. Dukic's participation in physiotherapy programmes indicate that he has tried, up to the hearing, to recover the active use of his left foot. Third, the medical reports with respect to that accident sometimes express uncertainty about the correct diagnosis but they do not contain explicit observations of pain exaggeration. Fourth, while Mr. Dukic’s pre-hearing statements establish that he relied upon his family for attendant care and housekeeping assistance before the November 1995 accident, I accept the evidence of Mr. Drca and his wife that the degree of his dependence on them increased in importance and frequency after the accident.

In this last regard, I note Drs. Ogilvie-Harris/Lloyd’s observation that RSD "usually develops in a patient with a low threshold to pain and a dependent personality." The fact that Mr. Dukic had already developed a relationship of dependence with his family before the accident strongly suggests that he was a "dependent personality" at the time of the accident. I find that the accident and its consequences created a significantly greater dependency and, when combined with the unrelieved pain, explains Mr. Dukic’s reluctance to actively use his left foot. In these circumstances, I cannot find that this reluctance severs the causal connection between the accident and the RSD condition it triggered.³

However, the fact of a pre-existing relationship of dependence also gives rise to a question about the portion or percentage of Mr. Dukic’s post-accident attendant care and housekeeping needs that can be fairly attributed to the accident of November 1995. There were substantial discrepancies between Mr. Dukic’s pre-accident statements about the extent of his needs and his testimony before me to the effect that he was virtually independent before the accident. While the evidence does not permit a precise comparison of Mr. Dukic’s pre-accident and post-accident needs, I estimate and find that 50 percent of his post-accident needs can be attributed to the accident.

I accept Ms. Koczerginski’s estimate that Mr. Dukic’s attendant care needs were between six and eight hours per week and I accept Mr. Drca’s evidence that he spends about two hours a day helping his uncle with home maintenance. I, therefore, assess Mr. Dukic’s combined attendant care and home maintenance needs at 20 hours per week, 8 in respect of attendant care and 12 in respect of home maintenance. I find that half of these hours can, in each case, be attributed or causally related to the accident of November 27, 1995.

Having regard to the categories of attendant care stipulated in Form 1 and the nature of the functions performed by Mr. Drca for his uncle, I find that the applicable hourly rate for all 20 hours per week is the minimum wage established by paragraph 4 of subsection 10(1) of Regulation 325 of the Revised Regulations of Ontario, 1990. Since the minimum wage has been $6.85 per hour since January 1995 and Form 1 stipulates that there are 4.3 weeks in a month, Mr. Dukic’s monthly entitlement may be calculated as follows:

attendant care:

4 hours per week X 4.3 weeks per month X $6.85 per hour

= $117.82

home maintenance:

6 hours per week X 4.3 weeks per month X $6.85 per hour

= $176.73

Total

= $294.55

I allow, in its entirety, Mr. Dukic’s claim for a motorized wheelchair for the four months in 1996 before he graduated to a walker. I was informed that the rental cost for this period was $1,800.

I deny Mr. Dukic’s claims for an orthopaedic bed. Dr. Shulman’s statement that it was required did not provide a medical reason and I accept Dr. McKee’s statement that it was not warranted.

Interest and Expenses:

Mr. Dukic is entitled to interest on benefits payable after March 27, 1996 and on the $1,800 payable in respect of a motorized wheelchair. With respect to expenses, Mr. Dukic has been substantially successful in this proceeding. In the event interest and expenses cannot be agreed upon, I may spoken to by counsel. Expenses will be awarded and, if awarded, assessed in accordance with Rules 73 to 77 of the Dispute Resolution Code.

Order:

1. Mr. Dukic is not entitled to payment for the cost of an orthopaedic mattress.

2. Mr. Dukic is entitled to payment of $1,800 being the rental cost of a motorized wheelchair for the months of May, September, October and November 1996.

3. Mr. Dukic is entitled to attendant care benefits at the rate of $117.82 per month after March 27, 1996, calculated by reference to the legislated minimum wage.

4. Mr. Dukic is entitled to payment for housekeeping and home maintenance expenses at the rate of $176.73 per month after March 27, 1996, calculated by reference to the legislated minimum wage.

David Leitch Arbitrator

Date

Appendix

Exhibit 1

Insurer’s Medical Brief

Exhibit 2

Insurer’s Supplementary Medical Brief Index

Exhibit 3

Insurer’s Supplementary Medical Brief (2)

Exhibit 4

Insurer’s Document Brief

Exhibit 5

Insurer’s Supplementary Document Brief Index

Exhibit 6

Applicant’s Medical Brief

Exhibit 7

Curriculum Vitae of Dr. Gray

Exhibit 8

Curriculum Vitae of Dr. Koczerginski

Exhibit 9

List of Instrumental Activities of Applicant

Exhibit 10

Chapter 21, Reflex Sympathetic Dystrophy, from PERSONAL INJURY- a Medico-Legal Guide to the Spine and Limbs, Drs. D.J. Ogilvie-Harris and G.J. Lloyd.

Exhibit 11

Video Surveillance tapes (2)

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents after December 31, 1993, and before November 1, 1996, called "the Schedule" in this decision. The Schedule is Ontario Regulation 776/93, as amended by Ontario Regulation 635/94 and 781/94.
2. 2D.J. Ogilvie-Harris & G.J. Lloyd, Personal Injury: A Medico-Legal Guide to the Spine and Limbs (1986) Canada Law Book Inc., Toronto, chap. 21.
3. 3This finding makes it unnecessary for me to determine whether or not Mr. Dukic had a legal responsibility to obtain treatment. Section 73 of the Schedule imposes such a responsibility but not, it would appear, in relation to the kinds of benefits claimed by Mr. Dukic. This issue was not raised at the hearing, I received no submissions in respect of it and I make no comment about it.