Neutral Citation: 1998 ONFSCDRS 16

FSCO A96-001609

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

THOMAS EDMUNDS

Applicant

and

HALIFAX INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Thomas Edmunds, was injured in a motor vehicle accident on February 17, 1995. He applied for and received statutory accident benefits from Halifax Insurance Company ("Halifax"), payable under the Schedule.¹ Halifax terminated weekly income replacement benefits on September 20, 1995. The parties were unable to resolve their disputes through mediation, and Mr. Edmunds 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. Edmunds entitled to weekly income replacement benefits under section 7(1) of the Schedule for the period from September 21, 1995, to and including February 16, 1997, excluding those brief periods when he temporarily returned to work?

2. Is Mr. Edmunds entitled to be paid for the physical fitness programme pursuant to section 40 of the Schedule?

3. Is Mr. Edmunds entitled to be paid for all his expenses to attend the month-long Fibromyalgia Outpatient Programme in London between September 29, 1997, and October 24, 1997, pursuant to sections 36 and 40 of the Schedule?

4. Is Mr. Edmunds entitled to housekeeping and maintenance expenses pursuant to section 55 of the Schedule?

5. Is Mr. Edmunds entitled to interest on any outstanding amounts pursuant to section 68 of the Schedule?

6. Is Mr. Edmunds entitled to his expenses pursuant to section 282(11) of the Insurance Act and section 73 of the Dispute Resolution Code?

Result:

1. Mr. Edmunds is entitled to weekly income replacement benefits under section 7(1) of the Schedule for the period from September 21, 1995, to and including February 16, 1997, excluding those brief periods when he temporarily returned to work.

2. Mr. Edmunds is entitled to be paid $1,098.22 for the physical fitness programme pursuant to section 40 of the Schedule.

3. Mr. Edmunds is entitled to be paid for his expenses of $2,319.23 to attend the month-long Fibromyalgia Outpatient Programme in London between September 29, 1997, and October 24, 1997, pursuant to sections 36 and 40 of the Schedule.

4. Mr. Edmunds is entitled to housekeeping and maintenance expenses of $256.80 pursuant to section 55 of the Schedule.

5. Mr. Edmunds is entitled to interest on any outstanding amounts pursuant to section 68 of the Schedule.

6. Mr. Edmunds is entitled to his reasonable expenses pursuant to section 282(11) of the Insurance Act and section 73 of the Dispute Resolution Code.

Hearing:

The hearing was held in Windsor, Ontario, on February 2, 3, and 4, and 5, and April 14, 1998, before me, David Evans, Arbitrator.

Those present at the hearing, the witnesses and the exhibits are set out in the Appendix.

Evidence and Findings:

Mr. Edmunds testified that at approximately 9:45 on the morning of February 17, 1995, he was on his way to his workplace, the Chrysler assembly plant in Windsor, with a note from his family doctor allowing him to return to work (he had hurt his foot earlier that month). A line of four cars had stopped for a train and had then proceeded about six car lengths to a red light, reaching a maximum speed of approximately 10 km/hr. As the line stopped, the last vehicle in line caused a chain reaction collision. Mr. Edmunds, the second in line, was pushed into the car in front. The collisions scratched the front and rear bumper covers of his car, which at the time of impact was rolling very slowly or had just stopped. Mr. Edmunds described the impact as minor and as more of a sudden jerk. He did not hit the steering wheel, and the air bags did not inflate.

Mr. Edmunds testified that an hour later he told the investigating police officer that he felt stiff in his back, neck and shoulders. He then completed his journey to turn in the note and went home.

Mr. Edmunds testified that he woke up the next day feeling stiff in his whole body. He felt tight in his back and legs and walked in a shuffle. Mrs. Edmunds testified that she first noticed his physical problems then. She drove him to the Metropolitan Hospital.

The following Monday, February 21, 1995, Mr. Edmunds reported a sore neck and back to Dr. Saulius Kizis, the family doctor. Finding no bony involvement or pinched nerves, Dr. Kizis prescribed physiotherapy, analgesia, and anti-inflammatories and advised him not to return to work at that point.

Dr. Kizis saw Mr. Edmunds regularly over the following weeks and months. On March 23, 1995, Mr. Edmunds commented that, on a scale of 1 to 10, where 10 is normal, his neck equalled 7 and his back equalled 8 and that he was 70 percent improved. Mr. Edmunds reported similar scores of 8 for his neck and 7 for his back as of June 1, 1995. Dr. Kizis testified that by June 1, 1995, he had doubts whether Mr. Edmunds would return to work, as his continuing complaints after four or five months suggested chronic pain syndrome. He referred Mr. Edmunds to a rheumatologist, Dr. Collins, who saw him the following November.

At the Canadian Back Institute (CBI) assessment on February 28, 1995, Mr. Edmunds complained of central neck pain radiating into both arms and mid-and-low-back pain. The physiotherapist prescribed a short active therapy programme to improve his flexibility and strength. A radiological study of the cervical and lumbar spines taken on April 3, 1995, was normal. The CBI discharge report of April 7, 1995, indicates that Mr. Edmunds felt that his pain was basically unchanged but his mobility had increased. The physiotherapist thought it unusual for him to be so restricted in his activities at home, where he claimed to be doing very little. She recommended a gradual return to his activities of daily living, including work.

Ms. Deanne Lauzon of Rehabilitation Services of Canada (RSC) managed Mr. Edmunds' rehabilitation. Dr. Kizis told her that he anticipated full recovery for Mr. Edmunds who was at least 60 percent or more recovered. He advised her that he should be encouraged to return to an active lifestyle including home chores, and that he approved a return-to-sequence training at CBI. However, Mr. Edmunds preferred swimming at The Good Life Fitness Centre. (Mr. Edmunds testified that he is still a member at Good Life where he uses the treadmill for 14 minutes, does stretches, and walks at chest level in the pool.)

Aetna Life Insurance Company of Canada, the long-term disability insurer at Chrysler, referred Mr. Edmunds to Dr. George Koppert, an orthopaedic surgeon who evaluated him on May 17, 1995. Dr. Koppert, noting that Mr. Edmunds was overweight and in poor physical condition, encouraged Mr. Edmunds to resume his activities of daily living. He also felt that it would not be unreasonable for Mr. Edmunds to try opening his swimming pool. Dr. Koppert anticipated a return to work after three months.

Halifax wrote to Dr. Koppert for his opinion, enclosing surveillance reports and a videotape recorded May 26, 1995. Dr. Koppert noted in his report of July 14, 1995 that, while Mr. Edmunds washed his car in a paced fashion, there was no suggestion that he was experiencing neck or shoulder pain. He could not determine if Mr. Edmunds was favouring his lower back. He felt it would be reasonable for Mr. Edmunds to return to his regular work, although preferably on modified duties. The aggravation of symptoms would not cause him physical injury. He also suggested that Mr. Edmunds continue and perhaps increase his workouts at the fitness centre.

Halifax then referred Mr. Edmunds for a disability assessment with Dr. S.W. Bartol, an orthopaedic surgeon, at the end of August 1995. Mr. Edmunds had tenderness without spasm and normal movements in the cervical and lumbar spines. Dr. Bartol noted that, while Mr. Edmunds did not carry out any excessively strenuous activities on the videotapes, he did show his ability to carry on with activities of daily living without any apparent discomfort. Dr. Bartol concluded that Mr. Edmunds suffered from no specific functional limitations in his activities that prevented him from resuming full-time employment.

Mr. Edmunds' benefits were terminated as a result of this DAC assessment, and Halifax instructed RSC to close its file.

Mrs. Edmunds testified that she observed no differences in Mr. Edmunds' physical problems before and after the termination of benefits. His major problems were fatigue and general stiffness and muscle tightness. He tired during the day, and by the afternoon he was not able to take care of the children and had no patience for them. The fatigue prevented him from exercising more.

Mr. Edmunds attempted a return to work at the end of October 1995. Records show that Mr. Edmunds did not work from February 17 to October 26, 1995; from November 3 to December 14, 1995; and from January 15 to March 20, 1996, at which time he went on extended disability benefits.

The Chrysler medical records show that when Mr. Edmunds was examined by Dr. McFarlane, the Chrysler doctor, on October 20, 1995, he had residual discomfort in both shoulders and posterior neck. Dr. McFarlane released him to modified work based on restrictions set by Dr. Kizis. (Dr. Kizis testified that considering the lack of progress by that point he felt it was unlikely that Mr. Edmunds could return to work even with the restrictions.) Mr. Edmunds attempted work at the end of October 1995.

Mr. Edmunds testified that during his first attempt, Chrysler put him in his old job doing emergency relief. He was not always on the line, and a helper shared the work, but when on the line, he could last less than half an hour and needed the helper's aid. The day after he returned to work and on November 3, 1995, the first-aid nurse gave him ice and medications for the strain at the back of his neck and in his lower back.

Dr. David Collins, the rheumatologist to whom Dr. Kizis referred Mr. Edmunds, sets out his findings in his report dated November 6, 1995. Dr. Collins identified all 18 of the 18 fibrositic tender points. He concluded that Mr. Edmunds had post-traumatic fibromyalgia and suggested that he continue working, if at all possible, to avoid becoming pain-focused.

Mr. Edmunds did not attempt another return to work until December 15. On December 11, 1995, Dr. McFarlane at Chrysler confirmed that he could return to work with the following restrictions imposed by Dr. Kizis for six months:

• Lifting or carrying 20 lbs or less

• Pushing or pulling 20 lbs or less

• Stooping, squatting, bending or twisting intermittently not more than half of the work shift

• No reaching above shoulder level

From mid-December 1995 to mid-January 1996, the Chrysler records show that Mr. Edmunds complained four times of problems with his neck, shoulder and lower back. Mr. Edmunds testified that during that period there were two weeks of Christmas vacation and that he also used some personal time to reduce the number of hours worked.

Mr. Edmunds attended before Dr. McFarlane on January 23, 1996, indicating that he had stopped working on January 15 because of a flare-up of his back, shoulder and arm pain and because he felt that he was working beyond his restrictions. Dr. McFarlane considered Mr. Edmunds fit to return to work that day with Dr. Kizis' restrictions considered as permanent.

Mr. Edmunds did not return to work. He testified that physically he could not do the work. He had headaches, he found it difficult even to go up the steps to the washroom, and he could not complete a whole day's work.

On February 2, 1996, Dr. Kevin White, a rheumatologist and researcher of the epidemiology of fibromyalgia, assessed Mr. Edmunds. Dr. White found that Mr. Edmunds had 13 out of 18 fibromyalgic tender points and that he therefore met the criteria for fibromyalgia — specifically, post-traumatic fibromyalgia syndrome.

Dr. White testified that fibromyalgia — pain in the fibrous tissues and muscles — is a syndrome, a collection of symptoms or signs that tend to aggregate. The defining features are widespread chronic pain with pain reported at 11 of 18 tender points as defined in the criteria published in 1990 by the American College of Rheumatology (ACR). "Widespread" according to the ACR means pain on both the left and right side of the body, above and below the waist, and involving the limbs as well as the axial skeleton like the neck and back. "Chronic" means lasting at least three months. The sites and amount of pressure for testing the points are very specific, and the question he asks the patient is: "Does this hurt?" Dr. White's gauge is his thumb, which he has tested with a dolorimeter. Fibromyalgia is often accompanied by other common features like fatigue that worsens after minimal activity, weakness, headaches, abdominal pain, bloating, diarrhea, irritable bowel syndrome, short-term memory and concentration problems, and depression or anxiety.

Dr. White had Mr. Edmunds fill in two questionnaires, the Health Assessment Questionnaire (HAQ) and the Fibromyalgia Impact Questionnaire (FIQ). Dr. White set out the following regarding the HAQ:

[H]e reported much difficulty shampooing his hair, climbing up five steps, and bending down to pick up clothing from the floor, some difficulty dressing himself, standing up from an armless straight chair, getting in and out of bed, walking outdoors on flat ground, washing and drying himself, getting on and off the toilet,

opening jars which had been previously opened, turning faucets on and off, running errands and shopping, getting in and out of a car, and doing chores such as vacuuming or yardwork, cutting his meat, lifting a full cup or glass to his mouth, opening a new milk carton, taking a tub bath, reaching to get a five pound object from above his head, and opening car doors.

With respect to this passage, I note that Mr. Edmunds was videotaped in 1995 and 1997 going for a walk in the neighbourhood, opening car doors to enter and exit his car, driving and washing his car, shopping, trimming a hedge, blowing and vacuuming leaves with a garden blower, and watering plants. Dr. Kizis, in commenting on this passage, testified that it caused him great difficulty to believe that a person would have that much disability, considering the nature of the impact. He stated that, in general, he never disbelieves his patients "one iota."

On February 7, 1996, Dr. Collins found 16 of 18 fibrositic tender points. He did not feel any other medications would be effective, concluded that he had nothing further to contribute, and recommended that Mr. Edmunds be considered for the London Fibromyalgia Outpatient Programme to be arranged by Dr. White.

In March and April 1996 Aetna and Chrysler attempted to return Mr. Edmunds to work with restrictions. However, at page 66 of the Aetna Brief is a document indicating "No work available," and Chrysler then put Mr. Edmunds on extended disability benefits. On February 20, 1997, Dr. White wrote that Mr. Edmunds was permanently, totally, and occupationally disabled. In April 1997, Mr. Edmunds was approved for a Chrysler company pension.

Dr. Clifford, a physiatrist, evaluated Mr. Edmunds on July 9, 1997, and prepared a report for Halifax dated September 5, 1997. Dr. Clifford testified that he would anticipate a very mild soft tissue injury considering the minimal force of the impact. Mr. Edmunds did not meet the criteria of fibromyalgia. Although Dr. Clifford did not go quite so far as to state that fibromyalgia is "hogwash,"² he testified that a syndrome like fibromyalgia cannot be "medically diagnosed" because only a disease can be medically diagnosed, and a syndrome is not a disease. The relationship of trauma before the development of a fibromyalgia syndrome is strictly a temporal correlation that does not establish causation. In Dr. Clifford's view, Mr. Edmunds suffered only from "benign chronic pain," and the concerns related to the lower back are not accident-related. In his opinion, Dr. White's HAQ is too subjective to be a usable tool, and his conclusion that Mr. Edmunds is "totally and permanently disabled" was absolutely incorrect. Dr. Clifford concluded that it was safe and appropriate for Mr. Edmunds to return to work. He testified that it is true of every fibromyalgia patient to have normal neurological exams, to suffer from no known active disease process, and for his current complaints of pain to have no objective medical basis for restricting physical activities. If the diagnosis of fibromyalgia is valid, the literature suggests avoiding heavy labour, as the person meeting the criteria for the complaints of pain might not be able to keep up at work. Dr. Clifford criticised Dr. Koppert's and the CBI's attribution of the lower back pain to the accident because no mechanism allowed for the injury to the lower back. Dr. Clifford concluded that because Mr. Edmunds is 45 years old, has some degenerative changes in his back, and is overweight, regular bending and lifting of over 50 pounds, or regular crawling, crouching or kneeling would be inappropriate.

Dr. Clifford wrote that Mr. Edmunds' denials of previous head, neck or back problems were not consistent with the records of Dr. Kizis and Chrysler. In this regard, Mr. Edmunds testified that since the early 1970s he had worked in many capacities on the Chrysler assembly line in Windsor. In the two years before the motor vehicle accident of February 17, 1995, he provided emergency relief for a variety of jobs. Annual job changes often affected him physically for a few weeks, as reflected in Chrysler's medical records. Chrysler's first-aid nurse usually provided workers with medication for headaches or ice for sore muscles before sending them back to the line. Mr. Edmunds testified that he went to first aid nearly every time he had a headache, and, depending on the pain, he sometimes claimed a headache just to leave the line. An ice treatment for sore muscles gave him a longer break, but he was able to return to the line after such treatment.

Mr. Edmunds told the doctors who saw him after the accident, such as Dr. Clifford, that he had been healthy before the accident. However, the Chrysler records and those of his family doctor, Dr. Saulius Kizis, show various entries of a musculoskeletal nature as well as complaints for headaches before the accident. Several entries in 1993 and 1994 refer to his neck and bilateral shoulder pains that were treated with ice. Dr. Kizis testified that these were normal complaints for a line worker at a car factory.

Mr. Edmunds testified that Chrysler's doctors would send workers home only for a serious problem. A note from the family doctor was required before a worker was allowed back on the line. It was this kind of note he was taking to Chrysler on the day of the accident.

Halifax sent Mr. Edmunds to Dr. Samuel Handelsman, a physiatrist in practice since 1982, who examined him on December 18, 1997. Dr. Handelsman testified that Mr. Edmunds had sustained a mild soft-tissue injury to the neck, shoulder and low back and that he should be able to return to work initially part time and then full time, periodically stretching for a second or two when feeling tight. Although repetitive line work would not likely aggravate Mr. Edmunds' symptoms, he felt heavy lifting could have an impact.

Dr. Handelsman testified that Mr. Edmunds' fibromyalgia had some atypical features, since he had only four tender points and did not have morning stiffness, but he agreed that not everybody is classical for every disease and did not dispute the findings of the other doctors regarding the greater number of tender points they found. The records from Chrysler do not show pre-existing fibromyalgia.

Dr. Handelsman testified that the two questionnaires used by Dr. White (FIQ and HAQ) are totally subjective. He needs more than the patient's report because otherwise he could just rubber stamp every request brought in by patients who came in claiming that they could not return to work.

Dr. Handelsman testified that the two longer videos of May 1995 and June 1997 imply that when Mr. Edmunds is not pain-focused he can do considerably more than he gives himself credit for. In his opinion, the HAQ problems are not consistent with the tape.

Current Complaints:

Mr. Edmunds testified that he still has daily headaches. The training he received at the London Fibromyalgia Outpatient Programme helped to control their intensity. On a pain scale where zero equals no pain, he considers them at level 6 to level 8, an improvement over the 10 he had in the first year.

Mr. Edmunds testified that his shoulder and neck feel tight and heavy all the time and they drop when he walks. He has tightness on the side and back of his neck. In the first few months after the accident he was stiff all over and could only walk four or five blocks in a shuffle. He can walk 30 to 45 minutes now. His chest feels like it is straining. He has pain spreading out six inches from the spine on either side, and everything feels like a workout. Damp weather and winter make things worse. He also complains that in general he fatigues quickly and cannot finish anything. He has more energy in the morning, but by 2:00 or 3:00 p.m., he feels tight and slows down. His hips feel stiff mostly in the winter. His legs get heavy when he goes for a walk: he has problems with hitting curbs, which he thought was a loss of coordination. His feet sometimes hurt at night. He considers two or three hours of straight sleep at night as a good night.

Mr. Edmunds testified that he developed depression after the accident. He felt miserable and angry at everything and could not understand why he could not finish what he had started. He felt useless because he could not do household chores. He is beyond that stage now, and his depression is much reduced.

The Videotapes:

Mr. Edmunds' activities were recorded on several occasions. For instance, he was videotaped for most of the day on May 19, 1995, when he went for a 20-minute walk, disappeared to attend the Good Life Fitness Centre, and spent part of the afternoon washing his car.

Dr. White felt that the level of activity on the videotapes was not enough to convince him that Mr. Edmunds could return to work, as there was no sustained effort and nothing heavier was carried than a 12-pack of beer. Dr. White considered his level of activity consistent with his HAQ score. However, Dr. White did not see the entire first tape of May 1995 and thought that Mr. Edmunds went for a walk of only two minutes on July 26, 1995, when in fact the walk lasted approximately 20 minutes.

Dr. Clifford testified that, although the tapes do not show repetitive physical work, Mr. Edmunds had free neck movements on the video but restricted on examination, so that undermined his consistency.

Conclusion:

Weekly Income Replacement Benefits:

Pursuant to section 7 of the Schedule, Mr. Edmunds must prove the following on a balance of probabilities:

1. He sustained an impairment, meaning a loss or abnormality of psychological, physiological or anatomical structure or function, as a result of the accident;

2. This impairment causes him to suffer a substantial inability to perform the essential tasks of his employment.

Dr. Clifford found that Mr. Edmunds demonstrated on surveillance some difficulties with repetitive bending to the ground. He concluded that although Mr. Edmunds has a low back problem, it could not arise from the accident. In this regard, Halifax relied on Randhawa and Royal Insurance Company of Canada³ for the proposition that the nature of the impact and the damage sustained is a relevant issue regarding the likelihood of a serious injury from the impact. However, in Randhawa, a small passenger car punctured a hole in the fuel tank of a 40-foot tractor trailer weighing over 24,000 pounds, and Arbitrator Seife was comparing the effects of this collision with others in which the truck driver had been involved. Accordingly, I find that Randhawa can have little bearing in the considerably different circumstances of this case, in

which the vehicles were much closer in size and Mr. Edmunds' vehicle sustained damage (albeit minor) to both front and rear bumpers.

Halifax also relied on the following statement in the appeal decision in Koch and AXA Insurance:⁴

[C]ausation is not established simply because the problem follows the event. Medical evidence is critical in determining whether it is likely that the injuries arise from the accident. This is particularly true where the person had pre-existing medical problems, the onset of the new symptoms is delayed, and the symptoms can arise from a number of different causes.

Dr. Clifford testified that he considered the diagnosis by Dr. Crozier at Chrysler of "general fibromyositis at several levels of the back" in 1984 and other pre-accident low back complaints as evidence of a pre-existing condition. However, Dr. Koppert, in his January 23, 1998, review of the Chrysler records, noted that, although there was mention of backache or strain on one or two occasions, there was no such mention for at least five years before the accident and concluded that the post-traumatic low back pain was probably largely accident-related. Although Dr. Koppert also believed that Mr. Edmunds would have tested positive for multiple fibrositic tender points before the accident, Dr. Handelsman testified that Mr. Edmunds did not suffer from fibromyalgia before the accident. I find that Mr. Edmunds suffered no significant low back problems before the accident. Regarding the onset of the low back pain, I find that it was not delayed, as Mr. Edmunds complained almost immediately of it. Finally, Dr. Clifford suggested that the back limitations could be related to non-accident factors such as obesity. However, Mr. Edmunds has been quite obese for most of his adult life, yet he was able to work for at least five years before the accident without low back pain. Since Mr. Edmunds could not have gained more weight or become deconditioned overnight following the accident, I find that the accident at least materially contributed to the symptoms. Accordingly, I find that Mr. Edmunds sustained an impairment in his lower back arising from the accident.

Regarding the second test, Mr. Edmunds indicated on his Job Demands analysis for Halifax that he frequently had to bend over and occasionally had to crouch and kneel and lift and carry weights of over 50 pounds. Dr. Clifford recommended temporary restrictions to minimize prolonged stooping or squatting, repetitive bending or twisting, and repetitive or heavy lifting at the waist. These restrictions are very similar to the permanent restrictions imposed by Dr. Kizis and accepted by Dr. McFarlane. Chrysler was not able to even find Mr. Edmunds a job within those restrictions. Accordingly, I find that Mr. Edmunds suffered a substantial inability to perform the essential tasks of his employment.

Dr. Clifford considered that these restrictions would be lifted should Mr. Edmunds follow a three-month rehabilitation programme to lose weight and recondition. Dr. Clifford may well be over-optimistic in considering that a person who has been overweight most of his life could reach and maintain an optimum weight after three months. In any event, I have already found that the low back problem arose from the accident and not from obesity, and although weight loss might help reduce the severity of the problem, I do not find that Mr. Edmunds' low back problem is temporary.

I find that Mr. Edmunds has passed the tests set out in section 7 of the Schedule and is entitled to weekly income replacement benefits.

Regarding fibromyalgia, I heard a great deal of opinion about it, such as whether it can even be considered an impairment or whether there is any link between trauma and its development. In light of my findings regarding Mr. Edmunds' low back problem, I do not have to decide this issue. However, for other purposes such as his claim for attending at the London Fibromyalgia Outpatient Programme, it will be useful to consider if Mr. Edmunds suffers from fibromyalgia as a result of the accident.

Both Dr. Collins and Dr. White diagnosed it. The tests are highly subjective, and other experts attacked in particular the HAQ and FIQ used by Dr. White. As was stated in Henri and Allstate Insurance Company of Canada,⁵ in cases of chronic soft tissue pain, the Applicant's credibility becomes an important issue. An important aspect of credibility is consistency. Mr. Edmunds was not perfectly consistent: he did not describe his pre-accident headaches and neck and shoulder problems to the doctors. For example, the videotape from May 1995 does not appear consistent with Mr. Edmunds' complaints of fatigue, since he was active during the entire day. As well, several doctors commented that his clinical presentation was inconsistent with his activities on the tapes. Dr. Kizis expressed surprise at the extent of Mr. Edmunds'difficulties that were set out in the HAQ. I do not know how to interpret Mr. Edmunds' testimony that he only saw the Chrysler nurse for his headaches when the pain warranted it, yet sometimes he would claim a headache simply to take a break from the line. On the other hand, Dr. Handelsman testified that he did not discount a fibromyalgia component — that not all fibromyalgia patients have the classical symptoms — and he did not dispute Dr. White's findings regarding the number of tender points he found on examination of Mr. Edmund or the fact that Mr. Edmunds did not have fibromyalgia before the accident. Dr. Kizis testified that he found Mr. Edmunds consistent. I was impressed with Mrs. Edmunds' testimony regarding the difference in Mr. Edmunds before and after the accident. Accordingly, I find that Mr. Edmunds did suffer post-traumatic fibromyalgia. I make no findings on whether his syndrome was sufficient to disable him from working.

Physical Fitness Programme:

Mr. Edmunds seeks payment for his membership at Good Life Fitness Centre. Clause 40(1)(a) of the Schedule provides that, if Mr. Edmunds sustained an impairment as a result of an accident, Halifax shall pay for reasonable measures to reduce or eliminate the effects of any disability resulting from the impairment. Mr. Edmunds preferred to exercise at the club instead of taking further supervised treatment. Dr. Koppert, in his report of July 14, 1995, agreed with this choice: he recommended against further treatment in a supervised setting and suggested that Mr. Edmunds continue at the local fitness centre. Since I have found that Mr. Edmunds sustained an impairment as a result of the accident, and since Dr. Koppert recommended his attendance at the fitness centre, I find that the fitness club membership is a reasonable measure for which Halifax should pay. Mr. Edmunds did not have exact figures for the years 1996 and 1997 but claimed $350 per year. The membership fee for 1998 was $389.22. I accept these figures, for a total of $1,089.22.

London Fibromyalgia Outpatient Programme:

Mr. Edmunds participated in this programme in September and October 1997. He claims for the cost of this programme under both sections 36 and 40 of the Schedule. I am satisfied that he meets the test under section 40. Among the benefits under clause 40(1)(b) are reasonable measures to facilitate his reintegration into his family. Subsection 40(4) further sets out that payments required to that end include payment for social rehabilitation measures that are reasonably necessary to return him as much as possible to the family and social situations in which he lived before the accident, to assist him to adjust to family and social situations as a result of the accident, and to maintain his level of function within the home and family.

Mr. Edmunds testified that he had arguments with his family, he was not happy, he was blaming everybody, and nothing was going right. He separated from his wife on July 1, 1996. Mrs. Edmunds testified that she felt he did not want to change and she left with the children.

Mr. Edmunds testified that in November 1996 they lost the family house, and he moved in with his mother. Things started to improve in 1997: that summer, he rented a cottage for a week for the whole family, including his wife. He felt things improved once his family understood his need to rest.

In a letter dated April 30, 1996, Dr. White set out details of the Fibromyalgia Outpatient programme: six patients are followed both as a group and singly in a multi-disciplinary programme lasting four weeks at the London Health Sciences Centre (LHSC). The brochure for the Program notes that among its roles are to assess the impact of pain on family relationships and assist families in adjusting to chronic pain, and to provide education about chronic pain and its management to family members. Dr. White testified that the focus is on better function, but there was a delay in entering the programme because Mr. Edmunds first required psychological treatment. By November 14, 1996, he believed that Mr. Edmunds should be assessed for the programme. To enter the programme, the patient is first referred by one of rheumatologists at the LHSC, and then is further referred to a psychologist. The waiting period for assessment and entry into the programme is at least six to eight months. Mr. Edmunds was eventually assessed on June 11, 1997, as set out in the psychological assessment report of the LHSC, University Campus. Psychological tests showed that he had a somewhat elevated profile for perceived pain severity, for belief in medication as a treatment, and for belief that others should be solicitous of his pain experience. The psychologist also wrote that the scores did not provide a clear indication of his readiness for change. Nonetheless, she accepted him into the programme.

Mr. Edmunds entered the fibromyalgia daycare programme in September 1997. The records show that he was not the perfect patient. Mr. Edmunds testified that although some people in the programme questioned his desire and willingness to participate and do his homework, he did participate despite his weaknesses and difficulties in the first week. In this regard, Dr. Harth (the supervising rheumatologist) noted on October 22, 1997, that Mr. Edmunds had a "substantial improvement" in his FIQ score, moving from 73.8 to 50.35. Dr. White testified that a score of 50 is in the mid-range for all fibromyalgia patients and that this showed he had dropped by about 25 percent in symptoms. Mr. Edmunds testified that the programme helped him emotionally by revealing that other people have similar problems and taught him proper posture to relieve stress and deep breathing to control headaches.

Mrs. Edmunds testified that she went twice to the outpatient clinic to sit in on the spousal meetings, which she found informative. The effect of the programme was that her husband finally let someone else help him with the fibromyalgia. The programme showed him there were people who believed in him, and she finds that he is now more open with his feelings and more positive in his outlook.

I find that the purpose and the effect of the fibromyalgia daycare programme fit perfectly within the criteria of subsection 40(4) of the Schedule. Accordingly, I find that Mr. Edmunds is entitled to his expenses for attending at the programme. Counsel for Halifax advised that he did not quarrel with the amount claimed for accommodation, gas, parking and food totalling $2,319.23.

Housekeeping and Home Maintenance

Pursuant to section 55 of the Schedule, 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.

Mr. Edmunds claims expenses for car washes, grass cutting, the opening and repair of his pool in 1995, and house painting under this rubric. On one tape, Mr. Edmunds was observed washing his car. No doctor said that Mr. Edmunds could not wash his car, cut his grass, or open his pool, at least if he paced himself. Regarding the pool repairs, Mr. Edmunds testified that he was only claiming for an undetermined amount respecting the hole-digging portion. As for the house painting, Mr. Edmunds claims for labour performed in March 1995, a time when he was still receiving treatment for his neck and low back.

I allow the labour expense of $240 for painting the house plus GST, for a total of $256.80. I find that the other expenses are either unreasonable or not related to the accident.

Expenses:

Mr. Edmunds applied for arbitration in September 1996. The generally accepted rule of allowing an applicant his expenses where the claim was not frivolous or vexatious therefore applies here. Counsel for Halifax agreed that this claim was neither, and in fact I allowed Mr. Edmunds most of his claims. Accordingly, I allow Mr. Edmunds his reasonable expenses of the arbitration.

Order:

1. Mr. Edmunds is entitled to weekly income replacement benefits under section 7(1) of the Schedule for the period from September 21, 1995, to and including February 16, 1997, excluding those brief periods when he temporarily returned to work.

2. Mr. Edmunds is entitled to be paid $1,098.22 for the physical fitness programme pursuant to section 40 of the Schedule.

3. Mr. Edmunds is entitled to be paid for his expenses of $2,319.23 to attend the Fibromyalgia Outpatient Programme in London between September 29, 1997, and October 24, 1997, pursuant to sections 36 and 40 of the Schedule.

4. Mr. Edmunds is entitled to housekeeping and maintenance expenses of $256.80 pursuant to section 55 of the Schedule.

5. Mr. Edmunds is entitled to interest on any outstanding amounts pursuant to section 68 of the Schedule.

6. Mr. Edmunds is entitled to his reasonable expenses pursuant to section 282(11) of the Insurance Act and section 73 of the Dispute Resolution Code.

August 6, 1998

David Evans Arbitrator

Date

APPENDIX

Present at the Hearing:

Applicant:

Thomas Edmunds

Mr. Edmunds' Representative:

Ronald C. Reaume Barrister and Solicitor

Halifax's

James R. Adams Barrister and Solicitor

Representative:

Witnesses:

Mr. Thomas Edmunds Mrs. Edmunds Dr. Kevin White Dr. Saulius Kizis Dr. Stephen W. Bartol Dr. John C. Clifford Dr. Samuel Handelsman

Exhibits:

1. Medical Brief

2. Chrysler Brief

3. Applicant's Additional Information Brief

4. Expenses Brief

5. Halifax Arbitration Brief

6. Aetna Brief

7. Report of Dr. Clifford dated January 27, 1998

8. Report of Dr. Koppert dated January 23, 1998

9. Record of Applicant's weekly benefits

10. Surveillance tape of May 1995

11. Surveillance tape of July 1995

12. Surveillance tape of June 1997

13. Surveillance tape of December 1997

Exhibits 2

14. Curriculum vitae of Dr. Koppert

15. 2 photographs of automobile damage

16. Fibromyalgia Impact Questionnaire (FIQ) and Health Assessment Questionnaire (HAQ) completed at Dr. White's office on February 2, 1996

17. Pain diagram completed by Mr. Edmunds at Dr. Bartol's office August 28, 1995

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. 2See Dr. Langer's comments in Fernandes and State Farm Mutual Automobile Insurance Company (August 3, 1994), OIC A-005516.
3. 3(December 8, 1995), OIC A-008734
4. 4(May 8, 1997), OIC P96-00058
5. 5(August 16, 1996), FSCO A-007954