Neutral Citation: 1998 ONICDRG 59, 1998 ONFSCDRS 59

FSCO A97-000627

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

FLORINDA CANTE

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Florinda Cante, was injured in a motor vehicle accident on February 1, 1996. She applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company ("State Farm"), payable under the Schedule¹ State Farm terminated weekly income replacement benefits on October 16, 1996. The parties were unable to resolve their disputes through mediation, and Mrs. Cante applied for arbitration at the Financial Services Commission of Ontario² under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is Mrs. Cante entitled to ongoing caregiver benefits pursuant to section 18 of the Schedule beyond October 16, 1996?

2. Is Mrs. Cante entitled to indexation of caregiver benefits in respect of benefits received in 1996?

3. Is Mrs. Cante entitled to housekeeping expenses pursuant to section 55 of the Schedule at the rate of $75 per week from February 5, 1996 and ongoing?

4. Is Mrs. Cante entitled to the following supplementary medical expenses pursuant to section 36 of the Schedule?

a) physiotherapist assessment and treatment provided by Back in Action Physiotherapy in the amount of $180?

b) acupuncture treatment provided by Dr. Charlton from May 21, 1996 to November 17, 1997 in the amount of $1,380.37?

c) acupuncture treatment provided by Dr. Bergman from September 1996 to October 17, 1997 in the amount of $2,589.40?

d) massage therapy provided by W. Dobrzanski from May 1996 to June 30, 1998 in the amount of $15,302.40?

e) bilateral orthotics and left leg lift at a cost of $1,210?

f) reimbursement for radiographic diagnostic services from ADIO Diagnostic Services in the amount of $443?

g) reimbursement for thermogram services from Thermodiagnostix in the amount of $200?

h) a psychological assessment conducted by Dr. Gottfried in the amount of $595?

i) psychological assessment and therapy from Dr. Coulson from October 1996 to May 1997 in the amount of $3,776.65?

j) travel expenses related to the above?

5. Is Mrs. Cante entitled to a special award?

Mrs. Cante also claims interest on any amounts owing and her expenses incurred in the hearing.

Result:

1. Mrs. Cante is not entitled to caregiver benefits beyond October 16, 1996.

2. Mrs. Cante is entitled to the 1996 indexation of caregiver benefits received in 1996.

3. Mrs. Cante is entitled to housekeeping expenses at the rate of $75 per week from February 5 to October 16, 1996, less the $750 paid by the Insurer.

4. a) Mrs. Cante is not entitled to reimbursement for a physiotherapist assessment from Back in Action Physiotherapy.

b) Mrs. Cante is entitled to reimbursement for acupuncture treatment provided by Dr. Charlton from May 21 to September 27, 1996, but not thereafter.

c) Mrs. Cante is not entitled to reimbursement for acupuncture treatments provided by Dr. Bergman from September 1996.

d) Mrs. Cante is entitled to reimbursement for massage therapy treatment from May to September 27, 1996, but not thereafter.

e) Mrs. Cante is not entitled to payment for bilateral orthotics and a left leg insert.

f) Mrs Cante is not entitled to reimbursement for services provided by ADIO Diagnostic Services.

g) Mrs. Cante is not entitled to reimbursement for services provided by Thermodiagnostix.

h) Mrs. Cante is entitled to reimbursement for the cost of a psychological assessment conducted by Dr. Gottfried in the amount of $595.

i) Mrs. Cante is entitled to reimbursement for the cost of a psychological assessment and therapy from Dr. Coulson in the amount of $3,776.65.

j) Mrs. Cante is entitled to reimbursement for reasonable travel expenses related to the expenses allowed above.

Mrs. Cante is entitled to interest on the above amounts and her expenses of the hearing.

5. Mrs. Cante is not entitled to a special award.

Evidence and Findings:

At the time of the motor vehicle accident, Mrs. Florinda Cante was a 39-year-old working mother of three children. She had immigrated to Canada from Guatemala approximately 10 years previously. Her education was limited, as she left school at the age of 13 and worked on her family's farm until she married her common-law husband, Ramiro Martinez. She worked steadily from the time she arrived in Canada, first in factories and then at the Red Lobster as a food-preparer for approximately eight years before the pedestrian accident. In 1991 she suffered a work-related accident which ultimately resulted in her taking time off from work in 1993. After arthroscopic surgery on her knee in late 1993, she returned to work in May 1994, at reduced hours. She experienced ongoing chronic left knee pain and subsequently developed right shoulder and arm pains. At the time of the accident, Mrs. Cante was the primary caregiver of her three children, aged 13, 11 and 8.

On February 1, 1996, Mrs. Cante was injured when she was struck on the left thigh by a slow-moving vehicle while crossing Brimorton Drive in Scarborough. She was taken by ambulance to the hospital, observed and released several hours later with a splint on her left leg. X-rays taken of her left leg were negative. She saw her family doctor the following Monday complaining of left thigh pain and left knee pain. When seen in physiotherapy a few days later she complained of pain in the left thigh, lumbar spine, left buttock, and right neck and headaches. By July 1996, she began complaining of pain in her jaw. She was noted to have a left leg discrepancy and provided with a temporary orthotic insert. She developed a marked limp of the left leg and began using a cane in her right hand. She developed problems with balance when she did not use her cane. She began to have difficulty concentrating and became forgetful. She developed difficulties sleeping. She became depressed. She never resumed her work and testified that she has not been able to carry out her housekeeping, child care and other activities since the accident.

The Insurer argued that Mrs. Cante was capable of resuming her pre-accident activities after October 16, 1996. Further, the Insurer argued that, in light of Mrs. Cante's significant pre-accident medical problem, her pain and emotional and functional difficulties were not related to the accident.

Impairment Resulting from the Accident

In order to establish entitlement to any benefits under the Schedule, an applicant must establish that he or she has suffered an impairment as a result of an accident. As Mrs. Cante had a significant pre-accident medical history, I will first determine what impairments, if any, resulted from the accident.

In 1991, Mrs. Cante's right foot slipped into a hole in the kitchen floor at work and she twisted her right knee. She was asymptomatic for some time after the incident and did not initially miss any time from work. Mrs. Cante reported complaints of headaches, leg pain, insomnia, anthralgia (diffuse joint pain), jaw pain, left knee pain and neck and upper back pain to her family doctor, Dr. Alexov, in 1992 and 1993. She began seeing Dr. Lo in 1993 and ceased working in September 1993 because of pain in her left knee. She underwent exploratory arthroscopic surgery on her left knee in November 1993 because of her ongoing complaints of pain. The surgery revealed mild chondromalacia or roughening of the kneecap. The knee cap was smoothed and Mrs. Cante was cleared to return to work by the end of January 1994, with certain restrictions. Because of a dispute with her employer about the suitability of the work being provided, Mrs. Cante did not return to work until May 1994. Upon her return to work she was offered weekend work as a bun maker. She sought disability benefits from the Workers Compensation Board for the period from January to May 1994.

From at least 1993, Mrs. Cante also complained of pain in her upper back, right scapula, right shoulder and right arm and wrist. In mid-1994 she was diagnosed with very mild bilateral carpal tunnel syndrome and bilateral thoracic outlet syndrome.

Throughout 1994 and 1995 she continued to complain of pain in her left knee and right shoulder and to receive physiotherapy treatment and injections. She was counselled repeatedly about management of her chronic pain until mid-1995.³ Her last treatment for her right shoulder tendinitis from Dr. Lo, prior to the accident was in August 1995. Her last reported complaint of pain to Dr. Lo was on November 3, 1995. She received injections in the knee from Dr. Kryspin until May 1995. She received injections from Dr. Harant until September 20, 1995. Mrs. Cante was receiving physiotherapy treatments to various parts of her body until January 24, 1996, six days before the motor vehicle accident.

In September 1995 Mrs. Cante was complaining to the Workers' Compensation Board that she had difficulty standing and walking, that she has very little use of her right arm, and that she was permanently partially disabled.⁴ She pursued this claim until it was dismissed in early 1998.⁵After the accident of February 1, 1996, Mrs. Cante's concerns about her left knee and right arm and shoulder were temporarily displaced by her complaints related to the accident. She initially complained of pain in her left thigh and left knee. A few days later, she also began complaining of lumbar spine, left buttock and right neck pain, as well as headaches. In July 1996 she began complaining of pain in her jaw. She developed a marked limp of her left leg and began using a cane in her right hand. She also developed difficulties, sleeping, concentrating, and remembering, and became depressed.

Mrs. Cante began treatment for injuries sustained in the car accident. From April 1996 to October 1997, she resumed physiotherapy treatment for the pre-accident injuries on her left knee and right shoulder.

I conclude that Mrs. Cante was suffering substantial pain in her left knee and right shoulder and arm right until the date of the accident, and that she continued to experience pain in those areas after the accident, until at least October 1997. Prior to the accident, Mrs. Cante displayed symptoms of fibrositis and myositis, both significant pain disorders. However, despite Mrs. Cante's complaints and treatments, she was able to function at work and as a caregiver. I conclude that as a result of the accident, Mrs. Cante suffered new injuries to her left thigh, lumbar spine, left buttock and right neck area. In my view, it was the cumulative effect of the new injuries superimposed on Mrs. Cante's pre-existing pain levels and limitations which contributed to her pain symptoms after the accident. In light of Mrs. Cante's established work history, I conclude that the accident contributed in a significant and material way to the further deterioration of her physical condition.

Although Mrs. Cante experienced headaches and sleep difficulties prior to the accident, she was able to work and care for her home and children. There were no significant complaints of depression, difficulties concentrating, or forgetfulness prior to the accident.⁶ Thus, I conclude that the accident was a significant or material factor in the exacerbation of Mrs. Cante's sleep difficulties and headaches, and in the development of her depression, concentration problems, and forgetfulness.

1. Caregiver Benefits Beyond October 16, 1996

In order to determine Mrs. Cante's entitlement to caregiver benefits under section 18,⁷ I must determine her caregiving and normal activities prior to the accident and decide whether she was substantially incapable of carrying out those pre-accident activities after October 16, 1996 as a result of impairments relating to the accident.

A. Pre-Accident Caregiving Activities

I find that prior to the accident, Mrs. Cante's caregiving activities consisted of preparing her children's breakfasts and lunches, walking them to school, picking them up after school, preparing their dinner and cleaning the family's two-bedroom apartment. I heard no evidence to suggest that there was anything physically onerous about the manner in which Mrs. Cante carried out these activities. The hardwood floors in the apartment did not require vacuuming. The apartment contained a small washer and dryer, which could be used for the family's laundry. There was evidence that Mr. Cante helped out minimally on weekends, and that the children had chores and would have been expected to take on more responsibilities as they grew older. Mrs. Cante's chronic pain in the left knee and right shoulder pain leads to the inference that she did not engage in heavy housekeeping duties prior to the accident. I conclude that Mrs. Cante engaged in light housekeeping activities, with some assistance from her husband and children, prior to the motor vehicle accident.

B. Pre-Accident Activities

Mrs. Cante's normal activities prior to the accident included working 20 to 30 hours as a food preparer at the Red Lobster, as well as walking to the bank, walking to work, playing with the children and attending church on Sundays.

Although I was prepared to consider the mobility activities involved in Mrs. Cante's pre-accident employment⁸ at the Red Lobster, I heard almost no evidence of her duties as a food-preparer. From the Workers' Compensation Board file, it appears that following a work-related accident, Mrs. Cante lost time from work from September 1993 until May 1994. She initially returned to light duties as a bun maker in May 1994, working Saturdays and Sundays. However, she testified that she didn't like working weekends and that prior to the accident of February 1, 1996, she was working approximately 3 hours per day, Monday to Friday. I heard no evidence whether she was still performing the work of making buns, or whether she had returned to other work.

Further, I heard no evidence of the physical requirements of her duties prior to the accident.The Applicant has fa iled to establish with a sufficient degree of certainty the mobility activities involved in her pre-accident part-time employment. Thus, I cannot take those activities into account when assessing her functional abilities after the accident.

On the evidence before me, I conclude that Mrs. Cante's normal pre-accident mobility activities included the housekeeping and caregiving duties described above as well as taking her children occasionally to the playground, walking to work and to the bank, and attending church on Sundays.

C. Functional Impairment from the Accident

Many arbitration decisions have emphasized that the role of the arbitrator is not to place a label or diagnosis on an Applicant's condition, but to determine the level of function. Therefore, I will not attempt to label or categorize Mrs. Cante's symptoms, but simply assess whether she was functionally impaired from carrying out either her caregiving or normal activities.

Mrs. Cante testified that whenever she attempted to do housework or cooking, her neck swelled, when she used her arms, her shoulder areas swelled. If she stood too long, her left thigh and hip area swelled. When she opened her mouth or chewed, she suffered pain in her mouth and jaw. She had trouble sleeping. She often forgot where she put things. Repeated tests have ruled out any organic or neurological abnormalities which could account for her symptoms.

Essentially, Mrs. Cante's functional abilities are limited by a combination of her pain, her use of the cane, and her emotional state. In cases such as these, credibility is the key, since the only evidence of functioning is the Applicant's own evidence. Unfortunately, I find that I am unable to rely on Mrs. Cante's subjective assertions of pain and limitations.

Credibility Issues

i) Minimizing Pre- Accident Medical Condition

As reviewed earlier, Mrs. Cante had significant pre-accident problems with her left knee and right arm and shoulder. After the accident, Mrs. Cante attempted to separate her injuries relating to the accident from her work-related injuries. For example, to Dr. Lo who was familiar with her work-related complaints, she ceased complaining of any right shoulder pain. When she switched to Dr. Bergman in September 1996 she resumed complaining about the pain in her right shoulder, but failed to mention her pre-existing condition, leading him to believe that this pain started with the accident.

Mrs. Cante never mentioned left knee pain to Dr. Bergman. However, she sought out a third general practitioner, Dr. Kandel, from April 19 to October 7, 1996 for physiotherapy treatment for her left knee and right shoulder pain.⁹ I note as well that Dr. Kandel testified that Mrs. Cante did not report to him, or appear to him, to have pain in any other area.

Thus, while Mrs. Cante was presenting to her family doctors and through them, to the Insurer, that her pre-motor vehicle accident injuries had resolved themselves, she was seeking physiotherapy for those injuries after the motor vehicle accident and pursuing a claim for permanent partial impairment of her left knee and right shoulder.

Mrs. Cante failed to mention her previous work-related accident and knee surgery to Dr. Ameis, during an Insurer Medical Examination, despite specific questions in that regard. Instead, she reported to him that prior to the accident her health had been excellent. She reported to various doctors that although she suffered a work-related injury, she did not lose any time from work, and that she had completely recovered from her injuries prior to the accident. In fact, she lost time from work from September 1993 to May 1994, and she received frequent physiotherapy treatment with respect to various injuries until six days before the accident.¹⁰ Mrs. Cante consistently made efforts from the time of the accident, up to and including the hearing, to minimize her pre- accident condition, so as to bolster her claim that all her current symptoms were attributable to or were exacerbated by the accident. However, the medical evidence clearly documents serious, chronic ongoing complaints of pain in her left knee and upper shoulders until the time of the accident. Mrs. Cante's inconsistencies and deliberate deceptions seriously undermine her credibility.

ii) Poor Historian

Mrs. Cante repeatedly gave inconsistent descriptions of the accident to her own treating physicians as well as to Insurer-selected and DAC practitioners. It would be impossible to mention all the inconsistences and I will refer only to the most blatant ones. At various times, to various doctors, she gave wildly-differing accounts of the accident. She asserted that she did not lose consciousness, that she did lose consciousness, that she could remember the impact of the car, that she could not remember being hit, that she could remember being helped into a car to await the ambulance, that she did not remember being helped into the car, but only recalled being in the car, and that she could not remember anything until the ambulance arrived. I find her evidence of the history of the accident completely unreliable. Therefore, I rely on the ambulance and hospital reports as the most reliable evidence of the nature of the accident and the areas of injury at the time.

iii) Consistency of Complaints

Mrs. Cante has consistently complained of pain in her left thigh, hip and leg since the day of the accident. She began reporting pain in her right cervical spine and low back a few days after the accident.¹¹ and consistently reported neck and back pain since. Her complaints of headaches have been relatively consistent.¹²

Although her emotional difficulties did not emerge immediately after the accident, she was reporting difficulties sleeping by June 1996.¹³ By then she was assessed by the psychiatrist in mid-August 1996 for a Medical Rehabilitation DAC; she self-reported as severely depressed, with suicidal tendencies, and had difficulties sleeping. Once she began seeing Dr. Bergman in September 30, 1996, the reports of sleeplessness were fairly constant. I note that a sleep study conducted on her in October 1996 noted only "a somewhat diminished amount of sleep with normal sleep stage distribution."¹⁴

On the other hand, Mrs. Cante's complaints of right arm and shoulder pain have been notably inconsistent. She did not complain of right shoulder pain to Dr. Lo, her family physician, after the accident. In April 1996, during an Insurer Medical Examination, she did not mention arm symptoms to Dr. Goldstein. Nor did she complain to Dr. Ko of shoulder complaints when seen in June, July, and early September 1996. At the same time, she sought physiotherapy from Dr. Kandel, from April 1996 to October 1997 for her right shoulder pain, but failed to mention the accident. Once she began seeing Dr. Bergman in September 1996, she consistently complained of right shoulder pain, but never told him of her pre-existing condition.

Similarly, Mrs. Cante has inconsistently reported jaw pain to various practitioners. There was no mention of jaw pain to Dr. Goldstein during the IME of April 1996. The first complaints of jaw pain appear to be to Dr. Ko in June 1996. Dr. Ko referred her to Dr. Sigesmund, a dentist. She saw Dr. Sigesmund on July 30, 1996 complaining of temporomandibular pain and clicking. Dr. Sigesmund sent her for a thermogram of her jaw on August 6, 1996, and to ADIO Diagnostic on August 7, 1996 to explore her cervical pain. But when Mrs. Cante saw the Disability DAC assessors one week later, on August 13 and 14, 1996, she made no mention of jaw pain to the occupational therapist and orthopaedic specialist. Although she was seeing Dr. Lo consistently for other pains related to the accident, she did not complain of jaw pain to him until September 1996. In contrast, on her first visit to Dr. Bergman, her new family physician on September 30, 1996, she complained of face pain while eating. In March 1997, she complained of mild symptoms of pain to Dr. Reynolds. In July 1997, she seemed principally concerned with her jaw, when seeing Dr. Schutz. She repeated her complaint of pain in the jaw to Dr. Kuch in October 1997, but Dr. Ameis saw no evidence of jaw pain when he examined her in January 1998.

While perfect consistency in syptomology is not to be expected, the manner in which Mrs. Cante's symptoms faded in and out over time cause me to doubt the severity of those symptoms.

iv. Exaggeration and Inconsistent Behaviours during Assessments

As early as April 1, 1996, the occupational therapist suggested by Mrs. Cante's own family doctor, noted inconsistent grip strength testing, although she thought this could be caused by pain or fatigue. Dr. Goldstein noted exaggerated grimacing, sighing, and screaming out during his IME in April 1996. The chiropractor conducting the medical rehabilitation assessment also noted exaggerated pain behaviours such as grimacing and grunting during his examination in late July 1996. When attending the disability DAC assessment in mid-August 1996, Mrs. Cante tested positive on non-organic tests. During the physiotherapist assessment portion of the Medical Rehabilitation DAC in late July 1996, she rated herself as crippled, bed-bound or in the exaggerating symptoms category. I conclude that Mrs. Cante made every effort during assessments to exaggerate her symptoms and limitations.

During repeated assessments, Mrs. Cante exhibited inconsistencies which suggested that she was feigning or exaggerating her pain symptoms and limitations. Several assessors noted limitations on cued testing, which were inconsistent with observations made informally.¹⁵Examples include, showing significant limitation in the range of motion in her neck, contradicting the full movement she exhibited spontaneously while talking.¹⁶ She reported pain in her shoulder, but was observed pulling her sweater on in an uninhibited manner, fully raising the right shoulder.¹⁷ She was unable to contract or extend her knee without pain when tested, but was able to sit with knees relaxed and flexed at 90 degrees during an interview.¹⁸ Despite the limp, there was no significant atrophy in her left calf or quad, which indicates that she continued to use this leg.¹⁹ Her descriptions of pain and sensation were inconsistent and produced non-anatomical results.²⁰ She demonstrated trivial finger pinch and grip strength in her right hand, but showed considerable strength in gripping in a non-testing situation.²¹ She walked with a demonstrated limp, which was reduced by the use of the cane. However, when asked to grip the assessor instead of the cane, her limp decreased, but she exerted no downward vertical pressure on the assessor's arm.²² She reported weakness in her right arm and left leg,²³ which would make it anatomically impossible for her to use the cane in her right hand with sufficient strength to bear the weight of her left leg.²⁴ I conclude that Mrs. Cante was misrepresenting her pain levels and functional abilities, such that her demonstrated abilities on assessments are unreliable indicators of her actual abilities.Thus, I cannot rely on Mrs. Cante's assertion that she was incapable of performing her pre-accident activities.

The medical evidence supporting Mrs. Cante's disability, dependent as it is on the accuracy of the symptoms and limitations reported by Mrs. Cante, is similarly unreliable.

The evidence of Mrs. Cante's husband and daughter was also not very helpful. Mr. Martinez' evidence was vague and general, lacking in the type of specific detail about Mrs. Cante's level of pain and impairment of function that would have been helpful and relevant to the issues. Mr. Martinez was involved in a work-related accident involving his neck, approximately one month after Mrs. Cante's accident. He did not return to work until October 1997. During that time, he took on more of the family responsibilities, such as helping prepare the children's breakfasts before school, helping his daughter Merlen prepare dinner and helping out with the cleaning. He testified about his wife's condition immediately after the accident, (which period is not in dispute) and about his wife's condition after October 1997 (after he had returned to work, and when he would have the least opportunity to observe her) but gave no meaningful evidence for the period in between. Further, he was not able to recall his wife's repeated complaints of chronic pain to Dr. Kryspin from January to May 1995, although the doctor's clinical notes and records indicate that Mr. Martinez was present and was specifically advised and counselled on his wife's condition. Neither was Mr. Martinez able to recall Mrs. Cante's almost weekly medical visits to various doctors and therapists until one week before the accident. Thus, I find his memory is unreliable. His attempt to support his wife's claim by minimizing the extent of her pre-motor vehicle accident condition further undermines the reliability of his evidence.

Ms. Merlen Martinez was not quite 14 years of age at the time of her mother's accident and 16 years at the time of her testimony. She testified that her mother's health prior to the accident was "perfect." I attribute this more to her tender age at that time, than to any deliberate effort at deception. From her perspective, prior to the accident, her mother was at least functioning at home and work, whereas after the accident, she was not. Ms. Martinez testified that prior to her mother's accident, she did some chores around the house, and would likely have taken on more responsibility as she grew older, regardless of her mother's accident. Since her mother's accident, Merlen Martinez became responsible for preparing breakfasts and lunches for herself and the younger children, and helping make dinners (with her father) every evening. On Saturdays she cleaned the apartment. She estimated that she worked approximately two hours a day on these chores, from the time of the accident until the present. She was told by her mother that she would be paid for her work at some point, although she could not recall any specific arrangements about payment.

I accept that Ms. Martinez was doing far more around the house than would have been expected of her but for her mother's motor vehicle accident. Her evidence is most compelling in that it corroborates Mrs. Cante's evidence that she feels subjectively incapable of performing routine household chores such as cleaning and cooking for her own family. The Applicant relied on Cook and State Farm Mutual Insurance Company,²⁵ for the proposition that a genuine perception of disability, reasonably held, is sufficient to establish entitlement. To refute this, the Insurer pointed out the approach taken by the Director Delegate in Bertsouklis and Liberty Mutual Fire Insurance Company²⁶ that a claimant's "own views about his limitations, no matter how sincerely held, are not determinative." I find that these approaches are not inconsistent. An applicant's sincerely held perception of his or her limitation must nonetheless be reasonably held. While I accept that Mrs. Cante genuinely believed that she was limited in her ability to perform her pre-accident activities, I find that this subjective perception of her own abilities was not reasonably held.

D. Ability to Perform Pre-Accident Caregiving and Normal Activities

I accept Mrs. Cante's evidence, supported by the evidence of her husband and her daughter, that in fact, she did very little at home, apart from caring for herself and attending medical appointments. However, the objective evidence suggests that Mrs. Cante was capable of performing her caregiving activities by October 1996.

The home functional abilities evaluation conducted by an occupational therapist selected by her own family physician, concluded, based on Mrs Cante's subjective reports and the therapist's objective observations, that Mrs. Cante was capable of taking care of most of her own needs and housekeeping duties, although she required some assistance with some aspects of her pre-accident activities. She assessed that, with the provision of some housekeeping assistive devices and an in-home activity and education program, Mrs. Cante should become independent within 10 weeks. Although Mrs. Cante did not receive the in-house training, she did receive the assistive

devices, and did undergo an eight-week active physiotherapy program at a clinic recommended by her own physician.²⁷ By September 20, 1996, the physiotherapist reported that Mrs. Cante's neck, low back, lower body strength and upper and lower body muscular endurance were improved. Although her progress was slow, Mrs. Cante demonstrated functional improvement.

During the medical rehabilitation DAC assessment on July 24, 1996, a registered physiotherapist conducted a functional abilities evaluation and concluded that based on those results, Mrs. Cante did not meet the requirements of her pre-accident activities of daily living or work. However, the physiotherapist noted self-limiting pain behaviours and inconsistencies which led her to conclude that Mrs. Cante could likely tolerate higher physical levels than what she reported. The occupational therapist performing the Disability DAC assessment in mid-August 1996 concluded that Mrs. Cante was able to perform most of the caregiving and household chores she engaged in prior to the accident,²⁸ and recommended the provision of several assistive devices to further increase her abilities.

Given the activities Mrs. Cante was able to do when observed by the occupational therapist in April and August 1996, and given the functional improvement by September 20, 1996 as a result of the physiotherapy program, I find that by October 16, 1996, Mrs. Cante was physically capable of performing the light housekeeping, childcare and other activities that she engaged in prior to the accident.

Mrs. Cante's symptoms worsened over time. However, I conclude that Mrs. Cante continued to be able to perform her pre-accident activities, up to the date of the hearing. Most significantly, I note that after her husband returned to work in October 1997, Mrs. Cante was obliged to take public transit to her visits with Dr. Bergman and her massage and acupuncture treatments. The trip involved bus transfers and took an hour and half one way. Further, she testified that Dr. Bergman often kept her waiting and she had to visit the nearby mall while waiting. This level of functioning convinces me that she had the physical and emotional resources to return to her pre-accident caregiving, housekeeping and other activities.

I have tried to factor in Mrs. Cante's emotional problems, which included mild sleep difficulties, depression, forgetfulness, and concentration problems. Taking into account Mrs. Cante's established tendency to exaggerate and embellish her symptoms, I can find nothing in the evidence before me which suggests that Mrs. Cante was emotionally incapable of resuming the caregiver/housekeeping/other activities from October 1996.

The Applicant argued that the disability DAC was conducted by an orthopaedic surgeon and an occupational therapist who identified that there were elements of psychological overlay and somatoform pain-type disorder to the Applicant's condition. However, there were no psychological or psychiatric assessments conducted. The Applicant's counsel argued that benefits should not have been terminated without a disability DAC with properly qualified psychological assessors.²⁹ The Applicant relies on cases in which the arbitrator found that a significant medical condition was not properly assessed because of the absence of qualified assessors, and led to an order for a special award. In this case, the Applicant has failed to establish a significant disabling emotional condition, and therefore the absence of a psychological assessment is not critical.

Bearing in mind that the onus is on the Applicant to present credible evidence of all elements of her case, I conclude that Mrs. Cante has not established that she was functionally incapable, either by reason of pain, or physical or emotional limitations, from carrying out her pre-accident caregiving or other activities.

2. Indexation

The Insurer paid weekly caregiver benefits until October 16, 1996. The Applicant asserted that the Insurer failed to apply 1996 indexation rates to the 1996 benefits. The Insurer did not dispute this. Section 79 of the Schedule provides that weekly benefits shall be revised on the first of January in every year after 1994 in accordance with the published indexation percentage. The Applicant is entitled to the 1996 indexation rates in respect of benefits received in 1996.

3. Housekeeping Expenses[^30]

Mrs. Cante claimed housekeeping expenses from February 5, 1996 to August 1998 at the rate of $75 per week, and ongoing. The Insurer paid $750 towards housekeeping assistance. For the reasons discussed above, I conclude that Mrs. Cante was functionally able to resume substantially all of her pre-accident housekeeping duties from October 16, 1996. Prior to that time, she did experience some pain-related limitations which likely interfered with her ability to complete all her housekeeping duties. Her daughter Merlen and her husband took on most of the household chores. I accept Merlen Martinez' evidence that she helped prepare breakfasts and dinners every day and did extra cleaning on the weekends. I find that although she would have been helping out around the house in any event, she was doing far more than would have been expected of her had her mother not sustained injuries in the accident. Given the amount of time spent on a daily basis, I find the rate of $75 per week is reasonable. I do not find it significant that Merlen Martinez had not negotiated a specific wage prior to taking on those duties or that she was not paid the $750 issued by the Insurer. Family members are often the only ones who are willing to take on housekeeping duties when reimbursement for such work may or may not ultimately be awarded at arbitration. Whether or not Ms. Martinez contributed her expenses to the family finances is not relevant.

Accordingly, I order the Insurer to pay housekeeping expenses of $75 per week from February 5 to October 16, 1996, less the $750 already paid. Interest is payable on the remaining amount.

4. Medical Expenses[^31]

A. Physiotherapy

Immediately after the accident, Dr. Lo referred Mrs. Cante for physiotherapy treatment at Kingston-Markham Physiotherapy. By May 1996 the physiotherapist noted that Mrs. Cante's pain in her low back, left leg, and neck was improved and that her headaches were less. The physiotherapist recommended another eight weeks treatment. The Insurer advised Kingston-Markham that it would not pay for further treatment after May 21, 1996.

In June 1996, Dr. Lo referred Mrs. Cante to Dr. Ko, a physiatrist. On July 12, 1996, Dr. Ko referred her to Back in Action Physiotherapy where she received an initial assessment and two treatments before treatment was terminated. The Insurer declined to pay for these treatments because Mrs. Cante was also enrolled in another physiotherapy program with the AIM clinic beginning July 22, 1996, upon the recommendation of her chiropractor, Dr. Charlton. On July 24 and 25, 1996 the medical/rehabilitation DAC assessors recommended a four-week active rehabilitation program. Accordingly, the Insurer advised the AIM clinic that it would fund the active physiotherapy program until September 13, 1996. At the completion of an eight-week program ending September 20, 1996, the AIM clinic recorded that Mrs. Cante's upper body strength remained the same but that her neck, low back, lower body strength and muscular endurance had improved. Mrs. Cante demonstrated functional improvement but continued to experience pain in her low back, hip and neck.

The only claim for outstanding physiotherapy expenses is from the Back in Action Physiotherapy for an initial assessment on July 12, 1996 and two treatments on July 16, and 18, 1996, for a total expense of $180. It is unclear why Mrs. Cante began an assessment and treatment with Back in Action in mid-July only to commence an active physiotherapy program with AIM on July 22, 1996. Mrs. Cante has some responsibility to keep her various medical practitioners advised of the recommendations of her other practitioners and not to duplicate services. I conclude that it was not reasonable to commence and then abandon one physiotherapy program and then commence another physiotherapy program. I conclude that the expense of $180 is not reasonable.

B. Acupuncture Treatment from Dr. Charlton

Mrs. Cante began seeing Dr. Charlton, a chiropractor, in May 1996. She received periodic chiropractic and acupuncture treatments until November 1997. She claimed $,1380.37 for Dr. Charlton's acupuncture treatments. Mrs. Cante also started receiving acupuncture treatments from her family physician, Dr. Bergman, through his clinic Accident Assessment and Treatment Centre Inc. She claimed $2,589.40 for treatments received from September 1996 to November 1997. Mrs. Cante testified that the acupuncture treatment helped relieve her ear pain and headaches as well as the pain on the inner part of her leg. In July 1996, the Medical and Rehabilitation DAC assessors advised that a further six weeks of chiropractic treatment, gradually tapering off, would assist Mrs. Cante with any pain she experienced as a result of the recommended active physiotherapy program.The chiropractic assessor was of the view that further treatment could actually create further illness behaviour in Mrs. Cante. The assessors advised that no acupuncture treatments was warranted. Accordingly, the Insurer advised Dr. Charlton that no further acupuncture treatment beyond August 16, 1996 would be accepted. The Insurer also advised Dr. Charlton to taper off chiropractic treatments as no further payments would be made after September 27, 1996.

The acupuncture treatment may have provided Mrs. Cante with some pain relief from some of her symptoms. But I did not hear any evidence from Mrs. Cante, or either of the treating physicians how long this pain relief lasted, whether it contributed to any improvement in Mrs. Cante's condition, or when, if ever, her reliance on massage would decrease or cease.³² I find that a prolonged course of acupuncture for the purpose of temporary pain relief is not reasonable.³³ I accept that an initial course of acupuncture was reasonable and necessary to relieve Mrs. Cante from the initial pain associated with the accident. Further treatment during the recommended active physiotherapy program was also reasonable and necessary as Mrs. Cante was comfortable with that form of pain relief.

Accordingly, I conclude that acupuncture treatments provided by Dr. Charlton from May 1996 until September 27, 1996 were reasonable and necessary expenses. Interest on those amounts is also payable. No special award is payable as the decision by the Insurer not to pay for further acupuncture treatment, based as it was on the Medical Rehabilitation Assessors' opinion, was not unreasonable.

C. Acupuncture Treatment from Dr. Bergman

Dr. Bergman began regular acupuncture treatments on Mrs. Cante from September 30, 1996, and I find that these treatments were not reasonable for pain relief alone, for the reasons set out above. In addition, they duplicated, to some extent, the acupuncture treatment being provided by Dr. Charlton.

D. Massage Therapy

Mrs. Cante paid for one-hour massage treatments approximately twice a week from a massage therapist, Witold Dobrzanski, from May 1996 to June 30, 1998 at a cost of $15,302.40. She continues to see Mr. Dobrzanski on a regular basis. Like the acupuncture, massage only provided Mrs. Cante with short-term pain relief. I heard no evidence of any increase in function or ability. As I noted above with respect to acupuncture treatment, a prolonged course of massage treatment which yields only short-term pain relief with no improvement in ability or function is not a reasonable expense. However, I find that an initial course of massage after the accident, and throughout the duration of the active physiotherapy program, was a reasonable expense for relief of Mrs. Cante's pain. Accordingly, I order the Insurer to pay for massage treatment from May 1996 to September 27, 1997. Interest is payable on this amount.

The Applicant sought a special award, on the basis that the Insurer's refusal to pay for any massage treatment at all was unreasonable, and the Medical Rehabilitation DAC assessment noted that the massage therapy received to the date of the assessment (August 1996) was "adequate." I do not find that the refusal to pay for massage treatment, in light of the Insurer's payment of some acupuncture treatment for pain relief, was unreasonable.

E. Orthotics

Dr. Ko noted a left leg length discrepancy in Mrs. Cante, with her left leg being shorter than her right. He provided her with a temporary orthotic and prescribed bilateral orthotics with a leg lift on the left side at a cost of $1,200. Dr. Ko did not obtain x-rays, which would have confirmed whether the apparent leg discrepancy was real. As it turns, out, x-rays obtained by Mrs. Cante's chiropractor, Dr. Charlton, in June 1996, indicate that there was no leg discrepancy, in that the bones of the legs were substantially the same size, with the right leg being 1 cm shorter than the left. This difference is not considered significant. Some doctors have observed and measured that the left leg appeared shorter than the right leg, but others have observed and measured no difference. One theory advanced by Dr. Ko is that a sustained muscle spasm in the quadratus lumborum muscle can cause the pelvis to hike higher. Whatever the cause, Dr. Ko felt that he should address the matter with a left leg insert.

The difficulty with Dr. Ko's view is that the apparently sustained muscle spasm in the quadratus lumborum muscle was not noted by any other medical practioner who saw Mrs. Cante around the same time as Dr. Ko prescribed the orthotic. Dr. Lo, Mrs. Cante's family physician until September 1996, makes no mention of it. Dr. Goldstein did not note any leg discrepancy during an Insurer Medical Examination in April 1996. Dr. Bushuk, an orthopaedic surgeon conducting the disability DAC assessment in mid-August 1996 did not note it. In fact, Dr. Bushuk believed that the temporary lift in her left shoe appeared to elevate her left hemipelvis higher than her right side.

I conclude, based on the x-ray of June 1996, that there was no significant left leg discrepancy which warranted an orthotic. In addition, I conclude that whether or not Mrs. Cante had a muscle spasm in her quadratus lumborum muscle at the time she saw Dr. Ko, this was not a sustained muscle spasm and therefore did not justify the use of an orthotic. I conclude that the provision of an orthotic was not a reasonable expense. As no expense is payable, the issue of a special award does not arise.

F. Radiographic Diagnostic Test

Mrs. Cante was referred to Dr. Sigesmund by Dr. Ko in July 1996 because of her complaints of jaw pain. Dr. Sigesmund diagnosed temporomandibular joint dysfunction, internal derangement of the temporomandibular joints, crepitus in the tm joints, facial myalgia and cervical myalgia.. He provided her with dental appliances and adjunctive therapy. In August 1996, Dr. Sigesmund sent Mrs. Cante to ADIO Diagnostics for a digital radiograph analysis assessment of her cervical spine. Mrs. Cante is claiming $443 for the cost of this assessment.

ADIO Diagnostic Services characterized the test as a form of chiropractic service, designed to assess and diagnose the condition of the cervical spine. Dr. Ameis testified that this assessment procedure is experimental in nature and results in false positive and false negative responses. This view appears to be confirmed by the interpretive documents accompanying the assessment, which rrevealed that Mrs. Cante had loss-of-motion segment integrity (LMSI) at C6. The interpretive documents indicate that LMSI has "demonstrated a very high predictive value for concurrent traumatic brain injury demonstrated by abnormal neuroimaging. This correlation is currently under investigation and a research paper will follow."

By virtue of section 36(2) of the Schedule, the Insurer is not liable to pay any expense for services that are experimental in nature. I conclude, based on the limited evidence before me that the assessment was experimental in nature and the Insurer was not required to pay for it.

G. Thermogram

Dr. Sigesmund also referred Mrs. Cante for a thermograph of her temporomandibular joint ("TMJ") and posterior cervical spine. These tests reveals "thermal asymmetries" that correlated with the patient's complaint of pain in her temporomandibular joints and neck. The Insurer argued that Mrs. Cante's temporomandibular joint complaints were not caused by the accident and therefore, it is not responsible for payment of this service.

I note that the Insurer has previously paid for all claims relating to Mrs. Cante's TMJ condition. However, the parties advised at the start of the hearing that the Insurer is seeking repayment of certain expenses and this matter is currently in the mediation system. I will not deal at this point with the relatioinship between Mrs. Cante's temporomandibular joint condition and the accident. That matter is more appropriately dealt with through the Insurer's repayment proceedings.³⁴For the purpose of this minor expense, I note that the Applicant has submitted no evidence from Dr. Sigesmund explaining the reason for the referral, why the thermograph was required, and how it aided in treating her condition. Accordingly, I find that the Applicant has not established that the thermograph was a reasonable expense.

H. Psychological Assessment by Dr. Gottfried

In July 1996, Dr. Ko referred Mrs. Cante for psychological counselling with Dr. Gottfried who conducted a psychological assessment on July 18, 1996 at a cost of $595. He recommended short-term therapy to assist her in dealing with her stress, depression, nightmares, flashbacks of the accident, sleep disturbances and pain. The suggested counselling did not occur, because the Insurer declined to pay for the treatment.

On July 25, 1996 during the medical and rehabilitation DAC Assessment, Mrs. Cante was seen by Dr. Notkin for a psychiatric assessment. Based on Mrs. Cante's subjective reports of a depressed mood, Dr. Notkin diagnosed that Mrs. Cante had suffered a major depressive episode and recommended that she see a psychiatrist for 12 sessions over 6 months and that she increase her anti-depression medication to therapeutic doses. It did not appear from the evidence before me that this recommendation was followed, nor as indicated above, did the Insurer agree to fund Dr. Gottfried's suggested therapy.

In October 1996, Dr. Bergman, Mrs. Cante's' family physician, referred her to Dr. Coulson, a clinical psychologist. Dr. Coulson assessed Mrs. Cante as severely depressed and conducted 11 hours of therapy throughout February and March 1997. Unfortunately, Dr. Coulson found at the end of these sessions that Mrs. Cante was not transferring the skills taught in these sessions to real life because of the influence of secondary gains from her behaviour. In Dr. Coulson's opinion, "Mrs. Cante is obtaining attention and support from all members of her family - her complaints and behaviour have become an important element in a long standing ambivalence in her relationship with her husband."³⁵ The Insurer refused to pay the cost of this treatment, invoiced at $3,776.65.

Although I concluded earlier that Mrs. Cante's emotional and psychological condition was not so severe as to prevent her from carrying out her pre-accident caregiver and normal activities, I accept that Mrs. Cante suffered some emotional consequences arising from the accident. These included difficulties in sleeping and concentrating, as well as depression, nightmares, memory impairments and fears related to further accidents. While Mrs. Cante did experience headaches and sleeplessness and other psychological symptoms of chronic pain syndromes prior to the accident on February 1, 1996, she was able to function at work and in the home. Thus, I find that her pre-existing problems were materially exacerbated by the accident. Accordingly, I find that it was reasonable and necessary for Mrs. Cante to obtain psychological treatment. Therefore, I find that Dr. Ko's referral to Dr. Gottfried in July 1996 was reasonable and necessary and I order the Insurer to pay the $595 cost of the assessment, plus interest. Unfortunately, Mrs. Cante did not obtain the required treatment from Dr. Gottfried, because the Insurer declined to pay for it. She finally obtained some counselling from Dr. Coulsen after October 1996. Although the counselling was ultimately unsuccessful in assisting Mrs. Cante to resume her normal functioning, I find that the therapy was reasonable and necessary. I order the Insurer to pay Dr. Coulson's account of $3,776.65, plus interest.

J. Travel Expenses

In light of my above rulings, I conclude that reasonable travel expenses related to visits to the massage therapist from May to September 27, 1996, to Dr. Charlton on September 27, 1996, and to Dr. Gottfried and Dr. Coulsen should be paid.³⁶

5. Special Award

The Applicant sought a special award for the Insurer's refusal to reimburse the psychological expenses, on the basis that they are "pay pending dispute" expenses, and that neither of them were the subject of a Medical Rehabilitation DAC Assessment. The Insurer objected on the basis that it had no notice that a special award was being sought and therefore had no opportunity to call evidence, including a representative from the Insurer.

It is always open to the arbitrator to assess a special award if he or she finds that any payments were unreasonably withheld or delayed. However, an Insurer is entitled to sufficient notice of and a reasonable opportunity to respond to allegations of misconduct giving rise to a special award. In this case, there was no indication in the application, the pre-hearing letter, or in the parties'opening statement that the Applicant was pursuing a special award for breach of the "pay-pending" dispute provisions.

In addition, there is no evidence before me respecting when the expenses were submitted, whether medical documentation to support the expense was requested or provided, or the reasons for the refusal to pay the expenses. I find that the circumstances do not justify a special award.

Expenses:

Although Mrs. Cante was only partially successful in her claims, I accept that she subjectively perceived herself as emotionally and physically limited. There were serious issues concerning the extent and effect of her pre-accident medical condition and functional abilities, which necessitated a full hearing. I exercise my discretion to award her the expenses of the arbitration hearing.

Order:

The Insurer is ordered to pay:

1. housekeeping expenses from February 6 to October 16, 1996 at the rate of $75 per week, less the $750 already paid.

2. acupuncture treatments received from Dr. Charlton from May to September 1996.

3. massage therapy treatments received from W. Dobrzanski from May to September 27, 1996.

4. the cost of Dr. Gottfried's psychological assessment on July 18, 1996 in the amount of $595.65.

5. the cost of Dr. Coulson's assessment and therapy treatments in the amount of $3,776.65.

6. travel expenses related to the above expenses.

7. interest on the above amounts.

8. Mrs. Cante's expenses incurred in respect of the arbitration.

October 26, 1998

M. Kaye Joachim

Arbitrator

Date

Appendix

Hearing:

The hearing was held at the offices of the Financial Services Commission of Ontario in North York, Ontario, on August 10, 11, 12, and 13, 1998, before me, M. Kaye Joachim, Arbitrator.

Present at the Hearing:

Applicant:

Florinda Cante

Mrs. Cante's

Ian Little

Representative:

Barrister and Solicitor

State Farm's

Jeremy R. Solomon

Representative:

Barrister and Solicitor

State Farm's

Phyllis Bergman

Officer:

Interpreter:

Sylvia Reich, Omnicom

All Languages

Witnesses:

Mrs. Flordina Cante, Applicant

Dr. Tak Lo

Dr. Gordon Ko

Dr. Samuel Bergman

Mr. Ramiro Martinez, Applicant's husband

Ms. Merlen Martinez, Applicant's daughter

Dr. Hart Schutz

Dr. Arthur Ameis

D. Stephen Kandel

Dr. Bruce Reuben

Exhibits:

The parties filed 17 exhibits.

(a) a substantial inability to engage in the caregiving activities in which he or she engaged at the time of the accident; or (b) a partial or complete inability to carry on a normal life.

Footnotes

1. 1The Statutory Accident Benefits Schedule —Accidents after December 31, 1993 and before November 1, 1996, Ontario Regulation 776/93, as amended by Ontario Regulations 635/94, 781/94 and 463/96.
2. 2Effective July 1, 1998, the Ontario Insurance Commission was changed to the Financial Services Commission of Ontario, pursuant to the Financial Services Commission of Ontario Act, S.O. 1997, c.28.
3. 3Dr. Kryspin's clinical notes and records.
4. 4I recognize that a claim for permanent partial disability under the Workers' compensation system is not a claim for total disability, but rather that some part of the worker's impairment permanently impairs him/her from doing some aspects of the work he/she performed before. Mrs. Cante was not asserting to the WCB that she was functionally incapable of working but that she was partially, permanently impaired in her right arm and left knee.
5. 5I note that the WCB refused to consider Mrs. Cante's claim for a right arm/shoulder injury under the same claim file as her left knee injury, and suggested that she would have to file a new claim with respect to those injuries. There was no evidence before me whether she filed a new claim. Thus, the rejection of her claim for a permanent impairment appeared to relate only to her left knee.
6. 6Although Mrs. Cante frequently complained of headaches and difficulties sleeping to Dr. Alexov, she ceased seeing him in 1993. She complained of headaches and sleep disturbances to Dr. Kryspin, but also ceased seeing him in June 1995. Dr. Lo's notes do not indicate any significant bouts of depression, concentration difficulties or forgetfulness. The last mention of sleep difficulties prior to the accident is a notation relating to insomnia in August 1995. The last reference in Dr. Lo's notes to tension headaches, prior to the accident, was in July 1995.
7. 7Section 18(2) subject to subsection (3) and (4), the weekly caregiver benefit under this section is payable during the period that the insured person suffers,
8. 8See Jubenville and Allstate Insurance Company of Canada, (FSCO A97-000107, August 14, 1998).
9. 9Exhibit 11, Clinical Notes and Records of Dr. Kandel. Testimony of Dr. Kandel.
10. 10The OHIP summary and the clinical notes and records of Dr. Kandel and Dr. Kryspin show that she was receiving injections for her right arm and shoulder until mid-1995 and physiotherapy until six days before the motor vehicle accident.
11. 11Exhibit , Tab 7, Records of Kingston-Markham Physiotherapy, February 7, 1996; Dr. Lo first records complaints of neck pain on February 20, 1996. See Exhibit 2, Clinical Notes and Records of Dr. Lo.
12. 12Exhibit 1, Tab 7, Kingston-Markham Physiotherapy Records, February 7, 1996
13. 13In April 1996, Mrs. Cante reported to Dr. Goldstein that she slept well most nights. She first reported difficulty sleeping to Dr. Lo and Dr. Ko in June 1996.
14. 14Exhibit 6A, Tab 2, Report of Dr. Bergman dated June 22, 1998.
15. 15Dr. Goldstein, IME, April 1996, Exihibit 1, Tab.3; Dr. A. Ameis, January 1998, Exhibit 1, Tab 11.
16. 16Dr. Goldstein, IME, April 1996, Exhibit 1, Tab.3; Dr. A. Ameis, January 1998, Exhibit 1, Tab 11.
17. 17Dr. Goldstein, IME, April 1996, Exhibit 1, Tab 3.
18. 18Dr. Goldstein, IME, April 1996, Exhibit 1, Tab 3.
19. 19Dr. Goldstein, IME, April 1996, Exhibit 1, Tab 3, Medical Rehabilitation DAC Chiropractic Assessment Exhibit 1, Tab 4; Dr. H. Schutz, July 1997, Exhibit 1, Tab 10; Dr. A. Ameis' testimony.
20. 20Dr. Goldstein, IME, April 1996, Exhibit 1, Tab 3; Dr. H. Schutz, July 1997, Exhibit 1, Tab 10; Dr. A. Ameis' testimony.
21. 21Dr. A. Ameis, January 1998, Exhibit 1, Tab 11.
22. 22Dr. A. Ameis, January 1998, Exhibit 1, Tab 11.
23. 23Dr. Schutz, July 1997, Exhibit 1, Tab 10; Dr. A. Ameis' testimony.
24. 24Testimony of Dr. A. Ameis.
25. 25(OIC A96-001284, March 20, 1998).
26. 26(OIC P-006499, May 28, 1996) at para 24.
27. 27Exhibit 6A, Tab 3, Records of AIM Clinic, July 22 to September 20, 1996.
28. 28This occupational therapist observed that Mrs. Cante was able to: carry a 5 lb-pot from the stove to the sink,while leaning on the counter; manipulate objects with both hands for 10 minutes; wash dishes while leaning on the counter; clean upper shelves of the fridge; reach items at waist-level or above; place/remove laundry in the washer and dryer; iron while sitting for 5 minutes; make beds; sweep for 4 minutes; dust; mop for 3 minutes; and sit and clean the bathtub for 3 minutes using a long-handled tub scrub. Mrs. Cante reported that she did the grocery shopping with the family. She was observed carrying 5 lbs for 40 feet; sitting for one hour and 10 minutes continuously, albeit with weight shifting and grimacing; standing for 37 minutes; and walking for 4 minutes.
29. 29Dawson and Kingsway General Insurance Company,(OIC A96-000413, October 31, 1996), followed in Levey and Traders Genera Insurance Company, (OIC A96-001590, June 30, 1998). In Dawson, the DAC assessor specifically noted that he/she did not have expertise in temporomandibular joint function, which was one of the main causes of the applicant's disfunction. In Levey, the arbitrator found that the insurer's subsequent neurological assessment supported the inference that the failure to include a neurological assessor in the DAC assessment was unreasonable.
30. 32The Applicant relied on the cases of Murray and Wawanesa Mutual Insurance Company, (OIC A003224, August 23, 1996), followed in Monette and Commercial Union Assurance Company, (OIC A97-000318, June 29, 1998) for the proposition that treatment which provides temporary pain relief, without abusing medication, is a reasonable treatment goal. I find those cases distinguishable. In Murray, the arbitrator accepted the lay and medical evidence that the regular massage treatment were useful, not only in reducing pain on a temporary basis, but in reducing muscle spasm and increasing mobility. As well, the applicant had gradually reduced his dependence on massage therapy to once a month. In Monette, the arbitrator accepted medical evidence that active exercise should not be attempted, and therefore, chiropractic treatment was the only form of pain relief available.
31. 33See Sarson v Pilot Insurance Company, (OIC A-007373, December 13, 1996) at para 55 which suggests that in the absence of measurable or permanent improvement in function, prolonged rehabilitation programs are of minimal value.
32. 34Although the Insurer asserted in written submissions that it should be repaid for expenses it had paid to Dr. Sigesmund for TMJ treatment, I note that the issue of repayment has not been mediated and is not properly before me.
33. 35Exhibit 6B, Tab 10, Report of Dr. Coulson.
34. 36Section 36(3) of the Schedule.
35. 30Section 55. If an insured person sustains an impairment as a result of an accident, the insurer shall pay for additional expenses reasonably incurred by or on behalf of the insured person as a result of the accident for housekeeping and home maintenance services.
36. 31Section 36(1) If an insured person sustains an impairment as a result of an accident, the insurer shall pay for all reasonable expenses incurred by or on behalf of the insured person as a result of the accident for....