Neutral Citation: 1999 ONFSCDRS 148

FSCO A98-000137

BETWEEN:

HUA SHENG

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

Before:

Donald Hale

Heard:

March 22, 23, 24 and 25, 1999 and June 15, 16 and 17, 1999 at the Offices of the Financial Services Commission of Ontario in Toronto.

Written submissions received June 30, July 7 and July 13, 1999.

Appearances:

Paul R. Jewell for Ms. Sheng

Donald G. Cormack for Wawanesa Mutual Insurance Company

Issues:

The Applicant, Hua Sheng, was injured in a motor vehicle accident on December 6, 1993. She applied for and received statutory accident benefits from Wawanesa Mutual Insurance Company ("Wawanesa"), payable under the Schedule.¹ Effective July 19, 1996, Wawanesa terminated payment for acupuncture and Chinese herbal treatment expenses. The Insurer also declined to pay housekeeping, transportation and other medical-rehabilitation claims put forward by the Applicant after March 3, 1997. The parties were unable to resolve their disputes through mediation, and Ms. Sheng applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

Is Ms. Sheng entitled to payment for a treadmill, claimed pursuant to section 6(1)(f) of the Schedule?
Is Ms. Sheng entitled to payment for housekeeping expenses from March 3, 1997 and ongoing, claimed pursuant to section 6(1)(f) of the Schedule?
Is Ms. Sheng entitled to payment for transportation expenses from March 3, 1997 and ongoing, claimed pursuant to section 6(1)(d) of the Schedule?
Is Ms. Sheng entitled to payment for acupuncture treatment expenses from July 19, 1996 and ongoing, claimed pursuant to section 6(1)(f) of the Schedule?
Is Ms. Sheng entitled to her expenses incurred in this arbitration proceeding?
Is Ms. Sheng entitled to interest on any amounts owing?

Result:

Ms. Sheng is entitled to payment of her expenses for acupuncture from July 19, 1996 and ongoing, and for transportation and housekeeping from March 3, 1997 and ongoing.
Ms. Sheng is not entitled to payment for the cost of a treadmill.
Ms. Sheng is entitled to interest on the amounts owing for acupuncture treatments from July 19, 1996 to the present and to interest on the amounts owing for transportation and housekeeping expenses from March 3, 1997 to the present.

Background:

At the time of the accident Ms. Sheng was 34 years old, married, with two children aged nine and two. Ms. Sheng had arrived in Canada in 1990 from China. Her younger daughter was living with Ms. Sheng's in-laws in China. Ms. Sheng was a self-employed Shiatsu massage therapist, operating a clinic with two partners. The evidence of the Applicant and her witnesses indicated that Ms. Sheng was a healthy, hard-working, conscientious young woman who hoped to have a full and happy life in her new home.

Ms. Sheng testified about the nature and scope of her ability to perform her household responsibilities both prior to and after the accident. She indicated that prior to the accident she had an active life, generally working from 11:30 a.m. to 10:00 p.m. each day at the massage clinic. In the morning, Ms. Sheng prepared meals in advance for her husband and daughter, got her daughter ready for school and cleaned their home. Her daughter was cared for after school by a paid babysitter until Ms. Sheng's husband returned home from work each evening. In addition, Ms. Sheng attended English language classes and performed the daily shopping in Chinatown prior to arriving for work at the massage clinic. Her husband did the major shopping for the family once a week. She testified that she had no difficulties or physical restrictions in performing all of her household tasks, including meal preparation, laundry, house cleaning and caring for her daughter.

On December 6, 1993, at approximately 10:00 p.m., Ms. Sheng was struck by a pick-up truck while crossing Jarvis Street in downtown Toronto. Following the accident, she was taken by ambulance to St. Michael's Hospital where her injuries were diagnosed. On December 8, 1993, an operation was performed by orthopaedic surgeons at St. Michael's. The Operative Note prepared by the surgeon who performed the operation indicated that Ms. Sheng sustained a serious fracture of the left pelvis. X-rays revealed that the fracture was located in both the front left periacetabular ilium, and that portion of the pelvis referred to as the inferior pubic ramus. The operation successfully repaired the rear fracture but it was necessary to cut and re-attach a great deal of muscle tissue around the hip and pelvis in order to perform the reduction required. The front fracture was not accessible and was not, accordingly, surgically repaired.

In addition to her hip and pelvis injuries, Ms. Sheng also sustained a closed head injury and damage to her neck and back as a result of the accident. Following the accident, Ms. Sheng lost consciousness for several hours and remained in a "semi-conscious" state for a week. She spent three weeks in St. Michael's Hospital recovering from her injuries and a further three weeks in Riverdale Hospital undergoing rehabilitation therapy. At the time of her discharge, she was using a wheelchair and ambulating with the aid of a walker. At the date of the hearing, Ms. Sheng continues to require the use of a cane to assist in walking.

A post-operative CT scan found that while some superficial soft tissue swelling of the left anterolateral aspect of her head was present, she had no brain injury. Ms. Sheng received rehabilitation treatment to assist in her recovery, as well as acupuncture and Chinese herbal treatments as prescribed by her physician, Dr. Fred Hui. The Insurer provided payment for these treatments until July 19, 1996.

Because Ms. Sheng was unable to perform her normal household duties following the accident, outside assistance was obtained to perform housekeeping services for her family, at the Insurer's expense. In 1995, the Applicant's mother-in-law, Xue Ni Zhao, and her younger daughter, Daisy, arrived from China. Mrs. Zhao then assumed the housekeeping responsibilities. The Insurer made further payments for housekeeping expenses, as well as the transportation expenses incurred by Ms. Sheng in attending for treatment at her doctor's office, until March 3, 1997.

EVIDENCE AND ANALYSIS:

Ms. Sheng's Post-Accident Activities:

Ms. Sheng testified that following the accident, and up to the present, she is unable to perform more than the lightest of housekeeping duties. She described how anything more than light dusting, washing a few dishes or helping to prepare vegetables for meals is beyond her capabilities. The work which she formerly performed is now undertaken by Mrs. Zhao. Ms. Sheng indicated that she can attend to her own personal hygiene, can make her own bed, occasionally sweeps the floor and accompanies her mother-in-law for a half-hour walk to purchase groceries if the weather is fine. She states that she is able to carry only the lightest packages and must rest when she returns from her walk. Ms. Sheng gave birth to her third child on June 16, 1999, but testified that her inability to perform her household tasks is not related to her pregnancy. Rather, it is directly related to the pain caused by the injuries which she suffered in the accident.

Duties Performed by Mrs. Zhao:

Ms. Sheng, Mrs. Zhao, her daughter Min Zhu, her husband Yi De Zhu, and her friend Annie Cuneo, gave evidence of the activities undertaken by the Applicant's mother-in-law in maintaining the household. Each of these witnesses independently described how, upon her arrival in Canada in January 1995 with the Applicant's younger daughter, Mrs. Zhao assumed responsibility for all aspects of managing the household. Mrs. Zhao's responsibilities increased significantly in March 1997 when the family moved into a 2000-square-foot home in Markham, leaving a 900-square-foot apartment in downtown Toronto. Ms. Sheng indicated that if she were able, she would perform the household work now being undertaken by Mrs. Zhao.

Mrs. Zhao begins her day at 7:00 a.m. assisting the children to get ready for school and making their breakfast. She spends the morning making the beds, cleaning the house, including washing the floors three times per week, washing the windows once a week, vacuuming the floors and cleaning the bathroom each day. Mrs. Zhao also does the laundry and prepares lunch for the Applicant, herself and the younger daughter each day. In the afternoon, Mrs. Zhao walks 30 minutes to the local market and purchases whatever is required for the family's meals. She then prepares dinner, which typically require a great deal of time-consuming preparation of vegetables and meat dishes, and a snack for the children when they return from school. Dinner is then served to the family and Mrs. Zhao washes the dishes and cleans the kitchen. The Applicant assists minimally in these activities whenever she is able, but is often discouraged from doing so by Mrs. Zhao.

The witnesses also described Mrs. Zhao's evening chores, which include assisting the children with their baths and encouraging them to attend to their homework. By 8:30 p.m., Mrs. Zhao's normal weekday routine is complete. On Sundays, she rests but is still required to make all the meals and wash the dishes. Outside work, including grass cutting and snow shovelling, is performed by the older daughter and Mrs. Zhao.

The Applicant's husband, Yi De Zhu, now operates a restaurant and is occupied there from 11:00 a.m. to 2:00 a.m. each day. He is, accordingly, unable to significantly assist in the management of the household. Mr. Zhu does, however, drive the Applicant to and from their home in Markham to her medical appointments with her family physician/acupuncturist in downtown Toronto once or twice per week.

Evidence of Ms. Sheng's Restrictions:

Dr. Hui, Ms. Sheng's family physician, testified at the arbitration hearing. Dr. Hui maintains a unique approach to health care, as he incorporates his training as a medical doctor with Eastern methodologies such as acupuncture and Chinese herbal treatments, as well as manipulative techniques such as massage and those performed by chiropractors. He has been treating the Applicant since shortly after the accident with a combination of Western and Eastern remedies, including the injection of anaesthetics and anti-inflammatory medications, acupuncture, herbal medicines, massage and chiropractic manipulations of the spine and neck.

Dr. Hui was emphatic that the treatments he performs benefit Ms. Sheng and that she obtains pain relief which is otherwise unavailable to her. Ms. Sheng confirms that Dr. Hui's treatments, particularly acupuncture, assist her in pain relief and aid in her ability to move without pain. Ms. Sheng continues to be treated by Dr. Hui despite the Insurer's refusal to pay for acupuncture, massage and herbal treatments after July 19, 1996.

I found Dr. Hui's evidence most helpful in understanding both the nature of Ms. Sheng's injuries and the rationale for the treatment which he has provided since she became his patient. Dr. Hui described in a clear and forthright manner the injury, the results and consequences of the acetabular reduction operation performed on December 8, 1993 and the progress made by the Applicant in recovering from her injuries.

Dr. Hui also provided his opinion as to the ability of the Applicant to attend for her appointments at his office by way of public transit. He indicated that it is unreasonable for Ms. Sheng to be expected to travel from her home in Markham to his office in downtown Toronto for over an hour by way of bus and subway, in light of the discomfort she experiences in her hip, shoulder, neck and back. In his view, the jarring and bumping experienced while riding public transit and her difficulty in negotiating the stairs in subway stations aggravate Ms. Sheng's symptoms. It is therefore reasonable that she be compensated for taking taxis to her appointments, rather than relying on her husband to transport her.

Dr. Hui also opined that because of the severity of her headaches, neck and back pain, and the lack of movement in her hip, Ms. Sheng is unable to perform any but the lightest of housekeeping. He stated that Ms. Sheng suffers from serious limitations on her ability to kneel, crouch, bend, reach and carry objects and that these limitations make it impossible for her to properly manage the upkeep of her home, beyond the limited tasks which she is currently able to do.

In a letter dated July 27, 1998 addressed to the Insurer, Dr. Hui recommended that Ms. Sheng be provided with a treadmill, among other things, for "symptom relief and conditioning." In giving his evidence, however, he did not comment further on the necessity of a treadmill for Ms. Sheng’s rehabilitation and treatment.

In summary, Dr. Hui recommends that Ms. Sheng continue to receive acupuncture and other treatment for pain relief, which he described as the reduction of the extremes of her pain peaks. In light of the duration of the patient-doctor relationship between Ms. Sheng and Dr. Hui and his good understanding of her injuries and treatment requirements, I give a great deal of weight to the evidence of Dr. Hui, particularly with respect to Ms. Sheng's present capabilities.

In a report dated October 9, 1998, orthopaedic surgeon Dr. D. J. Oglivie-Harris describes in some detail the nature and extent of the injuries suffered by Ms. Sheng. He indicates that the Applicant gets headaches three days a week and that she complains of pain in her neck which goes down into her upper spinal area and into her shoulder blades. Ms. Sheng advised Dr. Oglivie-Harris that these pains occurred every day and are more severe depending on the weather and her level of activity. In addition, Ms. Sheng complained to Dr. Oglivie-Harris about pain in the lower back area, going down into her sacroiliac joints and pelvis. This pain prevents her from standing or walking for more than one-half hour and limits her ability to bend or lift. Ms. Sheng also complained to Dr. Oglivie-Harris of pain in her hip and pelvis.

Dr. Oglivie-Harris performed some examinations to determine Ms. Sheng's range of movement, particularly with respect to her hip. He also observed that she has a "markedly positive Trenelenberg" on her left side, meaning that her gait is stooped as a result of the injury to the left hip. Dr. Oglivie-Harris concludes that the Applicant has developed "a significant limitation and loss of function in the left hip." He goes on to note that Ms. Sheng "has objective evidence of residual pathology in the left acetabulum" and "a restricted range of movement," along with "weakness and muscle wasting."

Dr. Oglivie-Harris also comments on her ability to perform her usual activities. He finds that "hip pain will limit many of her activities" and that "her endurance in standing or walking would be limited." In addition, Dr. Oglivie-Harris finds that Ms. Sheng has "ongoing pain in the cervical and lumbar spine" and "objective evidence of decreased range of movement" in the lumbar spine, "consistent with significant soft tissue injuries to the cervical and lumbar area." As a result, Dr. Oglivie-Harris indicates that these injuries would "impose functional restrictions," making it difficult for her to stand for long periods of time, sit, bend, lift, carry things or reach overhead. He goes on to add that "she has difficulty performing the activities of daily living" and her "usual household tasks," such as "making beds, cleaning bathtubs and toilets, cooking and doing the laundry."

Finally, Dr. Oglivie-Harris opines that the Applicant is subject to a further adverse factor, which he describes as "the psychological and emotional disturbance resulting from these injuries."

Dr. Oglivie-Harris summarizes his findings with respect to the Applicant's ability to perform her household duties as follows:

. . . I feel she has a substantial inability to carry out the essential tasks of maintaining her household. I think she will continue to require help with heavier household tasks. She is only able to do the lightest of activities. She would need help particularly with heavy cleaning, vacuuming, moving furniture, laundry, cleaning bathtubs and toilets. She will only be able to do very light activities such as washing dishes, light dusting and some cooking.

An Occupational Therapy Home Assessment Report dated January 6, 1999 was prepared by Sylvia Cheng, an occupational therapist. This report was tendered as evidence by Irene Vrckovnik, the Managing Director of Toronto Occupational Therapy Associates (TOTA), Ms. Cheng's employer. Ms. Cheng conducted her assessment of Ms. Sheng on January 4, 1999. Ms. Cheng states in her report that:

In terms of household activities, the client reported that she is able to assume some of the lighter household duties (e.g. cleaning sinks and toilets, bed making and occasional light grocery shopping). For heavier household duties and for those chores that the client is not able to manage due to reported physical limitations as a result of pain and decreased mobility, it is this therapist's opinion that the client should continue to receive homemaking assistance in order to complete these household tasks.

In a letter dated January 19, 1999 from Irene Vrckovnik to Aaron Freeman, a rehabilitation consultant, and in an earlier Functional Abilities Assessment Report prepared by Ms. Vrckovnik dated January 11, 1999, Ms. Vrckovnik found that Ms. Sheng was "limited for duration in overhead reaching, bending kneeling and standing due to low back pain and left hip pain." She further found that Ms. Sheng's "movement was slow and the duration of movement was limited by pain." In a further letter from Ms. Vrckovnik to Mr. Freeman dated January 21, 1999, she expressed the view that Ms. Sheng requires homemaking and grocery shopping assistance on a weekly basis. In addition, Ms. Vrckovnik suggests that assistance with the preparation of meals three days per week is reasonable.

Mr. Freeman performed a Vocational and Avocational Assessment of Ms. Sheng and also testified at the arbitration hearing. While his report, dated March 6, 1999, was designed to comment on Ms. Sheng's vocational abilities, it also contains information with respect to Ms. Sheng’s limitations in carrying out her household duties. Mr. Freeman explained that Ms. Sheng’s complaints of constant pain and fatigue are consistent with those described by others suffering from similar injuries. He noted that in the course of his assessment over a three hour period on October 31, 1998, the Applicant had to lie down during the interview after one hour of questions.

Mr. Freeman agreed with the conclusions reached by Ms. Vrckovnik with respect to the provision of homemaking services to the Applicant, though he was of the view that the dollar amounts quoted by Ms. Vrcknovnik were on the low side. He disagreed, however, with her suggestions for assistance with food preparation, indicating that five days a week, rather than three days a week, was more appropriate.

Entitlement to Medical/Rehabilitation Benefits:

Section 6 of the Schedule governs the entitlement of an Applicant to payment for medical, rehabilitation and care benefits. This section provides, in part, that:

(1) The Insurer will pay with respect to each injured person who sustains physical, psychological or mental injury as a result of an accident all reasonable expenses resulting from the accident within the benefit period set out in subsection (3) for,

(d) transportation for the person to and from treatment, counselling and training sessions, including transportation for an assistant;

(f) other goods and services, whether medical or non-medical in nature, which the injured person requires because of the accident.

(4) Subject to subsections (5) and (6), the insurer, before making a payment for an expense under subsection (1), may require the injured person to submit a statement signed by the injured person's qualified medical practitioner or psychological advisor stating that the expense is necessary for the injured person's treatment or rehabilitation.

The leading case, which analysed the requirements of section 6 and has been referred to in a number of decisions of the Commission since, is Plows and Jevco Insurance Company (OIC A-000175 and A-000588, January 16, 1992) confirmed on appeal (OIC P-000175 and P-000588, May 22, 1992). In this decision, Arbitrator Rotter set forth a three-part test which must be met by an Applicant who is making a claim under section 6(1)(f) of the Schedule. In order to qualify under the section, the Applicant must establish that:

It must be a reasonable expense arising from the accident;
It must be required because of the accident; and
A medical practitioner must provide a signed statement that the expense is necessary for the Insured's rehabilitation or treatment, if the Insurer so requires.

I adopt this test for the purposes of the present case.

In Chamale and Wellington Insurance Company (OIC A-000849, September 25, 1992), confirmed on appeal (OIC P-000849, July 9, 1996), Arbitrator Naylor made the following comments with respect to the third part of the test articulated in Plows:

The expenditure must be required for the applicant's treatment or rehabilitation. However, this requirement should be given a broad and expansive definition, in accordance with the remedial nature of the legislation. It is important to note that section 6(1)(f) is not limited to medical goods and services - it expressly covers expenditures "whether medical or non-medical in nature." [emphasis in original]

She went on to find that:

The question of the necessity of the goods and services for treatment or rehabilitation must therefore fall broadly within the realm of medical expertise.

With respect to the third part of the test, I am satisfied that Dr. Hui, a qualified medical practitioner, has provided the Insurer with the required signed statement indicating that a treadmill, the provision of housekeeping services, transportation services and treatment using acupuncture and herbal medicines are necessary for the Applicant's rehabilitation or treatment.

I find that expenses for housekeeping, transportation, a treadmill, herbal medicines, and acupuncture treatments endorsed by Dr. Hui fall within the realm of items about which a medical practitioner might properly give an opinion. Accordingly, I find that the third part of the test under section 6(1)(f) as delineated in the Plows and Chamale decisions has also been satisfied.

Based upon the evidence provided with respect to Ms. Sheng's pre-accident condition, I am satisfied that each of these expenses were required as a result of the accident in which she was involved. Had the accident not occurred, Ms. Sheng would not require any of the items claimed under section 6(1) of the Schedule. Accordingly, in my view, the second part of the test has also been satisfied. With respect to the first part of the section 6(1)(f) test, I must be satisfied that the expenses claimed by the Applicant are reasonable. In the Plows decision, Arbitrator Rotter adopted the definition of the term "reasonable" which is contained in the Oxford English Dictionary. The dictionary definition reads:

in accordance with reason; not absurd
within the limits of reason; not greatly less or more than might be expected, inexpensive, not extortionate; tolerable; fair

In Gaba and Allstate Insurance Company (OIC A-000624, August 21, 1992), Arbitrator Palmer made the following comments with respect to the burden of proof in situations where a claim is made for the payment of expenses under section 6(1) of the Schedule. She held that:

The question of who has the onus of proof of reasonableness was not directly addressed by either counsel. It would appear to be implicit that this task is required to be performed by the Applicant. It is my view that once a prima facie case has been made for the reasonableness of the account, the secondary onus shifts to the Insurer to disprove the reasonableness. It is not my sense of the Schedule that the legislature sought to impose a heavy accounting onus on injured persons.

I agree with and adopt the approach taken by Arbitrator Palmer in the Gaba case for the purposes of the present arbitration. I will now evaluate each of the items claimed under section 6(1)(f) individually, bearing in mind the principles stated above.

Cost of a Treadmill:

Reference to the provision of a treadmill to the Applicant by the Insurer was contained in the signed statement of Dr. Hui referred to above, dated July 27, 1998. Dr. Hui, Ms. Vrckovnik and Mr. Freeman did not refer in their testimony to the necessity for a treadmill to assist in the Applicant's treatment or rehabilitation. I find that I have not been provided with sufficient evidence to enable me to determine whether the provision of a treadmill could properly be characterized as a reasonable expense. Accordingly, I cannot agree with the Applicant's position that this expense is necessary for her treatment or rehabilitation and should be paid by the Insurer.

Herbal Treatments:

At the arbitration hearing, Ms. Sheng withdrew her claim for payment for the herbal medicines prescribed by Dr. Hui. I will not, accordingly, address this item further.

Acupuncture Treatments:

Ms. Sheng testified that, following each acupuncture session with Dr. Hui, she experiences significant pain relief which may last for hours, or even days. The acupuncture treatments are aimed solely at providing pain relief and, based on the Applicant's testimony and Dr. Hui's observations, they appear to be successful in achieving that result. Dr. Hui provided a breakdown dated March 25, 1999 listing each appointment attended by Ms. Sheng during the period July 25, 1996 to March 20, 1999. The net amount due, less a payment made by the Insurer on March 23, 1998, was $8,640.00.

Much of the evidence tendered on behalf of the Insurer revolved around the issue of the reasonableness of the acupuncture and other "passive" treatment therapies performed by Dr. Hui to alleviate Ms. Sheng's pain. The Insurer is of the view that these treatments are prolonging Ms. Sheng’s recovery and may, in fact, work to her detriment. It submits that she has developed a dependency on passive modalities, as opposed to more active rehabilitation measures, such as exercise and other strength-building programs. As a result, the Insurer argues that the acupuncture, massage and chiropractic therapies employed by Dr. Hui are not reasonable or necessary treatments and that it should not be required to fund them.

In my view, Dr. Hui's treatment of Ms. Sheng using these modalities produce the desired result of pain relief for her, albeit of a temporary nature. Dr. Hui indicated that his treatment of Ms. Sheng is intended to provide her with pain relief so that she may function at a higher level and enjoy a better quality of life. Dr. Hui readily concedes that these treatments are not intended to act as a cure, but rather to make it possible for Ms. Sheng to live her life without constant debilitating pain. In addition, Ms. Sheng testified that she continues to perform the exercises prescribed by her physiotherapist and was taking part in weekly swimming at a local pool until the Insurer stopped payment of her transportation expenses to and from the facility.

I find that the provision of acupuncture, massage and chiropractic modalities for the relief of Ms. Sheng's pain are directly related to the treatment of her injuries and are intended to assist her in living with her pain, thereby aiding in her rehabilitation. Accordingly, I find that the acupuncture, massage and chiropractic treatments provided to Ms. Sheng by Dr. Hui since July 19, 1996 and ongoing are a reasonable expense under section 6(1)(f), and that the Insurer is required to pay for them.

Transportation Expenses:

In his evidence, the Applicant's husband, Mr. Zhu, indicated that since March 3, 1997, when the Insurer stopped paying Ms. Sheng's transportation expenses, he has driven her to and from her medical appointments with Dr. Hui. Mr. Zhu stated that the distance from his home in Markham to Dr. Hui's office and back is approximately 70 kilometres. He also indicated that he would take his wife for these appointments twice per week.

Both Ms. Sheng and Dr. Hui gave evidence concerning her difficulties in taking public transit to her medical appointments. Ms. Sheng testified that she is required to walk at least a half an hour to reach the nearest bus stop and that the bus and subway trip to Dr. Hui's office would take her at least an additional hour. She explained that the stairs in the subway station are difficult for her to negotiate and that the sudden movements of the bus and subway, particularly when she is unable to secure a seat, make transportation by transit a very difficult and painful experience. Ms. Sheng also expressed the view that if her husband was unable to drive her, she would simply not attend for her scheduled appointment, but would attend at a time when her husband was available to take her.

On February 12 and 19 and April 18, 1997, Ms. Sheng was seen by Ms. Janet Chin, an occupational therapist with the Orthopaedic and Arthritic Hospital's Regional Evaluation Centre, at the request of the Insurer. The purpose of these visits was to provide desensitization to traffic and assistance with Ms. Sheng's re-integration into her local community. On the first two occasions, she was seen at her former home in downtown Toronto. On the third visit, Ms. Chin attended at Ms. Sheng's present home in Markham. Ms. Chin gave evidence at the hearing of her observations of Ms. Sheng on these occasions. In her report to the Insurer, dated May 28, 1997, Ms. Chin noted that:

It would seem unrealistic, however, for the client to board public transportation at the bus stop located at Steeles and Kennedy Roads from her home as it requires a considerable amount of walking.

In my view, in light of the difficulties experienced by Ms. Sheng, and confirmed by Dr. Hui and Ms. Chin, it is not reasonable that she be required to rely on the public transportation system to attend for treatment and other appointments. I find that Ms. Sheng is, accordingly, entitled to payment for the expenses incurred by her husband in taking her to her appointments with Dr. Hui. I find that she is entitled to have this expense paid by the Insurer at a rate of 35 cents per kilometre for the period March 3, 1997 and ongoing, as without the provision of transportation, she would be unable to attend for her treatments with Dr. Hui. As I have found above that the treatments themselves were reasonable and necessary, I find that the expenses incurred in attending for them falls within the ambit of section 6(1)(d).

Ms. Sheng's husband, confirmed that he drove her to appointments with Dr. Hui on many occasions between March 3, 1997 and March 20, 1999. I find that Mr. Zhu is entitled to be reimbursed in the amount of $1,335.50 for the period March 3, 1997 to June 1, 1998 and $1,372 for the 56 occasions between June 2, 1998 and March 20, 1999, calculated as 56 X 70 km X $0.35, for a total of $2,707.50.

Housekeeping Expenses:

The majority of the evidence tendered by Ms. Sheng concerned the issue of the housekeeping expenses. Ms. Sheng argues that she is entitled to payment for this item as she is unable to perform any but the lightest household activities. She submits that she requires assistance with cooking, cleaning, shopping, laundry and all other aspects of running a household of six people, including her newborn daughter. In my view, the fact that these services are currently provided by Ms. Sheng's mother-in-law is not relevant to a determination of their reasonableness, as the Insurer suggests; if Mrs. Zhao were not performing these functions, someone from outside the family would be required to do so. Nor do I accept the Insurer's submission that Mrs. Zhao is simply performing the kind of services which are expected of her in accordance with her culture. The evidence of Mrs. Zhao, Ms. Sheng and Mr. Zhu clearly confirmed that from the time Mrs. Zhao agreed to come to Canada to assist the family, it was understood that she was to be paid for her services. This was, in fact, the case until the housekeeping benefit payments were terminated by the Insurer in March 1997. In my view, Mrs. Zhao continues to be entitled to payment for her work, regardless of the fact that she is Ms. Sheng's mother-in-law.

I accept Mrs. Zhao's evidence as to her duties and responsibilities in maintaining the household, and that Ms. Sheng would have performed this work had she been able to. In my view, Mrs. Zhao's evidence accurately represents the level of activity and work required on behalf of this particular household.

I find that Ms. Sheng is unable to lift, bend, kneel, crouch or carry heavy objects, all of which are necessary movements when performing the cleaning and home making activities currently being undertaken by Mrs. Zhao. Ms. Vrckovnik and Mr. Freeman objectively analysed the Applicant's capabilities and came to the conclusion that she is unable to perform substantially all of her former household tasks. Based on the evidence before me, I find that Ms. Sheng lacks the necessary stamina, strength and endurance to complete any but the most simple household tasks. The pain brought on by housework limits to a substantial degree her ability to perform it. Accordingly, I find that she continues to require assistance.

At the request of the Insurer, Ms. Sheng was evaluated by an assessment team at the Orthopaedic and Arthritic Hospital's Regional Evaluation Centre on April 23, 1996. One of the assessors, Dr. Jeffrey Gollish, gave evidence at the hearing with respect to the Applicant's condition and recommended treatment. At Page 8 of the ensuing report, the assessors state that:

With reference to her left hip, she has ongoing weakness in the hip musculature, most specifically involving the hip abductors. While she may achieve some further improvement in strength and endurance of her hip musculature, it was our impression that she will have ongoing weakness with an associated abnormal gait and limitation of activities such as prolonged standing, walking, stair climbing, squatting and heavy carrying or lifting.

I find that Ms. Sheng suffers from serious limitations in her abilities to perform certain "heavy" household activities such as changing bed clothes, removing heavy items from the washing machine, cleaning windows, mopping floors and cleaning underneath furniture. I also find that these limitations restrict her ability to prepare meals as she cannot stand for long periods of time, carry heavy items or to lift and manipulate cooking utensils such as pots.

The Insurer's own experts acknowledge that these limitations exist and will continue to exist. In cross-examination, Dr. Gollish conceded that Ms. Sheng was not capable of doing "heavy" housework. Similarly, in his report to the Insurer dated March 21, 1995, Dr. J. David Imrie summarizes his findings with respect to the provision of housekeeping services as follows:

There is need for a home maker for more difficult home making tasks such as washing floors and bathrooms, and this could be accomplished about once a week.

In a report prepared at the request of the Insurer dated December 2, 1994, Dr. Tommy Chan, an Orthopaedic Surgeon notes that:

I do not think she [Ms. Sheng] will be able to regain the full muscle bulk in her left buttock and left thigh. This therefore has significant prognostic implications in to her ability to walk independently pain free. She has been aggressively treated with various modalities at this time. Currently I feel her major rehabilitation goal should be, number one, pain control. Whether it is with the use of acupuncture, analgesics, anti-inflammatory medications, the use of a TENS machine on a home trial basis (incidentally, I do not think this has been tried yet.)

Her second goal is to improve her overall physical condition and to improve her cardiovascular fitness as well as her general physical endurance and tolerance. Again, this would be limited by the amount of pain that she has.

Dr. Hui also testified that housekeeping services were medically required in order to assist in Ms. Sheng’s treatment and rehabilitation. I accept this view and find that in the Applicant's circumstances, housekeeping services properly fall within the scope of section 6(1)(f) of the Schedule. The difficulty lies in evaluating what is reasonable considering all of Ms. Sheng's circumstances.

In my view, the housekeeping expenses costed out by Ms. Vrckovnik in her evidence represents a reasonable evaluation of the kind of assistance required by Ms. Sheng, bearing in mind her abilities and limitations. In her letter to Mr. Freeman dated January 21, 1999, Ms. Vrckovnik recommends that Ms. Sheng be provided with regular assistance, including:

weekly house cleaning at a cost of $65 to $75 per week;
assistance with grocery shopping at $8 per hour for 4 hours or $32 per week;
assistance with cooking three days per week for three hours at $8 per hour for a total of $72 per week.

Ms. Vrckovnik suggests that a reasonable amount for housekeeping expenses would be $169 to $179 per week. I agree with Ms. Vrckovnik's quantification of the Applicant's requirements for housekeeping services. In my view, however, the hourly rate for these services is more appropriately calculated at the Ontario minimum wage of $6.85 per hour, which has been in effect since January 1995. Accordingly, I find that the sum of $154.05 per week represents a reasonable amount to cover the housekeeping assistance required by Ms. Sheng to ensure that her house is kept clean, laundry is done, groceries are purchased and meals are prepared. As a result, I find that the Insurer is required to pay the amount of $154.05 weekly, from March 3, 1997 and ongoing.

By way of summary, I find that Ms. Sheng is entitled to payment for acupuncture, transportation and housekeeping expenses by the Insurer under section 6(1)(f) of the Schedule. Ms. Sheng is not, however, entitled to the cost of a treadmill.

Special Award:

Ms. Sheng submits that she is entitled to a special award under section 282(10) of the Insurance Act on the basis that the Insurer unreasonably withheld payments which were due to her. This section states that:

If the arbitrator finds that an insurer has unreasonably withheld or delayed payments, the arbitrator, in addition to awarding the benefits and interest to which an insured person is entitled under the Statutory Accident Benefits Schedule, shall award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.

She argues that the Insurer behaved unreasonably by ignoring the information supplied by Dr. Hui and the Insurer's own experts with respect to her need for housekeeping assistance, and by not providing a home assessment in her present residence in Markham. Ms. Sheng also points out that the Insurer owes her a duty of utmost good faith, which it satisfied up to the time when benefits were terminated. No explanation was ever provided by the Insurer to Ms. Sheng as to the reason why her housekeeping benefits were terminated when she moved to Markham.

The Insurer submits that it terminated the benefits on the basis of the medical opinions which it obtained. The Insurer points out that the Applicant only provided medical evidence just prior to the arbitration and that the claim was only quantified at the time the arbitration was under way. The Insurer also argues that, in accordance with its view that active treatments are more appropriate for Ms. Sheng, funding is now being provided for such a treatment program and that income replacement benefits continue to be paid.

In Erickson and The Guarantee Company of Canada (FSCO A-000560, June 2, 1992), Arbitrator Rotter held that in order for conduct of an insurer to be considered "unreasonable":

it need not amount to willful misconduct or bad faith. On the other hand, it has to be more than erroneous, or a simple error of judgement. It must be conduct which departs from what is sensible or fair.

In the present case, I find that the Insurer's conduct was not unreasonable. An honest difference of opinion between the Applicant and the Insurer existed with respect to the necessity of continued treatment by Dr. Hui and the payment of housekeeping expenses. Much of this disagreement revolved around differing philosophies regarding the appropriate course of treatment required to assist in Ms. Sheng's rehabilitation. The Insurer considered that Ms. Sheng ought to be engaging in more active rehabilitation measures. Dr. Hui's approach, however, was focussed on relieving the pain symptoms, to assist her to live a more active and enjoyable life. I cannot agree that the measures taken by the Insurer in its handling of Ms. Sheng's case can properly be described as unreasonable. I find that the Insurer's conduct did not depart from what might be considered to be sensible or fair. Accordingly, I do not view this as an appropriate case for a special award.

EXPENSES:

The question of expenses was deferred until all other issues in dispute were decided. Therefore, the issue of Ms. Sheng's expenses of this arbitration proceeding may now be addressed.

July 29, 1999

Donald Hale Arbitrator

Date