Neutral Citation: 1999 ONFSCDRS 158

FSCO A97-001667

BETWEEN:

JENNIE J.H. HEARN

Applicant

and

ALLIANZ INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before:

Lawrence Blackman

Heard:

March 29, 30, 31 and April 22, 1999, at the Offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Mr. V. Balasubramaniam for Mrs. Hearn

Mr. E.W. Kent for Allianz Insurance Company of Canada

The Applicant, Mrs. Jennie Hearn, was injured in a motor vehicle accident on June 2, 1996. She applied for and received statutory accident benefits from Allianz Insurance Company of Canada ("Allianz"), payable under the Schedule.¹ Allianz disputed Mrs. Hearn's entitlement to certain benefits. The parties were unable to resolve their disputes through mediation and Mrs. Hearn 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 Mrs. Hearn entitled to a Loss of Earning Capacity offer pursuant to section 21 of the Schedule?
Is Mrs. Hearn entitled to payment of $10 for a cervical collar and $400 for orthotics, claimed pursuant to paragraph 36(1)(f) of the Schedule?
Is Mrs. Hearn entitled to payment of transportation expenses of $1,565.83, claimed pursuant to paragraph 36(1)(g) of the Schedule?
Is Mrs. Hearn entitled to attendant care or housekeeping benefits of $27,108 from June 2, 1996 to July 31, 1997, claimed pursuant to sections 47 and 55 of the Schedule?
Is Mrs. Hearn entitled to interest on overdue payments pursuant to section 68 of the Schedule?
Is Mrs. Hearn entitled to her expenses of this arbitration proceeding?

Mrs. Hearn is entitled to a Loss of Earning Capacity offer.
Mrs. Hearn is not entitled to payment of $10 for a cervical collar or $400 for orthotics.
Mrs. Hearn is entitled to payment of any outstanding transportation expenses at the claimed rate of 14 cents per kilometre for travelling to and from her care providers from February 1 to October 31, 1997, including Royal York Humber Physiotherapy, together with interest on any overdue accounts, in accordance with section 68.
Mrs. Hearn is entitled to five hours per week of attendant care/housekeeping benefits from June 2, 1996 to July 31, 1997 at the minimum wage rate applicable at the time in question, together with interest in accordance with section 68.
The issue of expenses may now be spoken to.

Background.

Mrs. Hearn was involved in a motor vehicle accident on June 2, 1996. At that time she was 53 years old. She had just completed courses offered by the Peel Board of Education ("Peel"). Mrs. Hearn was taken from the accident scene by ambulance to Etobicoke General Hospital where x-rays revealed that she had sustained a fracture of her right big toe. Mrs. Hearn was released from hospital that same day. The next day, she went to see her family doctor, Dr. R. Peck. Dr. Peck's certificate of June 7, 1996 indicates that Mrs. Hearn was suffering from headaches in addition to neck, shoulder and right foot pain. The only prior medical condition noted by Dr. Peck was shoulder pain. In December 1995, Mrs. Hearn had slipped and fallen on her right shoulder at a Bay store.

Allianz paid Mrs. Hearn weekly income replacement benefits ("IRBs") to June 2, 1998. The Insurer, however, disputes that Mrs. Hearn qualifies for IRBs and continues to qualify for IRBs 104 weeks after the onset of the disability in respect of which she first qualified for weekly benefits. The significance of this is that if Mrs. Hearn does meet the above disability test, she is entitled to a Loss of Earning Capacity Benefits ("LECBs") offer and potentially, to LECB benefits.

Is Mrs. Hearn entitled to an LECB offer?

(1) The Applicable employment

Paragraph 21(1)(1) of the Schedule requires an insurer to promptly deliver a written LECB offer if:

The insured person qualified for weekly income replacement benefits under Part II and continues to qualify for those benefits 104 weeks after the onset of the disability in respect of which he or she first qualified for those benefits.

Mrs. Hearn submits that she initially qualified and continues at 104 weeks to qualify for IRBs on the basis of paragraph 7(1)(3) of the Schedule which requires that she:

i. was entitled at the time of the accident to start work within one year under a legitimate contract of employment that was made before the accident and that is evidenced in writing, and

ii. as a result of and within two years of the accident, suffers a substantial inability to perform the essential tasks of the employment . . . she was entitled to start under the contract.

Included in the exhibits is a copy of a letter dated May 23, 1996 with a Re/Max letterhead, from a Mr. R. Dhir, an "independent contractor," offering Mrs. Hearn a permanent position as a real estate assistant starting June 3, 1996 (ie. the day after the accident). Mrs. Hearn's duties would have included updating expired listings and booking clients for appointments and showings.

Mrs. Hearn's testimony regarding this job offer, given after a very extensive cross-examination, was consistent with this letter.

The Insurer submits that Mrs. Hearn is entitled to weekly IRBs only on the basis of paragraph 7(1)(2) of the Schedule, which requires that she:

i. was not employed at the time of the accident,

ii. was employed at some point during the 156 weeks before the accident,

iii. was sixteen years of age or more or was excused from attendance at school under the Education Act at the time of the accident, and

iv. as a result of and within two years of the accident, suffers a substantial inability to perform the essential tasks of the employment in which [she] spent the most time during the time period designated under subsection (2). [emphasis added]

Mrs. Hearn had two jobs in the three years prior to this accident. For two months in 1995, she was employed full-time as an administrative assistant, typing, using the phone and managing the office at Universal Fundraising Group ("Universal). Earlier that same year, Mrs. Hearn worked for her daughter's company, Donuts Etc., managing and operating the cash register. It was unclear how long Mrs. Hearn had been employed by Donuts Etc. The Application for Benefits indicates two months. A June 7, 1996 Disability Interview Guide (the "Guide") completed by a Ms. M. Dimeo at the Insurer's request indicates three months. Mrs. Hearn's testimony indicated an ambiguously longer period, but it was not clear for what period Mrs. Hearn received remuneration from this company.

In determining whether Mrs. Hearn meets the requisite test for an LECB offer, I must first determine the employment in respect of which disability is to be determined. This requires the following questions to be answered:

(1) Was there a legitimate job offer?

(2) If so, what job was offered?

(3) What were the essential tasks of the job that was offered?

(4) If there was not a legitimate job offer, at what employment did Mrs. Hearn spend the most time in the three years prior to this accident?

(5) What were the essential tasks of that past employment?

The Insurer disputes the Applicant's assertion that there was a legitimate job offer for two reasons. Firstly, its representative testified that the Re/Max letter was only submitted by the Applicant on July 13, 1996, after she had already advised the Insurer that she was registered at the time of the accident with a placement agency and that the day after the accident she had received a one-day job offer with AT&T. Mrs. Hearn's Application for Benefits is dated, however, June 9, 1996 and notes that there was an "attached contract agreement to work." The contract, however, was not attached and I received no evidence as to what, if anything, was attached to the Application.

It is further pertinent that the June 1996 Guide does not mention a job offer with Re/Max, but does mention AT&T. However, the latter job offer is noted to be a contract for one to six months in computer processing. The signed attached authorization is in respect of an "employer," Permanent Solutions. Dr. Peck's clinical notes indicate that Mrs. Hearn was unable to attend her graduation on June 7, 1996, but appear to be silent in the days following this accident on any inability to start new employment, which one would have thought would have been of greater concern to the Applicant. Unfortunately, these discrepanices were not put to Mrs. Hearn.

Secondly, Allianz relies on what it says were "significant discrepancies" between what they were allegedly advised by Mrs. Hearn and what they were told by Mr. Dhir. I was advised only as to the type of alleged discrepancies and not the details. Therefore, I place little weight on this evidence.

However, Mrs. Hearn's failure to adequately address this issue leads me to have significant questions as to what job offer she had at the time of the accident. For the purposes of this hearing, I am not persuaded, on a balance of probabilities, as to any particular job offer. I must then turn to past employment. It is equally unclear to me as to which position Mrs. Hearn spent the most time prior to this accident. However, I find for the purposes of this hearing, that it was her job as an administrative assistant at which she spent the most time in the three years before this accident, as this position was more consistent with her prior employment extending back to 1975.

However, I note that the possible job offers and the position at Universal involved similar clerical and administrative duties. For the purposes of the disability test, I will consider Mrs. Hearn's ability to work full-time both at clerical/administrative duties as well as perform the general type of full-time duties she did at Donuts Etc., all of which required interpersonal skills and emotional control at a business level.

(2) The Disability Test

1. The Applicant's case

To be entitled to an LECB offer, Mrs. Hearn must establish, on a balance of probabilities, that at 104 weeks after the onset of her disability, she was substantially unable to perform the essential tasks of her employment as set out above.

Mrs. Hearn presented considerable prima facie evidence that as a result of this accident, she was disabled immediately following the accident and was still disabled two years thereafter.

In his June 7, 1996 certificate, Mrs. Hearn's then family doctor, Dr. Peck, indicated that Mrs. Hearn could not yet return to work. Mrs. Hearn's family doctor since September 1996, Dr. D. Malinowski, has consistently (and as recently as March 1, 1999) reported that Mrs. Hearn was disabled from any type of work, primarily for psychological reasons including severe depression and a panic disorder as well as fibromyalgia, sleep difficulty, concentration and memory problems and chronic neck pain. A treating doctor, Dr. B. McGoey, noted in his March 27, 1997 letter that Mrs. Hearn "has a chronic pain syndrome" related to this accident.

Dr. W.J. Reynolds has been Mrs. Hearn's treating rheumatologist since May 1997. He has an interest in fibromyalgia and has seen some 4,000 patients with fibromyalgia since 1988. He testified that Mrs. Hearn was a "very clear cut classic picture of fibromyalgia" which developed as a result of this accident. He further testified that her disability was total. In his January 9, 1999 report, Dr. Reynolds indicated that Mrs. Hearn was unable to work for a number of reasons, most prominent of which was her marked memory loss and difficulties with concentration (which was a consequence of the sleep deprivation seen in patients with fibromyalgia). He also noted that Mrs. Hearn had a marked degree of fatigue and thus was unable to maintain any ongoing schedule as well as having severe pains which were exacerbated by repetitive activities and prolonged postures.

Dr. B.M. Stewart has been Mrs. Hearn's treating neurologist since 1984. Prior to this accident, he saw her regarding her epileptic condition. He testified that Mrs. Hearn had not had any seizures for some time prior to this accident and has had no clear seizures subsequently. His oral testimony essentially confirmed his opinion set out in his July 27, 1998 report that as a result of this accident:

I believe she suffered a soft tissue sprain of her neck, a probably [sic] concussion followed by a considerable anxiety. Seizures do not appear to have been aggravated by the accident. Her symptoms prevented her from returning to work. I have examined her on many occasions since this accident and found her to have many new symptoms consistent with a somatoform pain disorder.

I do not believe she can work in any capacity, particularly as an Administrative Assistant because of the continuing psychological effects from this accident.

A medical/rehabilitation Disability Assessment Centre ("DAC") report was prepared in January 1997 by Dr. Forbes and Ms. L. Wolfe, P.T. The diagnosis included a myofascial neck sprain, the Applicant's pain diagram showing features "suggestive of psychological overlay." A chronic pain programme was recommended by both assessors. A multi-disciplinary disability DAC was performed in January 1997. While the DAC medical opinion of Dr. B. Blechschmidt was that there was no evidence of a physical impairment which would substantially disable Mrs. Hearn from performing her previous occupation as an administrative assistant, the psychological assessment by Dr. C. Heusser was that Mrs. Hearn was suffering from Depression and a Pain Disorder, which impaired her emotional control and cognitive and interpersonal functioning. The DAC concluded that Mrs. Hearn "would have difficulty organizing herself and staying focused on a task for any length of time," and hence was psychologically disabled respecting the essential duties of an Administrative Assistant.

In early 1998, a further medical/rehabilitation DAC review was conducted by Dr. G. Li, a family doctor and Dr. V. Ahluwalia, a specialist in Internal Medicine and Rheumatology. Dr. Li's diagnosis was that Mrs. Hearn had suffered an adjustment disorder and fibromyalgia syndrome as a consequence of this accident. Dr. Ahluwalia felt that Mrs. Hearn was suffering from a chronic myofascial strain in the cervical spine and fibromyalgia (manifested by fatigue, generalized muscular pain, non-restorative sleep and 18 out of 18 tender points) related to her car accident, as well as depression and psychological distress.

Most of the Insurer's own experts felt that Mrs. Hearn had a legitimate medical problem resulting from this accident. Dr. L. Chizen prepared a report dated October 25, 1996. His primary diagnosis was soft tissue injuries, cervical tension headaches and cervicogenic headaches with a secondary diagnosis of low mood, tearful and possible vegetative depression. Although he felt there was "no medical contraindications to performing physical activities as she did perform before the accident," he felt that a return to gainful employment was guarded in part due to her own perception of her injuries, her self-reported disability and her emotional symptoms. Dr. M. Harminc, a psychologist, saw Mrs. Hearn in December 1996 for four hours at the Insurer's request. His opinion was that Mrs. Hearn's "anxiety, depressive moods do appear to be heightened by the motor vehicle accident partially and her emotional responses have been probably partially aggravated by this event." Dr. Harminc's diagnosis was an adjustment disorder with depressed and anxious mood. Dr. Harminc expected Mrs. Hearn to return to work in the future. It is his implicit opinion that Mrs. Hearn was at that point disabled from returning to work as a result of this accident.

Mrs. Hearn was subsequently seen at the Insurer's request in March 1998 by Dr. J.W. Digby, a rheumatologist, who stated that Mrs. Hearn:

demonstrates the criteria for fibromyalgia with pain all over and specific tender points in appropriate areas and negative control points. In my opinion, this is not contributing to her pain problem to any significant degree . . . . I do not doubt that the pain that she feels in her neck and ankles is a real pain, but I cannot explain the pathogenesis of this pain other than to low grade soft tissue disorders at those levels. The pain focus she demonstrates appears to be the driving force in her fragile emotional state and from which she sees no improvement . . . she has consistently complained of pain in the described areas since the accident . . . She appeared to be the provider for the family and the loss of income following her accident is certainly a prominent factor in her subsequent anxiety and depression . . . This patient's emotional state would be such that she would be unable to do the duties of an administrative assistant. I see no way that she could possibly consider returning to work in her present state. This patient is a severely dysfunctional, emotionally distressed individual with little or no insight into her problems. In spite of some minor preaccident symptomatology, it appears that the bulk of her symptoms developed shortly after her accident and are progressing relentlessly. It is still possible that she may get some benefit from a combined psychiatric care and pain management program. [emphasis added]

2. The Insurer's case

Allianz relies heavily on the evidence of Dr. L. Reznek, a psychiatrist, who examined Mrs. Hearn at its request in early 1998. In his March 8, 1998 report, Dr. Reznek concluded that Mrs. Hearn was probably suffering from an Adjustment Disorder, although he had some doubts about this. He felt that her symptoms of anxiety and depression had developed in response to the accident. However, noting that "Mrs. Hearn reacts in an extreme fashion when faced with a problem," he indicated that Mrs. Hearn might have a premorbid histrionic personality disorder. He did not think, however, that Mrs. Hearn was substantially disabled from performing the essential duties of employment as an administrative assistant or an equivalent job for which she had been trained.

Briefly put, Dr. Reznek felt that Mrs. Hearn was not honest with him regarding her pre-accident history, was exaggerating her complaints, was play-acting at being mentally ill, was not "objectively" depressed, was not in pain (based on his observations of her during the interview) and was endeavouring to manipulate him into believing that she was disabled as a result of the accident. Dr. Reznek felt that Mrs. Hearn should start back at work with supervision, the hours of work to increase depending on her response. He speculated that it was not "unreasonable to expect Mrs. Hearn to return to full time duties within a month."

At the hearing, however, Dr. Reznek testified that after receiving further medical documentation, he could no longer conclude that Mrs. Hearn was suffering from an adjustment disorder, but rather was suffering from a long standing histrionic personality disorder which had been diagnosed as far back as 1976 by another psychiatrist, Dr. E.J. Rzadki. Mrs. Hearn had seen Dr. Rzadki when she was hospitalized for six days due to anxiety and depression as a result of marital disharmony.

Dr. Reznek, however, did not feel that Mrs. Hearn's frequent sobbing was intended to manipulate him into thinking she was depressed but was rather a feature of her personality. He testified that "I am not saying that the emotion is faked. I think it is part of her personality." He further stated:

It is the nature of a histrionic personality to show exaggerated displays of emotion when there are stresses and of course the accident has been a stress, however, her response to it is not a function of the stress itself but a function of her personality . . . I'm not saying her whole presentation is the result of a deliberate attempt to set out to fool everybody. She has a personality disorder and this leads her to manipulate the situation . . . I would say that she has a personality disorder which pre-dated the accident and that the accident provided her with an occasion, with an opportunity, to satisfy her needs and it would be wrong to see the accident as causing the consequences, that the accident simply provides the opportunity for somebody to enter into a sick role and get the attention that they need. Providing an opportunity is not the same as causing.

It is clear from Mrs. Hearn's extensive medical records that she had a long history of physical and emotional complaints prior to this accident. I accept Dr. Stewart's characterization of Mrs. Hearn as someone who "wears her emotions on her coat sleeve." I find that Mrs. Hearn reacts emotionally to stressors. However, prior to this accident, notwithstanding her numerous complaints to her family doctor, I accept that Mrs. Hearn was able to function quite well.

In 1980 and 1981, Mrs. Hearn was employed by Revenue Canada. Although anxiety and insomnia complaints amongst others are noted by Dr. Peck in his clinical records, a contemporaneous letter from Mrs. Hearn's District Manager indicates that she "performed the full duties of the position in a fully satisfactory manner." The next year, a letter from D.A. MacDonald Handling Systems Limited states that Mrs. Hearn performed her clerk/typist duties in a satisfactory manner and was "found to be a responsible and conscientious employee." That same year Mrs. Hearn was in an accident in which her car was hit from behind. There appears to be little in the way of significant after-effects and I decipher a note of Dr. Peck to read that there was no work time lost. The next year Mrs. Hearn is noted to have had problems sleeping while attending a word processing course. Nonetheless, she achieved an 85% average in her five business and word processing courses.

Despite spraining her ankle in 1984, Mrs. Hearn was able to "satisfactorily" continue her position with the City of Toronto as well as successfully complete a Secretarial Fundamentals Program (with Honours) at Humber College.

From 1984 to 1991, Mrs. Hearn worked through G.O. Temp services as a temporary secretary with the provincial government, despite complaining during this period of insomnia, fatigue, poor eating and feeling down. During this period, she dislocated her patella in 1984, her father committed suicide in 1986 and she fell down the stairs in 1989.

In 1995, Mrs. Hearn was employed with Universal and with Donuts Etc. From the summer of 1995 to the beginning of 1996, she was a volunteer with a training group for persons with disabilities. From February 1996 through to May 31, 1996, she was enrolled as a full-time student with Peel in a comprehensive training programme in "Office Systems for the Administrative Professional." She graduated from the 450 hour programme with a typing speed of 59 words per minute and an accuracy of 99%.

Mrs. Hearn was able to successfully complete this course, even though she had injured her shoulder in December 1995 and was involved in a claim against The Bay.

Further, Mrs. Hearn was able to continue functioning despite her epileptic condition. Notes by Dr. Stewart made prior to this accident indicate that she was "perfectly healthy" (November 1984), "works as a secretary and leads a perfectly normal life" (December 1984), and "wants to be on less medication so that she can be alert for her job" (November 1990). Indeed, even during the time of her 1976 hospitalization, Mrs. Hearn continued to be employed in a clerical/ reception position with a machine tool and die company which she held from February 1975 to November 1977. The General Manager notes in November 1977 that Mrs. Hearn was "a very independent and reliable Employee," her services being terminated due to the company's bankruptcy.

In light of this history, I find it difficult to accept Dr. Reznek's evidence, based in large part on a single two-and-a half-hour interview, conducted more than two years after this accident, that Mrs. Hearn's presentation was merely a continuation of her pre-accident personality to play the sick role in order to reap financial and emotional benefits. Given Dr. Reznek's present diagnosis, I cannot fathom why Mrs. Hearn did not take advantage for either emotional or financial reasons to equally "play out" and "exaggerate" the consequences of her epileptic condition, her dislocated patella, her prior rear-end motor vehicle accident, her father's suicide, her slip and fall at The Bay, or any of the other problems that life had presented.

Rather, I accept the evidence of Dr. Stewart, who saw Mrs. Hearn on several occasions both before and after this accident, who testified that he found the Applicant to be markedly different afterwards, a change he related to this accident. Dr. Stewart further testified that Mrs. Hearn's presentation was not an act, but rather totally unconscious and unwilled. Dr. Reznek's presentation contrasted that of both Dr. Stewart and Dr. Reynolds, both extremely qualified experts who, nonetheless, presented their evidence in a modest manner, acknowledging weaknesses in their evidence in terms of the limits of their expertise and one's ability to assess objectively disability and who adeptly managed that difficult balance between the gentlemanly sympathy of a treating doctor and the detached objectivity of an expert.

Dr. Reznek, however, acknowledged little restriction on his opinion. He ignored the fact that he only saw Mrs. Hearn once, for a limited meeting, long after this accident. He failed to acknowledge any concern one might have in determining whether another person is in pain merely by observation (especially in the absence of any physical examination). He felt qualified to render opinions in areas such as fibromyalgia, in which he had no expertise other than reading up on the subject. Nonetheless, he considered the evidence supporting his conclusion to be "overwhelming." To a certain extent this was possible by ignoring evidence contrary to his position such as Dr. Stewart's opportunity to observe Mrs. Hearn both before and after this accident and the sleep study conducted by Dr. A. Blackman (no relation to this arbitrator). Dr. Blackman concluded in November 1998 that the overnight study at the Sleep Disorders Clinic on November 4, 1998, showed findings of "difficulty initiating and maintaining sleep, with a severe alpha-EEG arousal disturbance . . . commonly associated with complaints of light and unrefreshing sleep, diffuse myalgia and daytime fatigue," which was an important factor upon which Dr. Reynold's based his opinion.

It was manifestly obvious that Mrs. Hearn's presentation to Dr. Reznek was exaggerated. Dr. Reznek notes that Mrs. Hearn responded to his question as to how many legs a cow has with the answer: "two!" Dr. Reznek's sole explanation for this ludicrous response is manipulation. Dr. Heusser, however, indicated another explanation was a desperate cry for help. To me, an at least equally compelling explanation is a lack of respect for the examination. Dr. Reznek in fact notes in his report Mrs. Hearn's plea to her husband to stop the examination, with the cry "Stop them, Gord. Stop them, Gord. He's asking me a whole lot of damn fool questions."

Dr. Heusser prepared a second DAC report after assessing Mrs. Hearn on four separate days in April 1998. She appears to have had most of the extensive medical documentation filed in this matter, including Dr. Peck's clinical notes from July 1977 through to September 1996 and the 1976 hospital admission records noted above.

Like Dr. Reznek, Dr. Heusser noted significant inconsistencies in Mrs. Hearn's account of her history and that she was "surprisingly vague about well learned details" such as her age. Mrs. Hearn "acknowledged no history of pre-accident psychological or psychiatric difficulties," despite a litany of clinical notes dealing with pre-accident marital and family difficulties, anxiety, distress related to her father's death, stress, poor sleep and eating. She likewise noted Mrs. Hearn's childlike manner of speaking. Dr. Heusser, like Dr. Reznek, found that "no concentration difficulties were apparent on testing." Unlike Dr. Reznek, Dr. Heusser did not feel qualified to comment on the cause of Mrs. Hearn's complaints of memory problems.

Dr. Heusser reviewed Dr. Peck's early post-accident notes documenting depression, insomnia forgetfulness, anxiety and the need for a psychiatrist. She notes that after the accident Mrs. Hearn was taking the anti-depressants Zoloft and Amitriptyline, the sedative Alprazolam and the anti-inflammatory/analgesic Naprosyn. Noting the inflated scores on tests documenting Mrs. Hearn's subjective complaints, Dr. Heusser indicated that "with elevations at this level, there is an increasing probability that there has been a deliberate attempt to present an overly negative picture of psychological functioning."

She concluded:

Unfortunately, it has proven most difficult to determine with any certainty the extent and severity of Ms. Hearn's reported symptoms. Her self report was often vague, and contained many contradictions and inconsistencies, while the PAI [Personality Assessment Inventory] revealed a strong tendency to magnify psychological problems.

Overall, the current assessment findings along with the pre-accident documentation reviewed point to a diagnosis of Histrionic Personality Disorder. This is a longstanding pre-existing condition. She has strong needs for attention, recognition and status, and is emotionally dependent on her family. She does not cope well with stress, and has little insight into her difficulties. She is also obsessive, and ruminates to excess about her perceived losses, including her loss of status. These characteristics have caused her problems in the past, and are greatly influencing her response to her accident now.

The unreliability of Ms. Hearn's self report makes it . . . difficult to say whether she is clinically depressed . . . If one takes into account the strong tendencies towards exaggeration which were evident on psychometric testing, however, then one might downgrade the diagnosis to an adjustment disorder with anxiety and depressed mood. It is also quite possible, as Dr. Reznek suggested, that Ms. Hearn's complaints of depression are entirely related to her personality problems. On the whole, I am inclined to diagnose a Major Depressive Episode, although I recognize there is some doubt about this.

I found Ms. Hearn to be quite pain focused, despite Dr. Reznek's assertion to the contrary . . . In my opinion, Ms. Hearn meets the DSM IV criteria for Pain Disorder Associated With Both Psychological Factors and a General Medical Condition . . . While a medical problem may cause the pain in the initial stages and contribute to its maintenance, psychological factors also play a role in maintaining the pain. In Ms. Hearn's case, the psychological factors include her Histrionic Personality Disorder, reinforcement of pain behaviour by significant others, and adoption of the sick role to meet some of her basic emotional needs, all of which are related to one another. One cannot rule out the additional possibility of secondary gain related to settlement issues.

. . . my observations of her over the course of our many meetings suggests that she does suffer from impairment of emotional control, as evidenced by her lability and tearfulness, and some impairment of her ability to carry on normal interpersonal relations. I am less persuaded that she has severe cognitive difficulties. Overall, the current assessment findings suggest impairment of emotional control and interpersonal relations and possibly, some cognitive difficulties. These impairments would be largely attributable to her personality disorder, and to a much lesser extent, to her pain disorder and depressive symptoms. Her impairments appear to be significant enough that they would result in psychological disability with respect to the essential duties of an administrative assistant.

I find Dr. Heusser's opinion on disability to be fair and balanced. Although she had a full understanding of all of Dr. Reznek's concerns, she nonetheless found Mrs. Hearn to be psychologically disabled. On the basis of Dr. Heusser's opinion, coupled with the numerous expert opinions set out above on pages seven to ten, I am persuaded, on a balance of probabilities, that since this accident to the two-year mark and beyond to the date of this decision, Mrs. Hearn has been unable to perform the essential duties of working full-time either in a clerical or administrative capacity (such as at Universal) or in a managerial capacity (such as at Donuts Etc.), as a result of a combination of physical and psychological factors, including pain, fatigue, depression and sleep disruption.

This Commission has long held that it is not necessary for an arbitrator to provide a medical diagnosis in order to determine that an applicant is disabled. What is sufficient is that I accept, as I do in this case, that the Applicant is legitimately having physical, psychological or emotional difficulties which disable her.

However, I must also determine that these problems were caused by this accident. Regarding causation, Dr. Heusser comments that:

In comparing Ms. Hearn's pre-accident and post-accident functioning, it is apparent that her complaints of anxiety, depression, anger, distress, and memory difficulties are not new . . . Overall, the only psychological symptom Ms. Hearn is currently claiming which was not reported prior to the accident is her motor vehicle anxiety. It would be fair to say that Ms. Hearn's psychological and psychiatric difficulties were probably exacerbated by the accident, as they would be by any significant stressor. However, it would be inaccurate to say that the accident caused her difficulties.

I am unsure as to Dr. Heusser's understanding of the term "causation," as the medical definition often differs from the legal definition. This Commission has repeatedly held that the accident need not be the only cause of the subsequent injuries, but rather, must significantly or materially contribute to the Applicant's impairment. In addition, this Commission has adopted the long-standing "thin skull rule" which, in the context of statutory benefits, means that one is not to be denied weekly benefits because one's pre-accident physical, psychological or emotional condition makes one more vulnerable to disability than might normally be the case.

In this case, I find that Mrs. Hearn was vulnerable to reacting strongly to a stressor such as a motor vehicle accident, whether I accept the evidence that she "wears her heart on her sleeve" or that she had a pre-accident personality disorder. I accept that Mrs. Hearn's reaction to this accident has been significantly unconscious and unwilled. I find that this accident did not present a conscious "opportunity" for Mrs. Hearn to exploit, but was rather something beyond her control which overwhelmed her vulnerable defences, and which materially contributes to her ongoing impairment.

Is Mrs. Hearn entitled to payment of a cervical collar and orthotics?

The Applicant claims $10 for a cervical collar and $400 for orthotics.

Paragraph 36(1)(f) of the Schedule provides entitlement to an insured person for payment of reasonable expenses for orthotics and other medical devices incurred as a result of the accident.

I do not find the cervical collar to be a reasonable expense in this case. Mrs. Hearn's initial family doctor, Dr. Peck, noted in August 1996 that he did not recommend a collar, although the Applicant was using one. The January 1997 medical/rehabilitation DAC commented that use of the cervical collar should be discontinued. Dr. Stewart, Mrs. Hearn's treating neurologist, testified that he usually recommends against a cervical collar because it may "engender a sickness role." Dr. Stewart's testimony, however, was to the effect that in this case he remained silent, as he tends not to be confrontational with patients.

I find that the orthotics expense was not incurred as a result of this accident. Mrs. Hearn's subsequent family doctor, Dr. D. Malinowski, provided an October 17, 1997 note for special shoes, "as recommended by Dr. Brian McGoey." Dr. McGoey, however, indicated in his March 27, 1997 report, that he could not relate Mrs. Hearn's "chronic foot pain directly to her motor vehicle accident." I received no other evidence that the need for the orthotics was reasonably required as a result of this accident. Indeed, the June 1998 DAC report of Dr. Ahluwalia also confirms that while orthotics would be beneficial, that need was unrelated to this accident.

Is Mrs. Hearn entitled to payment of transportation expenses?

Mrs. Hearn claims transportation expenses of $1,565.83, apparently covering the period February 1 to October 31, 1997.

Paragraph 36(1)(g) of the Schedule provides entitlement to an insured person for payment of reasonable expenses for transportation for the insured to and from treatment sessions (including transportation for an aide or attendant), incurred as a result of the accident.

The Applicant's total monthly claims, set out in Exhibit 3, Tab 4, do not correspond for most months to the monthly item-by-item specifics provided in Exhibit 2, Tab G. Furthermore, the latter (although showing smaller monthly totals) includes either non-transportation items or non-recoverable expenses (such as driving to the Insurer's offices).

I am unable to determine a precise monetary amount of entitlement. However, I find that Mrs. Hearn is entitled to payment of any outstanding transportation expenses at the claimed rate of 14 cents a kilometre for travelling to and from her care providers from February 1 to October 31, 1997, including Royal York Humber Physiotherapy, together with applicable interest on any overdue accounts, in accordance with section 68. I find these attendances to be reasonable. Specifically regarding physiotherapy attendances (which appeared to be the only controversial amount), I find it implicit in the February 1997 medical/rehabilitation DAC report that further physiotherapy was warranted in addition to attending a chronic pain programme, specifically to engage in a more aggressive exercise programme and to review neck range of motion.

Is Mrs. Hearn entitled to attendant care or housekeeping benefits from June 2, 1996 to July 31, 1997 in the amount of $27,108?

The mediator's report herein, issued November 21, 1997, gives the particulars of the Applicant's claim for attendant care benefits as 3,012 hours at $9.00 an hour (ie. $27,108) to July 31, 1997, plus ongoing and future services.

The January 27, 1998 pre-hearing letter herein notes both housekeeping and attendant care benefits being claimed. It is implicit in that letter that based on the Insurer's objection to including items which had not been mediated, the Arbitrator restricted these claims to those arising before July 31, 1997, subject to further claims being mediated and implicitly, the arbitral issue being expanded either on consent or by order, neither of which has occurred.

Only at the start of this hearing did the Applicant seek to amend her claim to include ongoing attendant care and housekeeping benefits subsequent to July 31, 1997. The Insurer objected. I declined to amend this particular claim, without prejudice to the Applicant bringing a further claim for subsequent benefits. This is a significantly expanded claim and should have been dealt with during the pre-hearing process (including the period after a prior adjournment had been granted to the Applicant) and not at the commencement of this hearing.

The pertinent provisions regarding attendant care benefits are set out in section 47 as follows:

47.—(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,

(a) services provided by an aide or attendant; or

(b) services provided by a long-term care facility, including a nursing home, home for the aged or chronic care hospital.

(2) For the purposes of clause (1)(a), an aide or attendant may be any person who is capable of providing the services, including a family member of the insured person, even if the aide or attendant does not possess any special qualifications.

(3) Subsection (1) does not apply to expenses for which payment may be obtained under clause 36(1)(g) or 40(5)(d).

Entitlement to housekeeping expenses is set out in section 55 of the Schedule which provides that:

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.

I find, based on the oral evidence of the Applicant, her husband and their daughter, Lori, that before this accident all three shared in the household work in maintaining the family's three-bedroom townhouse. The Guide signed June 7, 1996 by the Applicant notes that Mr. Hearn and his daughter performed the pre-accident household activities. Ms. Dimeo did not testify at this hearing. It was not argued, and I do not find, that I should conclude that Mrs. Hearn did not perform any housekeeping work before this accident.

Section 55 allows compensation only for "additional" expenses "reasonably" incurred as a result of the accident. I have no evidence as to even an approximate estimate of the number of hours devoted by the Applicant pre-accident to housekeeping or of the division of household labour prior to this accident. Hence, even accepting that the Applicant is totally disabled from doing any household duties (which I do not), I can only give a very rough estimate as to what pre-accident household duties have in fact been relinquished by the Applicant.

Lori Hearn testified that she continued to do her share of the housekeeping after the accident as she had before. Hence, one must take it that the 3,012 hours claimed were entirely performed by Mr. Hearn. However, I received no evidence as to how this total had been determined. I do note that this averages to slightly over 50 hours per week for the period claimed. Such an amount flatly contradicts Dr. Peck's August 13, 1996 entry that Mrs. Hearn was only partially unable to perform her normal daily activities. It also contradicts the June 1996 Guide which indicates that Mrs. Hearn could attend to her personal care with the exception of tying her shoes. Dr. Chizen notes in October 1996 that Mrs. Hearn required assistance with dressing, bathing and toileting. However, in December 1996, Dr. Harminc reports that Mrs. Hearn advised him that she was generally independent in self-care, but that her husband assisted in washing her back.

The Applicant's claim for attendant care appears to encompass Mr. Hearn taking his wife to medical appointments in addition to assisting with her personal needs. However, subsection 47(3) states that attendant care benefits do not cover transportation for an aide or attendant to and from medical and rehabilitation sessions. While one might amend this claim to include alternative claims under sections 36 and 40, a more fundamental problem is the absence of any specifics of this claim or any supporting medical evidence as to which of Mrs. Hearn's medical attendances it was reasonable for Mr. Hearn to attend.

Therefore, on the evidence before me regarding attendant care, I find that it is only modest assistance that Mrs. Hearn required as a result of this accident. Regarding housekeeping duties, I accept that Mrs. Hearn cannot participate as fully in her housekeeping duties as before the accident. Rather than have an agency perform these duties, I find it reasonable to have a family member pitch in and replace these duties. I further find that this replacement labour is entitled to some measure of compensation under the Schedule.

Although Mr. Hearn was at home at the time of the accident due to a work-related injury and Mrs. Hearn was in school full-time, I accept the March 27, 1996 notation in Dr. Peck's pre-accident notes that indicates to me that Mrs. Hearn was performing a greater share of household work than might be equitable in the circumstances. However, at this point I am satisfied that the evidence supports only a modest five hours per week for the period claimed, at the minimum wage rate applicable at the time in question, without prejudice to any claim made for the period subsequent to July 31, 1997.

EXPENSES:

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

August 17, 1999

Lawrence Blackman Arbitrator

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