Neutral Citation: 1999 ONFSCDRS 166

FSCO A97-000943

BETWEEN:

A.B.

Applicant

and

ROYAL INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before: Lawrence Blackman

Heard: May 3, 4, 5 and 6, 1999, in Sault Ste. Marie, Ontario. Oral submissions were received on May 7, 1999 by telephone conference.

Appearances: Mr. Yvon Renaud for A.B. Ms. Karen Howe for Royal Insurance Company of Canada

Issues:

On June 18, 1996, the Applicant, A.B., was involved in an incident in a car wash in Sault Ste. Marie. She applied for income replacement benefits ("IRBs") from Royal Insurance Company of Canada ("Royal") payable under the Schedule.¹ Royal declined to pay weekly IRBs, maintaining that this incident was not an accident and further, that A.B. was not employed at the time of the incident. The parties were unable to resolve their disputes through mediation and A.B. applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

During the course of the hearing, Royal conceded that A.B. had been involved in an accident and was employed at that time as a caregiver for two disabled adults, but maintained its dispute concerning entitlement to weekly benefits and to payment of a number of expenses.

At the Applicant's request, the names of her two charges were anonymized in order to protect their privacy. The Applicant's name and those of her relatives were also anonymized.

The remaining issues agreed to in this hearing are:

Is A.B. entitled to income replacement benefits ongoing from June 25, 1996, pursuant to Part II of the Schedule?
In the alternative, is A.B. entitled to other disability benefits ongoing from June 25, 1996, pursuant to Part V of the Schedule?
Is A.B. entitled to payment of chiropractic expenses pursuant to paragraph 36(1)(b) of the Schedule?
Is A.B. entitled to payment of travelling expenses, including an aide or attendant, pursuant to paragraph 36(1)(g) of the Schedule?
Is A.B. entitled to payment of a TENS unit, a whirlpool tub and aquatherapy expenses, pursuant to paragraph 36(1)(h) of the Schedule?
Is A.B. entitled to payment of retraining course work, pursuant to subsection 40(5) of the Schedule?
Is A.B. entitled to payment of housekeeping expenses, pursuant to section 55 of the Schedule?
Is A.B. entitled to interest on any overdue payments?
Is A.B. entitled to her expenses of this arbitration proceeding?

On the second day of this hearing, in accordance with the appeal decision of Royal and Clark, (OIC P97-0008, September 26, 1997), I raised the following issue in regard to the "pay now, dispute later" provisions of subsection 36(4) of the Schedule:

Is A.B. entitled to a special award, pursuant to subsection 282(10) of the Insurance Act, R.S.O. 1990, c. I.8, as amended (the "Act")?

Result:

A.B. is entitled to income replacement benefits ongoing from June 25, 1996, together with interest in accordance with section 68 of the Schedule.
A.B. is not entitled to other disability benefits.
A.B. is entitled to payment of Dr. Nenonen's chiropractic account of $140, if not already paid, together with interest in accordance with section 68 of the Schedule, if applicable.
A.B. is entitled to payment of travelling expenses of $1,351.96 together with interest in accordance with section 68 of the Schedule.
A.B. is entitled to payment of $57.35 for aquatherapy and $991.85 for a whirlpool tub, including installation, together with interest in accordance with section 68 of the Schedule. A.B. is not entitled to payment of a TENS unit.
A.B. is not entitled to payment of retraining course work.
A.B. is entitled to payment of housekeeping expenses in the amount of $1,800, together with interest in accordance with section 68 of the Schedule.
A.B. is entitled to a special award in the lump sum of $2,500.
The issue of expenses may now be spoken to.

EVIDENCE AND ANALYSIS:

1. Is A.B. entitled to income replacement benefits ongoing from June 25, 1996?

(a) Causation

(i) The Accident

A.B. claims IRBs pursuant to paragraph 7(1)(1) of the Schedule, which states, in part, that:

7.—(1) An insured person who sustains an impairment as a result of an accident is entitled to a weekly income replacement benefit if the insured person meets any of the following qualifications:

The insured person was employed at the time of the accident and, as a result of and within two years of the accident, suffers a substantial inability to perform the essential tasks of that employment.

Section 1 of the Schedule defines an "accident" as:

. . . an incident in which, directly or indirectly, the use or operation of an automobile causes an impairment or causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device;

I find that on June 18, 1996, at approximately 10:25 a.m., the car being operated by A.B. was struck in the rear by a car operated by a Mr. Don Hurley, while both vehicles were proceeding through a car wash in Sault Ste. Marie, as testified to by both drivers.

I further find that the impact was caused by Mr. Hurley's vehicle lurching forward and striking A.B.'s vehicle. I accept A.B.'s evidence that her vehicle was pushed forward an indefinite distance by Mr. Hurley's car. Both parties agree, and I so find, that there was no damage to either vehicle as a result of the impact.

I accept A.B.'s evidence that at the time of impact she was leaning forward and twisted to the right looking into her purse for Rolaids. I further accept that she had no forewarning of this accident. I also find that she felt a jolt from the impact and that within two hours she began to experience first stiffness and then pain in her neck. I further find that she reported this impact that morning to the car wash attendant, Mr. Troy Bonenfant, and later that day to the police.

(ii) A.B.'s Pre-Accident Medical Condition

I find that A.B. had neck and back problems of significance prior to this accident. In 1975, A.B. sustained a "whiplash" injury in a car accident. Dr. Campana, D.C., saw her two years later regarding neck and low back pain. Dr. Campana felt that A.B. had suffered a "minimal" "slipped disc" injury at L 3-4. Although he thought that early arthritic changes would occur in the injured area, he did not think that would give rise to "symptoms of pernicious character." Dr. I. Bernard Schacter, a specialist in neurosurgery, testified, however, that he saw nothing in Dr. Campana's notes that "would even remotely" suggest such an injury at that time.

In 1986, A.B. was carrying a basket up the stairs when she turned and had complaints of lower back pain. A November 1987 Patient Questionnaire indicates A.B. was suffering from chronic back pain. In May 1989, while attempting to lift a 12 year old autistic child in her care for a diaper change, A.B. felt pain in her low back radiating to her groin and down her left leg. In September of that year she exacerbated her condition while working around the house. She attended physiotherapy and was seen by a Dr. Galey who noted that this "woman gives a classic history of discogenic back pain with 3 separate exacerbations of the pain."

These pre-existing back complaints did not, however, prevent A.B. from continuing her employment pursuits. A.B.'s 1985 application for work as a caregiver with the Algoma District Mental Retardation Service ("ADMRS") indicates that there were no illnesses preventing her from caring for a child. On November 1, 1989, Dr. Galey notes that A.B. was "really much improved. She has been advised to continue to not lift anything for a further few weeks and to be careful with her lifting in the future." On December 4, 1989, A.B.'s family doctor, Dr. Wytsma, wrote ADMRS that since her 12 year old charge became toilet trained, there was relatively little lifting, and "[a]s such, I feel she can continue to look after the child in her home."

The 1992 and 1993 records of the Group Health Centre - Algoma District Medical Group ("Algoma") pertaining to A.B. note neck and shoulder complaints. In 1994, chest pain is noted with complaints of fatigue and weakness. These latter problems culminate in April 1995, a clinical note indicating that "over the last year [A.B.] has been feeling unwell with episodes of weakness and shortness of breath that would be precipitated with anything like making a sandwich," and that A.B. was not able to do "some of the simple household tasks." A hospital admission note a few days later indicates that "[A.B.] states that her shortness of breath has become very severe in the last two days, and she is unable to walk even a block."

A.B. was diagnosed as having a gastroesophageal reflux condition. I find that once this medical problem was properly diagnosed and treated, A.B.'s condition improved (with some temporary relapses). This is supported by the OHIP summary and Algoma's clinical records (for example a pre-accident November 3, 1995 note stating that A.B. was doing "reasonably well" regarding this condition and a post-accident September 1997 note indicating that outside of radiating low back pain, A.B.'s "general health has otherwise been generally good").

The OHIP records also indicate that between February and September 1995, A.B. attended physiotherapy for lumbago (defined by the Concise Oxford Dictionary as "rheumatic pain in the muscles of the lower back"). In February 1996, A.B. began seeing Dr. M. Nenonen, D.C., complaining of sharp burning pain in her neck and burning pain in her right shoulder and low back. The contemporaneous "initial complaint form" indicates that A.B. had been suffering from these complaints "on & off 20 years." These pre-accident records note that while A.B. was "never pain free," she had never lost time at work due to these complaints.

Dr. Nenonen's subsequent notes are largely illegible. The OHIP records show her last pre-accident visit as May 31, 1996. In his July 5, 1996 letter to Royal, Dr. Nenonen noted that prior to the June 1996 accident, he was providing "supportive care once every 3 weeks for chronic neck and low back pain due to injuries suffered in an MVA 20 years previous." He further noted that prior to the 1996 accident, A.B.'s neck range of motion was near normal in all directions, albeit with some neck pain in some directions. Dr. Wytsma's note of June 20, 1996 also indicates that A.B. had previously been seeing Dr. Nenonen for "maintenance."

I find that A.B. significantly understated her pre-accident medical difficulties. I do not accept her evidence that prior to the accident she did not suffer from any health problems which imposed constraints on her activities or lifestyle. I do, however, accept the evidence of A.B.'s husband, M.B. (whom I found to be very credible, both in the presentation and content of his evidence), that A.B. continued her duties up to the time of the 1996 accident, albeit with difficulty and by taking advantage of the regular parental relief provided by the ADMRS to all care providers.

I further accept M.B.'s evidence that prior to this accident, he and his wife had decided that it was best that their younger charge, M. (at that time age 19), return to his parents after eleven years in their home, in significant part due to his seizures. This corresponds to some extent with the January 18, 1996 Algoma entry which notes A.B. as saying that a major cause of her chest spasm and pain was increased stress from M's behaviour, who was screaming night and day. A.B. and her husband are noted to have said that they could no longer look after M. and A.B. was going to apply for Canada Pension Plan ("CPP") benefits, once M. moved out.

M. left A.B.'s home on June 28, 1996, as had been arranged prior to the accident. I do not accept A.B.'s evidence that M's moving out was simply a natural process as he was finishing his special schooling in Sault Ste. Marie. I do, however, accept the evidence of A.B. and her husband that A.B. did not apply for any form of disability insurance as a result of any difficulties with M. (her employment, in any event, would not qualify her for C.P.P. benefits). I see no indication in the medical records in the months prior to the 1996 accident of any back or neck difficulties preventing A.B. from carrying out her employment duties.

I accept the evidence of A.B. and her husband that prior to this accident they had discussed with Community Living Algoma ("CLA," the successor to ADMRS) bringing in someone to replace M. This was supported by a letter dated November 26, 1996 from Mr. Bert Leith, a manager with CLA, who stated that:

Following [A.B.'s] auto accident [she and her husband] were required to rescind their request for full-time and relief placements due to the effects of the accident.

I further accept M.B.'s evidence that although they wanted a higher functioning charge (that is one who was not autistic) they would have considered taking in a client with physical handicaps.

(iii) A.B.'s Post-Accident Medical Condition

I find that when A.B. returned home around noon after the June 18, 1996 accident, she phoned her chiropractor, Dr. Nenonen, for an appointment and saw him that same day at 4:30 p.m. I accept A.B.'s evidence that she did not have low back pain the day of the accident, but developed low back pain within a few days. In this regard, I rely not only on A.B.'s testimony, but also the contemporaneous Algoma clinical records noting "sore neck to back" on June 19, 1996 and pain radiating to her lumbar spine on June 21, 1996.

I also rely on Dr. Nenonen's July 5, 1996 letter to Royal that A.B.'s "low back condition" had deteriorated since the accident. While Dr. Nenonen's June 18, 1996 entry notes neck pain starting two hours after the collision, his subsequent entries are largely illegible.

After the 1996 accident, the frequency of A.B.'s chiropractic visits increased. The OHIP records indicate that A.B. saw Dr. Nenonen 13 times in the month following the accident. In correspondence to both Royal and Dr. Wytsma in the summer and fall of 1996, Dr. Nenonen noted that subsequent to the 1996 accident, A.B. initially had a decreased range of neck motion and muscle spasm, but that her cervical condition returned to its pre-accident condition within a couple of months. Dr. Nenonen, however, also noted that since the "minor MVA," A.B. was having "increasing lower back pain radiating down her left leg to her foot." Dr. Nenonen felt that A.B. was suffering from a "lumbar nerve root problem" in addition to a lumbar soft tissue injury.

A September 6, 1996 Algoma notation records that only A.B.'s lower back was troubling her, her back pain having increased since the accident with pain now in the hips, worse on the left side intermittently going down the left leg to her foot. A.B. confirmed in her testimony her concurrent neck improvement and worsening low back condition in the months following the 1996 accident.

The question of causation was addressed by Dr. B. Shamess, in his designated assessment centre ("DAC") medical/rehabilitation report of December 30, 1996. Dr. Shamess was also one of A.B.'s treating doctors. Dr. Shamess did not have A.B.'s entire pre-accident records at that point, but did have Dr. Nenonen's February 6, 1996 initial complaint form which noted twenty years of intermittent neck/shoulder/lower back complaints. Dr. Shamess' qualified opinion was that A.B.'s "current complaints are 35% related to the MVA and 65% previous injuries." At the hearing, however, Dr. Shamess testified that the 1996 accident did not cause any further injury to A.B.'s lumbosacral region and he was not able to support that there was any impairment as a result of this accident. His reasoning was that:

there was quite a significant pre-existing problem with regards to the lumbosacral and cervical region. When one considers the mechanism of injury and the degree of damage to the car, and the findings at functional capacity evaluations and other findings by myself, on a balance of probabilities, I could not objectively verify that the injuries came about because of this particular motor vehicle accident.

On cross-examination, however, Dr. Shamess acknowledged that when a person is bent over and rotated in a vehicle struck in the rear, there is a greater probability of spinal injury. He further acknowledged that a vehicle is much better able to sustain an impact than the human body. He also agreed that A.B. was more susceptible to being injured in a rear-end collision.

In a DAC functional capacity evaluation ("FAE"), performed October 28, 1996, Mr. A. Riopel, a physical therapist, also stated that "[t]he accident, history of onset of pain and pre-existing condition make it very difficult to make a clear relationship between [A.B.'s] presentation today and car accident."

There was considerable testimony concerning the significance, in terms of causality and disability, of the MRIs conducted post-accident which showed small central disc herniations at L5/S1 indenting on the S1 nerve roots (which Dr. Schacter testified was different from the "disc injury" surmised by Dr. Campana). I accept Dr. Schacter's expertise that:

a great deal of this woman's pain is probably - - was not caused by that protruding disc because it didn't cause any nerve pressure per se, it's just the whole area was involved, the disc itself, the injury to the disc, the injury to the surrounding ligaments, the surrounding joints, that's what is probably causing most of her pain and still is.

I further accept the following evidence of Dr. Schacter regarding causation. Having received all available pre-accident records, Dr. Schacter testified that:

let us accept the fact that prior to the motor vehicle accident in question [A.B.] did have some ongoing back complaints for which she attended a chiropractor on and off at intervals. However, up until the time that she had this motor vehicle accident, from the standpoint of her lower back complaints and problems, [A.B.] was carrying on a very full active caring of her household, doing her usual things and caring for the charges in her home . . . So that despite the fact that she may have had some ongoing back complaints, she was able to do all of this. We then have this motor vehicle accident that occurs with her back injury and subsequent to that she is symptomatic to the point where she can't do these things. So, based on that, my answer in a general sense is that as a result of this accident, whether it created the disc or not, it created a situation symptomatically relating to this lady's lower back problem that she couldn't carry on with her previous capabilities, period.

In addition to the temporal connection, I also accept Dr. Schacter's opinion that the mechanism of injury in this case was likely to cause the subsequent pain and disability complained of (despite the low velocity of the impact) and that A.B.'s low back and neck history probably made her more vulnerable to injury.

I also rely on the opinions of the medical practitioners who had examined A.B. both before and after this accident. Dr. Nenonen's September 1996 sign-back letter to Federal Rehabilitation Services Inc. ("Federal") states that A.B.'s lower back had deteriorated as a result of the June 18, 1996 accident. This was also the opinion of Dr.Wytsma, who wrote Royal on September 19, 1997 that A.B.'s back pain and resultant expenses were a result of the June 18, 1996 accident.

Regarding causation, Director's Delegate Draper held in Levey and Traders General Insurance Co. (FSCO P98-00035, February 25, 1999) that:

Many decisions, including some of mine, have held that the accident need not be the sole or even the principal cause of the insured person's condition. If the accident materially contributes to the impairment, leaving the person unable to perform the essential tasks of his or her employment, weekly benefits are payable. I am not inclined to revisit this issue.

I am persuaded in this case, on a balance of probabilities, that the 1996 accident did materially contribute to A.B.'s continuing low back complaints. Specifically, I am persuaded that this accident had the "effect of hastening or deepening" to a significant degree, to use the words of Arbitrator Friendly in K.M. and General Accident Assurance Company of Canada (OIC A96-001057, January 27, 1998), A.B.'s pre-accident complaints. I find it significant that unlike the applicant in Zeppieri and Liberty Mutual Insurance Co. (FSCO A96-000313, October 29, 1998), A.B. did not have a history of numerous disability leaves prior to this accident, but rather had cared for M. for eleven years and during this period had taken on a second charge. I also find it significant that despite the pre-accident stress A.B. was experiencing with M. which led to the termination of his care, that A.B. had requested, prior to the June 1996 accident, a replacement, this request being rescinded following the accident.

(b) Has A.B. suffered a substantial inability to perform the essential tasks of her employment since June 25, 1996?

(i) Occupation or Employment

ADMRS first retained A.B. as an in-home care provider for developmentally disabled individuals in 1985. I accept the evidence of A.B. and her husband (who was employed outside the house) that although the formal contractual relationship with ADMRS (and later, CLA) was with both of them, A.B. alone performed the necessary care giving duties. I further accept M.B.'s evidence that his wife had found her niche in this work and that he himself had never seen a CLA cheque.

I find that A.B. was given twelve hours of parental relief per week and two weeks paid vacation per year. She was paid a per diem amount for each client placed, as well as reimbursement of approved expenses and purchases.

I find, as conceded by Royal, that this work constituted employment as defined by the Schedule and that A.B.'s claim is properly brought for IRBs pursuant to paragraph 7(1)(1) of the Schedule.

(ii) Essential Duties

I find that at the time of this accident, A.B. had full-time responsibility for the care of two disabled individuals, "H." and "M." who were living with her, her husband and (temporarily) two of her sons. I find that H., who was 69 years old at the time of this accident, was largely able to manage independently, although he required guidance. M. was 20 years old at the time of the accident. I find that this young autistic man required significantly more assistance.

I further find, as set out in the agreements with ADMRS/CLA, that A.B.'s essential duties included:

Ensuring that the basic needs of each client placed within her home were adequately met, including food, shelter, clothing, a high standard of personal hygiene, sleep, affection, and supervision;
Providing each client with any physical care and treatment required in maintaining the client's personal health and well-being under the direction of medical personnel;
Providing an appropriate nutritious diet to meet the clients' needs and a clean, safe comfortable home (which required properly maintaining her 1800 square foot, five-bedroom home); and,
Performing lifting techniques as required.

A.B. agreed that these responsibilities provided a fair description of her duties. I find that prior to this accident, A.B. did provide "a quiet, comfortable, clean and relaxing and safe environment" for her charges, as set out in the CLA's January 12, 1995 Associate Care Evaluation Form.

I accept that A.B.'s employment duties would on the average day, begin with waking her charges at around 7:00 a.m. A.B. would brush M.'s teeth, shave him, brush his hair and get him dressed. H. was able to attend to his self care as well as make his bed. After breakfast was served, A.B. would have to guide M. to the van which took him to his school. H. was able to walk on his own to the vehicle which would take him to his daily programme.

A.B. would then attend to the breakfast dishes and clean the kitchen or dining room. She might then start her laundry or run errands such as grocery shopping. She would return home to put the groceries away and then continue with housework such as making beds, cleaning the bathroom putting clothes into the dryer, ironing, dusting, vacuuming and washing windows. Once a week she washed and waxed the floors. She was also responsible for home maintenance and electrical repairs.

As M. was usually impatient for supper, A.B. would start dinner early, at about 1:30 or 2:00 p.m., expecting her clients home mid-afternoon. She would help M. out of the van and guide him back to the house. She would help remove his boots and jacket and immediately take him to the washroom. M. would need assistance following a bowel movement and had been taught to lean forward and balance himself on A.B. to be cleaned. A.B. usually served supper around 4:30 or 5:00 p.m. After supper, A.B. would again take M. to the washroom. She would then clear the supper table.

M. was only able to communicate by facial and hand movements or by the use of simple words. Those not accustomed to him would not understand him. A.B. had worked with M. on " facilitated communication" which involved holding his hand over a typewriter and allowing him to type one letter at a time. Four or five typed lines would take some fifteen minutes to type.

A.B. would bath M. around 8:00 or 8:30 p.m. Baths involved running the water, undressing M., holding his arm and helping him (assisted by grab bars) into the bathtub and then taking his wrists and helping him lower himself into the tub. A.B. would then wash M., encouraging him to help with a washcloth as much as possible. A.B. would wash M.'s hair while holding his head and upper body so he would not slide into the water. A.B. would then dry M.'s hair, help him out of the bathtub, dry his whole body and help him into his pyjamas. M. could not dress on his own. A.B. would have to put his feet in his pants and M. could then pull his pants up.

H. would require someone to, amongst other things, do his wash, his ironing, bring his clothes to his room, run his bath and make sure that he was clean and shaven.

M. went to bed at 9:00 p.m. A.B.'s bedtime was roughly 10:00 p.m. I accept A.B.'s evidence that "[i]t's hard to put hours on the time that you spend with clients. They say it's a 24 hour a day job because they live in your home, but to ascribe a certain amount of time to whatever you're doing, it's very difficult. You just do what you have to do. I don't look at time."

I received no evidence that A.B. could have chosen as a replacement for M., a charge who required minimal if any additional physical demands over her general duties of running her home. Therefore, I consider the physical demands on A.B. regarding both M. and H. at the time of this accident to be part of the essential tasks of her employment.

(iii) Substantial Inability

A.B. continued post-accident to care for H. until November 1998. A.B. testified that her neck injuries initially resolved following the accident, but then reoccurred. However, she testified that if her only problem was her neck, that "would not have prevented me from doing what I usually do."

Following H.'s departure, Mr. Leith of CLA wrote in a December 1998 Home Visit report that:

The [Bs] indicated that they would like to remain active within the programme providing support either through respite or on a full time basis with the Family Home Programme.

[A.B.] noted that she is unable to perform physical work as a result of an auto accident . . . They would require someone who is physically capable of performing their own personal hygiene. Similarly they would prefer someone who is considered 'high functioning' or highly independent. [A.B.] noted that she would still perform the meal preparations and her husband would assist with the laundry chores. The [Bs] are also comfortable with someone who displays behaviours provided they do not have to perform physical restraint.

The individual would be required to climb stairs and their bedroom would be located upstairs as they have two vacant rooms on the upper level.

A few months later, A.B. began doing relief work. She has not gone back to full-time work.

There are varying opinions as to whether A.B. was disabled following this accident.

Ms. R. Shulman, a rehabilitation consultant with Federal, provides little assistance. Her initial August 19, 1996 letter notes A.B. reporting being able to complete all of her pre-accident "essential tasks of daily living" and being able to complete all "work related activities." However, an attached form dated August 6, 1996, evidently completed by A.B., indicates, amongst other things, that A.B. could not make beds, dust, sweep, vacuum, wash or wax floors, clean toilets, carry laundry baskets, unload the washer/dryer, or put away ironing. The form does, however, indicate that A.B. could, amongst other things, drive, wash sinks, sort and fold clothes, prepare meals, do light ironing and do light grocery shopping.

There is little indication in Ms. Shulman's reports that she appreciated the scope of A.B.'s pre-accident employment duties. Ms. Shulman's final report in November 1996 notes, without comment, A.B.'s statement that she could only care for one person in her home. It is indicated, however, that A.B. was continuing to experience symptoms as a result of the accident and was continuing to participate in weekly physiotherapy and massage treatment.

During this period, an occupational therapist, Ms. A. Sicoli, was retained by Royal to assist A.B.'s rehabilitation. While Ms. Sicoli provides a good summary of A.B.'s pre-accident housekeeping duties, there is little comment regarding her other care duties at that time and no opinion is given as to A.B.'s ability to perform those functions. Ms. Sicoli notes, however, that A.B. had indicated that she had not replaced a client due to her limitations following the accident. Ms. Sicoli recommended two hours of housekeeping per week to assist in the heavier home management tasks. In her February 25, 1997 report, she indicates that with the assistance of assistive devices such as reachers and light-weight cleaning devices, A.B. was largely independent with respect to most home management tasks (mopping and carrying laundry being exceptions). A.B. testified, however, that she was still unable to perform household duties such as ironing for any significant period of time (i.e. for more than five minutes) and was unable to effectively vacuum, dust or clean. I note that Ms. Sicoli's final report omits commentary on previously identified activities such as bed making (which A.B. testified she was unable to do) and grocery shopping. I also note that the final report does indicate that there were still differences in the frequency of activities (eg. sweeping daily pre-accident compared to once or twice a week in February 1997).

On October 28, 1996, Mr. Riopel performed his FAE as part of his DAC assessment. Without detailing the requirements of A.B.'s pre-accident employment, Mr. Riopel labelled the estimated physical demands of this work as "medium." Based on the FAE results, Mr. Riopel concluded that A.B. was able to do sedentary physical demand work for a four-hour day. However, because of indications of partial sub-maximal effort (based on findings of symptom exaggeration and "equivocal inappropriate illness behaviour"), Mr. Riopel stated that A.B.'s "actual functional ability must be left to conjecture," which he then estimated as full-time light work. Although this did not correspond to Mr. Riopel's own understanding of A.B.'s pre-accident work, he nonetheless concluded that A.B. did "not suffer from a musculoskeletal impairment which causes her to have a significant inability to perform her pre-accident activities reasonably well."

I accept the evidence of Dr. Schacter that FAEs (or functional capacity evaluations) have their limitations:

I have a great deal of difficulty with functional capacity evaluations, and I'll explain it to you this way. The functional capacity evaluation is carried out in a very cloistered circumstance, and people are asked to do certain physical and sometimes mental activities for a certain limited period of time. Now, I could probably lift a ten pound weight three times once every two hours. I could do a lot of things, and so could the individual that's being tested, but that does not, in my opinion, and I have seen a lot of these problems over the years, it does not, in my opinion, extrapolate to the work force. It's limited, I understand what they're saying, but I think that they are erroneous in the sense that you don't get someone who is doing the job that is required of them five days a week or how many hours a day in perspective when you get these functional evaluations done . . . I don't agree with their conclusions, but I understand their objective findings within the limits of the testing.

Mr. Riopel's FAE is unfortunately of little assistance, as there is little, if any, focus on A.B.'s actual pre-accident job demands, let alone a meaningful endeavour to objectively assess her ability to perform those actual duties on a consistent and economically competitive basis. Rather, the FAE was done essentially in a vacuum, testing A.B.'s general abilities and focusing mainly on inconsistencies. Although an assessor must consider inconsistencies, Mr. Riopel's report seems to imply that symptom magnification is akin to malingering, a conclusion I do not accept.

All the medical experts who testified agreed that symptom magnification is not equivalent to malingering. Dr. Shamess, who was called by Royal, testified that:

Symptom amplification is [an] objective assessment . . . in determining if the findings are out of proportion with the complaints of pain. There are many different reasons why symptomatic magnification is seen and there can be conscious or unconscious motives as to why it develops . . . Some people, through no fault of their own, tend to feel more . . .

Dr. Schacter testified on behalf of the Applicant that A.B. failed to show symptom magnification. However, he stated that:

Sometimes symptoms are magnified by their presence, their length of stay, their amount of involvement that they have with the patient's day-to-day well-being, and they're not necessarily deliberate magnifications, they're very often not.

Mr. Salituri, a DAC physiotherapy assessor called by Royal, testified in chief that:

Symptom magnification means that a patient does have symptoms, we as clinicians are not denying at all that this person does not have symptoms. What we are simply saying when we use this term is that based on our clinical examination and experience that we cannot explain through objective signs why that person has those symptoms . . . So there's a discordance with what the patient tells you and what you see clinically.

On cross-examination, Mr. Salituri testified that:

There's a difference between symptom magnification and malingering . . . Symptom magnification is as I explained. Malingering is when somebody is void of any pathology yet has symptoms and are simply doing that for secondary gain. In no way in this case am I saying that this lady is a malingerer or that she's intentionally putting on her presentation . . . Can they be magnifying their symptoms without knowing it? Yes.

I accept that A.B. is not intentionally exaggerating her complaints and that she is indeed in pain. The question then becomes, does this pain render A.B. substantially unable to perform the essential tasks of her pre-accident employment?

Dr. Shamess described pain as "a personal expression impacted upon [by] the many different systems in a person's body, psychological, spiritual, immunological, the joints, the myofacial, lymphatics, the nervous system, all of these systems impact upon whether a person feels pain along with the central nervous system." He indicated that although symptom magnification and inappropriate illness behaviour make it harder to decide to what degree a person is in pain, he never doubted that A.B. had pain. He testified that "one is not able to make an exact . . . decision as to what this person is capable of doing. But in view of all that went on . . . Mr. Riopel arrived at what he thought was reasonable that she could do, and I agree with that." However, as noted above, I find that Mr. Riopel did not determine A.B.'s abilities in relation to her actual varied pre-accident duties, which Dr. Shamess himself thought "could be very demanding." Mr. Salituri testified that A.B. did "suffer a partial inability to do her normal daily activities due to [self-reported] pain." However, based on his finding of strong signs of symptom magnification he had some question as to A.B.'s actual level of disability. Mr. Salituri felt that the key question was whether a clinician could objectively substantiate the patient's complaints. He testified that " we have to answer one question and one question only, does a person suffer a substantial inability to carry on with their normal daily activities, including work, if work is in issue, solely as a result of injuries sustained in a motor vehicle accident." Based on his October 1996 examination, Mr. Salituri felt that there were insufficient objective signs to substantiate A.B.'s claims of disability and pain.

Unfortunately, Mr. Salituri's views as a DAC evaluator appointed by this Commission contradict the views of the Dispute Resolution Group of this same Commission. It is now trite law that the lack of objective evidence does not, by itself, disentitle an applicant to benefits (see Quattrocchi and State Farm, OIC A-006854, September 29, 1997). Nor, as stated above, do the injuries sustained in a motor vehicle accident have to be the sole cause of disability. These conflicting approaches between caselaw and medical assessments, sadly, serve only to confuse the public and to undermine the purpose of DACs, namely to provide an early neutral medical assessment applying the entitlement tests contained in the Schedule in accordance with settled legal interpretation.

I accept A.B.'s evidence that her condition is "wearing me, it's day after day after day, the pain is there, never leaves . . . I can't sleep right, and that pain, it just - - saps your strength, just takes everything out of you."

I do not, however, accept that A.B. is unable to "do anything, none of the things that I used to do." I find that A.B. has been able to take care of H. since the accident as he required little physical assistance. I further find that had A.B. been consistently provided with the assistance of a housekeeper to do the more physically demanding household duties required of her, with pacing she would have been largely able to meet the essential housekeeping duties required of her under her contract with CLA.

However, as noted above, I find that in determining the "substantial inability" test, I must also consider the significant physical duties (especially within the context of the safety demands of CLA), of being able to care for a person who was severely physically challenged and who would require significant care including bathing, grooming, toileting and physical support. A.B.'s evidence that she determined within a few days of the accident that she was not able to care for M., however, contrasts with her July 2, 1996 application for accident benefits, in which she states that she was able to care for her two disabled charges but was unable to do certain housekeeping duties such as vacuuming. I find that this statement was not correct.

In making this finding, I rely in large measure on the evidence of the Applicant's husband, whom I found to be a very reliable and credible witness and whom, despite his close relationship with the Applicant, I found gave his evidence in a fair and balanced manner. I accept M.B.'s testimony that after the accident, he largely took over A.B.'s care-giving responsibilities, that things "just flipped around on me like night and day" and that he was:

[d]oing things with [M.] that I never thought I'd be able to do like shaving him, taking him to the toilet, dressing him, undressing him, giving him his bath, getting up at night sometimes with him.

I find that A.B. has been unable to return to these demanding duties. In part, I rely on the opinions expressed above by Dr. Shamess and Mr. Salituri amongst others that the pain being experienced by the Applicant is real. I further rely on the opinion of Dr. Schacter that A.B.'s disability is significant and her condition is consistent with the pain she reported and her complaint that she could not discharge her former responsibilities as a care provider. I further rely on the July 30, 1997 opinion of A.B.'s treating physiotherapist, Joanna MacDougall, who felt that A.B. "[h]ad significant impairment, functional limitation and disability . . . Her main impairment at this time is that of restricted hip motion and dynamic instability, that is weakness of the trunk and abdominal muscles that control the lumbar spine and pelvis." I further find it significant that after the accident A.B. retracted her request for a replacement for M. and has never taken on a second charge, despite having not received any weekly benefits for the almost three years since the accident.

Accordingly, I find that as a result of her injuries sustained in this accident, A.B. has been unable to take care of an additional physically challenged charge, which was an essential duty of her pre-accident employment. On this basis, I find that A.B. qualifies for IRBs from June 25, 1996.

(c) Did A.B. suffer a partial or complete inability to carry on a normal life as a result of the June 18, 1996 motor vehicle accident?

This test, under subsection 10(2) of the Schedule, was claimed as an alternative basis for weekly entitlement. For the reasons stated above, I find that A.B. did suffer a partial inability to carry on a normal life. I find that A.B. at no time suffered a "complete inability to carry on a normal life" as a result of this accident, and hence would not be entitled to weekly benefits pursuant to this particular section after the 104 week period set out in paragraph 10(2)(b).

(d) Is A.B. entitled to IRBs instead of loss of earning capacity benefits subsequent to 104 weeks after the onset of the disability in respect of which she first qualified for weekly benefits?

Part VI of the Schedule provides for loss of earning capacity benefits ("LECs") to be paid in the place of IRBs, if so authorized by that Part.

The procedure for determining entitlement to LECs begins with an insurer making an LEC offer where:

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.

As this hearing was held well after the pertinent 104-week period, the question arises as to which benefit, LECs or IRBs, are to be paid after the 104-week point. I did not receive submissions on this issue.

In this case, Royal has not made an LEC offer. For the reasons set out in Fry and Halifax, (OIC A96-001248, June 26, 1998), I find that A.B. is entitled to receive ongoing IRBs at least until the provisions of section 21 of the Schedule regarding the insurer's LEC offer have been fulfilled.

2. Is A.B. entitled to other disability benefits?

A.B. claims "other disability benefits" pursuant to Part V of the Schedule in the alternative to her claim for IRBs under Part II of the Schedule. Section 19 provides that "other disability benefits" are not available to an insured person who meets the qualifications of subsection 7(1). As I have found that A.B. was employed at the time of this accident pursuant to paragraph 7(1)(1), she is not entitled to "other disability benefits."

3. Is A.B. entitled to payment of chiropractic expenses?

A.B. claims payment of outstanding chiropractic expenses, pursuant to paragraph 36(1)(b) of the Schedule. This provision requires an insurer to pay, for amongst other things, reasonable chiropractic expenses incurred by or on behalf of an insured person as a result of the accident. A summary prepared by A.B. notes an account of Dr. Sicoli, D.C. of $168 (after deducting the portion payable by OHIP) for treatment rendered from March to August 1997. However, there are also included receipts from Dr. Nenonen, D.C. for the period September 1996 to January 1997 totalling $140.

In October 1996, Dr. Wytsma recommended chiropractic treatment because of A.B.'s injuries sustained in this accident. He further recommended chiropractic treatment in March 1997. At neither time, however, did he indicate why these treatments were reasonable. A letter dated October 15, 1996 from Dr. Nenonen to Federal, however, states that A.B.'s lower back condition appeared to have deteriorated significantly following the termination of chiropractic treatments in August. On January 24, 1997, Dr. Nenonen wrote Royal recommending chiropractic care twice weekly for six weeks with the aim of returning A.B. to her August 1, 1996 condition.

A.B. testified that she stopped seeing Dr. Nenonen in January 1997 both because her OHIP coverage had run out and because Dr. Nenonen had told her that there was nothing more he could do for her. Dr. Shamess notes in his December 30, 1996 medical/rehabilitation DAC report that A.B. indicated that her chiropractic treatments provided only slight relief for her back and made her neck and shoulder region more painful. Dr. Shamess concluded that chiropractic treatment was not required because of this accident.

On the basis of the treating doctors' opinions expressed in October 1996, I am persuaded that the Dr. Nenonen's treatments totalling $140 up to the date of Dr. Shamess' report were reasonable and should be reimbursed by the Insurer, if not already paid. In light of Dr. Shamess' opinion and A.B.'s statement as to why she stopped treatment in January 1997, I am not persuaded that the further chiropractic treatments starting two months later were reasonable.

4. Is A.B. entitled to payment of travelling expenses?

A.B. claims reimbursement of travelling to Toronto for the following reasons on the following dates:

August 3 to 6, 1997, to undergo an MRI at the Wellesley Hospital;
October 7 to 12, 1997, to see Dr. I. Bernard Schacter;
May 22 to 29, 1998, to again see Dr. I. Bernard Schacter; and,
September 16 to 21, 1998, for a further MRI and to see Dr. Botsford.

Paragraph 36(1)(g) of the Schedule requires the insurer to pay for reasonable transportation expenses for the insured person to and from treatment sessions, including transportation for an aide or attendant.

The bills that I find relate to above-noted dates are as follows:

Date	Car Rental	Gasoline	Parking	Meals	Hotels
August 1997	$366.90	$53.00	$10.00	$145.78	$237.44
October 1997	$486.74	$42.00	$45.00	$106.32	$319.04
May 1998	$511.80	$67.50	$15.00	$234.11	$341.84
Sept. 1998	$451.55	$95.58	$26.50	$184.60	$322.40
Total	$1,816.99	$258.08	$96.50	$670.81	$1,220.72

These bills total $4,063.10. The Applicant claims $4,432.30 for transportation expenses. The difference is largely attributable to certain unexplained bills incurred in November 1998. The Insurer has paid $541.79 towards the first trip.

I accept that it was reasonable for A.B. and her husband to travel to Toronto for the MRIs in August 1997 and September 1998. Dr. Shamess noted in a March 1997 letter to Royal that only an MRI would reveal whether there was certain damage to the ligamentous structures and asked Royal to consider having an MRI of the lumbar spine performed. I accept the oral evidence, that at the time of these investigations, MRIs were not available in Sault Ste. Marie. I further find that it was reasonable for M.B. to accompany his wife as I accept A.B.'s evidence that she has a fear of flying and that it was difficult for her to drive a long distance. I find the second MRI, arranged by Dr. Schacter a year later, to be reasonable as part of the ongoing investigation into A.B.'s back and hip problems (which I also find related to this accident).

I am not persuaded as to the reasonableness of the other two trips to Toronto, which were to see Dr. Schacter. I have no evidence as to any procedures performed during these trips that could not have been done in Sault Ste. Marie. I also have no evidence as to why A.B. could not have been seen by a specialist where she resided. I have no doubt as to the expertise of Dr. Schacter. However, that does not, by itself, translate into the right to have one's insurer pay for transportation to Toronto from a distant locale in order to see this particular specialist. There must be some further reason to justify this expense. From what I can gleam from a September 10, 1997 clinical note, this consultation occurred because A.B. asked Dr. Wytsma for a referral to Dr. Schacter. That is not sufficient. Accordingly, the October 1997 and May 1998 transportation expenses are denied.

Regarding the accounts submitted for the August 1997 and September 1998 trips, I am persuaded that they are reasonable. The car rental and gasoline components of the two trips total roughly $420 and $550 respectively. Although I am not clear why A.B. had to rent a car, I note that the round trip from Sault Ste. Marie to Toronto is roughly 2300 kilometres, which at $0.24 per kilometre (as set in the tariff under the Rules of Civil Procedure) works out to $552 (which is similar to the cost of a single round-trip flight from Sault Ste. Marie to Toronto, excluding car rental or taxis in Toronto).

I find it reasonable, considering A.B.'s difficulty with long distance travel, to allow A.B. and her husband two days to get to Toronto and two days to return (including attending the medical appointments). The claim for meals for both individuals for both trips is $330.38. Dividing this for two people over eight days, comes to approximately $20 per day per person. I find this to be well within the range of what would be reasonable.

Regarding hotels, the claims for both trips are three nights, consisting of a hotel either in Sudbury or North Bay on the way down to Toronto, one night in Toronto, and the same hotels on the way back. I find the amounts claimed to be reasonable.

The allowable claim is therefore $1,893.75 for the two trips, less the amount paid being $541.79, which equals $1,351.96.

5. Is A.B. entitled to payment of a TENS unit, a whirlpool tub and aquatherapy expenses?

Paragraph 36(1)(h) of the Schedule entitles an insured to payment of reasonable expenses incurred for "other goods and services of a medical nature that the insured person requires." A.B. seeks payment of $579 for a TENS (transcutaneous electrical nerve stimulation) machine. A.B. was using a friend's machine daily for relief, but must now return it. An Algoma physical therapy discharge summary of January 21, 1999 states that the "TNS machine has really been helping."

A.B. testified that a TENS machine was recommended by both Dr. Shamess and Dr. Schacter. However, I can find nothing in the oral or written evidence of either of these doctors or anyone else that purchase of a TENS machine was recommended nor why such a purchase would be reasonable. Accordingly, the claim for purchase of a TENS machine is denied.

A.B. also seeks payment for an aquatherapy expense. Exhibit 5 includes a January 20, 1998 account of $57.35 from the Family YMCA. Pool therapy was recommended by Dr. Wytsma in a September 19, 1997 letter to Royal. It was also recommended by Lake Superior Physiotherapy the month before. I find that this treatment provided both pain relief and exercise and accordingly, I find this account to be reasonable and should be honoured by Royal.

A.B. also claims $866.85 for a whirlpool paid April 29, 1997 and $125 for the cost of installation paid June 10, 1997. A.B. testified that she uses the whirlpool daily and that it relaxes her so that she can sleep. Dr. Shamess listed a "whirlpool and sauna" as a treatment suggestion in his December 30, 1996 medical/rehabilitation DAC to Royal. The Insurer argued that a six-month gym membership would negate the need for the whirlpool. Royal, however, presented no evidence in this regard, nor can I find in the considerable material filed that this was ever offered to the Applicant as an option. Accordingly, I find the sum of $991.85 for the cost of the whirlpool and installation to be reasonable.

6. Is A.B. entitled to payment of the cost of course work?

A.B. claims $170.74 for the cost of post-accident course work and textbooks, pursuant to subsection 40(5) of the Schedule. The latter provision allows for reimbursement of reasonable expenses incurred by the insured to either eliminate the effects of any disability resulting from an accident produced impairment or to facilitate the insured's reintegration into his or her family, the labour market and the rest of society.

I received no evidence as to why these expenses were reasonable or how they facilitated the goals set out above. Accordingly, this claim is denied.

7. Is A.B. entitled to payment of housekeeping expenses?

Section 55 of the Schedule provides for payment by the insurer for additional expenses reasonably incurred for housekeeping and home maintenance services by or on behalf of an insured person who has sustained an impairment as a result of the accident. In A.B.'s case, housekeeping duties were both personal (for her and her family) and employment related (as a requirement of her contract with the CLA). As there is obviously a significant personal component to these duties, I find that they do come under section 55.

I find that A.B. has sustained an impairment (defined in the Schedule as a loss or abnormality of, amongst other things, anatomical structure or function) as a result of this accident.

A.B. submits she paid her son, R.B., $50 a week for housekeeping services between November 1996 and February 1997, for a total of $650. She further claims that she paid $1,055 to Ms. J. Thomas and $95 to Ms. A. Triplett for housekeeping services provided between June 1997 and December 1998. These individuals were paid between $35 and $50 roughly every two weeks. A.B. lastly claims $3,100 for "housecleaning and employment supports" provided by her husband. This consists of weekly accounts of $100 between February and May 1998 (when no other assistance was being received) and accounts of $50 for weekly or biweekly support between August and October 1997 (when Ms. Thomas was also assisting) and from May 1998 (when either Ms. Thomas or Ms. Triplett were being paid).

Dr. Wytsma provided a September 19, 1997 letter to Royal, indicating, essentially on the self-report of A.B., that she was required to hire a homemaker, one day per week. Dr. Wytsma indicated that these expenses resulted from the June 18, 1996 accident. An earlier March 31, 1997 notation in Dr. Wytsma's clinical notes indicated that A.B. had requested and was given a note for help for moderate and heavy cleaning.

A.B. testified that her son and the two women noted above were doing housework that she could not do, such as washing and waxing the floors, vacuuming, cleaning the bathrooms, dusting and heavier work. Both A.B. and her husband testified that M.B. also assisted with housework.

For the reasons stated above, I find that A.B. was unable to perform heavier housework duties. The amounts paid to R.B., Ms. Thomas and Ms. Tripplet appear to represent a few hours of assistance every one or two weeks. I find this to be reasonable. I, therefore, allow their accounts totalling $1,800.

Regarding M.B., I note that four of his five statements indicate that his accounts are for "housecleaning and employment supports." While it is not entirely clear what "employment supports" encompasses, I gather that it includes assisting in the care of their client H. beyond housekeeping and home maintenance services. That is not encompassed within section 55.

In addition, the accounts of M.B. overlap to a significant extent with the accounts of Ms. Thomas and Ms. Triplett, although I note that during this period, there are gaps in the accounts of these women of up to a month.

I have no evidence as to the breakdown between M.B.'s housekeeping duties and his "employment support" duties. Nor do I have evidence to support that the hours being claimed for M.B.'s services differ from those claimed for Ms. Thomas and Ms. Triplett. Accordingly, I do not accept the claim made for the additional services provided by M.B.

8. Is A.B. entitled to a special award?

Subsection 282(10) of the Act mandates arbitrators to make an additional award against an insurer found to have unreasonably withheld or delayed payments.

Subsection 36(4) of the Schedule mandates insurers to pay supplementary medical expenses pending resolution of a dispute concerning their entitlement. This provision is subject to certain exceptions, the relevant one being the insurer's right to refer the insured person to a medical/rehabilitation DAC for assessment. From the filed exhibits, it would appear that Royal referred A.B. to only one such DAC, which was with Dr. Shamess in 1996. The only treatment Dr. Shamess indicated was not warranted was chiropractic treatment. Dr. Shamess specifically suggested "whirlpool and sauna" treatment.

I raised the question of a special award early in the morning of the second day of this hearing, during the examination of the first witness called, namely A.B. I invited Royal to address this issue in cross-examination or by calling their own witnesses. I received no evidence as to why Royal did not comply with subsection 36(4). I find Royal's failure to comply with this statutory requirement to be unreasonable.

Subsection 282(10) of the Act mandates a maximum award of up to 50 per cent of the amount to which the insured person was entitled at the time of the award (together with interest). The provision does not limit the special award to 50 per cent of the amount the arbitrator finds to have been unreasonably withheld or delayed. Therefore, the amount of the "pay now, dispute later" accounts found owing (being roughly $2400 if one excludes Dr. Nenonen's account which may have been paid) does not set the upper limit in calculating a special award, although it may be a factor in determining the proper quantum of the award.

The "pay now, dispute later" provisions of the Schedule exist to ensure that insured persons are not denied or delayed payment of expenses required for their treatment or rehabilitation. The "DAC" provisions of the Schedule protect insurers by allowing an early determination as to the reasonableness of the submitted accounts. This provision also protects insureds from incurring unreasonable ongoing expenses.

The only effective enforcement mechanism of the "pay now, dispute later" provisions may be a special award. If so, where there has been violation of this provision, the award should be a meaningful one.

In light of the purpose of this provision and the lack of any explanation by the Insurer, I find it appropriate to grant a special award of $2,500.

9. Is A.B. entitled to interest on any amounts owing?

Section 68 of the Schedule mandates that insurers pay interest on overdue amounts from the date they became overdue, at the rate of two per cent per month compounded monthly, and I so order.

EXPENSES:

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

August 31, 1999

Lawrence Blackman Arbitrator

Date