Neutral Citation: 1999 ONFSCDRS 2

FSCO A97-001283

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

BARBARA A. ZACHARIAS

Applicant

and

ALLIANZ INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before:

Shari L. Novick

Heard:

October 13, 1998, at the Financial Services Commission of Ontario, Toronto

Appearances:

Ms. Zacharias

Edmund W. Kent for Allianz Insurance Company of Canada

Issues:

The Applicant, Barbara Zacharias, was injured in a motor vehicle accident on November 4, 1994. She applied for and received supplementary medical and rehabilitation benefits from Allianz Insurance Company of Canada ("Allianz"), payable under the Schedule¹ Ms. Zacharias attended a medical and rehabilitation DAC assessment in October of 1996, in which it was determined that no further treatment was required to address the injuries she received in the accident. She disagrees with the results of this assessment. The parties were unable to resolve their disputes through mediation, and Ms. Zacharias applied for arbitration at the Financial Services Commission of Ontario² under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is Ms. Zacharias entitled to be reimbursed for the amounts she has paid for the following supplementary medical benefits?

(a) $600 for the cost of physiotherapy treatment from Kai Rasmussen for symptoms related to TMJ dysfunction?

(b) $275 for the cost of physiotherapy treatment from Linda Gaspich at Kay Yardley & Associates for her knee?

(c) $946.39 for the cost of an assessment and mandibular splint from Dr. Hrabowsky to treat her TMJ?

(d) $2,015.55 for a chiropractic assessment and treatment for both her knee and TMJ- related symptoms from Dr. McArthur?

(e) $2,656.25 for two psychological assessments and reports from Nicole Walton-Allen?

(f) $377.37 for Motrin medication?

2. Is Ms. Zacharias entitled to a lump sum Education Disability benefit?

3. Is Ms. Zacharias entitled to Loss of Earning Capacity benefits?

4. Is Ms. Zacharias entitled to a special award under section 282(10) of the Insurance Act?

Ms. Zacharias also claims interest on any amounts owing and her expenses of the hearing.

Result:

1. Ms. Zacharias is entitled to be reimbursed for the following supplementary medical benefits, amounting to a total of $4,214.71:

(a) $600 for physiotherapy from Kai Rasmussen;

(b) $275 for physiotherapy from Kay Yardley & Associates;

(c) $946.39 for assessment and mandibular splint from Dr. Hrabowsky;

(d) $2,015.55 for chiropractic treatment from Dr. McArthur; and

(e) $377.37 for Motrin medication.

2. Ms. Zacharias is not entitled to a lump sum Education Disability benefit.

3. Ms. Zacharias is not entitled to Loss of Earning Capacity benefits.

4. Ms. Zacharias is not entitled to a special award under section 282(10) of the Insurance Act.

5. Ms. Zacharias is entitled to interest on the amounts set out in paragraph 1.

6. Ms. Zacharias is entitled to her expenses of the hearing.

Evidence and Findings:

Background

The Applicant was injured on November 4, 1994 when the Jeep she was driving was struck by a car that failed to stop at a stop sign, at an intersection in St. Catharines, Ontario. She stated that the impact caused her head to hit the rear view mirror and her knees to hit the dashboard of her vehicle. She recalled that she felt stiffness in her neck and shoulder area as a result of the impact and experienced headaches upon waking up the next day.

The Applicant consulted her family doctor about her injuries and was initially prescribed Tylenol, and subsequently, Motrin, for pain relief. When her knee problems persisted, she was referred to an orthopaedic surgeon who suspected that she had suffered chondral damage to her right knee and sent her for an MRI. The MRI results revealed that she had sustained a Grade III chondromalacia patellae in her right knee as a result of the accident. Ms. Zacharias also complained of continuing headaches, tinnitus (ringing in her ears) and pain in her neck and shoulders.

The Applicant missed six days of work as a result of the injuries she suffered, but did not claim any income replacement benefits from the Insurer.

Ms. Zacharias has worked as a Registered Nursing Assistant ("RNA") in the chronic care ward at the Welland General Hospital for the last 13 years. In January of 1994, some 10 months prior to the accident, she successfully completed the registration examinations required to become a Registered Nurse ("RN"). She stated that the wage rate for RNs is approximately $2 per hour higher than that of RNAs, and that her intention prior to the accident had been to work casually as both a RN and a RNA, explaining that restructuring in the hospital sector has resulted in few, if any, full-time RN positions being offered. She testified that the injuries she suffered in the accident however, have decreased her chances of even obtaining casual employment as an RN.

Ms. Zacharias also testified that beginning in January of 1995 she had planned to take a Critical Care course that would have enabled her to specialise in that area, but that her injuries from the accident prevented her from doing so. She had not registered for the course at the time of the accident, but explained that it is not necessary to register that far in advance for this type of course.

Approximately two years after the accident, in late September of 1996, the Applicant was struck in the mouth while providing care to a patient, while at work. She testified that she went to see Dr. Pekar, a dentist, out of concern for her teeth and because she had pain in the area right under her nose. The required dental work was performed. She stated that Dr. Pekar also advised her that she had temporomandibular joint (TMJ) dysfunction and referred her to Dr. Yvonna Hrabowsky, a specialist in that area.

In October of 1996 the Insurer advised the Applicant that it would no longer pay her any medical or rehabilitation benefits, and she was referred to Niagara Rehabilitation for a medical/rehab DAC. Ms. Zacharias was seen by an orthopaedic surgeon, a physiotherapist and a dentist as part of that assessment. The assessors concluded that no further treatment was required for the injuries she had received as a result of the accident. The dentist determined that her TMJ problem was "due to pre-existing conditions, which could have been aggravated by the motor vehicle accident."

Ms. Zacharias testified that her jaw had locked while a dental x-ray was being taken during the DAC assessment, causing her to experience neck and shoulder pain and pain in the right side of her face. She explained that she subsequently received treatment for her neck and shoulder pain from Dr. McArthur, a chiropractor, which reduced some of the spasm caused by the incident. She stated that Dr. McArthur also treated her knees during these visits.

Dr. Hrabowsky, a prosthodontist, evaluated the Applicant in late November 1996, approximately one month after the DAC assessor determined that her TMJ dysfunction had not been caused by the accident. She disagreed with the conclusion reached at the DAC, and opined that Ms. Zacharias' condition was "typical of being involved in impact trauma such as a motor vehicle accident." Dr. Hrabowsky referred the Applicant to Kai Rasmussen, a physiotherapist, for treatment and recommended that she wear a splint to reposition her mandibular joint. Ms. Zacharias reported that the splint greatly reduced her headaches, and the nausea and tinnitus that she had been previously experiencing.

The Applicant explained that upon reviewing the DAC report she noted that there were several inaccuracies. Aside from some factual errors in the report, she noticed that no reference had been made by Dr. Robert, the orthopaedic surgeon, to the findings in the MRI report that she had sustained a chondromalacia of the right patellae. Much correspondence was then exchanged between Ms. Zacharias and the Insurer, Niagara Rehab, the Financial Services Commission (then known as the Ontario Insurance Commission) and the Freedom of Information office in an attempt to determine whether the MRI results and the consult note of Dr. Aubin, the orthopod who had sent her for the MRI, had been included in the referral package sent to the DAC assessors. These efforts ultimately led to the discovery that Dr. Robert had not been provided with these materials. A statement of disagreement drafted by the Applicant containing several corrections was also placed in the Applicant's file.

Dr. Robert was subsequently sent the missing documents to review in early May of 1997. He subsequently provided an Addendum to the report he had prepared the previous October. He confirmed in the Addendum that his examination of Ms. Zacharias had revealed chondromalacia patellae of the right knee, but stated that there had been evidence of chondromalacia in her left knee as well, and that the existence of this condition does not imply that the patient has suffered trauma. He opined that this condition pre-existed the accident.

The Applicant also sought psychological treatment in the aftermath of the accident, and filed two reports, dated September 11, 1997 and September 25, 1998 from a psychologist, Nicole Walton-Allen. Ms. Zacharias explained that she had experienced insomnia and nightmares prior to the accident as a result of earlier traumatic events in her life, and that when these began to recur after the accident she decided to consult a psychologist. She also stated that she had been very upset when her efforts to have the various errors in the DAC report corrected proved unsuccessful. The reports state, and Ms. Zacharias confirmed, that she had also decided to pursue a psychological assessment to determine if she was afflicted with some psychological disorder after she had been told during the course of the mediation in this proceeding that she was "a square peg trying to fit into a round hole."

Entitlement to supplementary medical benefits

The Insurer acknowledged at the hearing that it would pay any expenses incurred by Ms. Zacharias that related to treatment for her right knee, even if they had not been mediated, but that it was not prepared to reimburse her for any of the amounts claimed for psychological assessments or treatment, or for any treatment related to her TMJ dysfunction. Counsel for the Insurer took the position that any TMJ symptoms that the Applicant suffers resulted from the blow to the face that she received in the incident at work, pointing out that the TMJ diagnosis only arose when she consulted a dentist in the aftermath of this incident. The Insurer also submitted that the Applicant's perceived need for psychological treatment did not result from the injuries she had sustained in the accident.

The items that therefore remain in dispute are the physiotherapy treatments by Kai Rasmussen for $600, the mandibular splints from Dr. Hrabowsky for $946.39, and the cost of the psychological assessment and treatment by Nicole Walton-Allen for $2,656.25. The treatment that Dr. McArthur, the chiropractor, provided to the Applicant encompassed both her knees and the symptoms related to TMJ, and the accounts submitted for his services, totalling $2,015.55, do not distinguish between them. The Insurer suggested that in the absence of more complete information, it was prepared to pay half of this amount.

On the evidence before me I am persuaded that the Applicant's TMJ symptoms stem from the injuries she sustained in the accident, and therefore the treatments for this condition should be paid for by the Insurer. Although the TMJ diagnosis was only made after she was struck in the face some two years later, the Applicant's uncontradicted evidence, confirmed in the clinical notes of her family doctor, was that her head had hit the rear view mirror of her vehicle as a result of the impact of the accident. While Dr. Kumar, the dentist who performed the DAC assessment felt that the Applicant's TMJ condition "is not consistent with a motor vehicle accident," Dr. Hrabowsky noted various symptoms that were "typical of being involved in impact trauma such as a motor vehicle accident." I prefer Dr. Hrabowsky's findings, as her report sets out in a more detailed way the link between the Applicant's symptoms and her experience of physical trauma such as a motor vehicle accident, whereas Dr. Kumar states simply that he does not see her "problem" to be "consistent with a motor vehicle accident," without providing adequate reasons in support of his opinion.

The Insurer argued that the Applicant had not complained of problems with her jaw prior to the incident at work in September of 1996. The evidence was clear, however, that the Applicant's TMJ complaints did not focus on her jaw but rather on her headaches, tinnitus and pain in the shoulder and neck area, all of which she had been experiencing prior to the incident at work.

My findings are different, however, with respect to the expenses incurred by the Applicant for psychological treatment and assessment by Nicole Walton-Allen. On the evidence, I am not convinced that these are "reasonable expenses incurred by or on behalf of the insured person as a result of the accident," as set out in section 26 of the Schedule. The reports filed state quite clearly that Ms. Zacharias was self-referred and that her initial reason for approaching Ms. Walton-Allen was because of a comment made at mediation that she was "a square peg trying to fit into a round hole." The second report sets out the Applicant's concern that she continued to suffer depression and anxiety despite the significant alterations she had made in her life as the reason for referral, and discusses the various traumatic events in the Applicant's life that could have contributed to the diagnosis of Post-Traumatic Stress Disorder.

While it strikes me that the Applicant may have misunderstood the meaning behind the "square peg round hole" comment allegedly made at the mediation stage of this proceeding, I do not doubt or question her feeling that she could benefit from a psychological assessment. However, I do not feel that the Insurer should be required to pay for this treatment. The system set out in the Schedule requires an Insured who sustains an impairment as a result of an accident to request that expenses for medical and other treatment be covered by the Insurer. The Insurer is obliged to do so provided that the expenses in question are reasonable and result from the accident. It is not open to an Applicant to seek treatment on her own and then advise the Insurer that she has done so after the fact. Under the circumstances, I find that Allianz is not obliged to pay for the expenses claimed.

Consequently, the Applicant is entitled to recover from the Insurer the cost of her physiotherapy expenses, the treatment and mandibular splints she received from Dr. Hrabowsky, her chiropractic expenses and the outstanding account for Motrin medication. She is not entitled to recover payment for the cost of psychological treatment and assessment by Nicole Walton-Allen.

Entitlement to Education lump sum benefit

The Applicant claims that she is entitled to an education lump sum benefit. As I understand her argument, she feels that she should be compensated because she was unable to pursue the Critical Care course that she had planned to take in January of 1995 as a result of the injuries she sustained in the accident two months prior. The gist of her submissions on this point was that the accident had ruined her plans to work as an RN and that the Insurer should compensate her for that.

While I can appreciate that Ms. Zacharias would wish to be compensated for this lost opportunity, which would potentially have provided her with a higher income and increased personal satisfaction, that is not the role of the Insurer in this context. Lost opportunity may, in certain circumstances, be claimed in a tort action against the driver of the other car, in a court of law. I have no jurisdiction to award the Applicant any such compensation under the Schedule.

Section 16 of the Schedule does provide that certain amounts are payable to an Insured in the event that they are unable to attend or successfully complete a course of study as a result of the accident. Subsection 16(1)(c), dealing with post-secondary education, stipulates, however, that a person must be enrolled at an educational institution in order to be entitled to this benefit. As Ms. Zacharias has testified that at the time of the accident she had not yet enrolled in the Critical Care course she had intended to take, that benefit is not payable to her.

Entitlement to Loss of Earning Capacity benefits

The Applicant maintains that she is not employable as a registered nurse because of the problems she continues to experience with her knee and the TMJ-related symptoms resulting from the accident. She explained that even if she were able to work some hours as a casual RN, she does not feel that she is in the position to leave her full-time job as an RNA because she would lose her health benefits. Ms. Zacharias contended that she should be compensated for this loss of opportunity with Loss of Earning Capacity ("LEC") benefits.

I find that the Applicant is not entitled to LEC benefits. Part VI of the Schedule sets out a comprehensive scheme for the payment of these benefits, commencing with section 21, which sets out seven circumstances under which an insured may be entitled to collect LEC benefits. The Applicant does not fit within any of the enumerated categories. As stated above, she was absent from work for six days after the accident, but did not collect any income replacement benefits from the Insurer. Again, a claim for lost opportunity may, in some circumstances, be appropriate in a tort action against the driver of the other vehicle, but is not something that is compensable under the Schedule.

Special Award:

The Applicant has also claimed a special award under section 282(10) of the Insurance Act. Under this provision, a special award is mandated if the arbitrator finds that the insurer has unreasonably withheld or delayed payments to the insured. While I question why the Insurer waited until the day of hearing to advise the Applicant that it would pay any expenses related to treatment for her knees, I do not find that its conduct in this regard reaches the standard contemplated by the above provision. Given the results of the DAC assessment and fact that the diagnosis of TMJ dysfunction was not made until after the Applicant was struck in the face by a patient while at work, I cannot fault the Insurer for taking the position it did with respect to her TMJ-related symptoms.

While it is evident that Ms. Zacharias has been frustrated on several occasions by the Insurer's actions, or lack of action, I do not feel that a special award is warranted in the circumstances of this case.

Expenses:

I did not hear any submissions with regard to expenses. In light of the Applicant's mixed success with respect to her claim for supplementary medical benefits, and my finding that her other claims were not appropriately brought in this forum, I would be inclined to find that she is entitled to half of her expenses related to the hearing. As I did not hear any submissions on the matter, however, I will make no finding in this regard and encourage the parties to resolve the matter of expenses on their own. If the parties are unable to agree on the appropriate amount of expenses to be paid, arrangements should be made with the case administrator to resume the hearing by teleconference so that submissions can be made on this issue.

January 4, 1999

Shari L. Novick

Arbitrator

Date

Neutral Citation: 1999 ONFSCDRS 2

FSCO A97-001283

BETWEEN:

BARBARA A. ZACHARIAS

Applicant

and

ALLIANZ INSURANCE COMPANY OF CANADA

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. Ms. Zacharias is entitled to be compensated in the amount of $4,214.71 for various supplementary medical benefits, as set out above, with interest.

2. Ms. Zacharias is not entitled to a lump sum Education Disability benefit.

3. Ms. Zacharias is not entitled to Loss of Earning Capacity benefits.

4. Ms. Zacharias is not entitled to a special award.

January 4, 1999

Shari L. Novick

Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents after December 31, 1993 and before November 1, 1996, Ontario Regulation 776/93, as amended by Ontario Regulations 635/94, 781/94 and 463/96. O.R. 776/93 was extensively modified by O.R. 781/94; accordingly, where necessary, "1994 Schedule" refers to the original O.R. 776/93, and "1995 Schedule" refers to O.R. 776/93 as amended.
2. 2Effective July 1, 1998, the Ontario Insurance Commission was changed to the Financial Services Commission of Ontario, pursuant to the Financial Services Commission of Ontario Act, S.O. 1997, c.28.