Neutral Citation: 1999 ONFSCDRS 200

FSCO A97-000296

BETWEEN:

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Fred Sampliner

Heard:

April 19, 20, 21, June 11, 1999, in London, Ontario.

Appearances:

Adrien Cameron for LC, assisted by Jennifer Attenborough

Gregg Heckel for Wawanesa Mutual Insurance Company

LC's injuries from an August 11, 1994 motor vehicle accident resulted in Wawanesa Mutual Insurance Company ("Wawanesa") paying her weekly disability benefits under the Schedule¹ until August 12, 1996. Her claims for ongoing disability benefits, funds for psychological counselling, housekeeping and home maintenance were disputed by Wawanesa. After mediation failed, LC 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 are:

Is LC entitled to caregiver benefits after August 12, 1996?
Is LC entitled to housekeeping and home maintenance expenses after the accident?
Is LC entitled to psychological counselling?
Is LC entitled to a special award?

LC is entitled to caregiver benefits from August 12, 1996 through January 21, 1999, together with interest according to the Schedule.
LC is entitled to $52.35 housekeeping expenses, plus interest according to the Schedule.
LC is not entitled to payment of psychological counselling unless a current assessment recommends this treatment is necessary as a result of the accident.
LC is entitled to an $8,000 lump sum special award, inclusive of interest.

LC was a twenty-five-year-old single mother on social assistance at the time of the accident. She had been laid off from part-time work as a cake decorator some months before the accident, and lived in a one-bedroom apartment with her two-year-old daughter.

The August 11, 1994 accident demolished LCs automobile in a head-on collision. She and a friend were returning to London from a St. Thomas bingo hall. As a result of the accident, LC sustained cuts, bruises and a lump on her head from striking the car frame. LC did not go to hospital after the accident, but saw her family doctor. Her complaints were: weakness, pain, tingling and numbness in her dominant left hand, arm and shoulder, headaches, chronic fatigue and depression.

No medical expert has been able to identify any objective cause for LC’s complaints, and physiotherapy and exercise programs have not offered any significant relief from her symptoms. She has undergone psychological counselling and taken medication for depression and stress. In June 1998 she was hospitalized for a nervous breakdown.

Caregiver Benefits:

LC claims entitlement to ongoing caregiver benefits. She must establish, on a balance of probabilities, that she suffers a substantial inability to engage in caregiving activities for her daughter as a result of the accident.² Wawanesa argues that LC is capable of resuming her pre-accident caregiver and household tasks.

LCs Evidence:

LC testified in a straightforward and honest fashion about her duties and capabilities. At the time of the accident, LC cared for her daughter full-time. She prepared meals, cleaned the apartment, did laundry and shopping. LC also read to her daughter, took her on outings, played with her and provided clothing, comfort and affection. I find that at the time of the accident LC performed the following caregiver functions; meal preparation, housecleaning, laundry, shopping, helping her daughter with personal hygiene, spending active and quiet-time with her daughter, and providing comfort and affection.

LC admitted to pre-accident health problems. Her medical records confirm she was diagnosed with an underactive thyroid just months before the accident. LC's testimony that she experienced fatigue, joint stiffness and aching, weight changes, sleep deprivation, and night-time sweating during the year before the accident is consistent with the medical diagnosis. Medication did not bring the symptoms under control until after the accident. LC admitted that she was sluggish with her housework before the accident as a result of her thyroid condition, but there is no evidence that she required any assistance. Consequently, I find that LCs pre-accident hypothyroid condition did not impair her ability to care for her daughter.

By the time LCs disability benefits were terminated, she had moved into a four-bedroom home adjacent to her mother, for assistance with child care and housekeeping. LC testified that she cooks light breakfast, loads the dishwasher, makes lunches, loads the clothes washer and dryer, performs light dusting, takes the dog for walks, and shops with help. LC fixes her daughter's lunch for school, makes her bed, and straightens up the house. In the evenings, she helps her daughter with homework, reads to her, hugs her using only her right (non-dominant) arm, and puts her to bed.

LC stated that she cannot perform heavier housework because her left dominant arm and hand swells up and becomes red and painful with activity. She tries, but is unable to vacuum or perform heavier cleaning and cooking because of her condition. LC does not prepare complicated meals, take out the garbage, change bed linens unless assisted, unload the dish or clothes washer, wash windows and conduct seasonal cleaning. She breaks frequently from her daily housekeeping, accomplishing approximately two full-days work in a week.

In child care activities, LC testified that she is unable to play dolls, colour and draw, skip, jump rope, or engage in active physical exercise with her daughter. LC cannot shampoo her child's hair because of pain in her left arm. LC testified that she has become very angry and frustrated because she must rely on her mother to assist with child care and housekeeping. LC’s mother testified about her assistance since her daughter moved next door. She visits her daughter almost every day to vacuum, dust, clean the bathrooms, kitchen and floors, and help with her granddaughter's care since retiring from work in August 1996. Her mother said that LC is able to do light housekeeping, laundry and cooking.

LC’s ex-boyfriend, who is the child’s father, testified that LC was a good homemaker prior to the accident. After the accident, the couple’s relationship deteriorated. However, to maintain his relationship with his daughter, he moved next door to LC and helps cook, clean, change linens, do laundry and help his daughter at night after his normal workday.

The evidence from these three individuals is consistent and credible. I accept that LC’s main difficulties with respect to child care since August 1996 are her inability to wash her daughter’s hair, hug her close, or be physically active with her, inability to cook complicated meals, change bed linens, do laundry, shop, and perform the heavier housework such as vacuuming, washing floors and windows, and scrubbing kitchen and bathroom floors and fixtures.

Medical Evidence:

LC’s claim that she suffers debilitating soft tissue pain in her left arm and shoulder, along with headaches is supported by the opinion of Dr. Hillel Finestone, a physiatrist. Dr. Finestone first saw LC in October 1994 on referral from her family physician. He cannot identify any organic pathology, but accepts that she experiences soft tissue pain and headaches. Dr. Finestone pessimistically concluded that LC will likely never improve.

Dr. Finestone admitted in testimony that functionally LC can use her left arm to perform non-repetitive minimal strength activities. His December 1997 report states, "It was difficult for her, on occasion to take care of her six-year-old daughter, but since her daughter is more independent there were fewer physical demands with regard to her care."

Dr. Finestone's concern about LC's emotional status led to his counselling referral and to prescribe medication for depression and sleep loss. In January 1995, a psychological counsellor, Dr. Christine Rattenbury conducted an evaluation. Dr. Rattenbury diagnosed post-traumatic stress and depression, remarking that LC had undergone significant loss of self-esteem and independence.

On recommendation from Dr. Rattenbury, LC attended a dental receptionist course from September 1995 to February 1996, with hopes of resuming employment. She continued with Dr. Rattenbury's counselling, and obtained reasonably good marks in the dental course. However, LC could not maintain keyboarding speed and never graduated.

Dr. Michel Lacerte, a physiatrist examining LC for Wawanesa, reported in May 1995 that she dramatically overreacted. Dr. Lacerte found no organic pathology to explain her physical symptoms. Because he found no organic basis for her complaints, Dr. Lacerte said LC should be able to resume caregiving and housekeeping. Like Dr. Finestone, he also recommended psychological counselling.

Dr. Robert Schnurr conducted a psychological evaluation for Wawanesa in August 1995, reporting that LC suffered post-traumatic stress. He agreed with Dr. Rattenbury that LC should continue with psychotherapy to gain insight into her problems.

Dr. Sid Freedman also recommended psychological counselling to Wawanesa in a June 1996 report. However, it was his opinion that LC's post-traumatic stress and mild soft tissue pain did not prevent her from gradually increasing her activities.

Dr. John Clifford, a physiatrist retained by Wawanesa, saw LC in June 1996, and agreed that she should increase her activities. He did not share Dr. Finestone's view that LC cannot and will likely never resume normal functions. Dr. Clifford stated it was safe for her to resume normal activities, even though she has mild shoulder impingement and soft tissue pain. He could not determine her functional capacity based on one assessment.

In his testimony, Dr. Clifford reiterated his opinion that LC’s soft tissue injuries have healed, and that she should gradually resume her normal homemaking and caregiver activities. He does not attribute her complaints to malingering or exaggeration. Dr. Clifford maintained that it is difficult to attribute her pain to the accident five years ago, but acknowledges that psychological factors may influence her perception of pain.

I respect Dr. Clifford, but his analysis does not explain LCs chronic complaints, which he accepts, nor does he account for her psychological problems, which he admits influence her pain level. The disability test is not limited to whether the person risks injury in resuming regular activities³ or whether it is therapeutic.⁴ I am not satisfied this is a normal case where injuries heal over time, and do not rely on Dr. Clifford’s opinion.

I also do not rely on Dr. Lacerte or Dr. Freedman. On the one hand, Dr. Lacerte’s opinion is simply based on his lack of organic findings. His recommendation for counselling recognizes LC’s mental problems, but he did not account for them in his opinion. On the other hand, Dr. Freedman limits his opinion to the psychological component, and does not account for LC’s physical problems. None of these experts evaluates her chronic pain and depression together in a functional analysis. After August 1996, Wawanesa withdrew funding for LCs psychological counselling, and she did not continue treatment.

LC applied for Canada Pension Plan Benefits disability benefits in late 1996. Dr. M. Simmons reported to Wawanesa in January 1997 that LC continued to suffer left arm soft tissue pain and reactive depression. Dr. Finestone reported in December 1997 that her left hand was still slightly more swollen than her right hand, that she had shoulder tenderness and restricted movement. In 1998, Dr. Michael Simmons, her family physician, was concerned about her symptoms of psychotic depression, and sent her for a psychiatric assessment.

Dr. G. Sadek, psychiatrist, saw LC at the London Health Sciences Centre between April 30 and June 25, 1998, for depression and auditory hallucinations. LC threw a cup at her daughter, which set off a mental breakdown, and she was hospitalized at the Centre between June 25 and July 7, 1998. After her release, Dr. Walter Friesen, a psychologist at the Centre, stated, "it appears the car accident had a significant negative impact on her life." He made yet another recommendation for counselling.

Dr. Harold Mountain, a psychiatrist, stabilized LC's depression through medication, and on January 21, 1999 he reduced her tranquillizers because her hallucinations were diminished and she was more comfortable. I do not rely on Dr. Mountain's brief opinion addressing her employability. However, I find that his reports of LC's psychological turmoil, the hospital records from her mental breakdown in 1998, reports from Drs. Finestone, Simmons, Friesen and Sadek most certainly indicate that LC suffered a continuum of a significant level of emotional and psychological trauma as a result of the automobile accident until January 21, 1999.

The Law:

LC must prove that she suffers a substantial inability to perform the caregiver tasks she engaged in at the time of the accident. I reject LC's argument, based on the Harper⁵ decision, that her tasks remain exactly the same throughout the period of her disability. Using the Harper approach, LC's ability to dress or bathe her four-year-old daughter are locked in, despite her daughter's developmental changes. If LC had been caring for an aging parent at the time of the accident, those required skill changes would also not be recognized.

In my view, the drafters of this legislation contemplated flexibility in the duties to reflect the change in the particular requirements of caregivers. While I agree that the duties "at the time of the accident" lock in the particular categories (such as meal preparation, cleaning, hygiene, emotional support) I find that LC's functions within each category changed to reflect her daughter’s growth.

Conclusion:

Based on LC and her witnesses' evidence, Dr. Simmons' and Dr. Finestone's reports, I accept that LC suffered from soft tissue pain in her left arm and shoulder, emotional distress and depression which caused her a substantial inability in full-time caregiver activities for her daughter.

When LC's daughter entered full-time school in September 1998 and LC's depression was stabilized in January 1999, Dr. Mountain reported that LC was more functional and her auditory hallucinations reduced. LC’s own evidence is that she performs the lighter tasks such as cleanup, cooking at least two meals a day, shopping, dusting, doing dishes and laundry in a four-bedroom home. Since LC suffered fatigue in housekeeping and cooking in her much smaller one-bedroom apartment prior to the accident, I am convinced that when her mental stability returned in January 1999 she has not suffered a substantial housekeeping impairment for her daughter as a result of the accident. With her daughter in full-time school, I am likewise not persuaded that after January 21, 1999, LC’s inability to use both arms to hug her daughter, wash her hair or be physically active with her establishes a substantial inability to perform caregiver activities.

Thus, I find LC suffered a substantial inability to perform her caregiver functions as a result of the accident from August 12, 1996 through January 21, 1999, and she is entitled to caregiver benefits under section 18 of the Schedule during that period.

Housekeeping and Home Maintenance:

LC claims she incurred weekly housekeeping expenses as a result of the accident.⁶ She testified that she paid Sparkles Cleaners $50 for housecleaning once a week until August 1996, but did not keep receipts. Her ex-boyfriend testified that he hired Sparkles Cleaners at $72.50 a week, but he produced a copy of only one personal cheque for $52.35, dated December 12, 1995.

LC's mother and ex-boyfriend testified that they periodically assisted with housekeeping up to August 1996. While LC did suffer impairments, she was living in a one-bedroom apartment. I do not accept that LC required professional cleaners in addition to her mother and the child's father. They do not claim compensation.

Absent documentary proof of a continuing housekeeping expense, I find that LC is entitled to reimbursement of $52.35 for professional housekeeping expenses. This ruling does not affect claims by her mother and ex-boyfriend.

Psychological Counselling:

LC claims that future psychological counselling with Dr. Rattenbury is both reasonable and necessary due to her accident injuries.⁷ She requests that I order Wawanesa to fund a program.

In August 1996, Dr. Freedman suggested that LC undergo no more than six months counselling. Based on Dr. Freedman’s opinion, Wawanesa withdrew funding and Dr. Rattenbury stopped treating LC. Numerous experts have recommended counselling, but LC has not continued either with Dr. Rattenbury or with any other counselor.

LC’s psychological picture has changed a great deal over the three years since her counselling ceased with Dr. Rattenbury. She has undergone a mental breakdown, and I understand that LC is still under medication and care.

LC has not submitted any treatment plan, and without a current evaluation of her condition and needs, I am not prepared to speculate on what is reasonable. LC should undergo an evaluation of her need for further psychological counselling. I decline to make an order at this time.

Medical Reports:

LC claims reimbursement for the cost of six medical reports as benefits under section 57 of the Schedule, but not as expenses of the arbitration process. Section 57 provides coverage for costs of health care assessments, examinations and reports for purposes of her entitlement to accident benefits.

Dr. Rattenbury’s August 7, 1996 bill for preparation of her report bearing the same date shows eight hours at $165 per hour, and a handwritten note at the bottom of the statement indicating it is for report preparation. Dr. Rattenbury also billed $165 for two hours time on October 27, 1995 to copy her notes and prepare a half-page health practitioner certificate.

Dr. Rattenbury’s five-page report fails to indicate if she conducted an independent assessment of LC or some extensive review of her treatment or other medical records which could justify the eight hours time she indicates. The expert rate charged for photocopying her records is excessive for this administrative duty. I am prepared to allow three hours at $165 for Dr. Rattenbury’s August 1996 report, and one hour at $165 per hour for Dr. Rattenbury's file review and preparation of the October 27, 1995 report and copying the records.

I find that the amounts relating to Dr. Simmons reports and records are reasonable. He billed $100 for his health certificate to Wawanesa along with $75 for photocopies of LC's records in November 1995, $250 for his seven-page May 1996 medical report assessing her injuries, and $25 for a May 1996 health certificate. I find Dr. Simmons services are reimbursable costs of medical reports and records related to LC’s entitlement to accident benefits.

I am provided with no information to establish that Dr. Finestone's October 1995 bill of $80.25 for copying medical reports bears a relationship to one of his medical assessments. Therefore, I conclude that it is not a covered benefit.

Of the amounts claimed for medical records, reports and assessment under section 57 of the Schedule, I find that LC is entitled $1,110.

Special Award:

The Insurance Act states that an arbitrator shall make a special award where the insurer unreasonably withholds or denies benefits. In sum, Wawanesa terminated LC’s counselling with Dr. Rattenbury without any reasonable basis, and took an unreasonable position in withholding payment for her vocational retraining until the first day of the hearing.

Dr. Freedman recommended in September 1996 that LC undergo time-limited therapy. He did not suggest that the company completely cut off her medical benefits or funds for counselling. The adjuster, whether purposely or erroneously, misused Dr. Freedman’s opinion on disability as a basis for terminating her treatment.

Wawanesa sent the letter terminating treatment to Dr. Rattenbury, not directly to LC as required.⁸ There is no evidence that LC received any advance notice that Wawanesa took this decision. The adjuster did not ask Dr. Freedman to clarify his opinion of LC's treatment nor did the company seek any other independent assessment of LC's treatment needs before taking this position.

Wawanesa notified Dr. Rattenbury of its decision, but did not give LC or any authorized representative direct notice.⁹ I find that Wawanesa breached its duty to provide LC with direct notice of its decision to terminate funds for her counselling.¹⁰ Further, I find that the company treated LC with contempt in denying counselling without any reasonable basis for its decision. I have no hesitation in finding Wawanesa unreasonably terminated LC's psychological counselling at the end of August 1996.

Wawanesa had no basis to deny funds for LC's dental reception course either. Both Dr. Clifford and Dr. Rattenbury endorsed this training at the time she enrolled, and it was only at the hearing that Wawanesa accepted responsibility to pay her Ontario student loan ($4,906 principal plus interest).

The company's defence based on Dr. Finestone's pessimism about her chances of graduating is grasping at straws. Dr. Finestone did not say the program was unreasonable, and no one else did either. Again, I find that Wawanesa was unreasonable in withholding payment for LC's dental receptionist course.

This cavalier conduct breaches Wawanesa's duty to treat LC with utmost good faith. Without the supportive counselling, LC's mental state spiralled down and she was obligated to make payments on the student loan from her modest welfare income. Although accepting responsibility at the hearing, Wawanesa's conduct must be deterred. Taking all factors into consideration, I find it appropriate to award LC an $8,000 lump sum special award, inclusive of interest under section 282(10) of the Insurance Act.

EXPENSES:

This is an appropriate case to award LC her expenses. The parties may speak to me if they cannot resolve the issue.

October 13, 1999

Fred Sampliner Arbitrator

Date