Neutral Citation: 1999 ONFSCDRS 245

FSCO A98-001239

BETWEEN:

SONIA P. REDMAN

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Donald Hale

Heard:

November 1, 2, 3 and 4, 1999, at the Offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Derek L. Smith for Ms. Redman

Dana Bruce Hanson for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Sonia P. Redman, was injured in a motor vehicle accident on July 7, 1997. She applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company ("State Farm"), payable under the Schedule.¹ State Farm terminated weekly income replacement benefits on January 28, 1998. The parties were unable to resolve their disputes through mediation and Ms. Redman applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c. I.8, as amended.

The issues in this hearing are:

Is Ms. Redman entitled to receive weekly income replacement benefits beyond January 15, 1998 claimed pursuant to section 4 of the Schedule?
Is Ms. Redman entitled to receive medical benefits for chiropractic and needle injection treatments, medication and transportation expenses claimed pursuant to section 14 of the Schedule?
Is Ms. Redman entitled to receive rehabilitation benefits claimed pursuant to section 15 of the Schedule?
Is State Farm liable to pay Ms. Redman's expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?

Ms. Redman also seeks interest on any amount outstanding.

Result:

Ms. Redman is entitled to receive weekly income replacement benefits from January 15, 1998 to July 7, 1999 under section 4 of the Schedule.
Ms. Redman is entitled to receive medical benefits for her prescription expenses incurred for medication related to the treatment of symptoms arising from the accident and for transportation expenses claimed pursuant to section 14 of the Schedule.
Ms. Redman is not entitled to receive rehabilitation benefits for hydrotherapy under section 15 of the Schedule.
State Farm shall pay interest on any outstanding amounts due to Ms. Redman.

EVIDENCE AND ANALYSIS:

Background

Ms. Redman was born in Jamaica on December 4, 1949. In 1981 she arrived in Canada and worked as a live-in housekeeper and babysitter until 1989. She went back to Jamaica, returning to Canada in May 1995 as a landed immigrant. In the fall of 1995, Ms. Redman underwent a hysterectomy. Following her recovery, Ms. Redman went to work as a house cleaner, working five days a week, an average of five to seven hours per day. She took public transit to and from each of her cleaning jobs.

Ms. Redman was injured in a collision with a car while riding her bicycle on July 7, 1997. The force of the impact threw her onto the hood of the car. Ms. Redman was unable to say whether the car actually came into contact with any part of her body or only struck the bicycle. She did not immediately seek medical attention but attended at the office of her family doctor the next day.

Pre-Accident Medical History and Work Activities

As noted above, Ms. Redman underwent a hysterectomy in October 1995 and during the following year she experienced cramps in her left thigh which she reported to her doctors. Ms. Redman had a Doppler study performed in March of 1996 to determine whether there were any problems with circulation in that part of her left leg. No abnormalities were found in the veins of her upper legs.

Ms. Redman was seen by Dr. U. Omarali following her return to Canada from Jamaica in 1995. In the notes which he made at the time of her visit on June 18, 1996, Dr. Omarali wrote that Ms. Redman had reported "pain in back from falling" and that he had prescribed a muscle relaxant and anti-depressant to treat her symptoms. I note, however, that there is no further mention in the notes of Dr. Omarali or of her other treating physicians of any other complaints of back pain or treatment for it prior to the accident. It is also noteworthy that Ms. Redman was able to continue with her full-time work cleaning homes throughout this period and was riding her bicycle at the time of the accident.

After Dr. Omarali became incapacitated by a stroke, Ms. Redman came under the care of Dr. M. R. Pellow. Dr. Pellow noted that in April 1997, Ms. Redman presented at his office with complaints of diffuse achiness, particularly localized to her left thigh. In a consultation note provided by Dr. Pellow to Dr. G. Pugen in late 1997, Dr. Pellow cautioned that while some of her post-accident complaints of pain and achiness are likely attributable to the July 7, 1997 accident, because of her presentation in April 1997, some of the symptoms complained of may have pre-dated the accident. Ms. Redman testified that her complaints of achiness in April 1997 were not of the same degree or origin as the pain which she experienced post-accident.

After Ms. Redman's recovery from the hysterectomy in October 1995, she began working as a house cleaner in January 1996. She testified that she worked at the homes of three different families, two days per week at two homes and one day per week at the other. Her work day normally began between 8:30 a.m. and 9:00 a.m. and she finished for the day between 2:30 p.m. and 4:00 p.m. Her duties consisted of doing occasional laundry, making beds, mopping floors, vacuuming carpets, cleaning the bathroom and baseboards on her hands and knees using a cloth and scrubbing the bathroom fixtures. The work involved a great deal of bending, kneeling, reaching, squatting and carrying the vacuum cleaner and her cleaning supplies up and down several flights of stairs. Ms. Redman travelled to and from her cleaning jobs by public transit. Her remuneration for this work was well documented and the amount of her earnings, and hence the quantum of her income replacement benefits is not in dispute.

Prior to July 7, 1997, Ms. Redman enjoyed walking in her local park and rode her bicycle for recreation until it was damaged in the accident which gave rise to this arbitration.

Post-Accident Complaints, Treatment and Assessments

On July 8, 1997, Ms. Redman attended at Dr. Pellow's office. Dr. Pellow assessed her injuries as soft-tissue damage to her right shoulder with tendonitis and bruising, a contusion and bruising on her left knee, lumbar cervical strain with a normal range of motion and a strain of her right posterior rib cage. Shortly thereafter, Ms. Redman began a course of eight weeks of physiotherapy and massage treatment at North York Rehabilitation Centre as recommended by Dr. Pellow. Ms. Redman left the care of Dr. Pellow in October 1997 in order to receive treatment from Dr. Greg Pugen, who had been recommended to her by a friend. Ms. Redman also attended at the Canadian Back Institute for nine sessions in the fall of 1997. Her treatments there consisted of hot pack treatments on her back, neck and shoulder and a regimen of exercise.

On September 12, 1997, Ms. Redman was examined at the Insurer's request by Dr. M. K. Joseph Kwok who observed tenderness in Ms. Redman's right anterior rib cage, cervical spine in the midline and right paraspinal areas, as well as the right shoulder blade. He also found that Ms. Redman had full range of motion in those areas and no evidence of muscle spasm in her back. Dr. Kwok noted some thickening in the soft tissue in Ms. Redman's left thigh, though no injury to her left knee. He concluded that while Ms. Redman had suffered soft tissue injuries to various parts of her body and was experiencing pain, there was no evidence of any impairment. Dr. Kwok anticipated that given rest, physiotherapy and medication, Ms. Redman's condition would improve within weeks and that she should be able to return to her pre-accident activities.

Following receipt of Dr. Kwok's report, State Farm terminated Ms. Redman's income replacement benefits and declined to pay for further medical or rehabilitation treatment, including a course of physiotherapy recommended by the Canadian Back Institute at the suggestion of Dr. Pugen. Ms. Redman then requested an assessment by a designated assessment centre (a DAC) with respect to the issues of disability and the need for further medical/rehabilitation treatments. As a result, Ms. Redman underwent a Multi-Disciplinary DAC consisting of an Orthopaedic Assessment by Dr. Geoffrey Lloyd on December 2, 1997, a Functional Abilities Evaluation by staff at the Work Able Centres Inc. on December 2, 4 and 5, 1997 and a Physiotherapy Assessment by a Work Able physiotherapist on either December 12 or 18, 1997 (the date of this examination is inconsistently recorded on the report).

Dr. Lloyd's report, as well as his evidence at the hearing, was somewhat equivocal on the issue of Ms. Redman's disability, finding that:

if one accepts her subjective commentary, then one would have to conclude that she is [disabled]. If, on the other hand, one relies on the objective findings and an informed prognosis of the type of injuries that she sustained, then she is not [disabled].

In his evidence at the hearing and in his Disability DAC Assessment report, Dr. Lloyd succinctly summarized what is, in essence, the issue I am being asked to determine in this arbitration. Dr. Lloyd was of the view that because of Ms. Redman's inconsistent and sub-maximal effort on her Functional Abilities Evaluation, he was unable to rely on the data collected to make a determination as to the nature or extent of her disability. Based on his expertise and experience in evaluating and treating patients with similar complaints, Dr. Lloyd opined that a full recovery could be expected within a reasonable time. He also acknowledged that some patients are unable to make the kind of recovery which he would anticipate and are also unable to complete the tests which are administered as part of a Functional Abilities Evaluation due to complaints of pain while performing the tests.

Dr. Lloyd's contribution to the Medical and Rehabilitation DAC assessment report ("Med/Rehab DAC Assessment") was similar in nature to that which was included in the Disability DAC report. I note that in the addendum which Dr. Lloyd attached to the Med/Rehab DAC assessment, he states that:

...this lady would have the capability of performing her pre-accident lifestyle activities, however, whether she would be able to do them competitively as a cleaning lady is an issue that is going to have to be addressed by the Functional Abilities Evaluation.

In my view, this comment more appropriately belongs in the Disability DAC Assessment report than in the Med/Rehab DAC Assessment as it responds directly to the questions posed therein. The statement also recognizes that while Ms. Redman may be able to perform the tasks required of a house cleaner, she may not be able to do so on a competitive basis, for remuneration.

Dr. Lloyd conceded on cross-examination that his portion of the Med/Rehab DAC Assessment simply states his conclusion that no further treatments of any modalities are recommended, without providing any analysis behind this finding. The physiotherapist who contributed to the Med/Rehab DAC Assessment also concluded that while the treatment which Ms. Redman had received to that point was reasonable and necessary, no further treatment was recommended as Ms. Redman had been properly instructed in her own home exercise program. When asked on cross-examination whether he was aware of what treatment had been suggested by the Canadian Back Institute (CBI) (and denied by State Farm at the time that he performed his portion of the Med/Rehab DAC Assessment), Dr. Lloyd indicated that he was not. The questions posed by State Farm to the Med/Rehab DAC assessors did not specifically address the course of treatment contained in the CBI treatment plan. In my view, a Med/Rehab DAC Assessment and the accompanying report which do not specifically refer to and analyse the proposed course of treatment is not particularly helpful to me in determining whether the proposed treatment was reasonable or necessary. The issue before the Med/Rehab DAC assessors was framed in such a way as to seek their opinion as to whether they would recommend "any further treatment of any modality." In my view, the question that ought to have been put to the Med/Rehab DAC assessors was whether the treatment plan for physiotherapy recommended by CBI was reasonable or necessary. In that way, the assessors would be in a position to put their minds to the question of the reasonableness of the proposed treatment and would not find themselves attempting to determine how they, as opposed to Ms. Redman's own care providers, would treat her.

As a result of the recommendations contained in the Disability and Med/Rehab DAC Assessment reports, State Farm terminated Ms. Redman's income replacement and medical/rehabilitation benefits effective January 15, 1998.

Dr. Pugen referred Ms. Redman to Dr. A. Kachooie, a physiatrist, who first saw her on January 19, 1998 about her complaints of right shoulder and back pain. Later that month, Dr. Kachooie gave Ms. Redman an epidural injection of synvisc to ease the discomfort in her lower back. Ms. Redman found that this gave her a great deal of pain relief, but only for four or five days. In his consultation note to Dr. Pugen of June 2, 1998, Dr. Kachooie confirmed that Ms. Redman "has not received any benefit from the epidural steroidal injection." In a later report dated December 31, 1998, Dr. Kachooie recommended that Ms. Redman participate in an active, self-directed, conditioning program consisting of hydrotherapy and a swimming exercise regimen, at least three times per week, in a community pool setting, though no treatment plan containing these recommendations was provided to State Farm.

Beginning in May 1998, Ms. Redman underwent a series of manipulation and massage treatments with Dr. J.L. Porter, a chiropractor. These sessions have continued to date and are now provided by Dr. Porter on a pro bono basis. In her report dated November 2, 1998, Dr. Porter reported some improvement in Ms. Redman's complaints of pain in her upper back and shoulders but noted that her lower back disorder had not responded well to care.

Throughout the fall of 1997 and 1998, Dr. Pugen continued to treat Ms. Redman's complaints of pain and discomfort, particularly in her lower back and right shoulder blade. Beginning in December 1997, Ms. Redman also reported having episodes of vertigo and dizziness which were ultimately relieved with Gravol. Ms. Redman also reported headaches beginning in March 1998. She began to experience sensory hallucinations which she described as "crawling" in her groin throughout the summer and fall of 1998. These symptoms abated with the use of a topical cream prescribed by Dr. Kachooie. Dr. Pugen prescribed a wide variety of anti-inflammatory, anti-depressive, pain relief and sleep medications. He was of the view that if a prescribed medication did not have the desired effect, another medication should be tried in order to find the most effective one.

Dr. Pugen continued to treat Ms. Redman through 1998 and 1999, noting that her condition failed to improve significantly and that her complaints of headaches, low back, neck, right scapular and left knee pain remained unchanged. He recommended that she receive acupuncture, hydrotherapy and physical rehabilitation treatments but these were refused by State Farm. Dr. Pugen concluded in his report of October 4, 1999 and in his testimony at the hearing that Ms. Redman is incapacitated and unable to return to her pre-accident employment as a house cleaner due to her ongoing pain and associated limitations.

Ms. Redman's counsel referred her for an examination by Dr. D.J. Ogilvie-Harris, an orthopaedic surgeon. Dr. Ogilvie-Harris saw Ms. Redman on September 13, 1999 and concluded that she had sustained soft tissue injuries to her right shoulder blade area, her left knee and her thoracolumbar spine. These injuries are evidenced by a reduced range of movement in each of the affected areas.

Dr. Ogilvie-Harris indicated that Ms. Redman has impaired function of her right arm, lumbar spine and left knee. He was of the view that these injuries were directly related to the accident of July 7, 1997 and represent a serious and permanent impairment of important bodily functions, limiting her ability to complete her day-to-day tasks or to return to her former employment.

On September 30, 1999, Ms. Redman was examined at the request of her counsel by Dr. Anthony Newall, a physiatrist. Dr. Newall's examination revealed a reduced range of motion in Ms. Redman's neck and lower back and tenderness in the soft tissues of her neck, shoulder blades, lower back, hips and below her left knee. Dr. Newall also observed back spasms in Ms. Redman's lower back when palpated.

On cross-examination, Dr. Newall was asked whether the opinions as to ongoing disability expressed by Drs. Kwok and Lloyd in the fall of 1997 were reasonable. Dr. Newall replied that at the time of these examinations, Ms. Redman's condition had not yet become chronic and that it was not unreasonable to expect that she would make a full recovery from injuries of this sort. He also indicated, however, that some patients do not recover from such injuries so readily and may become chronically ill. Dr. Newall was also of the view that rehabilitation therapies, such as chiropractic or injection treatments should only be recommended in situations where they assist the patient in resuming their normal activities by controlling symptoms of the injury and ought not to be used strictly as a pain relief modality.

Dr. Newall was emphatic in both his report of September 30, 1999 and his testimony that Ms. Redman suffers from a serious impairment which renders her unable to perform the essential tasks of her pre-accident employment. He indicates that because of her shoulder and lower back impairments, she is unable to perform her previous job as a house cleaner.

Ms. Redman's evidence with respect to her pre- and post-accident activities were corroborated by two lay witnesses, Wayne McPherson and Arthur Spencer. Both of these individuals have known Ms. Redman for many years prior to her arrival in Canada. Each testified that prior to the accident on July 7, 1997, Ms. Redman was strong and healthy, independent in her ability to manage her life and work; she was active in every respect. They testified that she was able to ride her bike and go for long walks without any restriction. Messrs. McPherson and Spencer indicated that since the accident, Ms. Redman must use a cane to walk, has difficulty going up and down stairs and is unable to carry heavy items home from the store. Both witnesses confirmed that she complains of pain and is no longer able to work as a house cleaner.

Surveillance Evidence

State Farm tendered two videotapes and the accompanying reports following its surveillance of Ms. Redman on August 26 and 27, 1997 and March 24, 1999. In the earlier videotape, Ms. Redman is observed walking down the street, boarding a bus, lifting a large residential garage door without bending over and getting into the back seat of a four-door car. She is also seen sitting at a picnic table. However, Ms. Redman is not seen performing any activities which she stated she cannot do. She walks with a noticeable limp.

In the second videotape, Ms. Redman is observed walking down the street, now using a cane. Her gait is very slow and unsteady. The videotape shows Ms. Redman boarding and descending from several buses in a gingerly fashion, browsing in several stores in a mall and making some light purchases at a grocery store. When negotiating a turnstile-type gate at the grocery store and ascending a curb after exiting a bus, she is tentative and hesitant. In my view, while the videotape confirms that Ms. Redman is able to get around, she is able to do so only in a limited and unsteady manner. I find that the videotapes assist Ms. Redman in establishing the nature and extent of her disability, particularly with respect to her ability to travel within her community.

Entitlement to Income Replacement Benefits

As noted above, prior to the accident on July 7, 1997, Ms. Redman was working five days a week, between five and seven hours each day, as a house cleaner. She was able to travel to each of the homes in which she worked by public transit. Following the accident, Ms. Redman found that she could no longer do her job because of pain and discomfort in her lower back, neck and shoulder. Each of these subjective complaints is well documented in the clinical notes and records of her treating physicians, as well as Drs. Kwok and Lloyd, who examined Ms. Redman at the request of State Farm in the first six months following the accident. However, Drs. Kwok and Lloyd differed from the treating physicians in their prognosis for her recovery. In their view, a person suffering the injuries Ms. Redman sustained should, with the proper course of physiotherapy, exercise and medication, return to their pre-accident activities within months of the injury. Unfortunately, this was not the case in Ms. Redman's situation. While the soft tissue injuries to her lower back, neck and shoulder failed to improve over time, Ms. Redman also developed other, often bizarre, symptoms.

State Farm relied heavily on the inconclusive results of Ms. Redman's Functional Capacities Evaluations, conducted as part of her Disability and Med/Rehab DAC Assessments in December 1997 and by The Rehab Centre in October 1998, to conclude that she did not meet the test for disability set out in section 4 of the Schedule. State Farm argues that the test results indicate that Ms. Redman was not putting forth a real effort and the evaluators were, accordingly, unable to determine the nature or extent of her disability. It submits that there is, therefore, no objective evidence to support a finding of disability.

In A.B. and Royal Insurance Company of Canada (FSCO A97-000943, August 31, 1999), Arbitrator Blackman succinctly summarized the approach adopted by the Commission in a situation where objective evidence of disability is lacking or contradicted. He found, following the decision in Quattrocchi and State Farm Mutual Automobile Insurance Company (OIC A-006854, September 29, 1997), that:

It is now trite law that the lack of objective evidence does not, by itself, disentitle an applicant to benefits. . . Nor, as stated above, do the injuries sustained in a motor vehicle accident have to be the sole cause of disability.

I find that Ms. Redman has consistently reported complaints of pain in her neck, lower back and shoulder from the time of her accident up to the two-year anniversary date of the accident, July 7, 1999. I accept Ms. Redman's evidence as to her physical and psychological limitations following the accident. I found her evidence credible and delivered in a straight-forward manner. Her evidence as to her disabilities is corroborated by the clinical notes and reports of her treating physicians, Drs. Pellow and Pugen, a consulting physiatrist, Dr. Kachooie and a consulting orthopaedic surgeon, Dr. Ogilvie-Harris. All of these physicians, as well as her treating chiropractor, Dr. Porter, consistently report her complaints in a similar manner. In my view, Ms. Redman's evidence of her pain, despite its subjective nature, is credible and worthy of belief.

I further find that the pain associated with Ms. Redman's injuries has substantially impaired her ability to perform the essential tasks of her employment. Specifically, I find that Ms. Redman's pain in her lower back, shoulder and neck restricts her ability to bend, kneel, stretch and reach, all of which are essential physical requirements of her employment as a house cleaner. I accept her evidence that she is unable to perform these movements as a result of the injuries which she sustained in the July 7, 1997 accident. As a result, I accept that Ms. Redman is entitled to weekly income replacement benefits for the period January 15, 1998 to the two-year anniversary of the accident, July 7, 1999.

Entitlement to Medical and Rehabilitation Benefits

Ms. Redman claims entitlement to payment under section 14 of the Schedule for chiropractic treatment, synvisc injections, various prescriptions and transportation expenses incurred in attending for treatment and other medical appointments. I note that State Farm agrees substantially with the claim of $514 for transportation expenses and I order that amount be paid, pursuant to section 14(2)(g).

Ms. Redman has also requested that I make a finding as to her entitlement to funding for a program of rehabilitative hydrotherapy, as prescribed by Drs. Kachooie and Pugen, pursuant to section 15 of the Schedule.

To find that Ms. Redman is entitled to medical benefits under section 14, I must determine that these expenses are reasonable and necessary and were incurred by or on behalf of Ms. Redman as a result of the accident.

In July 1998, Dr. Porter submitted a treatment plan to State Farm for Ms. Redman, for ongoing chiropractic adjustments and examinations in the amount of $1470.75. State Farm did not agree to the proposed treatment, stating that it was not reasonable or necessary in light of the findings of the Disability DAC assessors in December 1997. Nevertheless, Ms. Redman continued to see Dr. Porter throughout the second half of 1998 and up to the date of the hearing. Ms. Redman incurred expenses totalling $411.70 for the chiropractic treatments. The value of the pro bono treatments provided by Dr. Porter is unclear to me, based on the evidence provided.

In her evidence and in the testimonials from Ms. Redman contained in Dr. Porter's clinical notes and records, Ms. Redman indicated that she received some relief from the pain in her neck and shoulder blade, though not for her lower back, from Dr. Porter's manipulations. I note that Dr. Newall was of the view that ongoing chiropractic care for the type of soft tissue injuries suffered by Ms. Redman was not appropriate. He felt that while some temporary benefit may accrue as a result of chiropractic treatments immediately following an accident, they are not reasonable or necessary in the long term to assist either the healing process or for pain relief.

Based on the expert testimony of Dr. Newall with respect to chiropractic care and Ms. Redman's own concession that despite her written testimonials on behalf of Dr. Porter, the treatments were of limited use to her, I find that the chiropractic care contained in the treatment plan and provided by Dr. Porter to date was neither reasonable nor necessary. Accordingly, I do not allow the claim for this item.

With respect to the injections of Synvisc into Ms. Redman's spine provided by Dr. Kachooie, again I am left with Ms. Redman's own acknowledgement that, while this treatment provided a good result for four or five days, it failed to relieve her low back pain for any longer than that. As a result, I am not convinced that this treatment was either reasonable or necessary. Dr. Kachooie had also recommended that Ms. Redman receive similar injections in both her knees to relieve certain arthritic difficulties she was experiencing. Ms. Redman made it clear in her evidence that the problems in her knees do not relate to the motor vehicle accident. As a result, I find that these proposed treatments are also neither reasonable nor necessary.

Ms. Redman has claimed the sum of $919.02 for prescription expenses incurred between the time of the accident and the date of the hearing. In my view, Ms. Redman requires the use of a cane to assist her in walking outdoors and that this expense was reasonable. Similarly, I find that the prescriptions for analgesic, anti-inflammatory, sleep and anti-depressant medications are all related directly to the symptoms complained of as a result of the accident. Each of them was prescribed in an effort to alleviate some or all of those symptoms. I accept the evidence of Dr. Pugen that because none of the medications prescribed seemed to be alleviating Ms. Redman's complaints of pain, it was necessary to prescribe a number of different medications in the hopes of finding one which would produce the desired results. I find that, with the exception of the anti-cholesterol medication Lipitor, the anti-reflux drug Prepulsid and the hormone replacement therapy medications which were prescribed by various physicians, the medications were prescribed to address the symptoms of the injuries sustained by Ms. Redman in the accident and I order that they be paid by State Farm.

Ms. Redman also claims payment for rehabilitation benefits in the form of hydrotherapy, as recommended by Drs. Kachooie and Pugen, under section 15 of the Schedule. Again, the test for determining whether the Insurer ought to pay for such benefits is whether they are reasonable and necessary to reduce or eliminate the effects of the disability or to facilitate the reintegration of the injured person into her family, society and labour market. I note that no treatment plan was submitted on Ms. Redman's behalf by either Dr. Kachooie or Dr. Pugen for the recommended hydrotherapy. Similarly, State Farm has never explicitly declined to pay for a course of hydrotherapy treatments, nor has this issue been mediated. Accordingly, I find that I do not have jurisdiction to determine whether or not hydrotherapy treatments are reasonable or necessary to reduce the effects of Ms. Redman's disability or to facilitate her reintegration. Unless and until a treatment plan for such a course of care has been submitted in accordance with the provisions of the Schedule, and State Farm declines to pay, the mediation and arbitration of this issue is premature and I am unable to decide as to its reasonableness.

Special Award

Ms. Redman submits that I am obliged under section 282(10) of the Insurance Act to make a special award against an Insurer who is found to have unreasonably withheld or delayed payments to an insured person. In the present circumstances, Ms. Redman argues that State Farm inappropriately denied her payment for her medical/rehabilitation benefits, particularly for pain medication. She further submits that, upon receipt of the Disability and Med/Rehab DAC reports, it should have been obvious to State Farm that the assessors' findings were inconclusive and that further questions ought to have been put to them prior to the termination of her benefits. She states that by terminating benefits based on the DAC assessors' incomplete information, State Farm acted unreasonably and ought to be required to pay a special award.

State Farm submits that the DAC assessors' reports were not unambiguous and that it was entitled to rely on their findings and recommendations to terminate Ms. Redman's benefits. State Farm submits that it should not be penalized for the decisions reached which are in accordance with those recommendations.

I find that it was not unreasonable for State Farm to rely on the findings of the DAC assessors and Dr. Kwok in reaching the decisions which they did respecting Ms. Redman's entitlement to income replacement benefits and medical/rehabilitation benefits. Dr. Newall also agreed that, at the time that Dr. Kwok and Dr. Lloyd examined Ms. Redman, it was not unreasonable to assume that she would recover within a matter of months from what were identified as soft tissue injuries. The fact that Ms. Redman's recovery from these injuries was prolonged could not have been foreseen at that time.

Accordingly, I find that this is not an appropriate case to make a special award under section 282(10) of the Insurance Act.

EXPENSES:

The issue of expenses was not dealt with at the hearing. The parties may speak to the issue if they are unable to resolve it themselves.

December 16, 1999

Donald Hale Arbitrator

Date