Neutral Citation: 1999 ONFSCDRS 36

FSCO A97-000704

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

LETERIA LYONS

Applicant

and

AMERICAN HOME ASSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Leteria Lyons, was injured in a motor vehicle accident on September 12, 1996. She applied for and received statutory accident benefits from American Home Assurance Company ("American"), payable under the Schedule.¹ American terminated other disability benefits on February 26, 1997. The parties were unable to resolve their disputes through mediation, and Ms. Lyons 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. Lyons entitled to other disability benefits from February 27, 1997 onward pursuant to section 19(1) of the Schedule?

2. Is Ms. Lyons entitled to rehabilitation benefits for the case management services provided by Advocate Rehabilitation Management Inc., pursuant to section 40(5)(c) of the Schedule?

Ms. Lyons also claims interest on any amounts owing and her expenses incurred in the hearing.

Result:

1. Ms. Lyons is entitled to other disability benefits from February 27, 1997 until March 14, 1998, pursuant to section 19(1) of the Schedule, with appropriate interest.

2. Ms. Lyons is not entitled to rehabilitation benefits for the case management services provided by Advocate Rehabilitation Management Inc., pursuant to section 40(5)(c) of the Schedule.

3. I may be spoken to on the issue of expenses.

Hearing:

The hearing was held at the offices of the Financial Services Commission of Ontario in North York, Ontario, on April 1 and 2 and June 22, 23 and 24, 1998. Final submissions were completed by July 9, 1998. Those present at the hearing, the witnesses and exhibits are set out in the Appendix to this decision.

Evidence and Findings:

Background

Ms. Lyons was injured in a motor vehicle accident on September 12, 1996. She was seventy years old at the time and a resident of Toronto. A truck hit Ms. Lyons as she attempted to cross a street. However, Ms. Lyons was not knocked over. The truck struck her behind the left shoulder and twisted her around. She immediately experienced left shoulder and low back pain. She was treated at a nearby hospital and released. She saw her family physician, Dr. S.P. Citron, the following day. He diagnosed left shoulder and lumbar strain, a mid-back strain and a possible neck strain. Ms. Lyons underwent physiotherapy and chiropractic treatment and experienced some improvement in her condition. However, she continues to complain of left shoulder and back pain, as well as of headaches, diminished memory, sleep problems, and pain and weakness in her left hand.

Ms. Lyons had generally been in good health prior to the accident. She did admit that she had experienced some back pain before the accident, but not enough to consult a physician or to take medication. However, Dr. Citron testified that Ms. Lyons had seen him approximately eight times concerning intermittent, muscular back pain between 1989 and the date of the accident, and that he had prescribed medication for this on at least one occasion. As discussed more below, even if Ms. Lyons had experienced these difficulties, I am satisfied that the motor vehicle accident materially contributed to her disability. In any event, the Insurer did not seriously pursue the issue of causation and, in fact, conceded that Ms. Lyons was disabled until the end of March 1997, approximately one month after they terminated benefits (despite Ms. Lyons' pre-existing back problems and despite a January 1997 report by Dr. Sol Goldenberg, a trauma consultant, that Ms. Lyons was capable of resuming her pre-accident activities). The Insurer did not submit that any disability suffered by Ms. Lyons after this time was related to a pre-existing or non-accident related condition.

Ms. Lyons was retired at the time of the accident. She had been a housekeeper until approximately 1993. She lives in a bachelor apartment consisting of a kitchen, bathroom and living room/bedroom. Ms. Lyons testified that she was fully independent in her daily activities prior to the accident. Her activities were as follows: cooking (including preparing foods, baking, and washing the pots, pans and dishes afterwards), cleaning (including scrubbing the bathtub, bathroom sink and toilet, washing floors, cleaning the oven and refrigerator, dusting, sweeping and vacuuming), doing laundry in the basement of her apartment building, ironing clothes, sewing and shopping for groceries. This latter activity included carrying ten pound bags of potatoes and using a shopping cart for heavy items.

Ms. Lyons' pre-accident recreational activities included baking, planning picnics with friends and attending weekly church services. She would also attend a biweekly craft group in her apartment where she would do needlepoint and make belts, keychains and other small items. Ms. Lyons was fully mobile prior to the accident, being able to walk reasonable distances, sit for prolonged periods and climb stairs. Regarding prolonged sitting, Ms. Vivian Wright, a friend of Ms. Lyons, testified that Ms. Lyons used to take bus trips with groups from her apartment. Ms. Lyons was also fully independent with respect to personal care activities, including dressing, washing and bathing. Ms. Lyons' daughter (Ms. Sandra Lofters), Ms. Wright and Dr. Citron all testified that Ms. Lyons was fully independent prior to the accident.

The nature of Ms. Lyons' pre-accident activities were not seriously disputed by the Insurer. In any event, I accept the above as an accurate description of those activities.

Ms. Lyons maintains that, as a result of the motor vehicle accident, she has suffered a partial inability to carry on a normal life within the meaning of sections 2 and 19 of the Schedule. She also submitted that she required the case management services provided by Advocate Rehabilitation Management Inc. from mid-October 1996 to mid-March 1997. The Insurer maintains that Ms. Lyons has not met the requisite test of disability and that the case management services of Advocate Rehabilitation Management Inc. were not a reasonable and necessary expense.

Evidence on Disability - Lay Witnesses

Ms. Lyons testified that, while she improved to a certain degree following the accident, she is still restricted in a variety of ways. For example, she can no longer participate in the belt-making activities in her craft group. She is limited in her ability to put on clothing (especially sweaters and coats, and clothes that need to be fastened or zipped up in the back). She cannot lift heavy items while grocery shopping or doing the laundry. She is limited in the types of cooking she can do and in her ability to clean dishes following meals. She can no longer vacuum or wash the floors of her apartment, and she cannot clean the refrigerator or oven. She cannot clean her bathroom properly. She needs assistance to wash her hair. She has just recently returned to attending weekly church services.

Ms. Lyons' daughter, Ms. Lofters, testified that Ms. Lyons is now restricted in various areas, including cooking, dressing, walking, standing, climbing stairs, vacuuming, ironing, scrubbing floors and cleaning her refrigerator. She also said that her mother is nervous while crossing streets and is forgetful at times. She testified that she visited her mother every day for about six months following the accident in order to assist her, but now sees her only about two to three times a week.

I note that Ms. Lofters testified that her mother had injured her right shoulder in the accident. The Insurer suggested that this indicates that Ms. Lyons' left shoulder was not as badly injured as she claimed. I reject this. Other than Ms. Lofters, the evidence consistently establishes that Ms. Lyons injured her left shoulder, and was disabled by that impairment (as well as her back injury) for at least six months after the accident. Ms. Lyons also indicated that she experienced pain in her right shoulder, arm and hand due to having to compensate for the restrictions in her left shoulder, arm and hand. Ms. Lofters may have been referring to this aspect of her mother's impairment. I find that Ms. Lofters' evidence does not affect the other evidence concerning the location or degree of Ms. Lyons' injuries.

Ms. Lyons' friend, Ms. Wright, testified as to Ms. Lyons' post-accident limitations. Ms. Wright stated that she was present when the accident occurred and that Ms. Lyons injured her left shoulder in the accident. She has since had great difficulty in climbing stairs, and requires assistance in doing the laundry, washing her hair and cleaning her bathroom. She also said that Ms. Lyons is restricted in the types of cooking and baking she can do, that she cannot do needlework or belting with her craft group, and that she cannot wash floors, vacuum, wash pots and pans or clean her refrigerator or oven. Finally, Ms. Wright stated that Ms. Lyons has memory problems and is fearful of crossing the street. Ms. Wright saw Ms. Lyons every day for about four months following the accident in order to help her, and has since visited her twice a week.

Evidence on Disability - Medical and Rehabilitation Opinions

In mid-October, at the request of Ms. Lyons' counsel, Ms. Kimberley Robertson, an accredited rehabilitation professional, became involved in Ms. Lyons' treatment. At the time, Ms. Robertson was employed by Advocate Rehabilitation Management Inc. In the fall of 1996 and spring of 1997, Ms. Robertson conducted home assessments of Ms. Lyons. While Ms. Robertson noted some improvement in Ms. Lyons' abilities, she reported in March 1997 that Ms. Lyons was still partially to completely restricted in a variety of areas, including walking, climbing stairs, grocery shopping, meal preparation, cleaning dishes, vacuuming, cleaning her bathroom and doing the heavier aspects of her laundry. While Ms. Robertson did not conduct any functional testing of Ms. Lyons, she testified that she was worried about the degree of Ms. Lyons' pain, physical restrictions, fatigue, memory problems and anxiety.

In January 1997, Dr. Sol Goldenberg examined Ms. Lyons at the request of the Insurer and concluded that she was "quite capable of pursuing the activities of daily living and using public transportation" and that she did not need further physical therapy or assistive devices. He stated that Ms. Lyons' prognosis was "excellent with nothing to suggest a permanent impairment as a result of her accident." As noted earlier, despite Dr. Goldenberg's findings, the Insurer has now conceded that Ms. Lyons was disabled until the end of March 1997, approximately one month after they terminated benefits. I find that this substantially lessens the weight to be attributed to Dr. Goldenberg's report, particularly in light of the medical and rehabilitation assessment subsequently conducted at a Designated Assessment Centre ("DAC") which concluded that Ms. Lyons required various forms of assistance in order to resume her ordinary pre-accident activities.

The medical and rehabilitation DAC was completed on March 14, 1997. The DAC found that Ms. Lyons suffered soft tissue injuries to her back and left shoulder as a result of the motor vehicle accident. The DAC also found that, while Ms. Lyons could manage her self-care independently, she had not resumed her pre-accident level of functioning in homemaking tasks (such as meal preparation, grocery shopping, cleaning the bathtub, heavy laundry tasks, ironing, vacuuming and sweeping) or recreational activities (such as attending full Sunday church services, craft group or gardening). The DAC concluded that she should be provided with a long-handled tub-scrub brush (to clean the bathtub) and a bundle buggy (for grocery shopping and heavy laundry), as well as a four to six week programme of occupational therapy to "increase [her] safety and functional independence within the home." Pursuant to this report, the Insurer provided Ms. Lyons with the two recommended assistive devices. The Insurer also took positive steps to implement the occupational therapy recommendation and hired an occupational therapist. There is no evidence as to the outcome of this aspect of the DAC's recommendations.³

Ms. Lyons received physiotherapy treatment at the Lawrence West Rehab Centre from the fall of 1996 to April 1997. The discharge report noted significant neck and low back improvement, with some continuing discomfort in the left shoulder. The prognosis was for a return to normal functioning with a home exercise programme.

In March 1998, Dr. Raphael K. Chow, a physiatrist, examined Ms. Lyons at the request of her counsel. Dr. Chow testified that Ms. Lyons continued to suffer from residual pain in the left shoulder and back, with a burning sensation radiating into her left arm and hand. Dr. Chow stated that Ms. Lyons would be functionally limited in her apartment due to her back and shoulder pain, but not her left arm and hand discomfort. He testified that the back and shoulder pain would be aggravated if Ms. Lyons were to perform a variety of her daily activities, such as needlepoint and belt-making, washing her hair, putting on her coat, wearing clothes that needed to be buttoned or zipped up in the back, carrying groceries for more than five or ten minutes, lifting and carrying more than a couple of pounds, cooking many times a day, using a rolling pin for baking, washing floors and cleaning her oven and refrigerator. Dr. Chow testified that Ms. Lyons should avoid anything strenuous and repetitive which aggravates her pain for more than an hour, this potentially including vacuuming, sweeping, scrubbing the bathroom and making her bed.

In cross-examination, Dr. Chow testified that despite these concerns, Ms. Lyons could still be quite functional within her restrictions, limited range of movement and pain tolerance. He stated that her low back would only be a problem for her normal activities if they were repetitive in nature and involved significant bending and lifting. He also stated that Ms. Lyons could complete all of her tasks if she paced herself. However, he indicated that pacing herself might not be practical for some tasks if they simply took too long, but he did not specify which tasks and did not test her capabilities in this regard. For example, Dr. Chow stated that there was no hard and fast rule as to whether washing her hair would be too onerous for Ms. Lyons, given that her pain fluctuates. In fact, Dr. Chow testified that Ms. Lyons was capable of performing basic self-care activities. Finally, Dr. Chow noted that Ms. Lyons did not complain of headaches or memory or concentration problems.

Dr. Citron, Ms. Lyons' family physician, testified that Ms. Lyons' left shoulder and back pain "compromised" her ability to do her normal daily activities. He stated that her pain "waxes and wanes," noting, in particular, three periods of exacerbation, namely, February and August 1997 and February 1998. He reported in March 1997 that Ms. Lyons' condition "seem[ed] to have plateaued." He also testified that his notes would not necessarily reflect the frequency and persistence of Ms. Lyons' pain complaints, given that "[they were] the same over and over again" and were sometimes simply not discussed. He noted that in August 1997, Ms. Lyons experienced pain in her left shoulder while carrying a jug of milk. This may refer to a time when Ms. Lyons dropped a jug of milk on her toe. Ms. Lyons, Ms. Lofters and Ms. Wright all referred to this incident but did not specify when it occurred.

Dr. Citron testified that on some days she would be able to perform her daily activities, while on others she would not. He indicated that this was a matter of common sense, not objective testing, and that it would be difficult to test this without being with her on a daily basis. Dr. Citron testified that whether Ms. Lyons was prevented from performing particular activities depended on the strain or pressure put on her back and shoulder by those activities.

In cross-examination, Dr. Citron acknowledged Ms. Lyons' pre-existing back pain and stated that, even if the motor vehicle accident had not occurred, she would likely have continued to experience intermittent back pain. However, he did not say that this rendered Ms. Lyons' disability unrelated to the motor vehicle accident. He acknowledged that Ms. Lyons' back and shoulder condition had improved to a certain extent since the accident, but stated that she would have periods or episodes of pain. Dr. Citron also testified that he would be speculating as to whether she could do her normal activities, while at the same time stating that she would not be able to do her activities during her periods or episodes of pain. Dr. Citron also indicated that he agreed with Ms. Lyons' discharge from physiotherapy at the Lawrence Weston Rehab Centre in April 1997, on the basis that they were qualified to make that determination. Finally, he agreed with the three recommendations of the medical and rehabilitation DAC in February 1997.

In March 1998, Dr. Perry Tepperman examined Ms. Lyons at the request of the Insurer. He reported that Ms. Lyons likely sustained a soft-tissue injury to her left shoulder, and a myofascial strain to her low back, as a result of the motor vehicle accident. He concluded that despite some residual discomfort, Ms. Lyons did not suffer pathology in her left shoulder or low back that would substantially disable or prevent her from managing or safely performing her personal care, household or mobility activities. He noted that Ms. Lyons herself reported that she was managing her pre-accident self-care and household activities. At the hearing, Dr. Tepperman testified that he was quite surprised that Ms. Lyons was not reporting any functional limitations (given that virtually all of the patients he sees do make these complaints). He also stated that he did not question Ms. Lyons' credibility or the fact that she perceived herself as being disabled, but that even if Ms. Lyons were experiencing pain, this would not be sufficient to establish disability. Nevertheless, based on the recommendations contained in the DAC report, Dr. Tepperman concluded that Ms. Lyons should have been considered disabled until late March or early April 1997. The Insurer accepted Dr. Tepperman's opinion in this regard and conceded in final submissions that Ms. Lyons was disabled until March 28, 1997.

Analysis

Pursuant to section 19 of the Schedule, Ms. Lyons is entitled to other disability benefits if she establishes that, as a result of the motor vehicle accident, she suffers a partial or complete inability to carry on a normal life. Ms. Lyons maintains that she has suffered a partial inability. Section 2 of the Schedule defines a partial inability to carry on a normal life as a "substantial inability" to engage in personal care, mobility or household activities in which a person would ordinarily engage before the accident. It also refers to a substantial inability to engage in pre-accident activities requiring communication abilities, the exercise of cognitive powers or the ability to control emotions or behaviour. Numerous arbitration decisions have held that "substantial inability" means a considerable, sizeable or significant inability, not some or total disability. Further, I agree with the cases of Gray and Zurich Insurance Company (OIC A95-000412, August 2, 1996), Jubenville and Allstate Insurance Company of Canada (FSCO A97-000107, August 14, 1998) and Rich and Jevco Insurance Company (FSCO A97-000896, December 30, 1998) that, in considering the "activities" under section 2 of the Schedule, a subjective inquiry into the activities of the injured person prior to the accident is required and that the phrase "ordinarily engaged" could refer in some cases to the types of activities rather than the frequency or regularity of those activities.

Credibility

The Insurer submitted that the evidence raised serious questions concerning Ms. Lyons' credibility. Ms. Lyons did at times overstate the extent of her symptoms. For example, she testified that she was sick in bed for a month following the DAC assessment at the Columbia Health Centre, but Dr. Citron had no knowledge of such a severe and disabling reaction. Neither Ms. Lofters nor Ms. Wright commented on this alleged period of extreme disability. Ms. Lyons also denied, and then admitted, that her back and shoulder had improved with therapy. Nevertheless, Ms. Lyons testified in a straightforward manner, there being nothing in her demeanor suggesting an attempt to mislead or evade questions. The medical and rehabilitation specialists also consistently found Ms. Lyons to be genuine, co-operative, credible and well motivated.

Therefore, despite Ms. Lyons' occasional overstatement of her condition, I am not prepared to find that her evidence is as unreliable as suggested by the Insurer. I find that she gave a generally reliable account of the nature and course of her condition. However, in light of some of the discrepancies in her evidence, where such evidence conflicts with the written medical and rehabilitation reports, I will accept the latter.

In final submissions, counsel for Ms. Lyons argued that, even if Ms. Lyons were physically capable of safely performing her ordinary activities, she genuinely perceives herself as unable to do this and is, therefore, psychologically disabled within the terms of the Schedule. I reject this. While there is some evidence that Ms. Lyons' perception of her disability is inconsistent with her actual physical ability, the medical evidence is entirely inadequate to establish that Ms. Lyons has suffered a psychological or psychiatric disability as a result of the accident. I do not find that Ms. Lyons is emotionally or psychologically disabled from performing her ordinary tasks. Nevertheless (as partially conceded by the Insurer), I find that Ms. Lyons had disabling left shoulder and back pain until the spring of 1997, following which she continued to experience left shoulder and back pain, but pain which fluctuated in intensity. I also find, on a balance of probabilities, that this pain was causally related to the motor vehicle accident. The issue is whether Ms. Lyons' fluctuating pain rendered her partially unable to carry on a normal life within the meaning of the Schedule beyond the spring of 1997.

Partial Inability - Personal Care Activities

Ms. Lyons indicated that her personal care activities were restricted only in relation to putting on certain pieces of clothing and washing her hair. Ms. Lofters and Ms. Wright also testified to this effect. However, Ms. Lyons also reported to Dr. Tepperman that she was managing her pre-accident self-care activities. Both Dr. Chow and Dr. Citron were indefinite as to whether Ms. Lyons' pain would substantially disable her from these activities. The medical and rehabilitation DAC made no recommendations concerning Ms. Lyons' personal care activities and, in fact, concluded that she was independent in this regard. While I accept that Ms. Lyons continues to experience left shoulder and back pain and that this pain may, on occasion, interfere with her ability to don certain types of clothing and wash her hair, I am not satisfied, on a balance of probabilities, that she is substantially disabled from performing her ordinary personal care activities.

Partial Inability - Mobility Activities

Ms. Lyons is restricted in the degree to which she can now walk, stand, sit and ride in a car or bus. However, she is still capable of engaging in these activities, despite the fact that she experiences pain in performing them on a prolonged basis. While Dr. Citron reported in March 1997 that Ms. Lyons had told him she could only sit and stand for ten minutes at a time, Ms. Lyons testified that she could sit and stand for approximately two hours. She also continues to take walks in malls, goes to the store to do grocery shopping, walks to the bus stop and takes the TTC. None of the medical specialists identified any significant restrictions in Ms. Lyons' mobility activities. The evidence does establish that Ms. Lyons is significantly limited in climbing stairs. However, there is no evidence that this particular restriction has prevented her from engaging in any of her ordinary pre-accident activities.

Further, Ms. Wright testified that, due to her injuries, Ms. Lyons no longer participates in bus trips with groups from her apartment building. However, neither Ms. Lyons nor any of the specialists identified this as a restriction and there is no evidence as to the frequency of the trips or the importance of them to Ms. Lyons' general way of life. On the basis of this evidence, I find that Ms. Lyons has not established, on a balance of probabilities, that she has suffered a substantial inability to engage in the mobility activities in which she normally engaged prior the accident.

Partial Inability - Household Activities

The question of Ms. Lyons' household restrictions is more complex. The medical and rehabilitation DAC made specific recommendations concerning Ms. Lyons' household activities, the most significant of which was the provision of a four to six week occupational therapy programme to re-integrate her into her daily homemaking routine. As a result, Dr. Tepperman found, and the Insurer conceded, that Ms. Lyons should be considered disabled until the end of the period in which the therapy sessions were to have concluded. The difficulty is that, while the Insurer took positive steps to implement the recommendation concerning occupational therapy, there is no evidence that the programme ever took place. Ms. Lyons was discharged from physiotherapy in April 1997, but the most said at that time was that her prognosis was good if she participated in a home exercise programme. In the meantime, Ms. Lyons continued to experience fluctuating back and left shoulder pain, with some periods of significant exacerbation. There is no evidence that Ms. Lyons' household abilities improved materially in the months following the med-rehab DAC. This remained the case until Ms. Lyons was examined by Dr. Tepperman in March 1998.

At that point, Ms. Lyons gave a significantly different picture of her household abilities than she had done during the medical and rehabilitation DAC. Ms. Lyons did not report any restrictions in her household activities. At the hearing, she attempted to explain that Dr. Tepperman had not asked her the details of some of her tasks. However, she also agreed with Dr. Tepperman's statements that she was now capable of cleaning her carpets with a light carpet-sweeper and cleaning her bathtub with the long-handled brush she had been provided by the Insurer. Counsel for Ms. Lyons attempted to discount Dr. Tepperman's report and testimony on the basis that he had not kept the notes he made while assessing Ms. Lyons. I reject this. While it may have been helpful to have Dr. Tepperman's notes, in my view, he prepared a thorough report and answered questions in as direct and straightforward a manner as possible. I accept his evidence that he asked Ms. Lyons repeatedly and in different ways about her personal care, mobility and household activities in order to establish any restrictions, but was told that there were none. Therefore, even if I were to accept that Dr. Tepperman's inquiries were not as detailed as they could have been, I find that Ms. Lyons was providing a significantly different account of her physical abilities than she had done previously.

From a strictly medical perspective, Dr. Tepperman found that Ms. Lyons was not physically disabled from performing her ordinary household activities. Dr. Tepperman did acknowledge that Ms. Lyons' experience of pain could change over time. In this regard, he did not dispute that Ms. Lyons may have been experiencing more pain when examined by Dr. Chow. However, even if I were to accept Dr. Chow's assessment as Ms. Lyons' typical physical state, I would still not be prepared to find that Ms. Lyons was substantially disabled from performing her ordinary household tasks. While Dr. Chow testified that a number of activities might aggravate Ms. Lyons' pain, he did not say that she was disabled from performing those tasks. He simply said that she should avoid strenuous and repetitive activities and that she should pace herself. In fact, Dr. Chow stated that Ms. Lyons could still be quite functional within her pain tolerance and that by pacing herself, she would be able to complete most, if not all, of her tasks. I note in this regard that Ms. Lyons' friend, Ms. Wright, testified that Ms. Lyons has learned to take rest breaks and that she is capable of performing some activities by taking such breaks. And while Dr. Citron reported in May 1997 that Ms. Lyons continued to "suffer a partial inability to carry on a normal life," he testified that he did not use this phrase in connection with the test of disability under the Schedule (and was not, in fact, aware of what that test was) and gave very general and speculative evidence as to whether Ms. Lyons would be substantially disabled from performing her specific household tasks.

On the basis of the above, I find that Ms. Lyons satisfied the test of disability regarding her household activities until she was assessed by Dr. Tepperman in March 1998. I find that, at that time, Ms. Lyons' medical condition had stabilized to the point that she was capable of performing most, if not all, of her ordinary household tasks on a reasonably effective and safe basis. I am persuaded, in particular, by Ms. Lyons' own reporting of her condition to Dr. Tepperman and the fact that this differed significantly from what she had told the medical and rehabilitation DAC approximately a year earlier.

Even if I were to accept some of the household limitations described by Ms. Lyons at the hearing, I would still not find that she continued to be substantially disabled within the meaning of the Schedule beyond the time she was assessed by Dr. Tepperman. I accept that Ms. Lyons has requested and received the assistance of her daughter and friend in performing certain tasks around her apartment. However, the issue under the legislation is not whether she is receiving assistance, nor whether she is disabled from performing some of her ordinary tasks, but whether she is substantially disabled from performing such functions.

In this regard, Ms. Lyons has simply indicated that she is unable to do various types of activities. She has not indicated that she has tried to do these things by pacing herself, but has been unsuccessful. For example, Ms. Wright testified that Ms. Lyons has tried to mop her kitchen floor, but has had to stop after five or ten minutes because of the pain. There is no indication that Ms. Lyons has been incapable of completing the job on an intermittent and reasonably efficient basis, particularly in light of Ms. Wright's and Dr. Chow's evidence that she can accomplish more by pacing herself. Further, Ms. Lyons testified that she is capable of cleaning her carpet with a light carpet-sweeper. There is no indication that she would then be incapable of efficiently sweeping her floor with a broom (if only on an intermittent basis), although she testified that she was simply unable to do this. Similarly, while Ms. Lyons indicated that she gave her vacuum cleaner away after the accident because it was too difficult to use, there is no evidence that she would now be incapable of using it for what she admits is a small apartment, and if only on an intermittent basis. Further, while Ms. Wright testified that Ms. Lyons could not adequately clean her bathtub with the long-handled brush, Ms. Lyons testified that she could. Ms. Lyons also indicated that she could clean her bathroom sink and toilet.

Regarding meal preparation, Ms. Lyons suggested that she could prepare only very light meals (indicating at one point that she can make herself a cup of tea and an orange). However, Ms. Wright testified that due to her limitations, Ms. Lyons must buy chicken that is already chopped up, suggesting that Ms. Lyons may be restricted in the manner and extent of her preparation of meals, but still has considerable ability in this area. Similarly, while Ms. Lyons may have some difficulty washing her pots and pans, I am not satisfied that she is simply incapable of doing this, and, in any event, she is still capable of doing most of her dishes, and certainly the ones used for the lighter types of cooking she says she is doing.

Related to this is Ms. Lyons' testimony that she is now capable of doing most of her grocery shopping, but needs help with the heavier items. However, both Ms. Lyons and Ms. Wright testified that she only used the bundle-buggy once (apparently finding it too difficult to use). In light of the medical evidence concerning Ms. Lyons' current physical ability, I am not satisfied that she is substantially incapable of using the bundle-buggy to transport the heavier items of her groceries. However, even assuming that Ms. Lyons suffers some disability in this area, and occasionally seeks the assistance of her daughter or friend, I find that she is still substantially able to perform the task of grocery shopping. For the same reasons, I find that while Ms. Lyons might be incapable of doing some of her laundry, she is still substantially able to perform this task. In any event, the medical evidence, at most, establishes that she may at times have difficulty in handling and/or washing the sheets on her bed.

Finally, regarding the activities of cleaning her oven and refrigerator, ironing and sewing, there is simply no evidence that Ms. Lyons is now medically and/or physically incapable of performing these activities, if only on a gradual, intermittent basis in which Ms. Lyons paces herself. Further, while these are, in general, important functions, there is no evidence as to the frequency or pace at which they need to be done. For example, regarding sewing, the only evidence offered was of Ms. Wright needing to help Ms. Lyons sew the hem of a dress she just bought. I am not prepared to find on the basis of only general evidence concerning Ms. Lyons' restrictions in these areas that she is substantially disabled from performing them.

Miscellaneous Activities

Ms. Lyons, Ms. Lofters and Ms. Wright testified as to Ms. Lyons inability to participate in the activity of belt-making and as to her general forgetfulness. While belt-making may be of importance to Ms. Lyons, I am not satisfied that it is an activity included in the Schedule's reference to personal care, mobility or household activities. It is, in my view, a recreational activity not contemplated by the terms of the legislation. Counsel for Ms. Lyons cited the case of Long and Personal Insurance Company of Canada (OIC A-003302, October 20, 1995) in support of the argument that the activity of belt-making (as well as Ms. Lyons' sewing) is more than a recreational activity in that it is "functional" and "connected to the ongoing business of living." In my view, Long simply does not apply to the case at hand. There, the arbitrator specifically excluded the activities of cycling, skating and aerobics as "recreational and fitness activities" and as not falling within the parameters of "essential tasks" or the "ongoing business of living." The arbitrator in Long also relied on the case of Lui and Wellington Insurance Company (OIC A-001894, April 28, 1993) in support of the concept of the "ongoing business of living," but Lui specifically excluded the activities of volunteer community service, playing with one's grandchildren and informally assisting family members with their business activities. Finally, both Long and Lui were decided under section 13(1) of the pre-1994 Schedule, which simply referred to a "substantial inability to perform the essential tasks in which [a person] would normally engage," not the more specific definition of personal care, mobility and household activities under the post-1994 Schedule. In my view, the Legislature would have specifically mentioned recreational activities had it intended to include them for the purposes of obtaining statutory accident benefits. While belt-making may be important to Ms. Lyons, I find that it is a recreational activity not related to the ongoing business of living and not included under the relevant statutory definitions.

Ms. Lyons has continued to experience some forgetfulness since the accident. However, none of the medical specialists identified this as a significant problem. Ms. Lyons, in fact, only raised the concern once with her family physician and did not mention it at all in her recent examinations with Dr. Chow or Dr. Tepperman. She has not received any therapy for this problem. Even if I were to accept that Ms. Lyons receives some assistance from Ms. Wright in remembering her treatment appointments, I find that Ms. Lyons is not substantially disabled from engaging in activities requiring the exercise of cognitive powers within the meaning of the Schedule. Finally, I note that Ms. Lyons returned to Sunday church services approximately three weeks before the commencement of the hearing, which would correspond roughly to the time she was examined by Dr. Tepperman. In my view, this further supports the conclusion that, by that time, Ms. Lyons' general physical abilities had improved considerably.

Entitlement to Case Management Services

In April 1997, Ms. Kimberly Robertson, the rehabilitation specialist from Advocate Rehabilitation Management, Inc., submitted a bill in the amount of $2,147.55 to the Insurer for case management services provided from mid-October 1996 to mid-March 1997. The Insurer declined to pay these expenses and Ms. Lyons sought them at the arbitration. Arbitration decisions have established that case management services are warranted in complex medical cases requiring lengthy treatment, monitoring or rehabilitation and/or the involvement of a variety of health care professionals.⁴ In my view, while Ms. Lyons may have been disabled from her ordinary activities during the period of Ms. Robertson's involvement and while Ms. Lyons may have appreciated the assistance provided to her by Ms. Robertson, I am not satisfied that her situation was so complex or difficult as to require the services of a case manager.⁵

Ms. Robertson's services consisted of communicating and corresponding with Ms. Lyons, her family physician, her counsel, the physiotherapist and the Insurer. Ms. Robertson testified that Ms. Lyons was referred to her by her counsel, and that she only sought the approval of Ms. Lyons' doctor after she had begun providing services. Ms. Robertson stated that she neither asked Ms. Lyons nor knew whether Ms. Lyons wanted a case manager at all, but "just got involved." Ms. Robertson testified that, once involved, she was concerned primarily about Ms. Lyons' memory problems in that Ms. Lyons might forget to turn her stove off and might forget to tell her doctor certain things about her condition. However, Ms. Robertson's notes and summaries of Ms. Lyons condition do not contain any comments about Ms. Lyons' memory difficulties. In any event, Ms. Robertson acknowledged that Ms. Lyons had the regular support and assistance of her daughter and friend. Ms. Robertson suggested that she provided a "little additional support" to that provided by Ms. Lofters, Ms. Wright and Dr. Citron.

Ms. Robertson did suggest certain types of assistance for Ms. Lyons, and Dr. Citron approved of these as reasonable and necessary. They included physiotherapy, taxi transportation, occupational therapy, message therapy, housekeeping and the purchase of a back cushion and cane. The issue, however, is not whether Ms. Robertson made sensible suggestions, but whether her involvement was reasonable and necessary in light of the nature of Ms. Lyons' condition and the support available to her. In this regard, Ms. Robertson testified that physiotherapy and transportation were already being provided to Ms. Robertson at the time she received Dr. Citron's approval of her recommendations and that she was not aware that housekeeping assistance was being provided by Ms. Lofters and Ms. Wright at the time of her involvement. Ms. Robertson also indicated that Dr. Citron was not incapable of making these recommendations, but simply did not have the time to review Ms. Lyons' needs. Ms. Robertson also indicated that occupational therapy would be addressed through the active therapy recommended by the medical and rehabilitation DAC.

Dr. Citron testified that when Ms. Robertson made her recommendations, he had already arranged for physiotherapy and, therefore, that transportation would already have been provided. He also said that occupational therapy would only take place after the physiotherapy ended and that he would not necessarily be involved in determining whether it was necessary. He stated that

while he agreed that Ms. Lyons could have a cane, he did not, in fact, prescribe one. He also stated that housekeeping was "not unreasonable," but that he could not recall what arrangements existed for her housekeeping at the time Ms. Robertson recommended it. Finally, Dr. Citron testified that massage therapy was a "cadillac therapy" and that it would be "good if someone paid for it. "

While Dr. Chow agreed with the general idea of a case manager, it was only after counsel for Ms. Lyons had briefly explained Ms. Robertson's involvement. I find that Dr. Chow did not have an adequate knowledge of Ms. Lyons' situation or the nature of Ms. Robertson's activities and recommendations. In any event, he was only able to provide a general opinion as to the advisability of having a case manager monitor Ms. Lyons' situation and liaise with her family doctor. Dr. Tepperman testified that Ms. Robertson's involvement was unnecessary given the various individuals providing support and assistance to Ms . Lyons, and particularly in relation to retaining a case manager to remind Ms. Lyons of her physiotherapy appointments.

On the basis of this evidence, I find that Ms. Robertson's involvement, while potentially helpful to, and appreciated by, Ms. Lyons, was not reasonable and necessary. Various people were there to help Ms. Lyons and medical and rehabilitation interventions had already taken place. Ms. Lyons has also not established, on a balance of probabilities, that certain of the recommendations made by Ms. Robertson were reasonable and necessary. I am not satisfied that a case manager was necessary for the general functions of monitoring Ms. Lyons' condition, reminding her of certain things and communicating with the parties involved, particularly in light of the fact that Ms. Lyons' condition was not medically complex. I find that Ms. Lyons' situation was not sufficiently involved or complicated as to warrant the intervention of a case manager.

Expenses:

Counsel for the Insurer requested that submissions on expenses be deferred pending my decision in this matter. Counsel are to consult one another and indicate how they wish to deal with the matter of expenses.

Order:

1. Ms. Lyons is entitled to other disability benefits from February 27, 1997 until March 14, 1998, pursuant to section 19(1) of the Schedule, with appropriate interest.

2. Ms. Lyons is not entitled to rehabilitation benefits for the case management services provided by Advocate Rehabilitation Management Inc., pursuant to section 40(5)(c) of the Schedule.

3. I may be spoken to on the issue of expenses.

March 2, 1999

Eban Bayefsky

Arbitrator

Date

APPENDIX

Present at the Hearing:

Applicant:

Leteria Lyons

Ms. Lyons's

Tom David

Representative:

Barrister and Solicitor

American's

Chris Blom

Representative:

Barrister and Solicitor

Witnesses:

Dr. Raphael K. Chow

Ms. Kimberley Robertson

Ms. Leteria Lyons

Ms. Sandra Lofters

Ms. Vivian Wright

Dr. S. P. Citron

Dr. Perry Tepperman

Exhibits:

The parties submitted seven exhibits, one consisting of a document brief.

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.
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.
3. 3Towards the end of the hearing, an issue arose as to whether certain documentation and/or witnesses would be put forward on the issue of the DAC's third recommendation (concerning occupational therapy). The parties resolved the issue by agreeing to certain facts, namely, that the Insurer took positive steps to implement the DAC's third recommendation and hired an occupational therapist pursuant to the dAc. No other evidence was called on this point.
4. 4See, for example, Ahmed and Allstate Insurance Company of Canada (OIC A-003238, July 15, 1996), Book and Bertie and Clinton Mutual Insurance Company (OIC A-013497, April 17, 1996) and Palombi and Allstate Insurance Company of Canada (OIC A96-000634, April 3, 1998).
5. 5The Insurer raised the issue of a conflict of interest as between Mr. David and Advocate Rehabilitation Management Inc. Given my general conclusions on the reasonableness and necessity of Advocate's involvement, I find it unnecessary to address this issue.