Neutral Citation: 1999 ONFSCDRS 94

FSCO A96-001496

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

NINA LAZAREVA

Applicant

and

ROYAL INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before:

David Leitch

Heard:

In 1998: January 19, 20, 21, 22, March 27, April 17, June 12, July 24, October 2, November 6. In 1999: February 19, March 5, March 18, April 23. At the Offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Henry Goldentuler for Ms. Lazareva Shelley Timms for Royal Insurance Company of Canada

Issues:

The Applicant, Nina Lazareva, was injured in a motor vehicle accident on January 26, 1996. She applied for statutory accident benefits from Royal Insurance Company of Canada ("Royal"), payable under the Schedule.¹ Royal refused to pay certain benefits claimed. The parties were unable to resolve their disputes through mediation, and Ms. Lazareva 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:

1. Is Ms. Lazareva entitled to weekly income replacement benefits from February 2, 1996?

2. Is Ms. Lazareva entitled to housekeeping expenses?

3. Is Ms. Lazareva entitled to transportation expenses incurred in connection with medical treatment?

4. Is Ms. Lazareva entitled to the expenses of medical reports obtained in connection with her application for benefits?

5. Is Ms. Lazareva entitled to the expense of a case manager?

6. Is Ms. Lazareva entitled to prior approval of medical expenses for treatment of the injuries sustained in the accident of January 26, 1996?

7. Is Ms. Lazareva entitled to interest on any amounts owing?

8. Is Royal required to pay a special award under section 281(10) of the Insurance Act?

9. Is Ms. Lazareva entitled to her expenses incurred in this arbitration proceeding?

Result:

1. Ms. Lazareva is entitled to weekly income replacement benefits up to February 21, 1996.

2. Ms. Lazareva is not entitled to housekeeping expenses.

3. None having been proved, Ms. Lazareva is not entitled to transportation expenses incurred in connection with medical treatment.

4. Ms. Lazareva is entitled to the expenses of medical reports as outlined in Exhibit 3, Tab 21.

5. Ms. Lazareva is not entitled to the expense of a case manager.

6. Ms. Lazareva is not entitled to prior approval of medical expenses for treatment of the injuries sustained in the accident of January 26, 1996.

7. Ms. Lazareva is entitled to interest on benefits payable under paragraph 1.

8. Royal is required to pay a special award of 50 percent on the benefits awarded under paragraph 1 above with interest thereon effective June 13, 1996.

9. Ms. Lazareva is entitled to two-thirds of her expenses incurred in this arbitration proceeding.

EVIDENCE AND ANALYSIS:

Background:

On January 26, 1996, the Applicant, Nina Lazareva, was injured while a passenger in a vehicle which was struck from behind while slowing to a stop and which then struck the vehicle stopped in front.

At the time of the accident, Ms. Lazareva was a 58-year-old, self-employed housekeeper. On August 1, 1995, she had entered into a written contract to provide "household assistance" to an 80-year-old gentleman named David W. Muir in return for $100 per month, a room in Mr. Muir's house and "board while Muir is in the house."

Mr. Muir was alone in his house because he had separated from his spouse. Ms. Lazareva moved in sometime in October or November 1995, shortly before Mr. Muir left for an extended stay in Florida. While in Florida, Mr. Muir reconciled with his spouse who returned with him to the house sometime in April or May 1996. Ms. Lazareva then went to live elsewhere but continued to provide household services to the Muirs until the end of May 1996. The reason Ms. Lazareva stopped working for the Muirs is the main issue in this case.

Ms. Lazareva alleges that the injuries sustained in the accident of January 26, 1996 prevented her from carrying on her essential tasks as a housekeeper and that she, therefore, qualifies for income replacement benefits under the Schedule² Ms. Lazareva claims that her period of entitlement actually commenced a week after the accident because she was immediately obliged to rely upon a friend, Catherine Block, to perform her duties. Ms. Lazareva further testified that she relied upon Ms. Block to perform her own household chores, thus resulting in a claim for housekeeping expenses.³ Ms. Lazareva also claims various expenses related to her medical investigation and treatment.⁴

The Insurer denies that Ms. Lazareva was so severely injured in the accident that she could no longer perform the essential duties of a housekeeper and that, in fact, she continued to perform such duties until leaving the Muirs' employ for reasons unrelated to any injuries sustained in the accident. The Insurer also disputes the diagnosis of any long-term disability arising from the accident.

Employment Evidence:

Ms. Lazareva's contract with Mr. Muir was drafted by a lawyer to make it clear that her services to Mr. Muir did not give rise to any later claim for support or inheritance. It described Mr. Muir's needs, and hence Ms. Lazareva's duties, as follows:

AND WHEREAS MUIR has determined that he can no longer look after the cleaning and ordinary maintenance of the house, cooking and provision of meals for himself and requires assistance in respect of certain household chores and errands, including his personal safety in being in the house by himself (all of which are hereinafter referred to in general as "household assistance")...

NINA agrees to provide household assistance as described above to MUIR at the house.⁵

The evidence establishes that Ms. Lazareva lived in Mr. Muir's house from sometime in November 1995 to sometime in April 1996. Mr. Muir spent most of that time in Florida, including the day of Ms. Lazareva's accident. However, in late February 1996, Mr. Muir returned from Florida for about a week to attend doctors' appointments.⁶ This was after Ms. Lazareva's accident and Mr. Muir was in the house when Ms. Lazareva was visited by Margarete Sagebiel, an occupational therapist, sent by the Insurer to perform a "home functional assessment." Ms. Sagebiel's report, dated March 4, 1996 and hereafter referred to as the OT report,⁷ stated: "The client's employer was present during all of this assessment. He is 81 years old." The OT report also stated that an interpreter was present during the assessment.

The OT report listed various household chores⁸ and indicated who, according to Ms. Lazareva, performed these chores before and after her accident. Ms. Lazareva informed Ms. Sagebiel that she did everything before the accident though sometimes Mr. Muir would go shopping with her. The post-accident column mostly contains the entries "not done" or "not attempted" but under the following headings it also states that Mr. Muir had taken over responsibility for:

laundry: "employer takes shirts out"

bathroom cleaning: "employer taking care of it"

bed making: "employer does his own"

meal preparation: "employer doing everything"

dishes: "done by employer"

shopping: "employer does shopping"

maintenance: "employer takes out garbage"

The OT report stated that Ms. Lazareva "was reluctant to demonstrate any activities as she felt that this would make her dizzy." Ms. Sagebiel nevertheless expressed the clinical opinion that Ms. Lazareva could perform the movements required to complete all tasks but was "self-limiting due to dizziness."

Mr. Muir did not give evidence at the hearing, having passed away in July 1996. He was, however, interviewed by a private investigator, Jo-Ann Armstrong, engaged by the Insurer on May 29, 1996.⁹ By that time, Mrs. Muir had moved back into the house with Mr. Muir and Ms. Lazareva was no longer living there. Ms. Armstrong testified that Mr. Muir informed her that Ms. Lazareva had been working for him as a housekeeper for the past seven or eight months and that she continued to come to clean the house at least twice a week for a minimum of three to four hours. Mr. Muir described Ms. Lazareva's job duties to Ms. Armstrong as including vacuuming, dusting, cleaning bathrooms, floors and all other housekeeping chores excluding laundry. He informed Ms. Armstrong that Ms. Lazareva was a very good cleaning lady and that he would be pleased to give her a good recommendation.¹⁰

Ms. Armstrong also interviewed Mrs. Muir sometime in the summer of 1997.¹¹ Mrs. Muir informed Ms. Armstrong that Ms. Lazareva had left the Muirs' employ on her own accord in approximately May or June 1996 and that she gave no reason that Mrs. Muir could recall for leaving. Mrs. Muir also told Ms. Armstrong that Ms. Lazareva always appeared to be in very good health.

Mr. Richard Muir, the Muirs' son, testified at the hearing that when his father hired Ms. Lazareva, he was suffering from diabetes, a heart condition and passing out spells. He could not lift anything and was afraid to be by himself.¹² Mr. Muir agreed on cross-examination that his father was the sort of person who, if he saw that Ms. Lazareva was having problems doing her job, would assist her.¹³ However, Mr. Muir did not testify that he saw his father taking over any of Ms. Lazareva's duties. He did testify that he never saw Ms. Lazareva performing any of the household chores mentioned in the OT report either before or after her accident,¹⁴ that his father never told him that Ms. Lazareva was injured and could not work¹⁵ and that his father never complained to him about Ms. Lazareva not performing her duties properly.¹⁶ Mr. Muir testified that when his parents reconciled, his mother moved back into the house and he believed his father asked Ms. Lazareva to move out,¹⁷ but that she continued to come to clean the house at least once a week after she moved out and was paid for doing so.¹⁸ He testified that his father told him that this arrangement ended when Ms. Lazareva indicated that she wanted to be paid more money for her services and travel time and his father refused.¹⁹

In her examination-in-chief, Ms. Lazareva was referred to two statements she gave to the Insurer on February 14 and 27, 1996.²⁰ These statements indicate that Ms. Lazareva called her friend, Catherine Block, the day after the accident and that Ms. Block came to the house for five to six hours every day, including weekends, to help Ms. Lazareva with cooking, cleaning and shopping. According to Ms. Lazareva's second statement on February 27, 1996, this arrangement continued until Mr. Muir returned from Florida on February 21, 1996, after which he took over helping Ms. Lazareva and Ms. Block did not return. In her examination-in-chief, Ms. Lazareva stated that she could not remember whether Ms. Block helped her after February 27, 1996.²¹

Ms. Block testified that she helped Ms. Lazareva with cleaning, cooking, grocery shopping and washing after Mr. Muir's return from Florida, at first frequently and then seldom.²² Reference was made on Ms. Block's cross-examination to "receipts" Ms. Block submitted for services rendered to Ms. Lazareva prior to her moving out of Mr. Muir's house but Ms. Block testified that she did not actually get paid.²³ She also testified that she continues to help Ms. Lazareva with her own housework at her apartment.²⁴

Ms. Lazareva testified that she found an apartment and moved out of the Muirs' house sometime in the middle of April 1996. She acknowledged that she continued her employment with the Muirs thereafter. Her evidence, on examination-in-chief, was as follows:

Q. After you moved out of Mr. Muir's house, did you speak with Mr. Muir regarding the continuation of your employment?

A. Yes. So I do not lose the job, when he would call me I would come and do what I can. But I could not do a lot; he saw it.

Q. Did you agreed on how much you were going to be paid?

A. Yes, when I would get there, I would be paid $7.00 an hour.

Q. From the date you had moved, how many times approximately did you attend at Mr. Muir's house?

A. Possibly three or four times.

Q. When you attended at those times, did you manage to complete all of your tasks?

A. Regretfully I could not fulfill the duties, I would just do the small things that I could.

Q. And, how long did you stay there?

A. At Mr. Muir's? Out of the six hours, which were by agreement, I would stay three to four hours.

Q. Did Mr. Muir ever ask you to perform work in the garden?

A. He loved to put in flowers by himself. He had 15 or 20 left over blooms which he asked me to put in the ground. I could not tell him no, although I felt terrible. After finishing the flowers I went down and lay down before going home. When I arrived home I felt frighteningly bad because I had to bend but I could not, I just could not tell him no.

Q. Have you returned to any type of work since that day?

A. After that day I just became incapable of work, an invalid.²⁵

On cross-examination, Ms. Lazareva was referred to a surveillance video and report which recorded and described her gardening activities that day.²⁶ The following exchange took place between herself and counsel for the Insurer:

Q. In that report it shows that you went inside the house at 12:47 p.m. and that you left at 1:00 p.m., or 13 minutes later, and in that time you had changed clothes. So you didn't lie down for very long, did you?

A. To change clothes doesn't take that much time.

Q. In the report it also indicates that an elderly gentleman, and it was presumed to be Mr. Muir, had left around 11:00 a.m. and he returned home at 12:52. So he returned home five minutes after you went in and eight minutes before you left. In that time, in that eight minutes, would you not have had some conversation with Mr. Muir?

A. In my mind I did not speak to him. I do not remember. As I remember it---

MR. GOLDENTULER:

[Ms. Lazareva's counsel] does she not remember or —

THE INTERPRETER:

"I do not remember."²⁷

MR. GOLDENTULER:

Okay, so that's the answer?

THE DEPONENT [Ms. Lazareva]:

That's the answer.

Medical Evidence:

Treating and Applicant-Retained Doctors:

Ms. Lazareva testified that her "head was thrown back," and "everything turned black and then I hit the right side," indicating her right temple. She could not say what part of the car her head hit as she "was probably unconscious at the time." She nevertheless continued, after the accident, on her way by subway to her English-as-a-second-language class as she had a test that day, a Friday. Her evidence was that she "felt bad" while writing the test and that when she did not improve over the weekend she went to see her family physician, Dr. Oleg Livshin, on Monday morning, January 29, 1996.

Dr. Livshin, family physician:

Dr. Livshin's records indicate that Ms. Lazareva had pre-accident complaints of headaches and, in June 1995, an "acute reactive depression related to immigration procedures." Dr. Livshin had also diagnosed diabetes mellitus and hypertension prior to the accident, the latter being well-controlled by medication.

On Monday, January 29, 1996, Ms. Lazareva reported the following symptoms to Dr. Livshin: blurry vision for half the day after the accident, severe headaches, neck pain and stiffness, and shooting pain in the right temple area. X-rays of the cervical spine were taken on January 31, 1996 and showed degenerative disc disease. In subsequent visits in February, March and April 1996, Ms. Lazareva complained to Dr. Livshin of frequent disorientation, dizziness and nagging headaches, loss of normal sleep pattern, nervousness and irritability, and depression. In his report to the Insurer dated April 29, 1996, Dr. Livshin wrote:

My own perception of the patient's injury continued to be that of a myofascial nature and I, therefore, advised her to initiate a rehabilitation program...

As far as activities of daily living are concerned, prior to the accident, the patient had been a fully functional person doing whatever was necessary to establish herself in her new environment, being a recent immigrant from Russia, whereas now, she is hardly able to care for herself, perform any household activities, do the shopping, or even prepare food.²⁸

Dr. V. B. Levitin, chiropractor, and Dr. Nikolai Wolfson, orthopaedic surgeon:

Ms. Lazareva was examined by both Dr. Levitin and Dr. Wolfson at the Integrated Health Recovery facility. She also received passive and active rehabilitation therapy there.

On his examination on February 19, 1996, Dr. Levitin diagnosed mild to moderate flexion/extension, acceleration/deceleration injuries. He stated that Ms. Lazareva should be assured that these injuries "are not severely affecting her daily life" and encouraged to make the "earliest return to her pre-accident activity." He recommended that the total length of passive and active therapy should not exceed "10-12 weeks if the psychological problems and barriers to recovery are overcome."²⁹

Dr. Wolfson's examination of the cervical spine on April 8, 1996, revealed no abnormal findings though no x-rays were provided to him.³⁰

Dr. B. J. Little, neurologist, and Dr. J. F. Ross Fleming, neurosurgeon:

These doctors were both consulted in connection with two cerebral lesions revealed by a CT scan conducted at Dr. Livshin's request in February 1996. An MRI conducted in August 1996 confirmed the presence of brain lesions but these doctors agreed that the lesions were not the cause of any of Ms. Lazareva's symptoms as some other doctors had speculated. Dr. Fleming did not recommend surgery as the lesions were "probably long-standing and fairly stable."³¹

Dr. J. Haight, ENT specialist:

Ms. Lazareva was examined by this doctor on April 17 and 29, 1996. He recorded complaints of continuing "episodes of dizziness lasting a few seconds which occur when she looks up or looks down, lies in bed or gets up from bed, or turns over to either side in bed. She can avert these my [sic] moving very slowly. She also thinks her balance is a little impaired." Dr. Haight provided the following diagnosis and prognosis:

I think her dizziness is due to benign paroxysmal positional vertigo and that this is due to the accident. This condition is thought to be cupulolithiasis or canalithiasis or both. Particles are dislodged form the utricle by the shock of the injury and cause the vertigo with postural change. The vertigo comes and goes and is not consistently present. This makes it more difficult to cope with it in everyday life. For her job as a housekeeper the vertigo would be expected to be a major handicap insofar as cleaning and cooking and so forth require movement of the head and bending and a sudden episode of vertigo could be dangerous if near a hot stove or sharp knife for instance.³²

Dr. Marek J. Celinski, registered psychologist:

By letter to Applicant's counsel dated September 10, 1996, Dr. Livshin expressed the view that Ms. Lazareva would benefit from assessment by a psychologist who spoke her language, Russian. Ms. Lazareva was subsequently examined by Dr. Celinski, a Russian-speaking psychologist, on September 27, 1996, April 25, 1997 and October 10, 21 and 30, 1997. However, Dr. Celinski was unable to conduct "any meaningful neuropsychological examination" due to Ms. Lazareva's "significant level of depression which continues to be Major Depression."³³ His reports³⁴ express no clear opinion about the cause of this depression.

Dr. Felix Yaroshevsky, psychiatrist:

Ms. Lazareva was examined by Dr. Yaroshevsky at her counsel's request on December 19, 1997, almost two years after the accident. His report stated that "she has been unable to return to her housework duties because of her dizziness, headaches and pain in her spine." He diagnosed depression and post-traumatic stress disorder, the trauma presumably being the accident which exposed her "to even more pressure because of the sudden change in her health." However, he also referred to Ms. Lazareva's refugee status and the prolonged and uncertain immigration process as "psychosocial stressors." Nor did Dr. Yaroshevsky describe Ms. Lazareva's psychological problems as disabling, only stating that "she currently seems unable to perform her pre-accident employment duties of a live-in housekeeper and cook."

Dr. Howard P. Jacobs, medical doctor:

Ms. Lazareva was examined by Dr. Jacobs on January 7, 1998, for the first time, at the request of her counsel. Dr. Jacobs' practice is restricted to the "medical management of pain" and his curriculum vitae outlines his substantial involvement in this area of practice. However, pain management has not, as yet, been recognized in Canada as a medical speciality.

Ms. Lazareva reported the following symptoms to Dr. Jacobs: fascial and jaw pain, sub-occipital headache, neck pain, bilateral shoulder supra-scapular pain, low back pain, anxiety, insomnia, concentration and memory problems and dizziness. In his first written report, dated January 8, 1996,³⁵ Dr. Jacobs expressed the opinion that it was "not plausible that someone can be suffering from these symptoms... without having an underlying pathological reason for it." He stated that diagnostic nerve blockades of her cervical spine were needed to "elucidate the site of her pain accurately." Still, he was prepared, based on his own physical examination, to put forward six diagnoses to explain Ms. Lazareva's symptoms: right occipital neuralgia, cervicogenic headache on both sides, acceleration-deceleration injury of the neck, possible cervical zygapophyscal joint pain, somatic referred pain from the cervical zygapophyseal joints and dizziness secondary to possible damage to the cervical spine. In his oral testimony, Dr. Jacobs stated that his own examination only confirmed the existence of pathology in Ms. Lazareva's neck; his diagnoses of that pathology remained "differential" until confirmed by more reliable diagnostic nerve blockades.³⁶

In his second report dated June 11, 1998,³⁷ Dr. Jacobs again attributed Ms. Lazareva's dizziness problems to a cervical spine injury. He disagreed with the Insurer-retained Dr. C. Peter N. Watson, who had suggested that Ms. Lazareva's dizziness may have been caused by positional vertigo as a result of peripheral vestibular dysfunction caused by the accident. Dr. Jacobs noted that his examination had revealed no evidence of vestibular dysfunction but that if there had been damage of this kind, it was not a "self-limited condition" as stated by Dr. Watson. Dr. Jacobs also identified other more likely causes for Ms. Lazareva's vertigo problems including brain, vertebral artery and cervical dysfunctions.

With respect to the disabling effects of her injuries, Dr. Jacobs wrote in his first report³⁸ that Ms. Lazareva "does have limitations to working because physical activity causes severe exacerbation of her symptoms of pain, and also, she becomes extremely dizzy with nausea with movements such as bending which is essential in performing housekeeping duties." The concluding sentence of his report state: "As a result of these impairments this woman is currently disabled for the essential tasks of a housekeeper."

However, on examination-in-chief, Dr. Jacobs was asked and answered as follows:

Q. Now my question is if she was to crouch and bend and kneel repetitively for approximately half an hour to an hour, what would she experience?

A. I don't know. She can do it. I think the spine is connected to everything. So anything that would involve the upper cervical spine, I would say would pose a problem.³⁹

Further, the transcript of Dr. Jacobs' cross-examination contains the following exchange:

Q. Can you tell us today what essential tasks that she can't do?

A. I can't tell you specifically, and I would need a functional evaluation to tell you. I don't have that, so I can't tell you specifically..! don't know what she can and cannot do, so I can't comment on it. But is it possible that somebody with her problem would have difficulty in doing general housework? [This question was put by Dr. Jacobs to himself in the course of answering the earlier question put by counsel for the Insurer] The answer is, would be, yes, it is possible for her for that to be a problem.

Q. It's also possible that she can do it?

A. We'd have to find out. It's possible. Anything's possible.⁴⁰

Dr. Gary Shapero, medical doctor:

After testifying that his diagnoses remained differential until confirmed by diagnostic nerve blocks, Dr. Jacobs referred Ms. Lazareva to Dr. Gary Shapero to have these diagnostic tests performed. Dr. Shapero performed the tests in August/September 1998 and reported back to Dr. Jacobs that they were positive.⁴¹

Dr. Nikolai Bogduk:

An Insurer-retained doctor, again Dr. Watson, disputed the results of the diagnostic nerve blocks obtained by Dr. Shapero. Dr. Jacobs, therefore, sent those results to Dr. Bogduk, an Australian doctor who developed the diagnostic nerve blocks and whom both parties accepted as the leading authority on the protocol for administering them. In his written report,⁴² Dr. Bogduk found much to criticize in the way the nerve blocks were administered to Ms. Lazareva but he nevertheless reached the following conclusion about the reliability of the results reported by Dr. Shapero:

...my interpretation of the data available is that a source of pain in her C2-3 and/or C3-4 joints has not been proven to best available standards, nor beyond all reasonable doubt, but there is sufficient information, flaws accepted, [to conclude] that on a balance of probabilities she does seem to have genuine source of pain amongst these joints. [emphasis in the original]

Insurer-Retained Doctors:

Dr. Katherine Isles, occupational medicine:

At the Insurer's request, Dr. Isles conducted a work capacity evaluation of Ms. Lazareva on May 2, 1996, just over three months after the accident. Ms. Lazareva complained of headache pain, neck and shoulder pain and stiffness, upper, mid and lower back pain, hand and finger pain and dizziness. She stated that she could not do the following domestic activities: grocery shopping, make beds, scrub floors/vacuum, sweep/houseclean, laundry/sew, shovel snow, access low cupboard shelves. She further indicated that she was uncomfortable after standing for 15 minutes and had to stop after 20 minutes due to pain in both shoulders and back.

However, after completing maximum voluntary effort, work activity and tolerance testing, Dr. Isles' report⁴³ expressed the opinion that "there was no clear correlation between heart rate and perceived exertion, suggesting Ms. Lazareva was not fully cognizant of her true physical capabilities, or alternatively was attempting to mislead the examiner." Dr. Isles recommended a return to work; "the only modification that would be required would be a graduated reintroduction into the work environment. "

Dr. G. M. Sawa, neurologist:

Dr. Sawa examined Ms. Lazareva at the Insurer's request on July 8, 1997 and expressed the following view in his report:⁴⁴

From a neurological perspective, this client is probably capable of returning to her pre-accident occupation as a housekeeper. However, it may be that the other factors may render her disabled. In particular, it may be that her psychological problems as well as the problems related to her peripheral vestibular system (vertigo) are rendering her disabled.

While Dr. Sawa accepted Dr. Haight's diagnosis of paroxysmal positional vertigo as the "most likely" explanation of Ms. Lazareva's dizziness, he noted that "there were no objective signs such as nystagmus induced on head hanging test to confirm this diagnosis."

Dr. W. Gary Snow, psychologist:

Dr. Snow examined Ms. Lazareva at the Insurer's request on November 25 and 26, 1997. After conducting a battery of tests, Dr. Snow expressed the following conclusion in his report:

Looking at the balance of her assessment, it is my conclusion that Ms. Lazareva was exerting suboptimal effort during testing. Indeed, it is most likely that she was (either consciously or unconsciously) feigning impairment on some tests. Evidence of suboptimal effort comes not simply from her implausibly poor performance in recalling information such as the number of weeks in a year. One also sees implausibly poor performance on measures of manual grip strength and finger tapping speed. Her performance was also slower than one can attribute to brain injury on a measure of psychomotor speed. She performed more poorly on a simple measure of visual recognition memory than one sees in the typical individual with much more significant cognitive impairment. Her speed of performance was slow on measures of serial mental computation. She had more difficulty on simple measures of verbal recognition memory than one sees in all but the most severely brain damaged of individuals (which she most clearly is not). She also displayed performance on a measure of motivation which is significantly poorer than one sees in individuals with true brain damage. Hence, it is clear that Ms. Lazareva was not exerting maximum effort during testing. In no way do I attribute this performance to problems caused by the use of an interpreter. It should also be noted that suboptimal effort at present is compatible with what has been noted on some other types of assessments, in which abilities other than cognitive abilities have been assessed.⁴⁵

Dr. Snow's report also contains the following observation in connection with Ms. Lazareva's complaints of dizziness:

Ms. Lazareva has reported ongoing dizziness since the time of her accident. Although this symptom can be a consequence of physical injury, it can also be seen in individuals who have significant anxiety levels or who are somatically preoccupied. In other words, complaints of dizziness may reflect psychological stress rather than any underlying physical pathology. For that reason, I think it would be worthwhile to have independent consultation by an otolaryngologist to attempt to determine the extent to which psychological factors may be playing a role in her presentation.

Dr. C. Peter N. Watson, neurologist:

Dr. Watson's first report dated May 16, 1998⁴⁶ was based entirely on a review of medical records, some of which were never produced to me and some of which did not pertain to the Applicant.⁴⁷

As mentioned earlier, Dr. Watson suggested a diagnosis of positional vertigo caused by peripheral vestibular dysfunction but stated that this condition was "usually self limited over weeks although it may be disabling for a time." In examination-in-chief, Dr. Watson testified that peripheral vestibular vertigo originates in the inner ear, not the neck or the brain. He further testified that a person who claims to have frequent positional vertigo spells would tend not undertake an activity that involved bending for 45 minutes or an hour since that would bring on the vertigo.⁴⁸ This last observation was made in connection to the surveillance video showing Ms. Lazareva bending at the waist while gardening.⁴⁹ It was pursued on cross-examination in the following exchange between Dr. Watson and counsel for the Applicant:

Q. Someone has vertigo —

A. Hm-hmm.

Q. --- from whatever causes that may be. And, at the initial stages, it's acute, and then it diminishes with time —

A. Hm-hmm.

Q. --- at a point where, you know, it's not continuous or it's not ever(y) hour or so and ----

A. Hm-hmm.

Q. — it's on occasion when you stand up, you lie down, and you think that you're feeling much better and you attempt your work, your regular work activities. Just because you attempt them and you try to do them for a period of time, does that necessarily mean that you no longer suffer with vertigo?

Q. No, I think I would agree that you may still periodically have attacks and they -- you can do things between the attacks. You're not as fearful of provoking them, so that's a possibility.⁵⁰

With respect to Dr. Jacobs' diagnosis of cervicogenic headache, Dr. Watson made the following comments in his first report:

I wish further to comment on the diagnosis of cervicogenic headaches. This is a contentious entity. It is by no means generally accepted amongst neurologists that this is a common cause of headaches. There are a group of individuals who believe in this entity and who diagnose this by injection of local anesthetics into the joints of the neck and then directing treatment at the neck. In my view, these sort of diagnostic tests are imprecise and it is not possible to precisely anesthetize a small structure without the local anesthetic spreading to involve other structures. One needs to be very careful that one does not obtain a placebo-like effect from an injection. I believe that from my experience, headaches generated from the neck are extremely rare and I think in this woman's case, it is likely that she had a tremendous emotional upset form the accident and muscular pain generated by her anxiety and depression, and that the most appropriate treatment would be directed at that.

As also mentioned, Dr. Watson's second report dated October 21, 1998,⁵¹ questioned the results of the diagnostic nerve blocks performed by Dr. Shapero. Dr. Watson's doubts were based on his "concern that Dr. Bogduk's protocol was not followed correctly and that the results have been misinterpreted which is exactly the pitfall that Dr. Bogduk warns against."

Medical and Rehabilitation DAC report:

On August 27, 1996, Ms. Lazareva was examined at a Medical and Rehabilitation Designated Assessment Centre by Dr. Jeffrey D. Gollish, an orthopaedic surgeon, Lauren Mayer, a physiotherapist and Filomena Masella, an occupational therapist. Ms. Lazareva was informed that the purpose of the assessment was "to help in planning your rehabilitation."

Ms. Lazareva reported neck pain, thoracic and lumbar spine discomfort, headaches and dizziness and nausea "especially when she leans forward." She also reported a 50 percent improvement in neck mobility and an ability to carry out "light household chores" but stated that she had a friend help her with "larger loads of laundry and washing the floor." However, the DAC report states:

Ms. Lazareva reported fatigue throughout the evaluation. Pain behaviors (ie. Closing of her eyes, grasping of the posterior aspect of her neck and head) were observed. No objective signs of physical exertion such as muscle fasciculation, increased respiratory rate and sweating were observed during the strength tests: lifting, carrying and pushing/pulling activities.

Based on Ms. Lazavera's performance throughout the evaluation and the information gathered from the interview, the client demonstrated no functional limitations with the following activities: lifting, carrying, standing, gripping, sustained and repetitive bending/stooping, squatting, sitting, standing and overhead reaching. Assistive devices are not recommended as the client demonstrated sufficient range of motion and strength to carry out her activities of daily living. Ms. Lazareva would benefit from continuing to pace herself throughout all her activities.⁵²

Analysis of the Evidence and Conclusion:

I find that the essential tasks of Ms. Lazareva's employment were as set out in the contract of employment she signed with Mr. Muir. His absences from Canada did not, in my view, alter the essential tasks of Ms. Lazareva's employment because she remained obliged by the contract to perform these tasks whenever Mr. Muir was in the house. There were obviously no restrictions under the contract on Mr. Muir's right to be in his own house and there was evidence that he returned from Florida to see his doctor at least once in the winter of 1996. The essential tasks of Ms. Lazareva's employment are certainly not to be defined by a "snapshot" taken on the day of the accident⁵³ when Mr. Muir was not even in Canada.

I further find that the injuries Ms. Lazareva sustained in the accident were, on the balance of probabilities, correctly diagnosed as vertigo, cervicogenic pain and post-traumatic stress disorder.

The vertigo diagnosis was accepted by Drs. Livshin, Haight, Jacobs, Sawa, Snow and Watson though with sometimes differing etiological explanations. Drs. Little and Fleming's opinions eliminated Ms. Lazareva's brain lesions as the explanation of her dizziness.

I accept Dr. Bogduk's opinion that the diagnostic nerve blocks performed on Ms. Lazareva constitute an objective finding of genuine cervicogenic pain. Dr. Bogduk may have shared Dr. Watson's misgivings about the way in which Dr. Shapero conducted the blocks but he did not share Dr. Watson's opinion about the reliability of the results obtained.

Dr. Yaroshevsky's findings of depression and post-traumatic stress disorder were not challenged by any contrary psychiatric opinion⁵⁴ and is, therefore, uncontradicted.

However, in order to be entitled to income replacement benefits, Ms. Lazareva must do more than establish that she sustained injuries in the accident. She must also establish that the injuries sustained prevented her from performing the essential tasks of her pre-accident employment. On my view of the evidence, taken as a whole, Ms. Lazareva has not established this beyond February 21, 1996.

To begin with, the medical diagnoses I have accepted for Ms. Lazareva's injuries do not establish, by themselves, an inability to do household chores. As I understood Dr. Watson's opinion, vertigo is a variable condition which may not always prevent attempts at regular work activities. Dr. Jacobs was unable to state, on cross-examination, that the conditions he differentially diagnosed necessarily disabled Ms. Lazareva from doing housework, one of those conditions, of course, being the cervicogenic headache subsequently confirmed by Dr. Bogduk. Likewise, Dr. Yaroshevsky's report does not describe Ms. Lazareva's psychological problems as disabling. The diagnosis of these conditions only substantiates Ms. Lazareva's inability to do household chores if I also accept her description of the limitations they imposed. I do not for the following reasons.

First, I find that while Ms. Block did attend at the house and help Ms. Lazareva with her duties in the weeks immediately following the accident, she came much less frequently after Mr. Muir's return from Florida on February 21, 1996.

Second, I find it very difficult to believe that Mr. Muir would have taken over so many of Ms. Lazareva's responsibilities on his return from Florida on February 21, 1996. Ms. Lazareva's counsel argues that I should accept the OT report as accurate in this regard because both Mr. Muir and an interpreter were present during the assessment and Mr. Muir was, therefore, able to correct any misinformation given by Ms. Lazareva to the occupational therapist. However, I am not satisfied that Mr. Muir's apparent silence during the OT assessment can be interpreted in this way because it conflicts with his silence in statements he subsequently made to the private investigator and to his son in which he made no mention of Ms. Lazareva's limitations or his having taken over some of her responsibilities. Given his own needs as expressed in the contract and his own state of health as described by his son, I find it improbable that Mr. Muir would have accepted Ms. Lazareva's alleged limitations or taken over her responsibilities and even more improbable that he would have done so without mentioning it to his son.

Third, by her own admission, Ms. Lazareva continued working for and being paid by Mr. Muir after moving out of his house in April 1996 until the end of May. I find it implausible that Mr. Muir would have prolonged the employment relationship after she moved out if, as Ms. Lazareva testified, she could not "fulfill the duties." Moreover, I accept Richard Muir's evidence that his father told him that the employment relationship ended at Ms. Lazareva's insistence, not because of her limitations but because she wanted to be paid more for her services and travel time. The evidence does not suggest any reason why either Richard Muir or his father would have misstated their recollections in these regards.

Fourth, I find that Ms. Lazareva exaggerated the extent of her limitations when she was examined by Drs. Isles, Gollish and Snow. I find that her work capacity was more accurately represented by the videotape showing her gardening, bending at the waist and moving about without apparent limitations. I also find Ms. Lazareva's testimony that she lay down before going home, false, and her assertion that she has been an invalid, incapable of work, ever since, unbelievable.

I, therefore, reject Ms. Lazareva's claim for income replacement benefits after February 21, 1996. For the same reasons, I also reject her claim for housekeeping expenses.

On the other hand, for the reasons outlined below in connection with her claim for a special award, I find that Ms. Lazareva was entitled to income replacement benefits up to February 21, 1996. She is also entitled to interest on such benefits as calculated under section 68.

Ms. Lazareva is also entitled to recover reasonable expenses incurred for examinations and assessments. Her expenses in this regard are listed in Tab 21 of Exhibit 3; none was disputed by the Insurer.

None having been presented in evidence, Ms. Lazareva is not entitled to recover expenses in connection with transportation for treatment. Nor on my view of the evidence, as outlined above, is Ms. Lazareva entitled to the services of a case manager. I also decline to make an order for prior approval of expenses under section 69 of the Schedule.

Special Award:

I find that the Insurer unreasonably withheld or delayed payment of the benefits I have awarded Ms. Lazareva. By May 1996, the Insurer had received Dr. Livshin's first report of April 29, 1996, confirming at least a myofascial injury of the neck and upper torso and inability to work. It had also obtained Ms. Lazareva's statements of February 14 and 27, 1996 supplying the details of her employment situation and her assertion of disability and reliance on Catherine Block until Mr. Muir's return on February 21, 1996. In short, by May, 1996, the Insurer had uncontradicted information justifying the payment of benefits to February 21, 1996. Its refusal to pay benefits to February 21, 1996 was not only wrong with the benefit of hindsight; it was unreasonable at the time of the refusal. I, therefore, find that the Insurer is obliged to pay a 50 percent special award under section 281(10) of the Insurance Act on the benefits awarded in respect of income replacement. However, since Ms. Lazareva's initial application for benefits did not claim the benefits awarded but rather education disability benefits,⁵⁵ interest on the special award will only be calculated from June 13, 1996, the date of the Mediator's Report.

EXPENSES:

Since the application for arbitration was submitted prior to November 1, 1996, I am guided by the following oft-quoted statement of the arbitral law on expenses:

... it is appropriate to award an applicant his or her expenses, unless, in the circumstances of the particular case, it is determined that the application for appointment of an arbitrator was manifestly frivolous or vexatious, or that the applicant's conduct unreasonably prolonged the proceedings.⁵⁶

There is no basis for a finding that Ms. Lazareva's application for arbitration was frivolous, vexatious or an abuse of process.⁵⁷ Ms. Lazareva did sustain injuries in the accident notwithstanding my rejection of her evidence about the degree of resulting disablement. There is, however, a basis for a finding that the conduct of her case unreasonably prolonged the proceedings. I refer in particular to the way the Applicant presented the medical evidence in support of the diagnosis of cervicogenic pain.

The first mention of this diagnosis was contained in Dr. Jacobs' report of January 8, 1998, ten days prior to the commencement of the hearing. I attach as Appendix A to this decision a copy of my ruling of April 22, 1998 with respect to the procedural problems created by the last-minute service of this report, by the newness of the medical issues raised and by Dr. Jacobs' reference in his oral testimony to medical articles not listed in his report. The Insurer was permitted, over the Applicant's objection, to call Dr. Watson to provide medical evidence and opinion in response to Dr. Jacobs' evidence and opinion and the Applicant then entered Dr. Jacobs' written reply to Dr. Watson's report. This should have completed the investigation of the medical issues raised by Dr. Jacobs.

However, during his testimony, Dr. Jacobs had conceded that his diagnoses remained differential until confirmed by diagnostic nerve blocks. After both Dr. Jacobs and Dr. Watson had completed their testimony, the Applicant decided to pursue the investigation of Dr. Jacobs' differential diagnoses by undergoing the diagnostic nerve blocks administered by Dr. Shapero. She then requested the admission of the results into evidence. In the interests of fairness, I allowed a new round of medical evidence in which the test results obtained by Dr. Shapero were admitted into evidence, the Insurer was permitted to question these results through a further opinion from Dr. Watson, the Applicant was permitted to reply to Dr. Watson's opinion by entering Dr. Bogduk's opinion and the Insurer was permitted to cross-examine Dr. Bogduk.

I find that this second round of medical evidence unreasonably complicated and prolonged the hearing. Had the Applicant undergone the diagnostic nerve blocks before, rather than after, Dr. Jacobs testified, there would have been only one round of evidence and opinion to deal with all the medical issues in dispute and no time spent arguing and ruling upon the procedural issues generated by the second round. This is not a case where the test for transforming a differential diagnosis into a confirmed diagnosis was either unknown or unidentified at the commencement of the hearing. Dr. Jacobs identified the test in his report of January 8, 1998, he later, after testifying, referred Ms. Lazareva to Dr. Shapero who performed the test, and he ultimately forwarded Dr. Shapero's test results to Dr. Bogduk for confirmation.

While fairness required that Ms. Lazareva be permitted to enter the test results into evidence, fairness also requires that she bear the expense consequences of her decision to obtain those results after Drs. Jacobs and Watson had already testified. I, therefore, find that Ms. Lazareva is only entitled to recover two-thirds of her expenses of this hearing.

May 28, 1999

David Leitch Arbitrator

Date

Neutral Citation: 1999 ONFSCDRS 94

FSCO A96-001496

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

NINA LAZAREVA

Applicant

and

ROYAL INSURANCE COMPANY OF CANADA

Insurer

ARBITRATION ORDER

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

1. Ms. Lazareva is entitled to weekly income replacement benefits up to February 21, 1996.

2. Ms. Lazareva is not entitled to housekeeping expenses.

3. None having been proved, Ms. Lazareva is not entitled to transportation expenses incurred in connection with medical treatment.

4. Ms. Lazareva is entitled to the expenses of medical reports as outlined in Exhibit 3, Tab 21.

5. Ms. Lazareva is not entitled to the expense of a case manager.

6. Ms. Lazareva is not entitled to prior approval of medical expenses for treatment of the injuries sustained in the accident of January 26, 1996.

7. Ms. Lazareva is entitled to interest on benefits payable under paragraph 1.

8. Royal is required to pay a special award of 50 percent on the benefits awarded under paragraph 1 above with interest thereon effective June 13, 1996.

9. Ms. Lazareva is entitled to two-thirds of her expenses incurred in this arbitration proceeding.

May 28, 1999

David Leitch Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents after December 31, 1993 and before November 1, 1996, Ontario Regulation 776/93, as amended by Ontario Regulations 635/94, 781/94 and 463/96.
2. 2Sections 5 and 7.
3. 3Section 55 of the Schedule.
4. 4Section 57 of the Schedule.
5. 5Exhibit 26.
6. 6There was no direct evidence to establish that Mr. Muir soon left again for Florida but this was assumed to be the case by counsel for both parties in their questions to Richard Muir, see the Transcript of his evidence, Exhibit 47 at pages 25 and 47. It was also consistent with Mr. Muir's evidence at page 25 that his father made short home visits in order to see his doctor, see page 25 of his cross-examination.
7. 7Exhibit 1, Tab C1.
8. 8laundry, ironing, bathroom cleaning, dusting, bed-making, vacuuming, sweeping/mopping, kitchen cleaning, meal preparation/cooking, serving, dishes, shopping, maintenance (garbage, gardening, snow shovelling).
9. 9Transcript of cross-examination of Jo-Ann Armstrong, Exhibit 43, page 90.
10. 10Exhibit 6, page 8.
11. 11Exhibit 11, page 13.
12. 12Transcript of the examination-in-chief of Richard Muir, Exhibit 47, page 5.
13. 13Transcript of the cross-examination of Richard Muir, Exhibit 47, pages 39-40.
14. 14Transcript of the cross-examination of Richard Muir, Exhibit 47, page 39.
15. 15Transcript of the cross-examination of Richard Muir, Exhibit 47, page 44.
16. 16Transcript of the cross-examination of Richard Muir, Exhibit 47, page 26.
17. 17Transcript of the examination-in-chief and cross-examination of Richard Muir, Exhibit 47, pages 17 and 47, respectively.
18. 18Transcript of the examination-in-chief of Richard Muir, Exhibit 47, page 17.
19. 19Transcript of the examination-in-chief of Richard Muir, Exhibit 47, page 19.
20. 20Exhibit 3, Tab 11; references to these statements are found in the Transcript of Ms. Lazareva's examination-in-chief, Exhibit 42, pages 12 and following.
21. 21Transcript of the examination-in-chief of Nina Lazareva, Exhibit 42, page 17.
22. 22Transcript of the examination-in-chief of Catherine Block, Exhibit 41, page 46.
23. 23Transcript of the cross-examination of Catherine Block, Exhibit 41, page 89.
24. 24Transcript of the examination-in-chief of Catherine Block, Exhibit 41, page 48.
25. 25Transcript of the examination-in-chief of Nina Lazareva, Exhibit 42, pages 42-45.
26. 26The videotape is Exhibit 13 and records the date as May 29, 1996. There was no dispute about this date or about Ms. Lazareva's being the person shown planting and watering flowers. I viewed the video outside the hearing room in the absence of the parties.
27. 27Transcript of the continued cross-examination of Nina Lazareva, Exhibit 43, pages 7-8.
28. 28Exhibit 1, Tab E3.
29. 29Exhibit 1, Tab A1.
30. 30Exhibit 1, Tab A2.
31. 31Exhibit 1, Tab J.
32. 32Exhibit 2, Tab 13.
33. 33Exhibit 1, Tab H2.
34. 34Exhibit 2, Tabs 5, 6 and 7.
35. 35Exhibit 2, Tab 18.
36. 36Transcript of Dr. Jacobs' cross-examination, Exhibit 29, pages 181-182, 340
37. 37Exhibit 33.
38. 38Exhibit 2, Tab 18.
39. 39Transcript of Dr. Jacobs's examination-in-chief, Exhibit 22, page 73.
40. 40Transcript of Dr. Jacobs' cross-examination, Exhibit 29, page 338-339.
41. 41Exhibits 35 a, b, c, d and e.
42. 42Exhibit 38.
43. 43Exhibit 1, Tab I3.
44. 44Exhibit 1, Tab I6.
45. 45Exhibit 1, Tab I7.
46. 46Exhibit 24.
47. 47I received no reports from Dr. Zelinsky in evidence though two are referred to in Dr. Watson's report as are the records of Dr. Masi who never treated Ms. Lazareva.
48. 48Transcript of Dr. Watson's examination-in-chief, Exhibit 30, pages 24, 28 and 29.
49. 49Counsel for the Insurer acknowledged that Dr. Watson was not shown the video before testifying.
50. 50Transcript of Dr. Watson's cross-examination, Exhibit 30, pages 99-100.
51. 51Exhibit 36.
52. 52Exhibit 2, Tab I5.
53. 53Donohue and State Farm Mutual Automobile Insurance Company (OIC A-006756, August 31, 1994)
54. 54I denied the Insurer's request, made at the outset of the hearing, for an adjournment to perform a psychiatric assessment but not on the ground that a request for an Insurer's psychiatric assessment was unreasonable. I heard nothing more about an Insurer's request for a psychiatric assessment during the course of the hearing.
55. 55Exhibit 3, Tab 10.
56. 56McCormick and Economical Mutual Insurance Company (OIC A-000139, October 2, 1991)
57. 57See also section 282(11.2) of the Insurance Act.