Neutral Citation: 2000 ONFSCDRS 16

FSCO A99-000498

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

SUZANNE I. PEPIN

Applicant

and

SECURITY NATIONAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

David Leitch

Heard:

November 23 and 24, 1999, Ottawa, Ontario.

Oral submissions taken by telephone conference November 25, 1999.

Appearances:

Colleen L. Burn for Ms. Pepin

Richard F.L. Rose for Security National Insurance Company

Issues:

The Applicant, Suzanne I. Pepin, was injured in a motor vehicle accident on November 16, 1993. She applied for and received statutory accident benefits from Security National Insurance Company ("Security"), payable under the Schedule.¹ Security has refused to pay expenses claimed by Ms. Pepin for aerobic fitness classes in 1994 and 1995 and chiropractic, massage and acupuncture treatment in 1998 and 1999. It also refused to pay expenses claimed by Ms. Pepin for housekeeping and home maintenance. The parties were unable to resolve their disputes through mediation and Ms. Pepin 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. Pepin entitled to recover expenses for aerobic fitness classes in 1994 and 1995 and chiropractic and massage in 1998 and 1999 to the date of the hearing?

2. Is Ms. Pepin entitled to acupuncture treatment because of the accident?

3. Is Ms. Pepin entitled to recover expenses claimed for housekeeping and home maintenance?

4. Is Security required to pay Ms. Pepin a special award under section 282(10) of the Insurance Act?

Result:

1. Ms. Pepin is entitled to recover expenses claimed for aerobic fitness classes in 1994 and 1995 and chiropractic and massage treatment in 1998 and 1999 to the date of hearing.

2. Ms. Pepin is entitled to acupuncture treatment, provided its cost is reasonable.

3. Ms. Pepin is not entitled to recover expenses claimed for housekeeping and home maintenance.

4. Security is required to pay Ms. Pepin a special award in the amount of $350.00 under section 282(10) of the Insurance Act.

Introduction:

Ms. Pepin is a senior economist with the federal government in Ottawa. She was driving home from work on November 16, 1993 when her car was struck from behind while she was waiting to make a turn at the corner of Ross and Scott Streets. On November 24, 1993, Ms. Pepin consulted her family doctor, Dr. Suzanne Beauchemin, complaining of pain in her right neck and upper back. She received physiotherapy treatment for these symptoms from February to June 1994. In addition, Ms. Pepin enrolled in aerobic fitness classes in late 1994 and early 1995 but did not submit her expenses² to the Insurer, alleging she was not aware that she could do so.

In February 1995, Dr. Beauchemin referred Ms. Pepin to chiropractor Jean Chagnon who became and remains the primary treatment provider for her accident-related symptoms. Security paid for all chiropractic, massage and exercise treatments recommended by Dr. Chagnon until August 1998 when it received a medical assessment recommending that Ms. Pepin's treatment be altered, reduced and phased out by March 1999. Security paid some but not all of the expenses claimed by Ms. Pepin's for treatment between August 1998 and March 1999 and then refused to pay all expenses for treatment after March 1999. Ms. Pepin argues that these refusals violated section 6(7) of the Schedule, the "pay-pending-dispute-resolution" provision. She also claims expenses for the aerobic fitness classes in 1994 and 1995 and for acupuncture treatment not yet received but recommended by her family doctor.

Ms. Pepin alleges that she was unable to do housekeeping and home maintenance after the accident and that she incurred expenses to have others perform these tasks. However, she did not submit these expenses to Security until being advised by her lawyer in 1998 that she could do so. She alleges that Security failed to explain that she could claim benefits for such expenses as a result of the accident. Security alleges that Ms. Pepin failed to submit a medical practitioner's statement in respect of these expenses as required by section 6(4) of the Schedule until the day before the hearing. It further alleges that these expenses were not medically necessary.

Issue 1: Fitness classes in 1994 and 1995 and chiropractic and massage treatment in 1998 and 1999 to the date of hearing

In his first reports in March and August 1995,³ Dr. Chagnon identified the mid-thoracic spine and chest, neck and related headaches, left sacro-iliac and left leg as the sites of Ms. Pepin's pain. He did not find evidence of any structural damage to the spine and he did not anticipate any permanent disability. Ms. Pepin received chiropractic and massage treatment at Dr. Chagnon's clinic and started a walking exercise program. By letter to the Insurer dated April 22, 1996,⁴ Dr. Chagnon reported that Ms. Pepin's condition had much improved and was almost at the pre-accident level with no expectation of recurrence or permanent disability. He recommended three more chiropractic and massage treatments and invited the Insurer to close its file.

However, by letter dated July 19, 1996,⁵ Dr. Chagnon informed the Insurer that Ms. Pepin had started to receive treatment every three weeks for neck, mid back and headache problems and that he now recommended a four-to-six month exercise program to, among other things, improve cardiovascular capacity and strength in the trunk and lower extremity.⁶ He also recommended ongoing supportive chiropractic and massage treatment and a neurological consultation. The Insurer paid for the exercise program⁷ and ongoing chiropractic and massage treatment but, despite Dr. Chagnon's note to Dr. Beauchemin⁸ recommending a neurological consultation, none was ever arranged.

In his report to the Insurer dated April 11, 1997,⁹ Dr. Chagnon confirmed that Ms. Pepin had completed the exercise program with supportive chiropractic and massage therapy and was, once again, almost symptom-free. He recommended six more monthly chiropractic treatments and three more massage sessions. Although his letter stated that Ms. Pepin's "condition turned out to be much more severe than originally diagnosed," it suggested that the need for treatment was, again, coming to an end. The Insurer informed Ms. Pepin¹⁰ that it would pay for the additional treatments recommended by Dr. Chagnon and then close its file. By the beginning of November 1997, only one of the massage treatments remained outstanding.

Ms. Pepin nevertheless once again returned to Dr. Chagnon for treatment of neck stiffness in February 1998. This time Dr. Chagnon's letter to the Insurer dated February 25, 1998¹¹contained the following explanation for her ongoing problems:

...it is quite probable that Mrs. Pepin has suffered minor para-vertebral muscular and ligamentous tearing. Although the healing is good, it is most likely that fibrotic tissue resulted in the healing process and that Mrs. Pepin is left with some post-traumatic weakening of the cervical spine. Therefore recurrence of pain from time to time is to be expected more especially at times of stress, fatigue, emotional upset, etc. I do not feel that any other intensive regimen of treatment or exercise will be beneficial to completely eliminate the residual soft tissue and articular dysfunction in the very near future. Based on the results achieved so far, her condition will continue to improve and will probably heal well but considerable time will be required to heal the myofascial strain suffered by the patient.

...In order to prevent any future deterioration of her condition and to correct the dysfunctions as they appear, Mrs. Pepin will need supportive care 10 to 12 times per year for the next few years.

The Insurer wrote to Ms. Pepin on April 1, 1998¹² proposing settlement in accordance with Dr. Chagnon's recommendation for future treatment. The Insurer also indicated that if no settlement could be reached, a medical assessment would be arranged "to determine the continuation of chiropractic and massage treatments." Ms. Pepin rejected the offer to settle and was, therefore, referred by the Insurer to Capital Vocational Specialists ("Capital") for a two-part assessment in July 1998.

The first part of Capital's assessment¹³ was conducted by Dr. Usha Buenger, a specialist in Physical Medicine and Rehabilitation, who diagnosed a soft tissue injury to the neck and back consistent with the history of the motor vehicle accident of November 16, 1993. Dr. Buenger anticipated that Ms. Pepin would be better able to cope with her residual symptoms following a six-month muscle-strengthening and follow-up home exercise programs. This doctor nevertheless expressed the opinion that Ms. Pepin's symptoms would remain chronic.

The second part of Capital's assessment¹⁴ was conducted by Dr. Matthew J. S. Barrigar, a chiropractor, who diagnosed persistent upper cervical joint and myofascial dysfunction "directly related to the motor vehicle accident in question." Since, in Dr. Barrigar's opinion, the persistence of Ms. Pepin's symptoms was due to the lack of regular cardiovascular exercise, he recommended a six-month program which included aerobic exercises and exercises to strengthen the abdominal, gluteal and back extensor muscles, supportive chiropractic and massage therapy sessions once a month and instruction about how exertion can benefit, not harm, injured structures despite exacerbated symptoms. Dr. Barrigar too, however, expected that Ms. Pepin would "continue to have some level of chronic pain."

In a letter to Ms. Pepin dated September 3, 1998,¹⁵ the Insurer purported to accept Capital's recommendations provided Ms. Pepin followed them. However, despite Ms. Pepin's refusal to do the cardiovascular and muscle-strengthening exercises Capital recommended, the Insurer paid for chiropractic and massage treatment on a weekly basis, not on a monthly basis as recommended by Capital. This handling of Ms. Pepin's claim better reflected Dr. Chagnon's critique of Capital's recommendations than it did the recommendations themselves. In his report to the Insurer dated September 24, 1998,¹⁶ Dr. Chagnon wrote:

I do not think extra exercises and a decreased frequency of chiropractic care will change her present condition. The demanded stress for an increase in activity in a busy work and family schedule will outweigh any benefit more exercises would have on her condition. Chiropractic treatments and massage therapy now allow her to perform at a higher level and cope with her ADL's. Decreasing the frequency of care will not, in my opinion, do anything to help. Minimum recommended treatment frequency should be once a week for the next two months and a continuing of the massage therapy concurrently. Of course, she will continue her present exercise program at the same time.

In conclusion, my recommendations are as follows: discuss with Mrs. Pepin the feasibility of the exercise program proposed by Dr. Barrigar and Dr. Buenger. Leave the chiropractic and massage therapy treatment open and let her condition dictate when she needs treatment as her condition improves.

However, the Insurer refused to pay for chiropractic and massage treatments more often than once a week between September 1998 and March 1999 and, citing Capital's recommendations for a six-month treatment plan, stopped paying these expenses altogether in March 1999.¹⁷

On cross-examination, Dr. Chagnon was referred to the report of Carol Leach, a physiotherapist, dated October 5/6, 1999¹⁸ which also refers to Ms. Pepin's poor aerobic capacity and poor lower extremity strength. It was suggested to him that Ms. Pepin's refusal to work on correcting these weaknesses, as recommended by Capital, hindered her recovery. Dr. Chagnon answered that the gains made through previous efforts at correcting these weaknesses proved to be short-lived.

In my view, the medical history and opinions taken as a whole, including those submitted by the Insurer, support a finding that the accident of November 16, 1993 has left Ms. Pepin with a chronic pain condition. As of the date of the hearing, I find that Ms. Pepin had not yet made a complete recovery from this condition and that she has reasonably required the chiropractic and massage treatment provided by or through Dr. Chagnon in 1998 and 1999 up to the date of the hearing. She is likely to continue to require such treatment beyond the hearing date.

I am not prepared to find that because Drs. Buenger and Barrigar suggested a six-month treatment program, Ms. Pepin's symptoms would necessarily have stopped at the end of that period had she followed the treatment program recommended. The evidence establishes that Ms. Pepin had not achieved permanent relief despite receiving treatment of that kind prior to her assessment at Capital. I also reject the suggestion, made through cross-examination, that Dr. Chagnon has prolonged Ms. Pepin's treatment for his own financial gain. He tried on two occasions to bring her treatment to an end only to have her reappear requesting further treatment.

The evidence does not identify any reason to think that Ms. Pepin has fabricated or exaggerated her complaints. Dr. Chagnon testified that there were always objective findings to confirm Ms. Pepin's complaints of pain. I note that she has only sought treatment when required, rather than on a continuous basis, and that she admits to obtaining relief from such treatment, albeit temporary.

Ms. Pepin is, therefore, entitled to the cost of such treatment to the date of the hearing which I am informed is $743.65 for chiropractic and $1,269.00 for massage, plus interest. However, the Insurer is entitled to a deduction for any amounts covered by OHIP or the Public Service Health Care Plan.¹⁹ Ms. Pepin is also entitled to the cost of her aerobic fitness classes in 1994 and 1995 at a cost of $136.98, plus interest. The evidence from all sources establishes that improved aerobic capacity always was and remains important for Ms. Pepin's successful recovery.

Issue 2: Acupuncture treatment

Ms. Pepin's claim for acupuncture treatment was submitted to the Insurer at the end of March 1999 and supported by a note from Dr. W. E. Ryan, her current family doctor. The note is dated March 10, 1999²⁰ and states: "for acupuncture therapy (treatment) for chronic soft tissue injury of back."

The Insurer replied by letter dated April 29, 1999²¹ written by Teresa Sanguigni, claims analyst:

...This will confirm that we will not honour payment for acupuncture treatments. The reasons for this are:

Ms. Pepin was advised of the Independent [Capital] Assessment recommending cardiovascular conditioning program, has not complied by attending educational principles program. Ms. Pepin only continued with chiropractic and massage treatments at which she had reached her maximum recovery level.

Acupuncture treatments are not pro-active exercise modalities to build muscle strength.

In the case of Gaba and Allstate Insurance Company,²² the arbitrator made the following comments in connection with supplementary and rehabilitation benefits claimed under the Schedule applicable in this case:

The question of who has the onus of proof of reasonableness was not directly addressed by either counsel. It would appear to be implicit that this task is required to be performed by the Applicant. It is my view that once a prima facie case has been made for the reasonableness of the account, the secondary onus shifts to the Insurer to disprove the reasonableness. It is not my sense of the Schedule that the legislature sought to impose a heavy accounting onus on injured persons.

Adopting this approach, I find that Dr. Ryan's note is sufficient to establish a prima facie case that Ms. Pepin requires acupuncture treatment but that Ms. Sanguigni's letter is insufficient to discharge the Insurer's secondary onus to disprove the reasonableness of acupuncture treatment. In my view, the Insurer cannot rely on the opinions of Drs. Buenger and Barrigar, as it purports to do, because these doctors were not asked to and did not express any opinion about the potential benefits to Ms. Pepin of acupuncture treatment.

Nor does the fact that Ms. Pepin has not yet incurred any expense for acupuncture treatment bar her recovery.²³

However, Ms. Pepin is only entitled to the expense of acupuncture treatment if it is obtained at a reasonable cost. I heard no evidence and make no finding in this latter regard.

Issue 3: Housekeeping and home maintenance expenses

Ms. Pepin testified that she hired a housekeeper ten or twelve times between November 1993 and September 1994 and that she then employed Joan Quesnel to perform housekeeping duties on a regular, weekly basis until July 1998. Ms. Quesnel's supporting evidence was submitted by way of affidavit.²⁴ The total cost of these services was calculated to be $10,740.00.

Ms. Pepin submitted a list of home maintenance expenses²⁵ in the amount of $2,844.10 for snow removal, lawn maintenance, weed control, caulking, sink faucet repair, water stain removal and ceiling painting.

(a) Delay:

Ms. Pepin testified that she did not become aware of her right to claim benefits for housekeeping and home maintenance expenses until she consulted a lawyer in the spring of 1998. She alleges that the Insurer failed to explain the kinds of statutory accident benefits available to her when she first reported the accident or soon after and that the Insurer is, therefore, responsible for the delay in the submission of her housekeeping and home maintenance expenses.

I accept, as did the Insurer at the hearing, that Ms. Pepin was entitled to an explanation of the kinds of benefits available to her as a result of the accident of November 16, 1993. In the case of Branchaud and Co-operators General Insurance Company,²⁶ the arbitrator made the following comments about the effect of the Schedule applicable in this case:

The sweeping changes brought about by the Ontario Motorist Protection Plan resulted in a dramatic shift in emphasis away from compensation from third party insurers, in favour of compensation by first party insurers. In my view, that shift, when combined with the dramatic increase in the scope and complexity of the Schedule has significantly expanded the responsibility of the adjuster when it comes to explaining to the insured person the range of available benefits.

While I agree entirely with those comments, I would not impose on an adjuster the obligation to explain the range of available benefits until he/she has been first permitted to obtain some basic information from the insured person. In the Branchaud case, for example, the accident took place in Quebec and, in these circumstances, section 18 of the Schedule gave the insured person the right to "elect" whether he would claim benefits under Ontario or Quebec law. The arbitrator observed:

In my view, in circumstances where section 18 applies, an adjuster negotiation with an unrepresented insured for a full and final release, cannot restrict his explanation of available benefits to the Ontario schedule. Rather, I suggest that the adjuster has a positive obligation to point out the possibility of the election.

(My emphasis)

It would obviously be unnecessary for an adjuster to point out the possibility of this election to an insured person whose accident did not take place in Quebec. Nor should an adjuster be obliged to provide an explanation of funeral expenses and death benefits following an accident which did not result in loss of life. In my view, the explanation of benefits an adjuster provides to an insured person must, above all, be responsive to the facts of the accident and its consequences for the insured person. An adjuster cannot provide such an explanation without first eliciting some initial information from the insured person or on his/her behalf.

The Schedule created²⁷ a method for the adjuster to obtain this initial information from the insured person. After notifying the insurer of the accident, sections 22 and 29 of the Schedule required the insured person to apply for statutory accident benefits by completing a prescribed form called an Application for Accident Benefits.

In accordance with the Schedule, the adjuster assigned by the Insurer to this case, Ms. Lilya Kogut, sent Ms. Pepin an Application for Accident Benefits which Ms. Pepin returned, completed, signed and dated January 4, 1993.²⁸ Part 5 of the form asked Ms. Pepin the following two questions and she checked the answer "yes" to both: "were you unable to continue your work/studies/normal activities as a result of the accident?" and "have you returned to work/studies/normal activities?".

In reply, Ms. Kogut sent Ms. Pepin an Assessment of Claim by the Insurer form dated January 28, 1994²⁹ explaining her entitlement to weekly income benefits and soliciting further information. Ms. Kogut wrote:

Your Application for Accident Benefits indicates that you were unable to continue your work as a result of the accident, however, you have returned to normal activities. Due to the lack of confirmation with regard to the time lost off work [and] resulting wage loss, we must necessarily conclude that your disability was within your waiting period or your primary disability benefit plan responded to your wage loss in full. Therefore, we have not assessed any amount to you under the weekly benefit section of the policy.

If you have any questions concerning this, or if there is additional information which you wish to submit to us, please contact us right away.

In a letter dated February 1, 1994,³⁰ Ms. Pepin acknowledged receipt of this assessment and informed Ms. Kogut that she had not been off work due to the accident. She enclosed a revised Part 5 of her Application for Accident Benefits,³¹ changing to "no" her answer to the question "were you unable to continue your work/studies/normal activities as a result of the accident?" but leaving "yes" as her answer to the question "have you returned to work/studies/normal activities?". She advised Ms. Kogut that she was having back and neck pain for which she was going to seek treatment through her family doctor but she made no mention of any difficulty carrying on her normal activities.

There is no evidence to contradict Ms. Pepin's testimony that Ms. Kogut never specifically told her that she could claim housekeeping and home maintenance expenses. Ms. Kogut did not testify at the hearing and the Insurer's log notes³² do not record such advice having been given. Ms. Pepin probably received an entire Accident Benefits Claim Form Package³³ from the Insurer and, in addition to the Application for Accident Benefits, completed an Application for Additional Accident Benefits³⁴ on the same date³⁵ to recover the cost of physiotherapy treatment. But these forms and instructions for their completion did not specifically refer to housekeeping and home maintenance as recoverable expenses.

I nevertheless reject Ms. Pepin's argument that the Insurer failed to explain her right to claim housekeeping and home maintenance expenses. In my view, the Insurer was under no obligation to provide such an explanation because Ms. Pepin gave the Insurer no reason to believe that such expenses were being incurred. On the contrary, Ms. Pepin's signed statements in early 1994 informed the Insurer that her normal activities had, at worst, only been interrupted briefly and Ms. Kogut confirmed her understanding to that effect in writing. I find it difficult to understand how Ms. Pepin, a senior economist with the Canadian government, could have failed to appreciate the distinction drawn in two separate questions between work and normal activities, especially when she had two separate opportunities to answer these questions correctly.

However, Ms. Pepin's responsibility for the delay in submitting these expenses is not the most important factor in my consideration of this issue. I turn now to the more substantive question of the evidence concerning her inability to perform housekeeping and home maintenance tasks.

(b) Evidence of disability

On August 11, 1995,³⁶ the Insurer wrote to Dr. Chagnon requesting a narrative medical report addressing nine issues, one of which was "partial disability." Dr. Chagnon's response, dated August 28, 1995,³⁷ dealt with Ms. Pepin's ability to perform housework or home maintenance in the following brief passage:

Basically, I told her to go easy, gradual and at her own pace for every level of activity she does, be it at work, around the house or while exercising. If she tries to push it too much, she immediately experiences discomfort. If she insists, pain develops.

To the extent they deal with Ms. Pepin's ability perform housework and home maintenance, the following salient quotes can be extracted from Dr. Chagnon's subsequent reports: July 19, 1996,³⁸ "has difficulty accomplishing her daily activities"; April 11, 1997,³⁹ "she can cope with the demands of her ADLs without pain"; February 25, 1998,⁴⁰ "there is an excellent prognosis for ordinary daily activities"; September 24, 1998,⁴¹ "chiropractic treatments and massage therapy now allow her to perform at a higher level and cope with her ADLs." Dr. Chagnon dealt with the issues of housekeeping and home maintenance more expansively in his report date October 8, 1999.⁴² He wrote:

I first saw Ms. Pepin on Feb. 23rd 1995. That was almost 12 years after her accident. At that time, we asked Ms. Pepin if physical work and physical activities were increasing the pain. While she answered yes, she mentioned that she had a cleaning lady at home since Sept. 1994 and that her husband was taking care, in part, of the children's schedule. This arrangement gave Ms. Pepin a chance to rest after work.

In July 1997 things changed. Ms. Pepin separated from her husband and she had to manage her 2 sons busy schedules, both involved in competitive soccer. She still had help at home with the cleaning lady and was able to cope with the demands. In July 1998, she had to let go the cleaning lady. From that point on, her condition deteriorated. Taking care of her family, her home, doing her work and doing her exercises proved to be too much....

If the services of housekeeping, lawn mowing, landscaping, gardening, spring cleaning, snow shovelling would have been available to Ms. Pepin, she would most probably have been able to attend the recommended exercise program proposed by Dr. Barrigar and Buenger, which may have improved her aerobic capacity, her stamina and, to some extent, her soft tissue injuries.

Nowhere in these reports does Dr. Chagnon state that Ms. Pepin's accident-related injuries prevented her performing the housekeeping and home maintenance tasks. At most, Dr. Chagnon's reports establish that these tasks sometimes presented a challenge which Ms. Pepin could meet by pacing herself, something she had difficulty doing because of her work, her commitments as a single parent and her need to exercise.

This interpretation of Dr. Chagnon's reports is consistent with the opinions contained in the Capital assessment. Dr. Buenger wrote:

There are no restrictions regarding activities of ordinary daily living or her work tasks. However, she would benefit from pacing her activities so as not to be in a position or do any activity for prolonged periods.

There is no danger of serious injury if she engaged [in] usual, ordinary daily activities or work. She may have occasional increases such as pain but this does not indicate that serious injury is ongoing.⁴³

Dr. Barrigar wrote that he would place a restriction on activities by Ms. Pepin that required long periods of neck extension such as overhead painting but he also noted the following exchange:

... the patient was reluctant to acknowledge the need to accommodate her schedule to include aerobic exercise, she said she could not incorporate it in the walk with the dogs at night because it would stimulate her too much and she would be unable to get to sleep, and she says that her priority for her other times of day are her job and her children's activities. Ms. Pepin is devoted to providing for her sons the opportunity to develop what has been identified as international calibre soccer skills and she stated that clearly that is her prime focus and that taking care of her own health is secondary to providing these opportunities for her own sons.

In discussing this with the patient I mentioned to the patient that her choice of priorities does not change the physiology of her body and that a regular aerobic component to her recovery is necessary along with the stabilization and flexibility exercises that she has already been shown.⁴⁴

In her testimony, Ms. Pepin acknowledged having this discussion with Dr. Barrigar, stating that she resented being told to spend less time on her sons who are being scouted by U.S. soccer teams.

Finally, Ms. Pepin filed the report of a physiotherapist, Carol Leach, who conducted a functional capacity evaluation on October 5 and 6, 1999. Ms. Leach's undated report⁴⁵ states that the purpose of the evaluation was to determine Ms. Pepin's ability to perform a list of tasks⁴⁶ which Ms. Pepin agreed represented her housekeeping and home maintenance tasks. Based on the list of tasks, a list of critical job demands was prepared and Ms. Pepin's ability to perform each demand was tested. Ms. Leach testified that the results obtained established that Ms. Pepin was capable of performing all critical demands except frequent overhead painting and cleaning and sustained lifting activities over two days. Safe lifting was, however, observed on the first day of testing.

Consistent with these findings, Ms. Pepin testified that, in fact, she has been doing her own housework and home maintenance since July 1998. She manages this by pacing herself over the two days of a weekend, not working as hard on Sunday.

Ms. Pepin's expenses for housekeeping and home maintenance are claimed under section 6(1)(f) of the Schedule. They must, therefore, meet the criteria articulated in Plows and Jevco Insurance Company (A-000175 and A-000588, January 16, 1992; affirmed on appeal P-000175 and P-000588, May 15, 1992); that is, they must be reasonable expenses resulting from the accident, they must be required because of the accident and they must, if the insurer so requires in accordance with section 6(4) of the Schedule, be supported by a statement signed by a qualified medical practitioner that they are necessary for treatment or rehabilitation. I find that Ms. Pepin has failed to discharge her onus to satisfy these criteria.

If, as Dr. Chagnon's reports establish, Ms. Pepin has sometimes been almost entirely pain-free, why did she maintain the use of a housekeeper every week for almost four years? If, as the functional capacity evaluation and her own evidence establishes, she is able to do these tasks now by pacing herself, why was she not able to do the same thing throughout the period for which benefits are claimed? If, as Ms. Pepin admits, her work, family and exercise, take up a lot of time, how can I be sure, on the balance of probabilities, that she does not require housekeeping and home maintenance assistance simply to help her meet the demands of her busy schedule? I find that the evidence does not adequately answer these questions and that Ms. Pepin's claim for housekeeping and home maintenance expenses must, therefore, fail.

I also find that the medical practitioner's statement submitted by Ms. Pepin does not adequately support her claim as required by section 6(4). This statement was signed by Dr. Ryan on November 22, 1999,⁴⁷ the day before the hearing began, and reads as follows:

I have had a chance to review Suzanne's F.C.E. [the functional capacity evaluation completed by Carol Leach]. Based on the findings of the assessor it appears to me that Suzanne will have to have provisions made to accommodate her physical restrictions as they are documented in the F.C.E. This would be justified on medical grounds.

As my previous findings indicate, I do not agree with Dr. Ryan's reading of Ms. Leach's report. Moreover, I am struck by the fact that while Dr. Ryan became Ms. Pepin's family physician in June 1996, he makes no reference to his own opinion about Ms. Pepin's need for housekeeping and home maintenance assistance since then. In that regard, I note the following from Dr. Ryan's earlier letter to Ms. Pepin's counsel dated October 12, 1999:⁴⁸

As my files show, I have not been involved in the care and/or management of her injuries directly or her convalescence subsequently... In fact we had not discussed the accident until March of 1999 when she asked if I could help arrange an independent exam of her back. Apart from this request, Ms. Pepin's care has been over seen by Dr. Chagnon D.C.

Issue 4: Special award

Since Ms. Pepin claimed chiropractic services, she was entitled to the protection of section 6(7) of the Schedule, the "pay-pending-dispute-resolution" provision. The Insurer clearly took the attitude that the dispute was resolved once it had obtained the results of the Capital assessment. While it continued to pay for more chiropractic treatment than was recommended until March 1999, it refused all chiropractic treatment thereafter on the strength of the Capital assessment. In short, it treated the Capital assessment as though it were the report of a Designated Assessment Centre under the successor Schedule which, by that point, was in force for accidents after December 31, 1993.

The Schedule applicable to Ms. Pepin's accident did not permit the Insurer to take this attitude. I find that in handling the case in this way, the Insurer unreasonably withheld benefits to which I have now decided Ms. Pepin was entitled. Ms. Pepin is, therefore, entitled to a special award in the amount $350.00, approximately 50 percent of the amount owing for chiropractic services at the date of the hearing.

EXPENSES:

I did not hear submissions with respect to expenses but will do so if either party so requests within 30 days of the date of this decision. The parties are directed to the applicable provisions of the Dispute Resolution Practice Code.

January 24, 2000

David Leitch

Arbitrator

Date

Neutral Citation: 2000 ONFSCDRS 16

FSCO A99-000498

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

SUZANNE I. PEPIN

Applicant

and

SECURITY NATIONAL INSURANCE COMPANY

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. Pepin is entitled to recover expenses claimed for aerobic fitness classes in 1994 and 1995 and chiropractic and massage treatment in 1998 and 1999 to the date of hearing.

2. Ms. Pepin is entitled to acupuncture treatment, provided its cost is reasonable.

3. Ms. Pepin is not entitled to recover expenses claimed for housekeeping and home maintenance.

4. Security is required to pay Ms. Pepin a special award in the amount of $350.00 under section 282(10) of the Insurance Act.

January 24, 2000

David Leitch

Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents On or Between June 22, 1990 and December 31, 1993, Regulation 672 of R.R.O. 1990, as amended by Ontario Regulations 660/93 and 779/93.
2. 2Exhibit 3(e), Tab 3.
3. 3Exhibit 2, Tabs 8 and 10.
4. 4Exhibit 2, Tab 11.
5. 5Exhibit 2, Tab 13.
6. 6Exhibit 2, Tab 16.
7. 7Exhibit 2, Tab 18.
8. 8Exhibit 2, Tab 12.
9. 9Exhibit 2, Tab 19.
10. 10Exhibit 2, Tabs 20 and 21.
11. 11Exhibit 2, Tab 22.
12. 12Exhibit 2, Tab 23.
13. 13Exhibit 2, Tab 27.
14. 14Exhibit 2, Tab 27.
15. 15Exhibit 2, Tab 28.
16. 16Exhibit 2, Tab 29.
17. 17Exhibits 2, Tabs 30, 32, 34, 35 and 38.
18. 18Exhibit 3(e), Tab 2.
19. 19Exhibit 6.
20. 20Exhibit 2, Tab 37.
21. 21Exhibit 2, Tab 39.
22. 22(OIC A-000624, August 10, 1992)
23. 23See Caruso and General Accident Assurance Co. of Canada (OIC A96-000644, March 3, 1997) in which it was noted that the word "incurred" is not found in the Schedule applicable in the case before me and in which it was further held that the presence of that word in the successor Schedule did not support the argument that a medical benefit is only payable if the expense has already been incurred.
24. 24Exhibit 13.
25. 25Exhibit 19.
26. 26(OIC A-007944, April 26, 1996).
27. 27I am using the past tense because this Schedule ceased to apply to accidents happening after December 31, 1993.
28. 28Exhibit 7; the correct date was obviously January 4, 1994, not 1993.
29. 29Exhibit 2, Tab 5.
30. 30Exhibit 2, Tab 6.
31. 31Exhibit 9.
32. 32Exhibits 15 and 17. Exhibit 18 refers to housekeeping expenses but this note was written in 1998, after, according to her testimony, Ms. Pepin learned about her right to claim such expenses from her lawyer.
33. 33Exhibit 2, Tab 1 and Exhibit 14
34. 34Exhibit 20.
35. 35correctly entered this time as January 4, 1994.
36. 36Exhibit 2, Tab 9.
37. 37Exhibit 2, Tab 10 at p. 2.
38. 38Exhibit 2, Tab 13.
39. 39Exhibit 2, Tab 19.
40. 40Exhibit 2, Tab 22.
41. 41Exhibit 2, Tab 29.
42. 42Exhibit 3(a), Tab 5.
43. 43Exhibit 2, Tab 27 at pages 4 and 5 of Dr. Buenger's report.
44. 44Exhibit 2, Tab 27 at pages 5 and 6 of Dr. Barrigar's report.
45. 45Exhibit 3(e), Tab 2.
46. 46Exhibit 12.
47. 47Exhibit 5.
48. 48Exhibit 3(a), Tab 1.