Neutral Citation: 2000 ONFSCDRS 18

FSCO A98-001178

BETWEEN:

RENE RUIZ

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

John Wilson

Heard:

August 30, and 31, 1999, at the Offices of the Financial Services Commission of Ontario in Toronto

Appearances:

David F. Longley for Mr. Ruiz

Lisa Trabucco for State Farm Mutual Automobile Insurance Company

The Applicant, Rene Ruiz, was injured in a motor vehicle accident on July 2, 1996. He applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company ("State Farm"), payable under the Schedule.¹ State Farm terminated weekly income replacement benefits on March 24, 1998. The parties were unable to resolve their disputes through mediation, and Mr. Ruiz applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

Is Mr. Ruiz entitled to receive a weekly income replacement benefit at a rate of $258.53 per week from March 24, 1998 and ongoing pursuant to section 7 of the Schedule on the basis that he suffers a substantial inability to perform the essential tasks of his employment?
Is Mr. Ruiz entitled to supplementary medical benefits for treatment at Wayne Cook Rehabilitation and Alpha Therapy and Physical Medicine Centre claimed pursuant to paragraph 36(1) of the Schedule?
Is Mr. Ruiz liable to repay to State Farm the benefits he received from State Farm pursuant to section 70 of the Schedule?
Is Mr. Ruiz liable to pay an amount to State Farm that does not exceed the amount assessed against State Farm in respect of the arbitration, pursuant to section 282(11.2) of the Insurance Act, R.S.O. 1990, c. I.8, as amended, because he commenced an arbitration that is frivolous, vexatious or an abuse of process?
Is State Farm liable to pay Mr. Ruiz's expenses in respect of the arbitration under section 282(11) of the Insurance Act?
Is Mr. Ruiz liable to pay State Farm's expenses in respect of the arbitration under section 282(11) of the Insurance Act?

Mr. Ruiz is entitled to receive a weekly income replacement benefit at a rate of $258.53 per week from March 24, 1998 and ongoing.
Mr. Ruiz is not entitled to supplementary medical benefits for treatment at Wayne Cook Rehabilitation, but is entitled to supplementary medical benefits for treatment at Alpha Therapy and Physical Medicine Centre.
Mr. Ruiz is not liable to repay benefits to State Farm.
Mr. Ruiz does not have to pay an amount to State Farm that does not exceed the amount assessed against State Farm in respect of the arbitration.
The issue of expenses has been deferred to a future date, if the parties are unable to agree on the matter.

Background

Mr. Rene Ruiz is a factory worker, originally from Guatemala, who lived in Mississauga. He had worked steadily in Canada since his arrival more than a decade earlier, most recently at Jancee Screw Products in Mississauga.

Prior to leaving Guatemala, Mr. Ruiz had obtained accounting credentials, and worked in the offices of an electrical and appliance company. Presumably because his Guatemalan accounting qualifications and experience were not recognized in Ontario, and because of his lack of English, Mr. Ruiz's work in Canada was limited to labouring in factories, painting chairs, assembling hydraulic cylinders, and operating machinery on the shop floor.

On Mr. Ruiz's last day of employment at Jancee Screw Products prior to the accident, he had an altercation of some sort with his supervisor, and the company was prompted to issue a Record of Employment, which indicated that Mr. Ruiz was dismissed from his employment. The form indicates that the last day of employment was July 4, 1996. On the basis of the information contained in the Record of Employment, Mr. Ruiz was still employed by Jancee Screw Products on the date of the accident.

On July 2, 1996, Mr. Ruiz, driving a Ford Topaz, was involved in a motor vehicle accident at an intersection. He was hit from behind in a chain reaction collision while his vehicle was stopped. Mr. Ruiz was thrown about and hit the dashboard of the vehicle.

Following the collision, a friend drove Mr. Ruiz home. Later, as his knee became increasingly swollen and painful, he decided to visit his family physician, Dr. Cesar Garcia, who referred him to The Mississauga Hospital for x-rays. The x-rays revealed serious damage to Mr. Ruiz's right knee including a fractured tibial plateau. The fractured knee was treated at The Mississauga Hospital by Dr. Sennik, who performed an open reduction and internal fixation of the fractured tibial plateau, and arthroscopy. According to the physician's summary of hospitalization (Exhibit 1, Tab 1), the operation also involved bone grafting and the use of a screw to fix the fracture. Mr. Ruiz was released from hospital the following day.

In addition to the knee problems, Mr. Ruiz testified that he complained of back and waist pain and headaches.

On July 14, 1996, Dr. Garcia completed a Health Practitioner's Certificate on behalf of Mr. Ruiz (Exhibit 1, Tab 2) which indicated that Mr. Ruiz was unable to walk, would require further treatment and that it was premature to give a date when he might be able to return to work.

Mr. Ruiz made a claim to State Farm for Income Replacement Benefits, which were paid at the rate of $258.35 per week.

Mr. Ruiz continued to experience knee problems. On November 15, 1996, Dr. Sennik performed a second surgical procedure to deal with a screw that was protruding through the bone into the skin. An assessment of disability issued by Dr. Garcia some time after the second operation (Exhibit 1, Tab 3) stated:

He can't work, he cannot bend, extend rotate or squat his knee. He requires a cane, a knee support and assistance with house chores.

State Farm continued to pay Mr. Ruiz an income replacement benefit for the period following the second knee operation. However, on December 31, 1997, State Farm wrote to Mr. Ruiz to advise him that benefits would cease as a result of the opinion expressed by Drs. Lexier, Gillen-Garling and Vadsz that he was no longer eligible for weekly income replacement benefits.

Mr. Ruiz disagreed with the opinion of State Farm concerning his disability, and requested a DAC assessment. Pending the result of the disability DAC, Mr. Ruiz's benefits were reinstated. The report of the disability DAC was issued on March 16, 1998. On March 24, 1998, State Farm sent a notice to Mr. Ruiz that he was no longer eligible for statutory accident benefits, based on the conclusion of the DAC that he was not substantially disabled from resuming his pre-accident employment as a machine operator.

Employment

The Employer's Confirmation of Income statement, (Exhibit 2, Tab 3), the Record of Employment (Exhibit 2, Tab 4) and the testimony of Mr. Ruiz all support the conclusion that Mr. Ruiz was employed full time as a machine operator at Jancee Screw Products at the time of the accident. Although there was some question raised by State Farm about the timing of Mr. Ruiz's dismissal from Jancee Screw Products, the Record of Employment issued by Jancee Screw Products clearly shows him as employed by them on the date of the accident. I accept the validity of that declaration by the company.

Counsel for State Farm introduced a C.V. in Spanish from Mr. Ruiz (Exhibit 2, Tab 5), together with an English translation, that outlines Mr. Ruiz's accomplishments in the performing arts and film from 1976 to 1998. Mr. Ruiz's testimony was that he assisted in directing the St. Maria's Cantata for a Chilean group in Toronto for the experience rather than for remuneration. This and the other performances and productions listed show Mr. Ruiz's interest in diversifying his career path and learning new skills rather than evidencing gainful employment in a very different field, both prior to and after the accident.

In the months before this hearing, Mr. Ruiz returned to Guatemala where he found employment assisting in the national elections. His work with the electoral commission was of an administrative nature, and did not involve heavy lifting or physical labour.

Mr. Ruiz clearly has a skill set that is wider and more marketable in Guatemala than in Canada. However, his relevant employment experience and the essential tasks of the pre-accident employment for the purposes of this hearing remain the operation of machines on the shop floor at Jancee Screw Products in Mississauga, and not the acting or administrative work referred to in evidence at the hearing.

Mr. Ruiz claims that he still remains disabled from his pre-accident employment primarily by reason of ongoing swelling, pain and discomfort in his knee. He has not worked as a machine operator since the accident and claims to be limited in his ability to perform any work that requires prolonged standing, lifting or bending. He is, however, far from catastrophically impaired. Even his own physicians suggest that he should be able to do sedentary to light work. Dr. D.J. Ogilvie-Harris prepared a report of September 8, 1998 at the request of Mr. Ruiz (Exhibit 1, Tab 19). He reviewed Mr. Ruiz's disability in a sympathetic manner and concluded that Mr. Ruiz would be limited to sedentary or light employment due to his knee problem.

Nature of Dispute

The dispute between Mr. Ruiz and State Farm centres on whether Mr. Ruiz's position at Jancee Screw Products, his pre-accident employment, involved sedentary to light work, or whether indeed, as Mr. Ruiz claims, that he worked at a heavier factory job with higher demands on strength and endurance. The characterization of Mr. Ruiz's employment and his essential tasks of employment are important since the payment of income replacement benefits is contingent upon Mr. Ruiz continuing to be unable to perform the essential tasks of his employment.

Section 7 (1) of the Schedule provides:

An insured person who sustains an impairment as a result of an accident is entitled to a weekly income replacement benefit if the insured person meets any of the following qualifications:

The insured person was employed at the time of the accident, and as a result of, and within two years of the accident, suffers a substantial inability to perform the essential tasks of that employment. [emphasis added]

The DAC report states that the DAC assessors and the medical assessors were in possession of the Work Wellness report and relied upon it for their understanding of Mr. Ruiz's job requirements. Their conclusions about Mr. Ruiz's ability to perform the essential tasks of his pre-accident employment are necessarily dependent on the reliability of the Work Wellness report and its evaluation of the essential tasks. The same can be said about the balance of the medical assessments commissioned by State Farm.

Essential Tasks of Mr. Ruiz's Employment

Mr. Ruiz himself testified that his work at Jancee Screw Products involved working at a variety of tasks on the shop floor. This included prolonged standing at machines. He elaborated that out of an eight hour shift, one hour at most would be spent sitting.

Some of the machines in the factory processed screws. The work on such machines involved loading the machine with raw material, unloading the finished product, and operating the machine itself. The unprocessed screws were carried to the machine in buckets which would be lifted and placed in the machine. Mr. Ruiz testified that the buckets were heavy and required both hands to lift them.

Mr. Ruiz testified that at other times he worked with heavy metal tubes, cutting and making threads on tubes. The tubes could be up to 3-4 metres in length with a diameter of about 1½ inches. They could, however, be lifted by one person. Working with the heavy tubes was much less frequent than working on machines that cut threads on screws, or drilled holes in screws.

Other than Mr. Ruiz's own testimony, there were two other indications of Mr. Ruiz's job requirements in evidence. The first was a short reference to "bending and lifting" on the Employer's Confirmation of Income (Exhibit 2, Tab 3). The second is the Ergonomic Worksite Assessment Report issued by Work Wellness. The Work Wellness report is a fifteen-page assessment of the workplace at Jancee Screw Products. It was performed about one year after the accident by Theresa McCartney, a kineticist.

Ms. McCartney visited the worksite and interviewed Mr. Ruiz's supervisor, Mr. Pasquale Cifa. Mr. Cifa is credited in the Work Wellness report with providing much of the information about Mr. Ruiz's employment.

It should be noted that the employer's "Record of Employment" claims that Mr. Ruiz's employment ended because of an assault on his supervisor. Whether this happened as alleged or not, I question the wisdom of the Work Wellness report in relying heavily upon information given by someone who may have been potentially antagonistic to Mr. Ruiz's interests. The Work Wellness assessment portrays the workplace as a factory where the machines can be worked from a sitting or a standing position. Mr. Ruiz testified, on the contrary, that the majority of the time he was required to stand.

Mr. Ruiz testified that there was a variety of machines on the shop floor, a few of which were smaller and were operated principally by women. These machines could be operated from a sitting position. The machines all performed tasks related to processing metal, but the descriptions and requirements of the various operations were different.

Mr. Ruiz testified that the work on the shop floor is tiring, involving a lot of standing, bending, lifting and repetitive movement. He further stated that although the heaviest work comprised only a fraction of the working time, it formed part of the job requirement.

There is substantial common ground between Mr. Ruiz's testimony and the workplace description included in the Work Wellness report. Only in the assessment of the difficulty of the work, and in the relative time spent standing during a shift do the report and Mr. Ruiz's testimony vary substantially. These points, however, constitute important differences since they impact on the definition of the essential tasks of Mr. Ruiz's employment.

Based on the evidence presented at the hearing, I find that the essential tasks of Mr. Ruiz's employment with Jancee Screw Products involved the operation of production machinery in a factory environment. The operation of this machinery involved significant bending and lifting throughout an eight hour shift, and was customarily performed in a standing position. I find, in addition, that Mr. Ruiz's employment required some flexibility in performing a variety of job tasks, and some stamina to complete a full shift of eight hours.

Did Mr. Ruiz's essential tasks constitute sedentary to light employment?

The Work Wellness report concluded that Mr. Ruiz's employment could be classified as "Sedentary to Light". Ms. McCarthy defines "Sedentary" as lifting 10 pounds maximum, with occasional lifting and carrying, with the work performed primarily sitting. "Light" means a maximum lift of 20 pounds with possible walking or standing to a significant degree.

The use of the terms "light" and "sedentary" may in fact be of some importance in understanding the recommendations of the various physicians that Mr. Ruiz return to work. In ordinary English, "sedentary work" involves little or no physical effort. The Shorter Oxford Dictionary defines "sedentary" as:

1 ...of habits, occupations requiring continuance in a sitting position

A. Of persons accustomed or addicted to sitting still: engaged in sedentary pursuits: not in the habit of taking physical exercise B. Slothful Inactive

The same dictionary defines "light" as "easy to bear or endure, easy to accomplish, requiring little exertion."

The Work Wellness report under the heading "Major Physical Demands" analyzed the requirements of Mr. Ruiz's work:

Weightbearing-required frequently when operating the machines. Lifting and carrying-required continuously when handling metal or plastic pieces (less than 1 lb.) and rarely when carrying boxes of completed pieces at the end of the shift (10-25 lbs)

The physical demands analysis created by Ms. McCartney for the Work Wellness report lists the lifting and carrying of boxes of up to 18 pounds, from floor to waist-height, and the pulling of levers using twenty-eight to fifty pounds of force on an ongoing basis, as part of his tasks. She also states that the machines are operated sitting or standing, and describes the operations of the three machines used: a milling machine, a Hardinge machine and a drill press.

Neither the description contained in the Work Wellness report nor Mr. Ruiz's testimony make it appear that the work on the shop floor at Jancee Screw Products, involved sitting still, or resting continually in a sitting position. Nor would I accept a characterization of the work as involving little exertion, or being easy to accomplish. Mr. Ruiz's work requirements at Jancee Screw Products met neither the common definitions of "sedentary to light", nor even that provided in the report itself. The conclusions of the Work Wellness report differ, as well, from the brief work description made by the employer to the Insurer which identified the essential tasks as being "bending and lifting" and implied some physical exertion.

I find that the conclusion of Ms. McCartney in the Work Wellness report that Mr. Ruiz's work was sedentary to light was incorrect and misleading. I accept Mr. Ruiz's characterization of the work as involving some lifting, much standing and requiring some physical endurance to complete a full shift.

Ability to perform essential tasks

Mr. Ruiz testified that he can no longer stand for an eight hour shift nor can he perform the necessary bending and pickup required by the job. If he tried to stand for an extended period, Mr. Ruiz stated that he would not be able to endure the pain.

State Farm maintains, based on the Work Wellness report, that Mr. Ruiz could have performed most of his work sitting, and had only light, occasional lifting, with limited bending and picking up. At least from January 1998, and probably earlier, the Insurer alleges that Mr. Ruiz could have returned to work. The only reason he did not return to work was the fact that he had been dismissed from his employment, just prior to the accident, and had no work to return to.

On July 10, 1997, Dr. Mascarenhas issued an assessment of Mr. Ruiz at the request of State Farm (Exhibit 1, Tab 7). This was based on an examination of Mr. Ruiz on February 26, 1997, and a review of various file documents presented by the Insurer. Dr. Mascarenhas concluded:

On the basis of my assessment (February 1997), I would have to conclude that Mr. Ruiz has not returned to his pre-accident capabilities, and as such was not in a position to return to his job at Jancee Screw Products as a machine operator.

On December 23, 1997, the Insurer referred Mr. Ruiz to a second IME, conducted by Dr. Lexier, an orthopaedic surgeon. Dr. Lexier examined Mr. Ruiz, and reviewed the accompanying documentation from the Insurer. Dr. Lexier noted that Mr. Ruiz's employment was considered sedentary to light. He did not review any x-rays. He noted that Mr. Ruiz's right knee demonstrated "...a slightly increased medial lateral laxity even in full extension", but concluded that "Mr. Ruiz is not substantially disabled from resuming his pre-accident employment as a machine operator effective immediately."

Dr. Lexier opined that Mr. Ruiz was fit to resume work. He did, however, remark on continuing problems with the right knee, although he questioned their causal relationship to the motor vehicle accident.

Mr. Ruiz was referred to a Med/Rehab DAC, which was delivered on March 16, 1998. As part of the multidisciplinary assessment, Mr. Ruiz was examined by Dr. French, an orthopaedic surgeon. Dr. French concluded that:

There is no doubt that prolonged standing and walking will cause Mr. Ruiz discomfort in his right knee and may be associated with swelling of the knee. The swelling could be easily controlled by wearing an elastic stocking or compression bandage. His discomfort can be controlled by taking such simple analgesics as Aspirin, Tylenol or Advil. In my opinion, Mr. Ruiz would be able to perform substantially all of the normal duties of a "machine operator".

In his conclusions, Dr. French specifically mentioned the job site analysis and remarked on the classification of Mr. Ruiz's job as "sedentary to light."

On July 7, 1998, Dr. Ogilvie-Harris, an orthopaedic specialist, reviewed the previous medical reports and the DAC report at the request of Mr. Ruiz. Dr. Ogilvie-Harris concluded at page 4 of his report (Exhibit 1, Tab 18):

Based on my review of this further medical information, I feel that my diagnosis and prognosis as outlined in my report of the 26th of November 1997 were in fact accurate. Other examiners have confirmed that he does have restricted range of movement in his knee. They have confirmed objective evidence of residual loss of muscle of the knee although they did not actually measure the strength loss I had documented. The Functional Abilities Evaluation shows he does have ongoing significant restrictions in his activities, particularly with kneeling and squatting. It was shown that his ability to work was only at a sedentary or light level.

In this context, I note my previous finding that Mr. Ruiz's job requirements were neither sedentary nor light.

Mr. Ruiz testified that he still feels pain in the knee and leg. It still becomes swollen at times, and he still has pain in his back and waist. He also testified that he tried to do some heavier work in a warehouse in Guatemala after his return there, but had to change to lighter work immediately because his knee flared up. Mr. Ruiz emphasised that the swelling and pain in his knee increased with exertion. He advised that he can walk for up to one half hour and then he has to rest due to the swelling in his knee. He must also take "tablets" for pain.

Mr. Ruiz's testimony as to his injuries and disabilities does not differ in substance from the DAC report, except that what Dr. French referred to as "discomfort", Mr. Ruiz made clear was indeed pain. Mr. Ruiz mentioned that the swelling in his knee increases after exertion, which is consistent with Dr. French's suggestion that he take analgesics and use a tensor bandage. There is no indication, however, that Dr. French or the other physicians examined Mr. Ruiz after prolonged exercise.

State Farm commissioned surveillance of Mr. Ruiz for a period of time. A short surveillance video of Mr. Ruiz entering and leaving from an office building was introduced as evidence (Exhibit 6). Mr. Ruiz is shown variously walking with relative ease and at other times displaying hesitation and some unevenness of gait.

The surveillance reports filed at Exhibit 2, Tabs 24 A, B, and C indicate that Mr. Ruiz entered the building where his physiotherapy clinic was located with few problems. Upon leaving some forty minutes later, presumably after exercise and physiotherapy, he was observed "... holding the railing with his right hand, slowly taking one step at a time. "This is entirely consistent with Mr. Ruiz's evidence and does not suggest that he was feigning pain or discomfort. Mr. Ruiz has testified that he can walk and indeed is supposed to walk as part of his rehabilitation programme. He further testified that his knee begins to swell and becomes painful after any prolonged exertion or standing. There was no evidence introduced that Mr. Ruiz was aware that he was under surveillance or that he was putting on a show for the camera. Any unevenness of gait shown in the surveillance is more consistent with exercise-induced swelling and pain than with any feigning of symptom or playing to the camera.

Mr. Ruiz testified that the pain and swelling intensified with prolonged standing or working. His testimony was that the pain from his swollen knee effectively prevented him from performing his previous factory work. Director's Delegate Makepeace in State Farm Mutual Automobile Insurance Company and Lopez, (Appeal P98-00031, September 20, 1999, at page 4) summarized the Commission's approach to pain-related impairments.

... while pain and suffering are not per se compensable under the SABS, an insured person may be entitled to benefits because of disabling pain resulting from the accident, though his impairment is not objectively confirmable. This approach to chronic soft tissue pain is well established in arbitration and appeal decisions...

I found Mr. Ruiz to be a credible witness. Although he had the disadvantage of speaking through a translator, my impression was that Mr. Ruiz was forthright in his responses. If at times his answers seemed vague or sometimes subject to clarification, I would attribute this to the translation process rather than any intention by Mr. Ruiz to obscure the evidence.

I accept Mr. Ruiz's assertion that the injuries to his knee continue to make prolonged standing, lifting and walking a painful and uncomfortable exercise. I find that Mr. Ruiz can stand and walk at most one hour without suffering swelling and serious pain in his right knee. In light of the medical reports, Mr. Ruiz's testimony and the serious nature of the original injury, I accept the assertion of Dr. Ogilvie-Harris and the other physicians that Mr. Ruiz is able to do light or sedentary work and accept Mr. Ruiz's testimony that he cannot undertake heavier work on a sustained basis.

The report suggested that Mr. Ruiz could alleviate some of the lifting requirement by only partly filling the boxes and taking more trips to carry the finished material. I note that the section of the report on work habits indicated "not too productive" in the comment section. Recommendations that would increase the time Mr. Ruiz took to complete his job tasks and reduce his productivity, already apparently viewed as marginal, would make it unlikely that Mr. Ruiz would be kept on at Jancee Screw Products or elsewhere.

There is no doubt that Mr. Ruiz can now perform many of the individual tasks required by his previous employment. He may be able to stand for some time. Mr. Ruiz may be able to lift, bend and stretch. He may be able to operate a milling machine. What is apparent from his testimony, however, is that he cannot do all of the above tasks in concert for a shift of eight hours or more.

Arbitrator Naylor in Flemming and Wawanesa Mutual Insurance (OIC A-000406, April 28/1992) clarified the issue of the ability to perform the essential tasks of employment:

The regulations contemplate inability to perform the duties of remunerative work. The performance of essential tasks must incorporate the ability to perform such tasks in a manner, at a speed or for a time that renders such performance capable of being remunerative.

Given the employer's comments on the worksite assessment, it is doubtful whether they would have considered retaining Mr. Ruiz in his current position, if his productivity had been further reduced by the necessity to sit through his shift, and to work with smaller batches of material at a time. I find that the Work Wellness report's suggested modifications would not have been practical, and that Jancee Screw Products likely would not have viewed the continued employment of Mr. Ruiz as remunerative, had he attempted to return to work after the accident with the suggested modifications in workplace procedures.

I find that as a result of the injuries arising from the accident, Mr. Ruiz has been and continues to be unable to perform the essential tasks of his pre-accident employment as a machine operator in a factory.

In accordance with the decision of Arbitrator Palmer in Fry and Halifax Insurance Company (OIC A96-001248, June 26, 1998), I find that Mr. Ruiz is entitled to continue to receive a weekly benefit at the rate of $258.53 per week from March 24, 1998 and ongoing, until such time as State Farm initiates the loss of earning capacity procedure in accordance with section 21 of the Schedule.

Mr. Ruiz testified that he worked for the electoral commission from March to June of 1999 in Guatemala. He testified that he earned $150/month USD for this work, for a total of $600 USD. Consequently, I find that State Farm is entitled to deduct the net Canadian dollar equivalent of these earnings from any statutory accident benefits payable between March 1, 1999, and June 30, 1999, in accordance with section 10(3) of the Schedule.

Is Mr. Ruiz entitled to supplementary medical benefits for treatment at Wayne Cook Rehabilitation and Alpha Therapy and Physical Medicine Centre?

Wayne Cook Rehabilitation

Mr. Ruiz was referred to Wayne Cook Rehabilitation for some sort of vocational rehabilitation. Mr. Ruiz was vague in his testimony about what Mr. Cook did for him, and appeared to have met with Mr. Cook only three times. Mr. Ruiz testified that Mr. Cook asked him questions. Only Mr. Cook's invoice was filed as part of the document brief (Exhibit 2, Tab 23F), and it is impossible to ascertain from these exactly what therapy or rehabilitation Mr. Cook undertook. Under the circumstances, I have no evidence before me that the services provided by Mr. Cook, whatever they were, were either reasonable or necessary, or in any way justified under the circumstances. I find, therefore, that State Farm is not obliged to pay for the costs of services provided by Mr. Cook.

Alpha Therapy and Physical Medicine Centre

According to the testimony of Mr. Jerczy Karnicki, Dr. Garcia referred Mr. Ruiz to Alpha Therapy for physiotherapy. Treatments started on May 6, 1998, and continued, with some interruption, to September 1998.

Mr. Karnicki testified that the treatment was centred on Mr. Ruiz's right knee, and consisted of an exercise programme and pain relief modalities. He stated that Mr. Ruiz attended consistently and participated in all modalities of the programme. In his opinion, Mr. Ruiz obtained improvement throughout the programme. When Mr. Ruiz "plateaued" in September, he was discharged from the physiotherapy programme.

Mr. Ruiz also testified about the physiotherapy he received at Alpha Therapy. According to Mr. Ruiz, the physiotherapist tried to lessen the swelling in his knee. He further testified that the therapy helped him by relieving pain and increasing mobility. He added that any pain relief, however, was only temporary, and he continues to feel pain in his right knee.

State Farm maintains that it is not obliged to pay for any physiotherapy treatment provided by Alpha Therapy since the provision of these services was neither reasonable nor necessary. State Farm pointed to the DAC report of March 1998 as indicating that no further physiotherapy was called for. Further, it pointed out that it advised Alpha of this fact as soon as it was aware of the treatment, and advised Alpha specifically that it would not fund this treatment.

I have found that Mr. Ruiz continued to have pain, especially after standing or exercise. I have found that Mr. Ruiz's right knee was subject to swelling and discomfort after exercise. This swelling is a direct consequence of the injuries received in the motor vehicle accident. Dr. Garcia referred Mr. Ruiz for treatment. Both Mr. Karnicki, the physiotherapist, and Mr. Ruiz felt that the physiotherapy helped to control pain and increase mobility. Even if the treatments only had a short-term effect for Mr. Ruiz, there is evidence that they lessened discomfort for a period of time. Once the treatments ceased to provide improvement, according to Mr. Karnicki, they were discontinued.

Arbitrator Blackman in Murray and Wawanesa Mutual Insurance Company (OIC A-003224, August 23, 1996) stated:

There is no requirement in the Schedule that treatment must lead to "long term improvement" in order to be reasonable. I find that decreasing pain without the use of medication, even on a short-term basis is a reasonable, and indeed even a laudable treatment goal.

I find that the treatments provided to Mr. Ruiz by Alpha Therapy were reasonable and necessary, and that the need for them arose out of the motor vehicle accident. I find that consequently, State Farm is responsible to pay for those treatments in accordance with the invoices submitted by Alpha Therapy and Physical Medicine Centre.

Is Mr. Ruiz required to repay to State Farm the benefits that he received?

I have found that Mr. Ruiz is entitled to continuing income replacement benefits. Consequently, State Farm's demand for repayment fails.

Is State Farm entitled to an assessment against Mr. Ruiz pursuant to section 282 11(2) of the Insurance Act on the grounds that he launched an arbitration that was frivolous or vexatious?

For the above-mentioned reason, State Farm's request for an assessment against Mr. Ruiz fails.

State Farm shall pay Mr. Ruiz interest in accordance with the provisions of the Schedule on all outstanding amounts.

EXPENSES:

The issue of expenses was not dealt with at the hearing. If the parties are unable to agree on this matter, the parties may speak to this issue.

January 26, 2000

John Wilson Arbitrator

Date