Rimma Dobkina v. Commercial Union Assurance Company, 2000 ONFSCDRS 48

Financial Services Commission of Ontario

Neutral Citation: 2000 ONFSCDRS 48 FSCO A98-001232

Between: Rimma Dobkina, Applicant and Commercial Union Assurance Company, Insurer

Reasons for Decision

Before: William J. Renahan Heard: February 7, 8 and 9, 2000, at the Offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Jadranka Cavrak for Mrs. Dobkina Darrell P. March for Commercial Union Assurance Company

Issues:

The Applicant, Rimma Dobkina, was injured in a motor vehicle accident on June 12, 1997. She applied for and received statutory accident benefits from Commercial Union Assurance Company ("Commercial Union"), payable under the Schedule.¹ Commercial Union refused to pay for housekeeping expenses, certain medical expenses and the cost of two examinations.

The parties were unable to resolve their disputes through mediation, and Mrs. Dobkina 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 the Applicant entitled to payment of housekeeping expenses pursuant to section 22 of the Schedule commencing June 29, 1997, in the amount of $10,620?
2. Is the Applicant entitled pursuant to section 14 of the Schedule to payment of medical expenses for chiropractic treatment, massage therapy and an exercise program, provided by Integrated Health Recovery, in the amount of $4,502?
3. Is the Applicant entitled to payment of the cost of examinations pursuant to section 24 of the Schedule for a certificate prepared by Dr. Mark Brodsky, in the amount of $125, and for an assessment prepared by Cranio-Cervical Rehabilitation Institute, in the amount of $1,850?

Result:

1. The Applicant is not entitled to payment of housekeeping expenses.
2. The Applicant is not entitled to payment of medical expenses for services provided by Integrated Health Recovery.
3. The Applicant is entitled to payment of $125 for a certificate prepared by Dr. Brodsky. The Applicant is entitled to payment of $925 for the assessment prepared by Cranio-Cervical Rehabilitation Institute.

EVIDENCE AND ANALYSIS:

Background:

Mrs. Dobkina is 49 years old. She speaks five languages and teaches French full-time to students in grades 3, 4 and 5. She is married and has two children, now 20 and 25 years old.

On June 12, 1997 she was involved in a motor vehicle accident on her way home from work in rush hour traffic. She was travelling at about 20 kph when her vehicle was struck from the rear. The rear bumper on her vehicle was cracked in two and repaired at a cost of $800.

Initially, Mrs. Dobkina felt fear and shock but no pain. The next day she returned to work. She finished the school term and has not taken any time off due to the accident.

Three or four days after the accident she felt pain in her neck, lower back and left shoulder. She attended on her family doctor across the street from her home. He prescribed therapy at Integrated Health Recovery ("Integrated"), a clinic operated by Dr. V. Levitin, a chiropractor. She attended from the beginning of July to the end of August, 1997. She and Dr. Levitin were pleased with her progress and Dr. Levitin discharged her in August with what he described as "maximal medical recovery." Commercial Union paid for this treatment.

On April 27, 1988, eight months after she was discharged from Integrated, Mrs. Dobkina returned to Integrated for further treatment. Commercial Union refused to pay for this treatment.

Two weeks after the accident, Mrs. Dobkina hired a housekeeper and she continues to use a housekeeper. Commercial Union refused to pay these expenses.

Credibility:

I found significant discrepancies in the evidence. For example, Mrs. Dobkina insisted that she did not suffer from insomnia until after the accident. However, in a statement she gave Commercial Union two weeks after the accident, she stated that she suffered insomnia before the accident and that it was usually worse during the school year and better in the summer. She testified that she can only do light cooking now and that she cannot do the grocery shopping. However, in the statement, she stated that she still did the cooking and grocery shopping. She explained that she would not have made these mistakes if she had had a lawyer when she completed the statement.

Mrs. Dobkina, her husband and her son Leon all testified that Mrs. Dobkina exercised one hour daily before the accident. Mrs. Dobkina first testified that she cannot exercise now. She later testified that she can only exercise 15 or 20 minutes a day. Leon testified that the maximum his mother can now exercise is 10 or 15 minutes. Mr. Dobkina testified that his wife can barely tolerate 10 to 15 minutes of exercise. Ms. Monica Lee is an occupational therapist who performed an assessment in Mrs. Dobkina's home last month at Mrs. Dobkina's request. Ms. Lee reported that Mrs. Dobkina exercises 30 to 60 minutes daily. Mrs. Dobkina admitted that she no longer suffers from back pain, however, Leon testified that his mother always complains of back pain.

I find that Mrs. Dobkina tended to exaggerate her difficulties and to blame them on the motor vehicle accident and that her son and husband supported her in these exaggerations. I therefore, did not accept her evidence on its face and looked for evidence to corroborate hers.

Impairment:

Mrs. Dobkina initially experienced neck, back and shoulder pain and headaches and insomnia which she attributed to the motor vehicle accident. She testified that when she was discharged from Integrated, she felt better, was happy with her progress and felt that she could return to her pre-accident activities. She testified that she did not experience symptoms again until she returned to work a few weeks later in September 1997. She experienced the same symptoms, except for back pain, which has not returned.

She testified that she has a stressful job, that the assessors at Cranio-Cervical Rehabilitation Institute ("CCRI") told her to rest and not to be stressed out and that the psychological aspect of her problems worries her most. She also testified that her daughter causes her stress. In her written statement she said that she did not have much pain at the beginning of the day but that her pain got worse when she was stressed out at the end of the day. Mr. Dobkina testified that Mrs. Dobkina is broken psychologically. Mrs. Dobkina underwent one psychological assessment at CCRI by Dr. J. Belfrage. Although Dr. Belfrage recommended training sessions for mental and physical relaxation, he did not report on the nature of the family and work stressors in Mrs. Dobkina's life. In his disability certificate dated July 2, 1998, Dr. Mark Brodsky, Mrs. Dobkina's family doctor, noted that the nature of the impairment was "psychological mostly: phobia of traffic and of riding in a car." In November 1998, the medical/rehabilitation DAC assessors reported that Mrs. Dobkina began to experience increased pain in the fall of 1997 which she attributed to stress, anxiety, working, housework and driving. They note that in 1998 she saw a psychiatrist who did not recommend any specific treatment.

I heard no other evidence to explain the connection between the recurrence of Mrs. Dobkina's neck and shoulder pain and the trauma of the motor vehicle accident.

I find that Mrs. Dobkina suffered soft tissue injuries in the motor vehicle accident and that she recovered from these injuries by the time Integrated discharged her from treatment in August 1997. I find that her symptoms of neck and shoulder pain returned as a result of the stress of work. Since the symptoms of pain were in the same parts of the body as those initially injured in the motor vehicle accident, I find it likely that the trauma of the motor vehicle accident significantly contributed to the recurrence of Mrs. Dobkina's shoulder and neck pain.

Treatment by Integrated Health Services:

Under section 14 of the Schedule the insurer is required to pay certain medical benefits. Pursuant to section 38, the insured must submit to the insurer an application for the benefit and a treatment plan. If the insurer refuses to pay for the medical benefits, the insurer shall require the insured to be assessed in respect of the services at a designated assessment centre ("DAC"). Under section 43, the DAC assessment is to report an opinion on whether the benefit is reasonable and necessary for the insured person's treatment or rehabilitation. To establish her entitlement to payment of the expense for the treatment provided by Integrated, Mrs. Dobkina must therefore establish that the expense was reasonable and necessary for her treatment or rehabilitation.

Commercial Union paid for treatment for the two-month period immediately after the accident. Dr. Levitin and Mrs. Dobkina were happy with her progress and when she was discharged after two months, she felt that she could return to her activities of daily living.

When Mrs. Dobkina returned to teaching in the fall of 1997, she started to experience stress and pain again. She tried another masseur but she was not happy with his services. She returned to Integrated on April 27, 1998, eight months after she was discharged, and received 17 treatments until November 5, 1998. She attended again in September 1999 for three more treatments.

Commercial Union refused to pay for these treatments. It arranged a medical/rehabilitation assessment at a DAC in November 1998 and the DAC assessors opined that the treatment provided by Integrated was not reasonable or necessary.

The parties agreed on the amount of expenses in dispute. From April 27, 1998 to November 5, 1998, Mrs. Dobkina received 17 massage treatments at $1,190, 16 sessions of what is described as "active therapy" and one session of what is described as "active/passive" therapy at a cost of $2,125 and assessments at a cost of $500. In September 1999, Mrs. Dobkina received three massage sessions at $210, three "active" sessions at $375 and one assessment and treatment plan, for a total cost of $785. The total for all sessions less the amount paid by her workplace insurer was $4,503.

Mrs. Dobkina described the treatment she received from Integrated. She testified that each session was about one-and-a-half hours and consisted of one hour of massage, 15 minutes of ultrasound treatment, two to three minutes of chiropractic treatment in which the chiropractor "cracked her neck" and five to ten minutes of stretching. She testified that the masseur massaged parts of her body not affected by the motor vehicle accident and that the massage "helped a lot" and that it felt "fantastic." Leon testified that he and his father massaged Mrs. Dobkina and that it helped her. Mr. Dobkina testified that the massage especially helped his wife. The physiotherapist at the DAC reported that Mrs. Dobkina said that the chiropractic neck manipulations were not helpful.

Mrs. Dobkina exercised regularly before the accident in her home and with a friend who had a membership at a health club. After the accident, she continued to exercise. She uses exercise machines in her basement. I find that the exercise component of the Integrated program was minimal and that Mrs. Dobkina did more exercises on her own than she did at Integrated. In the context of all her testimony, I accept the DAC assessor's comments that she did not find the chiropractic treatment helpful. Most of her time was spent in massage. She and her witnesses stressed that she found massage helpful. I find that the only treatment Integrated provided which helped Mrs. Dobkina was massage therapy.

Dr. Brian Alpert is an orthopaedic surgeon who saw Mrs. Dobkina at her request. He found the Integrated treatment reasonable and necessary. I did not find his opinion helpful because he did not have a full understanding of the treatment Integrated provided to Mrs. Dobkina. For example, he mistakenly thought Mrs. Dobkina participated in aqua therapy, progressive weight training and cardiovascular exercise. He did not realize that the most significant treatment in terms of time and effect, was massage. I place little weight on his opinion.

Mr. Bill Arvanitis is a physical therapist who participated in the preparation of the CCRI report. CCRI assessed Mrs. Dobkina in August 1997 and recommended a number of treatments, including massage. I do not find its report helpful in assessing whether the massage treatment provided by Integrated was reasonable and necessary because CCRI provided the assessment while Mrs. Dobkina was undergoing the very treatment it recommended. Further, Mrs. Dobkina successfully completed the Integrated treatment program after the CCRI report was prepared. I did find Mr. Arvanitis' opinion that Mrs. Dobkina could return to full-time work after 10 to 12 weeks of treatment useful in view of the evidence that Mrs. Dobkina never missed any time from work. As well, Mr. Arvanitis did not know the amount or type of treatment that Mrs. Dobkina received at Integrated, and therefore could not express an opinion on that treatment.

The DAC assessors assessed Mrs. Dobkina in November 1998, just after she completed the 17 sessions at Integrated which are in dispute. Despite the passage of time and the attendance at these treatments, Mrs. Dobkina continued to have pain over the left shoulder and neck and back.

The physiatrist at the DAC, Dr. J. Park, reported:

It is evident that she has had extensive physiotherapy treatments, chiropractic treatments, massage therapies and active exercise programs. Further ongoing formal therapies are unlikely to result in improved functional outcomes. She should be discharged from formal therapies and encouraged to do a home exercise program. Ongoing formal therapies may have the negative effect of promoting and perpetuating abnormal illness behaviour.

Mrs. Dobkina had a number of stressors in her life, including the stress of the motor vehicle accident. I accept that the massage she received at Integrated was helpful because it relieved her stress. However, she has not improved and has not received any lasting benefit. Dr. Park's view of the treatment she received is consistent with my view of the evidence and is a reasonable explanation why Mrs. Dobkina continues to complain of pain and seek massage treatment. I find that the treatment Mrs. Dobkina received from Integrated after April 27, 1998 was neither reasonable or necessary because it likely had the negative effect of promoting abnormal illness behaviour.

Housekeeping expenses:

Section 22 sets out the criteria for the payment of housekeeping expenses as follows:

22.(1) The insurer shall pay for reasonable and necessary additional expenses incurred by or on behalf of an insured person as a result of an accident for housekeeping and home maintenance services if, as a result of the accident, the insured person sustains an impairment that results in a substantial inability to perform the housekeeping and home maintenance services that he or she normally performed before the accident.

(2) The amount payable under this section shall not exceed $100 per week.

(3) No payment is required under this section for expenses incurred more than 104 weeks after the onset of the disability.

I heard very little evidence on the housekeeping services that Mrs. Dobkina normally performed before the accident as required by subsection (1). As well, although Mrs. Dobkina's claim exceeded the $100 per week and the 104-week limits set out in subsections (2) and (3), I heard no argument that I was authorized to award an amount in excess of those limits.

The only thing Mrs. Dobkina said about the housekeeping services she normally performed before the accident was that she did cleaning and laundry three or five hours a week, mostly by herself. Ms. Lee reported and testified that Mrs. Dobkina did most of the cooking and cleaning before the accident. Leon testified that his mother did almost everything before the accident and that his father did a little cleaning and laundry. Mr. Dobkina testified that before the accident, his wife did everything and that he rarely helped. In her written statement, Mrs. Dobkina stated that she cooked and that her husband helped with some of the laundry and floor washing. I find that Mrs. Dobkina cleaned and did laundry three to five hours a week before the accident. I find that she also cooked for her family before the accident, although I heard no evidence to quantify the extent of her cooking.

Leon moved out of the family home about one year after the accident. Mrs. Dobkina's household duties would have decreased when he moved. She testified that since the accident she has only done light cooking and cleaning. She also testified that she does most of the cooking on the weekends for the entire week. She said that some days she can do the laundry. She can do some vacuuming and sweeping but tires quickly.

In her written statement made a few weeks after the accident, Mrs. Dobkina stated that she still did the cooking and grocery shopping. I heard no evidence to explain her inconsistent testimony that her husband does most of the grocery shopping and helps with the cooking now. Ms. Lee testified that Mrs. Dobkina can do the heavy laundry if she paced herself.

An occupational therapist and a physiotherapist performed a functional capacities evaluation as part of the medical/rehabilitation DAC in November 1998. They found that Mrs. Dobkina had no physical limitations with respect to activities at home and that she managed well at work.

Although Dr. Brodsky and Ms. Lee recommended housekeeping, they expressed no knowledge of what housekeeping services Mrs. Dobkina provided before the accident. I therefore place little weight on their opinions.

I heard a great deal of evidence on what housekeeping services Mrs. Dobkina received after the accident but this is not evidence of what housekeeping services Mrs. Dobkina normally performed before the accident. Nor is it evidence that she is substantially disabled from performing the services she normally performed. For the first two months after the accident, a housekeeper worked 19 hours per week. Thereafter, the housekeeper worked seven hours per week. Even if this was evidence that Mrs. Dobkina was disabled from performing housekeeping services, the housekeeping services she received far exceeded the three to five hours a week she spent performing housekeeping services before the accident.

Mrs. Dobkina's testimony and written statement are contradictory as to whether she could cook and grocery shop after the accident. As well, Mrs. Dobkina exercises 30 to 60 minutes on the exercise machines in her basement. I heard no evidence to explain how she can engage in exercise three-and-a-half to seven hours a week but not engage in housekeeping activities three to five hours a week.

In view of the contradictions in her evidence, the lack of particulars of what housekeeping services she performed before the accident, the results of the functional abilities assessment, the lack of evidentiary support for the opinions of those who expressed a need for housekeeping services and my finding on Mrs. Dobkina's ability to exercise, I find that she is not substantially disabled from performing the housekeeping services she normally performed before the accident.

Account of Craino-Cervical Rehabilitation Institute:

CCRI assessed Mrs. Dobkina while she was attending Integrated. Besides massage, which she was receiving at that time, the assessors recommended physiotherapy and psychological counselling to assist Mrs. Dobkina cope with depression, anxiety and pain. CCRI also prepared a treatment plan. Mrs. Dobkina testified that the only benefit she got from the assessment was advice on how to lift and advice that she rest a lot and avoid stress and conflicts.

Under section 24 of the Schedule, the insurer shall pay for all reasonable expenses in obtaining an assessment or treatment plan. Part of the CCRI report was not helpful to Mrs. Dobkina because it dealt with therapy she was already receiving and from which she was later discharged. Although Mrs. Dobkina never requested psychological counselling, I find CCRI's recommendation of counselling, at an estimated cost of $1,750, a reasonable recommendation in this case. I therefore allow one-half of the CCRI account in the amount of $925.

Certificate of Dr. Brodsky:

Dr. Brodsky provided a certificate and note indicating that Mrs. Dobkina required housekeeping services. Under section 34 of the Schedule, an insurer may require a person who claims housekeeping services to provide a disability certificate. I heard no evidence or argument that Commercial Union asked for the disability certificate. However, as an assessment, it had some value to Mrs. Dobkina and Commercial Union because it identified Mrs. Dobkina's anxiety and phobia as a problem and recommended that a physiatrist or psychologist establish any medical restrictions. I therefore allow the $125 Dr. Brodsky charged for the certificate.

EXPENSES:

If the parties cannot agree on the issue of entitlement of expenses of the arbitration proceeding, they may make written submissions to me within 60 days of the date of this decision.

March 6, 2000

William J. Renahan Arbitrator

Neutral Citation: 2000 ONFSCDRS 48 FSCO A-001232

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN: RIMMA DOBKINA, Applicant and COMMERCIAL UNION ASSURANCE 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. The Applicant is not entitled to payment of housekeeping expenses.
2. The Applicant is not entitled to payment of medical expenses for services provided by Integrated Health Recovery.
3. Commercial Union shall pay Rimma Dobkina $125 for a certificate prepared by Dr. Brodsky.
4. Commercial Union shall pay Rimma Dobkina $925 for the assessment prepared by Cranio-Cervical Rehabilitation Institute.
5. Commercial Union shall pay Rimma Dobinka interest on overdue payments in accordance with section 46 of the Schedule.

March 6, 2000

William J. Renahan Arbitrator

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended by Ontario Regulations 462/96, 505/96, 551/96 and 303/98.