Neutral Citation: 2000 ONFSCDRS 49

FSCO A98-000124

BETWEEN:

Ms. Z

Applicant

and

DOMINION OF CANADA GENERAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Lawrence Blackman

Heard:

January 6, 7, 25, 26, 27 and 28, April 26, and June, 1, 2 and 3, 1999 in person and by telephone conferences held May 14 and June 22, 1999.

Written briefs were received dated January 5 and June 21 and under cover of letters dated May 21 and 28, June 2, July 5 and 30, 1999.

Appearances:

For Ms. Z, Ms. B. Legate until April 26, 1999 and Ms. V. Edgar from June 1, 1999.

For Dominion of Canada General Insurance Company, Ms. J.Takahashi.

Issues:

Ms. Z was involved in a car accident on January 8, 1993. She applied for statutory accident benefits from Dominion of Canada General Insurance Company ("Dominion"), payable under the Schedule.¹ Dominion paid Ms. Z weekly income benefits until July 14, 1997. Ms. Z disputes the termination of these benefits. The parties did not resolve their dispute through mediation and Ms. Z applied for arbitration at the Financial Services Commission of Ontario (the Commission) under the Insurance Act, R.S.O. 1990, c.I.8, as amended (the Insurance Act). On September 25, 1998, Arbitrator Palmer ordered that Ms. Z be paid interim weekly benefits commencing September 25, 1998, until a further order of an arbitrator. By letter decision dated July 8, 1999, I suspended this order, effective July 22, 1999.

The issues in this hearing are:

Is Ms. Z entitled to weekly income benefits from July 15, 1997, in accordance with paragraph 12(5)(b) of the Schedule, on the basis that she is continuously prevented from engaging in any occupation for which she is reasonably suited by education, training or experience?
Is Ms. Z entitled, pursuant to paragraph 6(1)(f) of the Schedule, to a functional home assessment and an occupational therapy assessment?
(a) Is Ms. Z entitled, pursuant to paragraph 6(1)(a) of the Schedule, to payment of the accounts of Dr. Judith Schachter for psychological counselling during the period August 1, 1997 to February 18, 1999, in the amount of $35,117.50?

(b) Is Dominion entitled to repayment of the said sum of $35,117.50 paid to Dr. Schachter pursuant to subsection 6(7) of the Schedule?

Is Ms. Z entitled to a special award, pursuant to subsection 282(10) of the Insurance Act, on the basis that Dominion unreasonably withheld or delayed payments?
Is Ms. Z entitled to interest on overdue payments, pursuant to subsection 24(4) of the Schedule?
Are either Ms. Z or Dominion entitled, pursuant to subsection 282(11) of the Insurance Act, to an award of their expenses incurred in respect of this arbitration proceeding?

Result:

Ms. Z is not entitled to weekly income benefits from July 15, 1997.
Ms. Z is not entitled to payment of a functional home assessment or an occupational therapy assessment.
Dominion is entitled to repayment of the sum of $21,752.50 paid to Dr. Schachter.
Ms. Z is not entitled to payment of a special award.
The issue of expenses of this arbitration proceeding may now be addressed.

EVIDENCE AND ANALYSIS:

1. Background

Ms. Z claims entitlement to ongoing weekly income benefits and to psychological and rehabilitative treatment. She submits that this entitlement is due to a broad range of physical and psychological difficulties resulting from her car accident of January 8, 1993. The onus is on Ms. Z to prove that it is more probable than not that "the contribution by the accident was more than minimal and thereby made a material contribution to the development" of her alleged condition.²

Ms. Z was born in Germany on December 23, 1944. After an unhappy childhood, Ms. Z left university in Germany in the early 1960s to marry a Canadian and have a child, putting on hold any dreams she might have had for a remunerative career. In 1965, Ms. Z emigrated to Canada.

Ms. Z now has six children, four of whom were adopted. Ms. Z's evidence, which I accept, is that she had devoted much of her adult life to working both as an adoptive mother and as a volunteer to protect abused children. It was, therefore, devastating for her to learn, many years before this accident, that her eldest adopted child had abused the other children. Dr. P. Ballantyne, a psychiatrist whom Ms. Z saw in 1994, notes Ms. Z's still "unresolved feelings" and guilt in this regard. Ms. Z had described the abuse as "torture."

In 1989, Ms. Z resumed her education, attending a local college and receiving honour roll marks. She subsequently obtained employment as a social services caseworker the year before the January 1993 accident. Ms. Z's hope was that this position would secure her financial independence, allowing her to leave her husband. Ms. Z's thirty-year marriage had been in a state of conflict for several years. Ms. Z's husband is alleged to have been suffering from a psychiatric ailment. Ms. Z states that she was the victim of spousal physical and psychological abuse. The marriage ended after the accident.

Two months before the accident, Ms. Z admitted herself to a local psychiatric facility. She is noted to have been "suicidal at admission." The medical records note Ms. Z's statements that her employer was trying to "get rid of her" and that the stress from work was the "icing on the cake." This is supported by evidence from her employer and her union. I find that by late July 1992 Ms. Z's employer had decided to document her work and progressively discipline her with the ultimate goal of ending her employment. Ms. Z was discharged from the psychiatric facility, against medical advice, after being hospitalized for more than two weeks.

2. Causation

On January 8, 1993, the vehicle being driven by Ms. Z was struck in the rear. She was taken by ambulance to a local hospital where she was examined and x-rays were taken of her neck and back. A diagnosis of whiplash was given. Ms. Z was released from hospital that same day to the care of her then family doctor, Dr. K. Barnett.

With the assistance of her union, Ms. Z finalized a termination package with her employer on January 21, 1993, effective January 15, 1993. I note that on January 15, 1993, Ms. Z had written to her union that she was ready and able to return to work. I find that the most that can be said about this accident as a factor in the termination of her employment is that it perhaps lessened Ms. Z's resolve to fight for her job.

Prior to this accident, Dr. Barnett had referred Ms. Z to a psychologist, Dr. L. Shewfelt, because of stress at work and family problems. Dr. Shewfelt saw Ms. Z several times between early February and mid-April 1993. There is no mention of this accident, either in Dr. Shewfelt's notes or in a three-page letter Ms. Z wrote to Dr. Shewfelt to better explain herself and her difficulties. There are, however, notations by Dr. Shewfelt of rather vague physical complaints and fatigue.

Dr. Shewfelt noted that Ms. Z was "especially focusing on her age [then in her late 40s] as a basis for assuming that she cannot get a job nor will she ever be able to get a job." More than two years later, Dr. Ballantyne noted as one of five current stressors, that Ms. Z was "turning 50 years of age next month." Dr. Ballantyne quoted Ms. Z as saying "I don't see myself getting another job — who'd hire a frumpy, overweight woman like me?" Notable again is that the car accident does not appear as one of the current stressors, although mention is made of the accident.

The medical clinical notes and records between April 1993 and March 1994 contain only one reference to this accident (being an insurer's medical examination with Dr. D. Taylor, an orthopaedic consultant). Ms. Z did not fill any prescriptions between February 5 and December 12, 1993.

After this accident, Ms. Z became estranged from several of her children. During those periods when one or more of her children were living with her, there is evidence of a number of problems with her children, including illegal drug use and allegations by the Applicant that a grandchild was being abused. One of her children (who had been abused by her sibling) testified against Ms. Z in this proceeding.

Ms. Z relies, in part, on the opinion of her former treating psychologist, Dr. Judith Schachter. Dr. Schachter stated in her August 1998 report that Ms. Z was suffering from depression, post-traumatic stress and a chronic pain condition as a result of the January 1993 accident. Referring to Ms. Z's insecurity, hopelessness and fear, Dr. Schachter concluded that "[t]hese symptoms were precipitated by the accident alone. Pre-disposing factors which may prolong symptom resolution include traumatic events in childhood such as being born during the second world war [sic] in Dortmund and molestation by a border." Dr. Schachter further opined that a "severe, suicidal clinical depression was precipitated by the accident's impact on Ms. [Z's] body and mind."

What is notable in Dr. Schachter's report is the understating, or in some cases, the omission of Ms. Z's very troubled non-accident history both before and after this accident.

It appears that Dr. Schachter was not fully aware of all of these facts (in part due to Ms. Z's selective memory). Hence, I give little weight to Dr. Schachter's opinion about causation.

Dr. D. Young, a specialist in neuropsychology, saw Ms. Z at Dominion's request. He testified that Ms. Z suffers from personality disorders characterized, in part, by defences that included denial, projection (not seeing oneself as the source of one's problems but rather projecting problems or things that one does not like about oneself onto others) and "splitting" (a rapid shifting between idealizing and demonizing oneself and others). There is significant evidence of Ms. Z having such defence mechanisms.³ I find that Ms. Z's selective memory as to what she advises medical practitioners and others is, to a significant degree, beyond her conscious control.

I agree with Dr. Young's comment that "this has certainly become a complex, multifactorial and difficult matter to assess and, no doubt, treat." I also agree with the comments of Dr. H. Bloom, a psychiatrist, in his December 1998 paper review for Dominion, that:

. . . the extreme amount of psychological and emotional debility . . . is unlikely to be explained by the accident alone. Ms. [Z's] emotional health had been deteriorating, due to stresses within her family, in her relationship with her husband, in her ability to function vocationally, with attendant implications for her self-esteem, level of confidence and level of relational satisfaction. She was essentially in crisis in November 1992.

I am persuaded on a balance of probabilities, however, that this accident materially or significantly adversely contributed to Ms. Z's ongoing complaints, for the following reasons:

(a) The January 8, 1993 accident was significant, damaging Ms. Z's 1990 vehicle beyond economical repair. Ambulance attendants noted that Ms. Z had some cervical pain, was anxious and was "mildly shocky" [sic]. The attendants felt it necessary to immobilize her neck. By the time Ms. Z was taken to hospital, she was complaining of "sharp pain." The hospital notes indicate that the force of the impact broke her front seat.

(b) While the notes from her pre-accident admission indicate stomach complaints, diarrhea, vomiting and headaches (and an indecipherable notation about her spine and neck in an initial assessment sheet), there is no notation of any physical complaints (and specifically neck or back complaints) which were disabling.

(c) I do not find that Ms. Z was truthful when she wrote to her union on January 15, 1993 that she was ready and able to return to work. Her evidence that she did not wish to weaken her bargaining position by advising her union or her employer about the alleged debilitating effect of the accident is consistent with her ultimately successful negotiation of a favourable severance package in the amount of $10,000.

(d) None of the numerous doctors seen by Ms. Z indicated that Ms. Z was not injured or in pain because of this accident. Dr. Taylor, an orthopaedic consultant who saw Ms. Z in June 1993 at Dominion's request, stated that Ms. Z had sustained a soft tissue injury to her spine and was suffering from a chronic pain syndrome. Dr. S. Goldenberg, a trauma consultant, saw Ms. Z the next year, also at the Insurer's request. Although he stated that there were inconsistencies suggestive of voluntary magnification, he suspected that Ms. Z was in the early stages of a chronic pain syndrome.

(e) I accept Ms. Z's evidence, confirmed by her son, JZ, that she continued to experience significant headaches and neck pain following this accident, unlike before. I also accept JZ's evidence that his mother's emotional state deteriorated after this accident. I found JZ to be credible and to have reached a mature and balanced view of his mother's fallibilities, despite his prior quarrels with Ms. Z.

(f) I found neither Ms. Z's daughter, TZ, nor her former friend, Ms. JL, (both of whom were called by the Insurer) credible. I found that TZ was too angry and bitter to provide objective evidence. I found Ms. JL (whom, it was clear from her testimony, had taken the side of Ms. Z's former husband in the divorce proceedings) to be an advocate who, despite her protestations that she preferred not to be at the hearing, came to the arbitration intent on doing what harm she could to Ms. Z.

(g) Dr. Barnett had a significant falling out with Ms. Z in 1994. Subsequent to the end of their medical relationship, Dr. Barnett wrote to the Income Security Programs Branch in December 1997 advising that Ms. Z became unemployed subsequent to the car accident for reasons unrelated to this accident. However, Dr. Barnett does state that "[i]n retrospect I am inclined to assign a diagnosis of (developing) chronic pain syndrome" in 1993.

(h) Ms. Z saw Dr. Schachter for more than three years, beginning in November 1995, on average three times a week. Dr. Schachter's clinical notes indicate that Ms. Z strongly resisted her efforts to reduce the frequency of the sessions. I find that Ms. Z did not attend these sessions merely to advance her insurance claims. I am persuaded by the documentary evidence, as well as the evidence of Ms. Z's children, that Ms. Z viewed these sessions as an emotional lifeline. This accident features prominently in Dr. Schachter's record. I find that these notes provide an insight into Ms. Z's (perhaps illogical yet sincerely held) view of the importance of this accident. I find that this view of reality was in large measure a subconscious defense or coping mechanism for Ms. Z.

The evidence supports Dr. Bloom's "preferred hypothesis . . . that the accident provided Ms. [Z] with an opportunity to displace her various difficulties, failures, and uncomfortable emotional feelings such as anger, shame and disappointment, onto a tangible physical source for her symptoms and feelings." As stated by Arbitrator Sapin in C.L. and Zurich Insurance Company (FSCO A96-001793, August 19, 1998), it is not "necessary for me to determine the precise contribution of any other factors." The medical experts themselves are unable to do so. A rather typical statement, at least of the Insurer's experts, is that of Dr. K. Travis, a psychologist, who in his December 1998 report states that:

From the cognitive and psychological standpoints, most, if not all, of Ms. [Z's] present impairments are attributable to a complex interaction of factors that are mainly pre-existing and unrelated to the subject accident.

I too find that Ms. Z's present impairments are attributable to a complex interaction of factors. Nonetheless, I find that this accident materially contributes to Ms. Z's continuing psychological and physical condition. This satisfies the causation test enunciated by the Supreme Court of Canada in Athey (supra) and followed in this Commission in Levey (supra).

Dominion further submits, relying on Athey, that:

...if there is a measurable risk that the pre-existing condition would have detrimentally affected the plaintiff in the future, regardless of the defendant's negligence, then this can be taken into account in reducing the overall award . . . This is consistent with the general rule that the plaintiff must be returned to the position he would have been in with all of its attendant risks and [short-comings], and not in a better position.

While this submission may apply to tort compensation, which allows greater flexibility in fine-tuning appropriate compensation, the issues I must decide arise from a statutorily mandated contract of insurance. I find that the particular provisions in issue in this hearing do not allow benefits to be reduced by the percentage that non-accident factors contribute to any subsequent disability or expense. When assessing causation, the provisions in question require an "all or nothing" approach.

3. Entitlement to Weekly Income Benefits

Ms. Z seeks ongoing weekly income benefits from July 15, 1997. To succeed, Ms. Z must prove, on a balance of probabilities, that her injury "continuously prevents [her] from engaging in any occupation or employment for which [she] is reasonably suited by education, training or experience." This is stricter than the disability test for the first 156 weeks, being substantial inability to perform the essential tasks of one's own occupation or employment.

I accept the evidence of Ms. Z's employer that her position at the time of this accident was full-time with "light physical demands" as a social services caseworker. I find that her main function was to meet with clients and complete the documentation necessary to determine their eligibility for General Welfare Assistance.

In the period in question, there is little, if any, objective evidence of disability. Dr. J. O'Reilly, a physiatrist, indicated in his May 1997 report for Dominion that "[t]here were no objective physical findings to support her professed levels of disability." Dr. O. Maryniak, an expert in physical medicine and rehabilitation, to whom the Applicant was referred by her family doctor, stated in his November 1998 report that Ms. Z was suffering from a chronic pain syndrome as a direct result of her car accident. He stated that "[m]edicine does not know the cause of this syndrome, but it is accepted that the pain these people have is real, even though there is no known organic explanation for the pain." Dr. Maryniak does talk about Ms. Z being initially "completely incapacitated." However, while stating that she should not "take too much on her plate activity-wise," he does not address in his report whether, or if so, why, Ms. Z was substantially unable to perform the essential duties of her prior employment, let alone whether she was continuously prevented from engaging in any occupation or employment for which she was reasonably suited.

An examination by Dr. R. Teasell (also an expert in physical medicine and rehabilitation) in 1997 indicated subjective complaints of tenderness, but a generally good range of motion. Dr. Teasell opined that Ms. Z would have difficulties with prolonged sitting and standing, amongst other activities. Dr. Teasell, however, felt that it was important that Ms. Z try to go back to work, but stated that "she is going to have to accept her pain limitations and appropriately pace and that adaptation process is going to take time. Successful return to work will depend on the workplace environment and improved coping mechanisms."

Dr. Teasell noted that Ms. Z had returned to school (which was actually on a part-time basis). He did not note that in May 1997 she had also begun working part-time doing research for a professor. I find that Dr. Teasell's opinion regarding the Applicant's disability was largely based on Ms. Z's subjective complaints and her opinion as to the limits of her endurance.

Dr. Teasell also opined that there was no evidence of a brain injury. While this may not be within Dr. Teasell's area of expertise, his opinion is consistent with the reports of the psychologists Dr. K. Partridge (in October 1995), Dr. D. Young (in May 1997) and Dr. K. Travis (in December 1997). I also note the oral evidence of Dr. Schachter that Ms. Z's inability to work was not due to a cognitive impairment. I find that the evidence is overwhelmingly against Ms. Z having sustained a brain injury in this accident.

I further find that Ms. Z's emotional and psychological complaints, as well as her physical complaints, are essentially subjective.

I agree with Arbitrator Makepeace in Quattrocchi and State Farm Mutual Automobile Insurance Company (OIC A-006854, September 29, 1997) that "an insured may be found entitled to benefits because of disabling pain, despite there being no objectively confirmable impairment." I further agree that "arbitrators have shown little interest in debates between medical experts as to the legitimacy or significance of a diagnosis of 'chronic pain syndrome'." Rather, I agree that "[w]here there is no objective evidence of impairment, or the objective evidence does not explain the degree of pain reported by the insured person, the insured's credibility becomes important."

4. Ms. Z's Credibility

I do not find Ms. Z to be a reliable witness, specifically regarding her claimed level of disability. That this may be due to a significant degree to non-accident related psychological factors beyond her control does not detract from my finding that I am unable to rely on Ms. Z's assertion that her pain prevents her from returning to work.

Ms. Z testified that this accident was life-threatening and resulted in severe pain. The cumulative effect of Ms. Z's evidence was that this accident was central to her subsequent emotional and physical lack of well-being. However, as noted above, there is not a single reference to this accident in Dr. Shewfelt's records (which begin less than a month post-accident). More importantly, there is no reference to this accident in Ms. Z's own letter to Dr. Shewfelt. Ms. Z testified that she chose not to mention the accident to Dr. Shewfelt in order to please her, believing that Dr. Shewfelt did not wish to focus on the accident. I do not accept this explanation as logical or consistent with Ms. Z's personality as exhibited in this hearing and in the documentary evidence.

I also reject Ms. Z's testimony that she admitted herself to the psychiatric facility prior to this accident in order to remove herself from an abusive home situation and as an alternative to a shelter. She could not recall telling a hospital social worker during this pre-accident admission that she was depressed, although the attending physician notes depression and suicidal ideas as her major symptoms. Nor could she recall asking at that time for more one-on-one care to discuss her problems, although there is a nurse's entry in that regard. I find this evidence consistent with Ms. Z's tendency to idealize her pre-accident employment and to project her fears about returning to employment onto this accident. Hence, there are numerous examples of Ms. Z not being accurate regarding her history.

Dr. Goldenberg mentions in his September 1994 report that Dr. Shewfelt saw Ms. Z because of depressive symptoms due to the accident, loss of her job "a couple of months after the accident" for which "she was not given any specific reason" and marital problems. As noted above, Ms. Z was not referred to Dr. Shewfelt because of this accident and Ms. Z left her employment within a couple of weeks of this accident for reasons unrelated to this accident.

In October 1994, Ms. Z saw Dr. C. Kumchy, a consultant in clinical neuropsychology and rehabilitation. The pre-accident hospital admission is not noted. Dr. Kumchy states that she is "unclear about the role that her injury played in contributing to her essentially forced resignation," yet concludes that "her motor vehicle accident was seen as the impetus for the loss of the job." Dr. Kumchy also states, based on her interview with Ms. Z, that the "longest period of time that [Ms. Z] has been out of work has been less than three months." This is incorrect.

In October 1995, Dominion asked Ms. Z to see Dr. Partridge. Again, Ms. Z's pre-accident admission is not noted. Dr. Partridge notes Ms. Z as saying that she "loved" her pre-accident job, worked well under stress, but that "shortly after the accident was asked to resign for unspecified reasons," although she had no wish to leave. Dr. Partridge states in her summary that it appeared "that her accident was used by her employer as a reason for asking her to leave." This is not true.

In May 1997, Ms. Z reported to the Insurer's medical examiners, Dr. Young (neuropsychologist) and Dr. O'Reilly (physiatrist), that she had no problems with her job prior to her accident and that at the time of the accident she was off work for two weeks due to the flu. This is not true.

I note and further rely on the opinions of several doctors, including Dr. Travis and Dr. Young, as to the inconsistencies and lack of reliability of Ms. Z's presentation.

This is notable in Ms. Z's June 1997 Questionnaire For Disability Benefits under the Canada Pension Plan. The Applicant stated that she could not work due to "depression, post-traumatic stress disorder, chronic pain, fibromyalgia, neck + spine injury, injuries to head," that she was "unable to stand, sit, lift or move for any length of time," or do any volunteer work, hobbies or even socialize. She stated that she was unable to concentrate due to head injuries and pain and, on doctor's orders, could not lift, reach or bend. She was unable to even concede that she was able to see, hear or breathe normally. She stated that she was using a neck brace, crutch and cane and that the doctors believed that "there [would] be no improvement but slow deterioration over the years."

Ms. Z did not advise the Canada Pension Plan in her Questionnaire that she had returned part-time to university the year before and was achieving respectable marks (a considerable achievement given that she had last attended university more than thirty years before). She also did not advise that she was working part-time for a professor who was satisfied with her performance. Her claim to be using assistive devices is not supported by surveillance conducted in April 1997, which shows her walking without the use of any cane or crutches. The investigator also specifically noted that she was not using a cervical collar.

Ms. Z's evidence noted above is highly exaggerated. It specifically contradicts the evidence of her treating psychologist, Dr. J. Schachter. I found Dr. Schachter to be a caring therapist and, if anything, overprotective and defensive of Ms. Z.

Dr. Schachter testified that it was Ms. Z's physical condition that prevented her from working. I find that Dr. Schachter, as a psychologist, has little, if any, expertise in this area. Her opinion was largely based on her observations as a layperson. I give little weight to this opinion. Dr. Schachter, however, does have expertise regarding the psychological sequelae of this accident. Dr. Schachter testified that Ms. Z was no longer disabled from working due to her psychological condition, including her psychological reaction to her pain.

In response to the question "[f]or what period would you say that [Ms. Z] was disabled as a result of her psychological condition caused by this accident?", Dr. Schachter stated that it was perhaps a year and a half until "she got going with her studies and so on." In answer to the question as to what year and when in that calendar year that would take us to, Dr. Schachter thought out the period aloud stating that Ms. Z "started [her sessions] in November of '95, so November '96, April or May, maybe the summer of '97." I accept Dr. Schachter's opinion that Ms. Z was not psychologically disabled after that time. Weekly income benefits were terminated by Dominion July 14, 1997. I am not persuaded that Ms. Z was "continuously prevented from engaging in any occupation for which [she] is reasonably suited by education, training or experience" after that date by reason of any psychological or emotional disability.

Nor has Ms. Z persuaded me that she meets that same disability test due to any physical disability since July 15, 1997. Accordingly, I find that Ms. Z is not entitled to any weekly income benefits from July 15, 1997.

I am persuaded that Ms. Z does not intend to try to return to her prior or similar employment. A September 2, 1997 entry in Dr. Schachter's notes indicates Ms. Z saying that she now sees the accident as an opportunity to reach her potential and do what she really wants to do. An earlier May 1996 entry notes Ms. Z saying that school was a retreat, peaceful and safe, and that teachers liked and helped her. In June 1997, Dr. Schachter notes Ms. Z as saying "I enjoy school and will keep it up no matter what - I guess I have to prove something - that I am capable, worthwhile." In its immediate context, I think that Ms. Z was referring to her feelings of discouragement, problems sleeping and pain. However, in the larger context, I find that Ms. Z had felt frustrated earlier in life from not achieving a higher academic and professional level. She was unhappy in her pre-accident employment and was intent on pursuing a more fulfilling occupation.

Ms. Z has not persuaded me that she could not take on a greater course load from the summer of 1997. Dr. Schachter noted in September 1996 that Ms. Z demanded of her how she could advise the Applicant to return to school, as the Insurer would use that against her.

Ms. Z deserves credit for returning to school and trying to build a new life for herself. However, the disability test under this legislation is retrospective to one's education, training and experience at the time of this accident, even if it is felt by an applicant that she had not yet met her full potential.

5. Entitlement to a Functional Home Assessment and an Occupational Therapy Assessment

Ms. Z claims, pursuant to paragraph 6(1)(f) of the Schedule, payment of a functional home assessment and an occupational therapy assessment.

A functional home assessment was recommended in 1996, as well as in 1997, (together with occupational therapy treatment) by Ms. Lisa Klinger, a Rehabilitation Counsellor with Rehabilitation Management Inc., who had been retained by Dominion. Ms. Klinger indicated that the purpose of this recommendation was to assess Ms. Z's "functional status within the home and provide treatment to: teach coping strategies, including use of pacing techniques, techniques to protect joints and enhance body mechanics, and utilization of adaptive aids and devices as appropriate." Five to six visits of two to three hours each were recommended. Ms. Klinger volunteered her services.

The reason stated in Ms. Klinger's May 1997 report for the one-year delay in seeking specific funding was Ms. Z's concern that she had not yet progressed to that "phase of intervention." The real reason, which is implicit in the reports, is that Ms. Z did not trust Ms. Klinger. The recommendations appear, however, to be based on Ms. Z's own identification of "very basic areas of self-care as continuing to give her difficulty."

I do not accept this self-report in light of my findings set out above and in addition, Dr. Teasell's September 1997 statement that Ms. Z was able to do her housework (although she had help coming in every two weeks to help with the heavier tasks) and was able to do her hobbies. In addition, no further objective or persuasive evidence was submitted as to why these expenditures were reasonable at the time of the hearing.

Accordingly, this claim is rejected.

6. Psychological Treatments

(a) Background

Ms. Z began seeing Dr. Schachter in November 1995. These attendances continued until February 1999. I accept the undisputed evidence set out in Exhibit 7 that Dominion has paid Dr. Schachter's accounts, which total $80,935. The accounts indicate that the sessions were for psychotherapy and rehabilitation as well as some counselling. Dr. Schachter's hourly rate remained constant at $165. Simple division translates this into some 490 sessions. Dr. Schachter's accounts were paid pursuant to section 6 of the Schedule. This provision requires an insurer, amongst other things, to pay each insured person who sustains physical, psychological or mental injury as a result of the accident, all reasonable psychological expenses resulting from the accident within the set benefit period. Subsection 6(7) of the Schedule requires an insurer to pay certain types of treatment, including psychological treatment, "pending resolution of the dispute."

By letter dated June 4, 1997, Dominion wrote Ms. Z's counsel that it would continue to pay for Dr. Schachter's treatment for four more weeks to allow Ms. Z to make the transition to receiving treatment with her family doctor. Dominion disputed payment of Dr. Schachter's sessions on the basis of causation (that Ms. Z's impairment was due to characterological problems and not due to this accident) and on the basis of reasonableness (that the psychological treatment provided had not been effective in improving Ms. Z's condition).

Ms. Z, however, continued to see Dr. Schachter at the same frequency of three times a week. During the summer of 1997, Dominion made two more payments to Dr. Schachter, so that by August 11, 1997 it had paid $45,817.50 to Dr. Schachter. There was then a hiatus in payments until February 16, 1998. In the interim, Ms. Z applied for mediation (which failed to resolve the issues in dispute with Dominion) and subsequently applied for arbitration.

I find that since February 16, 1998, Dominion has paid $35,117.50 for Dr. Schachter's treatments. This is not disputed by the Applicant. I find, and it is also not disputed, that this sum applies to the psychological sessions from August 1, 1997. Dominion seeks repayment of this amount from Ms. Z and/or Dr. Schachter on the basis that the psychological treatment did not result from this accident and/or that the treatment was not reasonable.

(b) Causation

I am persuaded, for the reasons set out above, that this car accident materially contributed to the need for the psychological treatment provided by Dr. Schachter. Accordingly, based on Levey (supra) and LaForme and Economical Mutual Insurance Company (OIC A97-000679, June 11, 1998) amongst other decisions, I find that Dr. Schachter's psychological treatment resulted from this accident, as required by section 6 of the Schedule.

(c) Reasonableness

In Plows and Jevco Insurance Company (OIC A-000175 and A-000588, January 16, 1992), Senior Arbitrator Rotter commented on the word "reasonable" as follows:

The word "reasonable", which is used in the legislation, has two different, although not unrelated meanings in this context. The Oxford English Dictionary defines "reasonable" as follows:

(1) in accordance with reason, not absurd

(2) within the limits of reason; not greatly less or more than might be expected; inexpensive; not extortionate; tolerable; fair

I am persuaded that ongoing psychological treatment was reasonable. I am not persuaded that the level of treatment provided was reasonable.

In October 1994, Ms. Z saw Dr. C. Kumchy at the request of a rehabilitation consultant retained by Dominion. Dr. Kumchy is a clinical neuropsychologist. Dr. Kumchy was of the opinion that Ms. Z was "seriously distraught and need[ed] significant psychological and psychiatric intervention." In October 1995, Dr. K. Partridge, a psychologist who saw Ms. Z at the request of Dominion, opined that Ms. Z was "severely depressed, withdrawn and discouraged, and most likely [met] the criteria for Major Depressive Episode." Dr. Partridge found Ms. Z to be very fragile and in need of supportive psychotherapy. The next month, Ms. Z began seeing Dr. Schachter.

Although Dr. D. Young, who saw Ms. Z at the Insurer's request, recanted his earlier opinion that Ms. Z was suffering from a Pain Disorder, he did not recant that she likely met the DSM-IV criteria for a Mixed Personality Disorder and a Major Depressive Disorder. Dr. Young testified that he thought that Ms. Z had been dysfunctional for a long time. When asked whether this accident was the "straw that broke the camel's back," he responded, sticking with that metaphor, that the "back" had already been broken. I do not accept Dr. Young's opinion regarding the legal question of causation. I do, however, accept what is implicit in his summary, at page 24, of his May 1997 report, that Ms. Z required some measure of treatment by a "sympathetic and empathetic" practitioner.

Ms. Z was also seen by the psychologist Dr. K. Travis at Dominion's request. In his December 1998 report, he stated that "her behaviour presentation would support the additional Axis II diagnosis of a personality disorder of mixed type, with prominent histrionic, narcissistic, paranoid, dependent, as well as borderline features." Dr. Travis also, in the context of the question of causation, stated that:

The Axis IV diagnosis includes a broad spectrum of psychosocial and environmental problems, including the deterioration in her relationship with her former husband; the dissolution of her marriage; the multiple ongoing problems with the children; her occupational problems, including problematic job loss; the stressors resulting from the ongoing medical-legal contest(s); as well as the dispute regarding C.P.P. (Disability) benefits.

Notwithstanding this litany of problems, Dr. Travis testified that when he saw Ms. Z in late 1998, he did not think that she was depressed at all. I find this opinion illogical and accordingly, give it little weight.

Dr. H. Bloom is a psychiatrist who did a paper review for Dominion. In his December 1998 report, he opined that psychological intervention was counter-productive in reinforcing Ms. Z's "sick role identity and in perpetuating the secondary gain." Nonetheless, he recommended, at a point late in the course of treatment provided by Dr. Schachter, that Ms. Z be referred to a psychiatrist for treatment of her psychological and emotional symptoms and that vigourous psychopharmacologic treatment be seriously considered.

Dr. Shewfelt, who saw Ms. Z shortly after the accident but received the referral before the accident, had written to Ms. Z's then family doctor that "I would predict at this point that the course of therapy will be long and difficult as [Ms. Z] has many severe issues from the past to address as well as a number of quite severe current stressors." Ms. Z did not receive any course of psychological treatment between March 1993 (when she stopped seeing Dr. Shewfelt) and November 1995 (when she began seeing Dr. Schachter). It is logical that the challenge facing any psychologist beginning Ms. Z's treatment on the latter date would be at least as great as stated by Dr. Shewfelt and probably lengthier and more difficult.

I, therefore, find that it was reasonable for Ms. Z to receive supportive psychological treatment and for treatment to continue until at least February 1999. The next question is whether some measure of continued psychological treatment with Dr. Schachter was reasonable.

Dominion's argument against the continued treatment by Dr. Schachter is in large part utilitarian in that the treatment has failed to improve Ms. Z's condition. Dr. Young, in his May 1997 report, notes Ms. Z's opinion that she was crippled and that her condition was getting worse. Dr. Young concluded that the "intensive psychological treatment [had] resulted in rather meagre results." Dr. Travis, a year and a half later, felt that "the information at hand clearly suggests that there has been little, if any, alleviation of [Ms. Z's] psychosocial and other adjustment problems."

The extensive materials before me, including some 350 pages of Dr. Schachter's clinical notes, suggest that there has been significant improvement in Ms. Z's condition. The notes show repeated reference to goals being set, including pain management and reintegration into society, beginning with educational upgrading and leading to a new career path. The notes repeatedly indicate Ms. Z discussing the progress being made. In February 1997, Ms. Z is noted to say that she "feels some of the pieces are falling into place for the first time since accident [sic]." In May 1997, Ms. Z is noted to feel that after one and a half years, there is good progress. In September 1997, there is a notation that the pain is more bearable.

I do not find that these notes are self-serving for two reasons. First, Dr. Schachter was extremely reluctant to produce her notes and did so only after I so ordered, on terms. Secondly, there are objective standards of improvement. In the winter term of 1996, Ms. Z returned to university-level studies (albeit part-time) for the first time in more than thirty years. Ms. Z has been able to continue with her goal of obtaining a Bachelor of Arts degree in sociology. In addition, in May 1997, Ms. Z began part-time work which lasted for several months doing research for a university professor. The professor indicated to Dominion's investigator that Ms. Z had no problem doing the research, that they had a good relationship and that he was satisfied with her work.

I find that these are significant accomplishments. I find that these accomplishments were both achieved and maintained, in significant part, through the professional efforts of Dr. Schachter.

Further, as stated by Arbitrator Alves in Violi and General Accident Assurance Co. of Canada (FSCO A98-000670, August 20, 1999) "the relief of pain in and of itself [is] a legitimate medical and rehabilitative goal." The alleviation of pain is reasonable even if it does not not cure the patient or assist in a return to remunerative work. I am persuaded that Ms. Z was in emotional pain throughout the period that she saw Dr. Schachter. She was an extremely lonely woman, estranged from her husband, her children and her former friends. I find that Dr. Schachter was a lifeline for Ms. Z during the period in question, whether the Applicant would now admit that or not. For that reason alone, I find some measure of ongoing treatment reasonable.

Dominion also argues that much of the treatment given by Dr. Schachter dealt with non-accident related issues.

The essence of Dr. Schachter's evidence was that it was not possible to treat the chronic pain problem and the emotional issues arising from the accident in isolation from the other factors in Ms. Z's life and separate from the Applicant's personality. Rather, it is was necessary to deal with the "whole person."

Dr. Travis did not agree with this approach. He felt that most experts agreed that it was necessary to deal only with the "here and now" rather than the "then and there." He testified that while a practitioner must acknowledge the existence of other issues, the practitioner should assume normality and "stitch the person up" for the accident related issues rather than "unravel" the patient by dealing with destabilizing problems.

My role is to determine not how treatment should best have been administered, but whether the treatment provided was reasonable. I find that Dr. Schachter's sessions primarily concerned the effects of this accident. While Dr. Schachter delved into other areas, I find that it was reasonable for her to also deal with non-accident emotional factors which affected Ms. Z's ability to return to a productive life.

The question then becomes what level of continued treatment was reasonable.

Dr. Schachter testified that by the summer of 1997, "the depth of [Ms. Z's] depression" had lifted. Dr. Schachter stated that, nonetheless, she continued treating her three times weekly because Ms. Z's gains needed to be consolidated, her functioning remained fragile and she was susceptible to suicidal depression.

I do not accept this explanation. Logically, one would have expected, with improvement, a "weaning" from Dr. Schachter's treatment. This certainly was the expectation of Dominion's experts who opined on Ms. Z's emotional condition. I find the more logical explanation as to why the treatments continued at the same frequency to be given by Dr. Young who testified that someone such as Ms. Z is very dependent, often insatiable and impossible to fulfill. When such a person does not achieve their sense of fulfilment, there may be an effort to manipulate, sometimes through suicide threats. Dr. Schachter's notes indicate that Ms. Z strongly resisted any reduction in the frequency of treatment or referral to a psychiatrist. The most dramatic illustration of this dependency was when Dr. Schachter gave Ms. Z two months warning that she would be going overseas for several weeks. Dr. Schachter's notes indicate Ms. Z being angry that this had been "sprung" on her and that she was unprepared. Ms. Z's son testified that the Applicant, as a result, in order to be able to e-mail Dr. Schachter overseas, bought a $5,000 computer that she had no capacity to understand and which I find she had little capacity to afford.

This suggests that Dr. Schachter lost control of the frequency of sessions to a patient with significant psychological problems. I share the concern of Dr. Travis that this level of treatment induced substantial iatrogenic dependency.

It is difficult to specify exactly how many treatments would have been reasonable in the period in question. As an alternative to an "all or nothing" finding, Dominion suggested six to eight further weeks of decreasing frequency whereas the Applicant suggested taking off less than a third of the accounts. Neither suggestion seems reasonable to me. Rather, I find that a decreasing frequency, averaging once a week between August 1, 1997 and February 18, 1999 is reasonable. This would have balanced allowing Ms. Z to become more independent while providing ongoing emotional support. This equates to roughly 81 sessions. At $165 an hour, this amounts to $13,365. As noted above, I find that Dominion paid $35,117.50 to Dr. Schachter during this period. Therefore, I find that the sum of $21,752.50 was overpaid in respect of Dr. Schachter's accounts.

(d) Repayment

Dominion seeks repayment of any amount that I find to have been overpaid to Dr. Schachter.

Subsection 27(1) of the Schedule states that "[t]he insurer may charge interest from the day the amount owing to the insurer under this section is determined at the bank rate on that day" (emphasis added). Ms. Z relies on the decision of Senior Arbitrator Naylor in Levenson and General Accident Assurance Company of Canada (OIC A-000260, February 18, 1992) to the effect that repayment requires that "responsibility for the payment be attributable in some material way to the actions of the applicant."

I do not find that subsection 27(1) applies. Dominion did not pay $35,117.50 for Dr. Schachter's treatments out of error or fraud but rather because subsection 6(7) of the Schedule mandates that such accounts be paid, pending resolution of the dispute as to causation, reasonableness or other issues.

The purpose of subsection 6(7) is to provide insureds early and immediate access to a limited range of medical and rehabilitation treatment, on the theory that delays in treatment prolong disability and impairment. To prevent abuse of this provision, subsection 6(4) of the Schedule allows an insurer to require the insured person to submit a statement signed by the insured's qualified medical practitioner or psychological adviser stating that the expense is necessary for the insured's treatment or rehabilitation. A second safeguard I find to be implicit in subsection 6(7) itself is that if the treatment is found not to be reasonable or not to result from the accident, that the monies may be repayable to the insurer.

In this regard, I note the comments of Director's Delegate Draper in Debrena Henry and Allstate Insurance Company of Canada (OIC P96-00064, July 23, 1997). In that case, which dealt with the question of entitlement to weekly caregiver benefits under the subsequent 1994 Schedule,⁴ it was held that the section 64 "Stoppage in Weekly Benefits" provision:

. . . deals with process, not entitlement. It protects the flow of benefits by controlling the insurer's right to cancel them. Benefits must be paid pending the DAC assessment even though the insurer claims the person is no longer entitled. This obligation to pay, however, does not create an entitlement that is immune from later challenge. I agree with Allstate's submission that the legislation was not intended to give insured persons an automatic right to extend their entitlement by requesting a DAC assessment, regardless of the merits of their claim.

Arbitrator McMahon, in Enrique Mendez et al. and AXA Insurance Canada (FSCO A96-001355, January 25, 2000), considered the Henry decision in the context of the pay pending provisions applicable to supplementary medical and rehabilitation benefits under the 1995 Schedule. He found that:

To my mind, beyond the statement that procedural provisions do not guarantee benefits that are immune from later challenge, the Henry decision is of little assistance in the circumstances of this case . . . where the insured person has complied with their contractual obligation, but the insurer has defaulted in its, I think that the proper approach requires the arbitrator to satisfy him or herself that the treatment was pursued in good faith and was not clearly unreasonable. If these two tests are met, the benefit is payable. If not, the benefit is not owing. In my view it would not be appropriate to subject the treatment decisions to the same level of scrutiny that they would be subject to had the insurer paid for the treatment and at the same time put its insured on notice that it was challenging entitlement, and availed itself of the opportunity to conduct the appropriate assessments. Establishing that the treatment was pursued in good faith and the prima fascia reasonableness of the treatment lies upon the applicant. If this is made out, the evidentiary onus shifts to the insurer to establish that the treatment was clearly unreasonable.

In this case, I find that Dominion complied with its contractual obligations. It put its insured on notice that it was challenging entitlement but ultimately continued to pay for Dr. Schachter's treatment. It availed itself of the more limited opportunity for medical assessments under the governing Schedule in this case (which did not provide for insurer's medical examinations other than for claims for weekly benefits and did not provide for designated assessment centres). Dominion should not be in a worse position than an insurer which flaunts its contractual obligations and does not pay for subsection 6(7) treatment pending resolution of the dispute. I am persuaded that the sum of $21,752.50 should be repaid.

Specifically I note that by letter dated June 4, 1997, Dominion put Ms. Z, through her counsel, on notice that based on its psychological evaluation of Ms. Z, her "present disability or impairment is a result of her characterological problems, and not the motor vehicle accident." Beyond challenging causation, it further disputed the reasonableness of the treatment, stating that "the psychological treatment being provided is clearly not effective, as indicated in [Ms. Z's] comments about how she is just getting worse. There has been no significant change in the assessment of present versus the assessment performed by Dr. Kumchy in 1994."

By letter dated October 27, 1997 to the Applicant's counsel and copied to Dr. Schachter, Dominion maintained its position. Much earlier, a January 6, 1997 entry in Dr. Schachter's notes details her conversation with Ms. Z that Dr. Schachter had received a cheque for $10,000 which she might have to return.

Dr. Schachter testified that she continued her treatment of Ms. Z after receiving notice from the Insurer that it would pay her accounts only to July 1997. She further testified that she subsequently received a large cheque in the amount of $10,400. She understood then and still understands that she might have to give the money back. As all payments made by Dominion regarding Dr. Schachter's treatment from August 1, 1997 were made after both mediation and arbitration were sought by the Applicant in respect of these benefits, I am persuaded that the Applicant knew or ought to have known that repayment of this benefit was being sought, as set out in the pre-hearing letter of August 14, 1998.

Dominion argues that equity dictates that Dr. Schachter and Ms. Z are jointly and severably liable for the repayment. Dominion argued that the decision of Branchaud and Co-operators General Insurance Company (P96-00048, May 2, 1997) as well as the Arbitration Act, S.O. 1991, c. 17, was authority for my exercising equitable jurisdiction.

I do not agree that I have the jurisdiction to make an order requiring Dr. Schachter to pay the aforesaid sum. Dr. Schachter is not a party to this proceeding. She did not have a right to participate in the pre-hearing process, to call or cross-examine witnesses or make submissions. She participated in this proceeding only as a witness.

I find that I only have jurisdiction to find that Ms. Z is responsible for payment of the said sum of $21,752.50.

Subsection 27(4) of the Schedule states that [t]he insurer may charge interest from the day the amount owing to the insurer under this section is determined at the bank rate on that day" (emphasis added). As I have found that the repayment is not owing pursuant to section 27, I find that I have no authority to order interest pursuant to subsection 27(4).

7. Entitlement to a Special Award

Subsection 282(10) of the Insurance Act requires an arbitrator to award a lump sum of up to 50 percent of the amount to which the insured person was entitled at the time of the award together with interest as specified, if the arbitrator finds that the insurer "has unreasonably withheld or delayed payments."

Arbitrator Palmer stated in Plowright and Wellington Insurance Company (OIC A-003985, October 29, 1993), that:

"Unreasonable" behaviour by an Insurer in withholding or delaying payments can be seen as behaviour which was excessive, imprudent, stubborn, inflexible, unyielding or immoderate.

There was a gap between August 1997 and February 1998 in payment by Dominion of Dr. Schachter's accounts, contrary to the "pay now, dispute later" provisions of subsection 6(7) of the Schedule. However, the outstanding accounts were then paid and continued to be paid through to the arbitration hearing, despite Dominion's legitimate concerns as to the reasonableness of the treatments and whether those treatments resulted from the accident. In changing its position at a relatively early date, Dominion showed flexibility, moderation and an ultimate intent to comply with the requirements of the Schedule. I do not find that the delay in payments was unreasonable.

The Applicant argued that there was an earlier unreasonable delay in payments in March 1997, when Dominion notified Ms. Z in an Assessment of Claim form that it was terminating benefits for failure to attend an insurer's medical examination, when it should have stated that it was suspending benefits. I find, as agreed by Dominion, that this was an error in semantics. I do not find that this error in semantics constitutes an unreasonable delay in payments.

EXPENSES:

The issue of the legal expenses of this arbitration proceeding may now be addressed.

March 7, 2000

Lawrence Blackman Arbitrator

Date