Neutral Citation: 2001 ONFSCDRS 144

FSCO A00-000449

BETWEEN:

ROZA KOLONJARI

Applicant

and

CUMIS GENERAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Shari Novick

Heard:

May 7, 8, 9, 10 and June 15, 2001, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

David S. Wilson for Ms. Kolonjari

Robert A. Besunder for CUMIS General Insurance Company

The Applicant, Roza Kolonjari, was injured in a motor vehicle accident on May 6, 1995. She applied for and received statutory accident benefits from CUMIS General Insurance Company ("CUMIS"), payable under the Schedule.¹ CUMIS terminated some of the medical/rehabilitation benefits it had been paying, as well as its payment of housekeeping expenses. The parties were unable to resolve their disputes through mediation, and Ms. Kolonjari 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 Ms. Kolonjari entitled to payment of $5,400.89 owed to Prevent Assessment & Rehabilitation Clinic for chiropractic and massage therapy treatments she received pursuant to subsection 36(1)(b) of the Schedule?
Is Ms. Kolonjari entitled to payment of $1,309.06 for prescription medication pursuant to subsection 36(1)(c) of the Schedule?
Is Ms. Kolonjari entitled to payment of $200 per week for transportation by taxi to and from her treatment sessions pursuant to subsection 36(1)(g) of the Schedule?
Is Ms. Kolonjari entitled to payment of $67.50 per week for housekeeping services pursuant to section 55 of the Schedule?
Should Ms. Kolonjari's income replacement benefits (and hence her LEC benefits) have been increased pursuant to section 79 of the Schedule on January 1, 1997 by the indexation percentage that took effect on January 1, 1996, as well as that which took effect on January 1, 1997?
Is CUMIS liable to pay a special award to Ms. Kolonjari pursuant to section 282(10) of the Insurance Act because it unreasonably denied or withheld benefits?

Ms. Kolonjari is entitled to payment of the Prevent Assessment & Rehabilitation Clinic account in the amount of $5,400.89.
Ms. Kolonjari is not entitled to payment of the prescription medication claimed.
Ms. Kolonjari is entitled to $200 per week for taxi transportation as claimed.
Ms. Kolonjari is entitled to $67.50 per week for housekeeping expenses.
Ms. Kolonjari’s weekly benefits should not be increased by the 1996 indexation rate.
Ms. Kolonjari is entitled to a special award of $5,000, inclusive of interest.

Background

Rosa Kolonjari was a 22 year-old student at York University when she was involved in a head-on collision with another vehicle on May 6, 1995. She had just completed her third year of a four-year Honours B.A. program, and was about to start a full-time summer job at the TTC. She had also planned to continue working part-time hours both as a bookkeeper at Dominion Stores and as a server/bartender over the course of that summer, as she had done during the school year. By all accounts, Ms. Kolonjari had an abundance of energy and no physical limitations before the accident.

At the time of the hearing, some six years after the accident, Ms. Kolonjari complained of a myriad of physical symptoms and a significant level of cognitive impairment. She suffers from chronic pain in her neck and shoulder area, and experiences severe headaches on a regular basis. She complains of problems with her memory and her ability to concentrate, and suffers from depression. She no longer feels able to drive a car.

Ms. Kolonjari was unable to complete the fourth year of her academic program after the accident, and has not returned to any form of employment.

The Insurer terminated the weekly income replacement benefits it had been paying Ms. Kolonjari in late April 1997. She applied for arbitration later that year and brought a motion for interim benefits that was decided in November 1998. The Insurer was ordered to pay her income replacement benefits at one-half of the weekly rate it had been paying, as well as housekeeping expenses at the rate of $75 per week until her entitlement to these benefits was finally determined. The Insurer was also ordered to pay the reasonable costs incurred by Ms. Kolonjari to travel by taxi to and from her medical assessments and treatments.²

The parties participated in a private mediation in April 1999. While the issues in dispute were not finally resolved at that time, an interim agreement was reached regarding the payment of income replacement benefits, the delivery of a Loss of Earning Capacity ("LEC") offer, the payment of medical and rehabilitation expenses, and the payment of housekeeping and transportation expenses. As a result of that agreement, the application for arbitration was withdrawn on a "without prejudice" basis.

Ms. Kolonjari subsequently attended a RECDAC assessment. The assessors determined that she had no Residual Earning Capacity ("REC"). CUMIS has paid Ms. Kolonjari weekly LEC benefits since January of 2000 as a result of the RECDAC assessment.

The parties have resolved many of the difficult issues that have arisen with regard to Ms. Kolonjari's entitlements under the Schedule on their own. This is worth noting, in view of the remarkable disparity of opinions among the medical assessors she has seen regarding her physical condition, the cause of her cognitive difficulties, her need for treatment and the appropriate pharmacologic regimen. When the current application for arbitration was filed in May 2000, the only issue in dispute was the manner in which her weekly benefits should be indexed for inflation. The parties subsequently mediated all of the above issues, without success, and agreed that these should be added to the application. Given the parties' agreement, and in the interests of efficiency and cost effectiveness, I ordered that all of the issues would be dealt with together.

Applicant's evidence

Ms. Kolonjari testified at length about her current condition and level of activity. She gave specific testimony regarding her need for the various treatments she receives, including the chiropractic and massage therapy treatments provided to her at Prevent Assessment & Rehabilitation Clinic ("Prevent clinic") as well as the medication she consumes. She also testified about her need for the housekeeping and transportation services she receives. I will provide a general outline of her evidence at this point, and set out the parts that pertain to the specific issues in dispute under the appropriate headings below.

Ms. Kolonjari stated that despite all the medical intervention and treatments she has received for both her physical and psychological difficulties, her condition has not improved over the last two years. She testified that she has experienced migraine headaches two or three times each week since the accident. These are accompanied by enhanced sensitivity to light and smells, and she explained that when they appear, she is disabled to the point where she can only lie in a dark room for a few hours until they pass. She testified that on the days that she does not have migraine headaches, she still experiences a constant throbbing in her head. She complained of feeling pain in her neck and shoulders "most of the time", and a less frequent pain in her right hip that radiates down to her knee.

Ms. Kolonjari also attempted to describe the cognitive difficulties she experiences. She explained that she has trouble remembering to do things, often feels confused and overwhelmed and has difficulty concentrating on tasks and conversations. She stated that her mother calls her several times each day to remind her to eat, and that if it were not for these calls, she would forget to eat. She testified that she has trouble operating household appliances like a dishwasher and washing machine, because she cannot follow the required steps in proper sequence. She explained that she recently began receiving treatment from an occupational therapist who makes cue cards for her, outlining the various steps involved in operating these appliances. She stated that the goal of this treatment is to improve her skills to the point where she can prepare a simple meal for herself.

The reports filed indicate that Ms. Kolonjari has suffered from varying degrees of depression over the last few years. She has been hospitalised on two occasions after expressing suicidal feelings, and has received treatment from a few psychiatrists on an out-patient basis. Aside from receiving regular psychiatric treatment³, she has been assisted at various times by Ruth Whitham, a neurorehabilitation specialist, who has helped her to set goals and organize her time.

When asked about her general level of activity, Ms. Kolonjari testified that she spends the better part of two to three days each week attending treatment sessions. She stated that she will occasionally go out with her mother to run errands, or visit with friends. She stated that she spends the rest of the week at home resting or napping, either incapacitated by migraine headaches or extreme neck pain. She added that she rarely goes out alone, as she often feels confused.

The Applicant's mother, Cathy Kolonjari, also testified at the hearing. She gave a detailed explanation of the housekeeping tasks she performs for herself, the Applicant and her younger daughter that will be outlined below. Her evidence generally corroborated that of the Applicant regarding her limited energy and activity level, and the difficulties she has experienced when she has attempted to perform simple household tasks. She also confirmed that she telephones her daughter at least three times each day from work to check on how she is feeling and to remind her to eat meals that she has prepared for her.

Insurer's evidence

The Insurer filed a brief containing several medical reports, but called no witnesses to testify. The Insurer also relied on surveillance reports and videotapes taken of Ms. Kolonjari over the course of several days in October and December 2000.

The surveillance shows the Applicant accompanying her mother on various shopping outings. On one occasion she is seen walking into a hockey game at the Air Canada Centre with a friend. On another occasion she is seen walking down Bloor Street on her own, entering a clothing store and then crossing the busy street. Ms. Kolonjari was shown portions of the surveillance tapes during her cross-examination by Insurer's counsel, and was asked to comment on what was depicted. She testified that she had gone to the hockey game with a friend to celebrate her birthday, and explained that she had spent the next few days in bed recovering from the experience. She stated that she had gone into the store on Bloor Street, which was near Dr. Shrives' office, to return an item of clothing that she had purchased on an earlier occasion that she did not need. She explained that she often forgot that she had made certain purchases, and that she regularly had to go back to stores to return items.

I do not find the surveillance filed by the Insurer to be particularly relevant to the issues in dispute. No claim for weekly benefits is being made in this case. Counsel for the Insurer claimed that the surveillance depicts a level of activity that is inconsistent with the Applicant's claims that she is completely disabled. I have reviewed the tapes in question, bearing in mind the specific claims being pursued by the Applicant, and do not find them helpful.

Medical evidence

Both parties filed extensive medical briefs containing reports from several medical experts in various fields. Ms. Kolonjari has undergone an unimaginable number of assessments over the six years that have passed since the accident. As mentioned above, fundamentally differing medical opinions have been provided regarding many aspects of her condition and treatment.

There are three main areas of disagreement. Opposing views have been expressed regarding whether the physical symptoms she reports have an organic, physical basis or are secondary to her psychological symptoms. And, while it is agreed that Ms. Kolonjari struck her head in the accident but did not lose consciousness, there are two "camps" among the psychiatrists and neuropsychologists that have assessed her regarding whether her cognitive impairments result from a brain injury or are caused by depression and/or excessive intake of analgesic medication. Finally, differing views have been proffered regarding the usefulness of certain treatments that she has received, such as nerve blocks, and the medication that she has been prescribed.

It would not be appropriate for me to endorse one medical theory or view over another in this case. I must, however, analyse the medical evidence filed and consider its application to the requirements of the Schedule that pertain to each of the claims being advanced. Before discussing the specific evidence that relates to each claim being pursued, I will provide an overview of the medical evidence filed so that the opinions expressed on the issues in dispute can be appreciated in the broader context.

Ms. Kolonjari was referred by her family doctor for physiotherapy, chiropractic treatment and active rehabilitation after she reported experiencing neck spasms, low back spasms, headaches and dizziness as a result of the accident. She was also referred to a neurologist for treatment of her migraine headaches. A few weeks after the accident, her family doctor referred her for counselling and pain management when she complained of feeling anxious and depressed and was experiencing panic attacks.

Ms. Kolonjari came under the care of Dr. Peter Rothbart at the Rothbart Pain Management Clinic in the spring of 1996. She also received treatment from Dr. Peter Rowsell, a psychiatrist at that clinic. At the request of CUMIS, she was assessed by Dr. Robert Grossman a few months later. Dr. Grossman is the Medical Director of an assessment facility, but does not appear to have any specialist qualifications. He took issue with the medication prescribed by the practitioners at the Rothbart clinic and opined that "her best hope of improvement lies in a complete revamping of her treatment program". Two divergent medical opinions and diagnoses of her condition emerged at that early stage, which have deepened over time.

Dr. Rothbart holds the view that Ms. Kolonjari's physical symptoms are attributable to cervical disc damage. After initially assessing her, he decided that she would benefit from occipital blocks, to reduce the frequency and intensity of her headaches. When this procedure provided only short-term relief he recommended that she undergo facet diagnostic blocks, at the C2-3, C3-4 and C4-5 levels of her spine. Again, her reported relief was short-lasting.

Dr. Rothbart then referred Ms. Kolonjari to a clinic in Minneapolis for cervical discography in June 1997. The discogram revealed "significant pathology". Both Dr. Charles Tator, professor and chairman of neurosurgery at the Toronto Hospital (University of Toronto), and Dr. Isador Lieberman, an orthopaedic surgeon with fellowship training in spinal surgery, reviewed the discogram films and reported later in 1997 that abnormalities appeared at the C3-4 and C4-5 level and that these would likely contribute to the headaches and neck pain she was complaining of.

In February 1998, Ms. Kolonjari underwent a facet denervation procedure performed by a neurosurgeon, Dr. Graham Vanderlinden.

Several of the medical experts who assessed Ms. Kolonjari have provided opinions, upon which the Insurer relies, that her physical complaints are related to a chronic pain syndrome and are secondary to her depression. These experts dismiss the significance of the results obtained on the discography, and hold the view that her complaints of pain are not based on any underlying physical impairment.

Dr. Barry Malcolm, an orthopaedic surgeon at Sunnybrook and Women's College Health Sciences Centre, commented on the use of discographies generally, and specifically on their application in this case. Dr. Malcolm acknowledged that some clinicians who treat chronic pain patients, such as Dr. Rothbart, use discography to identify the source of a patient's pain, but reported that the use of discography tests to evaluate patients with spinal pain is controversial, due to the questionable validity of the results obtained. He allowed that discography may be useful for pre-operative planning, but stated that a positive discogram does not indicate causality, or assist in developing a treatment protocol that can be used to cure the reported symptoms.

The same dichotomy exists among the expert reports that address whether the Applicant's cognitive difficulties result from a brain injury she sustained in the accident, or are due to the depression she has suffered ever since the accident. Experts who assessed Ms. Kolonjari in this regard at the request of her counsel have determined either that she sustained a catastrophic brain injury and "has been left demented and permanently disabled by reason of persistent and physical abnormalities that are relentless"⁴, or that she sustained a mild brain injury that "materially contributed to her cognitive and emotional decline".⁵

However, after conducting a psychiatric Insurer's Examination in September 1999, Dr. Michael Ross concluded that "there was no reason to believe that Ms. Kolonjari sustained any significant cerebral injury as a result of the accident." He considered the criteria outlined in the DSM IV manual⁶ and endorsed a diagnosis of Pain Disorder with Associated Psychological Factors. He also stated that a review of the DSM IV criteria from a psychiatric perspective did not support the diagnosis of Post Traumatic Stress Disorder ("PTSD") that had been documented by some clinicians. Several other medical experts, including the psychiatrist who participated in the DAC assessment in May 2000, agree with Dr. Ross' opinion concerning the PTSD diagnosis.

Perhaps the subject of greatest controversy among the medical experts is the effectiveness of the treatments that Ms. Kolonjari receives at the Rothbart clinic, including the medication she has been prescribed by her treating practitioners there. This difference of opinion is focussed on Ms. Kolonjari's use of opioid medications. Various medical experts who have assessed her at the Insurer's request dispute the usefulness of this type of medication for the symptoms she reports, and have suggested that her headaches may be caused by excessive analgesic intake. Some of these experts, including Dr. Ross, have diagnosed Ms. Kolonjari as suffering from Opioid Dependence (under DSM IV) and suggest that the deterioration in her condition is attributable to an Opioid Induced Mood Disorder, with moderate depressive features. Each of these diagnoses are seen to be significant barriers to her full recovery.

Ms. Kolonjari attended a medical-rehabilitation DAC assessment at Credit Valley Hospital in May 2000. The DAC was arranged to consider whether the nerve block treatments she received at the Rothbart clinic, as well as the medications prescribed there were reasonable and necessary. She was assessed by Dr. Nguyen, an orthopaedic surgeon, who made the following determination:

...no objective evidence [exists] of ongoing significant structural abnormalities in the cervical and lumbar spine to warrant the analgesia of Dilaudid and MS Contin, as well as any proposed trigger point injection - nerve blocks.

Ms. Kolonjari was also assessed by a psychiatrist, Dr. O'Riordan, as part of the DAC process. Dr. O'Riordan restricted his findings to the second referral question. He opined that she had developed a dependence on the opioid medication that she had been taking, and recommended that she withdraw from all medication in an in-patient detoxification setting. He also suggested that she pursue an active rehabilitation program after completing the withdrawal from medication.

Dr. O'Riordan was cross-examined by the Applicant on his opinions provided in the DAC report. I will set out the details of his testimony in the relevant section below.

The only other medical witness who testified at the hearing was Dr. Michael Devlin, a physiatrist who saw Ms. Kolonjari at the Insurer's request in July 2000. Dr. Devlin endorsed the view that the Applicant's complaints resulted from a chronic pain syndrome and depression, as opposed to having any organic physical basis. He opined in his report that she was able use public transit and perform housekeeping duties, but essentially rescinded these opinions during the course of his cross-examination. The details of his testimony on these points will also be set out below under the appropriate categories.

Finally, I note that the parties agreed that Ms. Kolonjari should be assessed by Dr. Brian Kirsh, the medical director of the chronic pain management program at the Chedoke-McMaster Hospital in Hamilton. It appears that Ms. Kolonjari was referred to Dr. Kirsh by her counsel, Mr. Wilson, but that CUMIS agreed to pay for the cost associated with the assessment. Dr. Kirsh was specifically asked to provide an opinion on the appropriateness of the medications being prescribed to the Applicant. After examining her in September 2000 and reviewing the several reports written, Dr. Kirsh reported that he supported the theory that Ms. Kolonjari suffered from "subtler damage to the cervical spine and probably lumbar spines", and opined that her condition is "neither primarily psychiatric nor primarily physical but a combination of both". He opined that she should be taking anti-depressant medication but did not support the use of opioid medications, stating that there was no indication that they had provided any benefit.

Prevent Assessment & Rehabilitation Clinic account

Ms. Kolonjari claims the cost of chiropractic and massage therapy treatments she received at this clinic from March 1999 to the date of the hearing. The parties agree that the amount owing, exclusive of interest, is $5,400.89. Section 36(1) of the Schedule requires the Insurer to pay for all reasonable expenses in this regard, but the Insurer may request that a DAC assessment be conducted to determine whether the expense claimed "is reasonable and is necessary for the insured person's treatment".⁷

The reasonableness of this treatment was not assessed by a DAC. The assessment that Ms. Kolonjari attended at Credit Valley Hospital in May 2000 did not encompass this issue, as the invoices for the cost of treatment were not submitted to the Insurer until July of 2000. I was advised that a DAC assessment had considered the reasonableness of these treatments in 1996, and had determined that they were not reasonable. I was not provided with a copy of their report. I am not aware of whether or not the Insurer has paid for any of these treatments since that date.

The Explanation of Assessment sent by the adjuster in August 2000 denying the claim for payment of these expenses refers to the "medical evidence" stating that the treatments in question are not reasonable and necessary. The letter accompanying this form refers to a med/rehab DAC assessment that indicates that the treatments are neither reasonable nor necessary. The adjuster was not called to testify, and it is therefore unclear whether the denial of payment was based on the findings of the 1996 DAC assessment, or whether she incorrectly presumed that the 2000 DAC assessment had considered the issue.

Aside from the lack of a current DAC opinion regarding the reasonableness of the treatment claimed, there is a dearth of other medical evidence relating to this issue. Three reports from Dr. Daniel Contogiannis were filed. He is the clinical director of the Prevent clinic and the chiropractor treating Ms. Kolonjari. In March 1998, Dr. Contogiannis reported to Mr. Wilson, counsel for the Applicant, that Ms. Kolonjari "has had an aggressive course of medical rehabilitation with no real significant improvement to date..." and opined that she had reached "the maximum medical improvement level". He defined that term as meaning the point after which further recovery and restoration of function can no longer be anticipated, based on reasonable medical probability. He stated that Ms. Kolonjari had "reached a point in her life in which further physical medicine will result in no significant improvement."

In January 2001 Dr. Contogiannis reported that Ms. Kolonjari suffered largely from the same symptoms that he had outlined in the above report, three years earlier. He opined that she will require ongoing therapy "solely to succeed in maintaining simple daily adequate functions and personal hygiene", and repeated his view that she had reached maximum medical improvement.

Dr. Contogiannis stated that the treatment provided at the Prevent clinic "can only offer Ms. Kolonjari palliative care."

It was clear from Ms. Kolonjari's evidence that her weekly attendances at the clinic for chiropractic treatments and massage therapy provide only short-term relief. She explained that the stiffness she feels in her upper back and shoulder area feels "a little released" after chiropractic treatments, and that the massage therapy sessions relieve tension in the muscles surrounding her spine and help to relax her. She acknowledged that the benefit of these treatments is short-lived, but explained that even a short-term reduction in her level of pain was of great benefit, given the extent of her pain.

Dr. Devlin was asked in cross-examination whether the short-term relief of pain was a legitimate medical goal. He stated that it was, and agreed with counsel's suggestion that if chiropractic treatment and massage therapy relieved the Applicant's pain, it was reasonable from a medical standpoint to continue these treatments.

The Insurer contends that the above treatment is not reasonable because it has not resulted in any significant improvement in Ms. Kolonjari's condition over the last six years. Counsel noted Dr. Contogiannis' comment that further treatment will not result in any functional improvement, and submitted that despite the fact that she only attends the clinic once per week, and that the amount being claimed is not unduly high, the treatment is unreasonable because there is no evidence that it is effective.

It is now well-accepted that the relief of pain is, in and of itself, a legitimate medical and rehabilitative goal. This idea has been endorsed in several arbitration decisions⁸ and confirmed at the appeal level.⁹ The courts have recently recognized this as well. In a case in which a team of DAC assessors had concluded that chiropractic and massage therapy treatments received by a plaintiff were no longer reasonable and necessary because his medical condition had plateaued and these modalities would not assist him in improving any further, Justice Eberhard made the following comments:

I find that the DAC opinion that treatment is not medically reasonable and necessary ignores a valid goal of treatment. The relief of pain is, at many levels from aspirin to palliative care of terminal patients, a valid and recognized mandate of the health care professions.¹⁰

This does not end the matter, however. Despite the fact that a treatment may provide an insured person with pain relief, other factors, such as whether the treatment encourages inappropriate dependency or interferes with other aspects of rehabilitation, must be considered.¹¹ In this case, the evidence points toward Ms. Kolonjari having developed a dependence on the treatments she receives at the Prevent clinic. This is somewhat troubling, as she has been receiving these treatments on a weekly basis for over six years, without any noticeable improvement to her condition. She does not appear to be augmenting these passive modalities with any form of active rehabilitation or exercise. On the other hand, there is no evidence to suggest that these treatments are interfering in any way with her rehabilitation efforts.

On the evidence filed, I am satisfied that the Applicant has met the onus of proving that these treatments are reasonable. Given her limited activity level, it would not be appropriate to focus on whether the treatment in question improves her ability to function at work or permits her to participate in recreational activities, as has been done in other cases. For Ms. Kolonjari, the primary goal of her treatment is pain relief, and her evidence that these treatments do provide relief, albeit temporarily, is unchallenged. Her chiropractor has reported that while the treatments in question will likely not increase her function, they are required to permit her to continue to maintain a level of simple daily functions and personal hygiene.

The Insurer has provided no evidence to counter these claims and has simply stated that their effectiveness, and hence their reasonableness, must be questioned given the lack of improvement in her condition. I find that this is not sufficient. The Insurer has not only ignored its obligations under the pay pending dispute provisions of the Schedule, but has also not assessed the reasonableness of Ms. Kolonjari receiving this treatment in over five years. If a DAC assessment determined that these treatments were not reasonable given that, for instance, she was receiving other forms of treatment that better addressed her need for pain relief, that would be a factor to consider. In the absence of this type of evidence, or anything challenging her testimony and the reports of the chiropractor, I find that the treatments in question are reasonable and should have been paid by the Insurer.

Transportation expenses

In his decision on the Applicant's motion for interim benefits, Arbitrator Bayefsky ordered CUMIS to pay the reasonable costs of taxis to and from Ms. Kolonjari's medical and treatment appointments. As part of the interim agreement arrived at during a subsequent private mediation, the parties agreed that the Insurer would pay up to $200 per week for taxi expenses, until such time as the Insurer forwarded a LEC offer. I was advised at the hearing that the Insurer continued to pay this amount up to the date of the hearing, pursuant to a procedural agreement reached by the parties, save for a three-month period during the summer of 2000.

None of the relevant facts pertaining to this aspect of the claim are disputed. The Insurer takes the position that Ms. Kolonjari is no longer entitled to these payments. It does not seek repayment of any of the monies it has paid out, but requests a ruling that the payment of Ms. Kolonjari's taxi expenses to and from medical appointments and treatment sessions is no longer reasonable.

Aside from travelling by taxi to the Prevent clinic for her weekly treatments discussed above, Ms. Kolonjari also takes taxis to the Rothbart clinic on a weekly basis for nerve block treatments. She attends Dr. Shrives' office for psychiatric treatment, when he is working, and also travels by taxi to and from her sessions with Ruth Whitham. While no claim is being pursued at this time for the cost of these last three treatments, the parties submitted that their reasonableness must be considered as part of the question of whether or not the cost of taxi transportation to and from these treatments is reasonable. In other words, a finding regarding the reasonableness of the transportation expenses claimed depends, in part, on whether the treatments themselves are reasonable.

Ms. Kolonjari lives in Mississauga. None of her treatment providers are located near her home. The Prevent clinic at which she receives her chiropractic and massage treatments is in Etobicoke, west of the airport. The Rothbart clinic is located near the intersection of Yonge Street and York Mills Road. Dr. Shrives' office is downtown, near the intersection of Yonge and Bloor. Ruth Whitham provides her treatment at an office in Richmond Hill.

Ms. Kolonjari testified that the taxi fare to the Prevent clinic is approximately $30 for a one-way trip, while it costs closer to $50 each way to travel by taxi to her other treatment providers.

The Applicant no longer drives a car. Her mother works full-time and there is no one available to drive her to and from her several treatment sessions. The Insurer submits that she can take public transit, and that it is not reasonable for her to claim the expense of taxis to and from these treatments any longer.

Ms. Kolonjari testified that it would take her two to two and one-half hours to travel each way between her home and most of her treatment sessions by public transit. She explained that she would have to take one or two buses, and then have a long subway ride. This evidence was uncontested. She stated that travelling by public transit is tough on her physically because of the noise of the trains and buses, the large crowds and the risk of being jostled, and the jarring movements of the vehicles themselves. She testified that travelling home from a treatment session by public transit would erase the benefit of the treatment, as the noise would trigger headaches, the jostling would increase her neck pain and the whole process would be physically exhausting.

Ms. Kolonjari also testified that her difficulties concentrating and remembering things make it hard for her to keep track of her whereabouts when she travels by public transit. She explained that she gets easily confused while travelling alone, and has difficulty following the directional signs in the subway. She referred to an incident that occurred in July of 2000 when she travelled by subway to Dr. Shrives' office, after the Insurer had stopped paying her taxi expenses. She described the experience of taking the subway as "hellish" and stated that she went the wrong way and ended up across town from where she had wanted to go, completely lost. She explained that after that incident, Dr. Shrives asked his receptionist to escort her out of the office, walk her to the subway station and accompany her down to the platform to ensure that she got on the right train.

In a subsequent report, Dr. Shrives made the following comments on the issue:

Taxis have been necessary. When the insurer discontinued these previously they put the patient in direct risk of harm. The level of sensory overstimulation, disorientation, and balance difficulty resulted in her getting lost and not recognizing risk to such a degree that I requested my receptionist escort her and put her on the subway. This was evident when on no opiates and off all other meds.

Dr. Rothbart opined in an August 1998 report that travelling by taxi to and from treatment sessions was reasonable and necessary. He specified that Ms. Kolonjari should not take public transit after receiving nerve block treatments, as "patients need to be accompanied in some kind of protected environment" after receiving these treatments. Ruth Whitham also stated in a January 2001 report that transportation by taxi to medical and rehab appointments is critical. She noted that Ms. Kolonjari's energy level was low, and explained that if she used public transit to travel to her office for rehabilitation sessions she would arrive too fatigued to learn. She also stated that gas fumes and the bumpy ride would trigger headaches.

Dr. Devlin, the physiatrist who performed an Insurer's Examination on Ms. Kolonjari in July of 2000, initially took the contrary view. He was specifically asked by CUMIS to consider whether Ms. Kolonjari could drive a car or use public transit. He concluded that "from a physical perspective, there is no reason why she cannot drive, or for that matter use public transit." He then considered the question from a cognitive perspective, and advised that he did not recommend that she drive a car in view of her difficulties. He opined, however, that there was no reason why she could not use public transit.

Dr. Devlin changed his opinion during the course of being cross-examined by Applicant's counsel at the hearing. He conceded that he had not asked Ms. Kolonjari how long these trips would take by public transit, and that this was an important consideration. He allowed that taking the bus and subway would cause an increase in pain for a chronic pain patient with headaches, and acknowledged that given Ms. Kolonjari's cognitive difficulties, it would be more appropriate for her to take taxis.

On the evidence above, I have no difficulty finding that it is reasonable for Ms. Kolonjari to travel to and from her treatment sessions by taxi. While a weekly travel expense of $200 may seem high, Ms. Kolonjari lives in Mississauga, quite a distance away from any of the clinics or doctors' offices she attends for treatment. While she might be able to tolerate a short bus ride, it is clear that a two hour trip each way, involving one or two transfers, is too much for her to bear in her current state, both physically and mentally. The Schedule mandates an individualised inquiry into an applicant's circumstances in order to assess whether or not the claimed expenses are reasonable. Given that Ms. Kolonjari no longer drives a car and has no one else to drive her to her frequent sessions, and considering the distance she must travel and the time involved in taking public transit, I find it reasonable that she travel by taxi.

The final part of the analysis requires me to consider whether or not the treatments that she travels to are reasonable. I have already determined that the chiropractic treatments and massage therapy she receives at the Prevent clinic are reasonable. I am persuaded that the assistance she receives from Ruth Whitham is useful, and that Dr. Shrives, when he is working, provides a necessary service to Ms. Kolonjari. The Insurer did not actually dispute the reasonableness of these two treatments. It did, however, challenge that of the nerve block treatments she receives at the Rothbart clinic. Given her evidence regarding the pain relief provided by these injections, as well as Dr. Kirsh's statement that while they may only provide a placebo effect they "can become quite helpful" from a psychological perspective, I conclude that these treatments are reasonable as well.

In the result, I find that the expenses claimed by Ms. Kolonjari for taxi expenses to and from all of the above treatments are reasonable.

Housekeeping expenses

In November 1998 Arbitrator Bayefsky found that Ms. Kolonjari was entitled to her housekeeping expenses on an interim basis and ordered the Insurer to pay $75 per week. In the interim agreement signed approximately six months later, the parties agreed that the Insurer would continue to pay ongoing housekeeping expenses at the rate of $67.50 per week until a LEC offer was made. I was advised that these payments were made until the end of July 2000, and that the weekly figure arrived at was a negotiated amount, as opposed to reflecting a specific number of hours of work.

The Insurer submitted that the medical evidence no longer supports Ms. Kolonjari's need for these services after that date.

The Applicant lives in a three-bedroom home with her mother and younger sister. Her uncontradicted evidence, corroborated by that of her mother, was that her mother cleans the house, buys groceries, cooks meals, does laundry and virtually all of the other household chores around the home. Ms. Kolonjari claims to have difficulty both from a physical and cognitive perspective with performing any household tasks. She testified that she tried to do some cleaning a few years ago and felt severe pain in her head and back afterwards. She also testified that she forgets how to operate appliances such as a dishwasher and washing machine, and that despite her mother showing her what to do, she is unable to remember the proper sequence of steps to follow, with disastrous results.

Ms. Kolonjari testified that when she attempted to cook her own meals, she forgot that the stove was on and burned the food. She stated that she had recently tried to prepare a simple meal by cooking pasta in a pot of boiling water and heating up tomato sauce from a jar, but was unable to do this. She explained that she recently began receiving treatment from an occupational therapist, on Dr. Kirsh's recommendation, and that one of the identified goals of this treatment is to increase her level of functioning at home.

Both Dr. Contogiannis, the chiropractor, and Ruth Whitham opined in January 2001 that the Applicant continues to require ongoing housekeeping assistance. Dr. Contogiannis attributed this need to "the severity of her injuries and limited functional abilities". Ms. Whitham opined that the payment of $67.50 per week for housekeeping expenses was "reasonable and very necessary" and that she needed help with changing her bed, laundry and cleaning. She noted that Ms. Kolonjari's nutrition was poor, and recommended that meals be prepared for her that could be put in the freezer.

Sue Wilkinson, the occupational therapist retained as a result of Dr. Kirsh's recommendation, reported on her first five sessions with Ms. Kolonjari on April 5, 2001. She noted her "poor tolerance to activity" and "difficulty in processing information and following instructions". She made the following comments:

Ms. Kolonjari is unable to manage her pain on a daily basis without retiring to bed. At times, her overwhelming fatigue does not support function in the home, even on a minimal level.

Ms. Kolonjari demonstrates little ability to manage in-home activity (self-care, homemaking), day-to-day social/recreational activity, or any structured productive activity. During one treatment session in her home, a meal was prepared. Ms. Kolonjari was unable to plan, shop for or prepare food without significant support (direction and written instruction) from this therapist. In follow-up, Ms. Kolonjari's mother was also needed to assist her daughter to complete meal preparation at the relevant time. Ms. Kolonjari was unable to locate items in the kitchen without searching through all the cupboards; she did not know how to prepare the food (pasta, prepared tomato sauce, salad and asparagus) and was not able to develop a time schedule for preparation or cooking.

The therapist noted Ms. Kolonjari's need to take frequent rest periods while attempting an activity such as meal preparation, as well as her inability to "multi task", and stated that consequently "life skills activity (are) ...very difficult and time consuming for her." She also noted that the Applicant had developed negative coping strategies which do not "support an appropriate activity base", and opined that it will take time and energy, along with close supervision to change or break these patterns that have developed.

The Insurer terminated the payment of housekeeping expenses after Dr. Devlin's Insurer's Examination in July 2000. Dr. Devlin opined that the Applicant was capable of performing household activities, stating that he had not found anything in his examination that would indicate any restrictions in this regard. He maintained this position during his cross-examination, disagreeing with the suggestion that Ms. Kolonjari cannot perform any housekeeping tasks because she fatigues easily. He stated that she is likely to continue to fatigue as long as she avoids performing any activities, and that one way for her to build up stamina would be to gradually increase her activity level.

The Insurer also relied on video surveillance showing Ms. Kolonjari doing errands and shopping with her mother on various days in December 2000. Counsel suggested that if she was able to be out of the house doing these activities, she was also able to do some chores around the house. While the surveillance does show Ms. Kolonjari engaging in a moderate level of activity outside of the home, I do not agree that this necessarily translates into an ability to do household tasks. The danger in relying on surveillance videotapes, which depict a person's activities at a specific point in time, is that they do not provide a reliable picture of the continuum of their activities over the course of a few days or a week. Ms. Kolonjari testified that she would generally stay home and rest for a day or two following each outing with her mother, and the surveillance taken actually bears this out.

Ultimately, I find Ms. Kolonjari's evidence on this issue, corroborated both by that of her mother and the occupational therapist, to be more persuasive with respect to the reasonableness of paying housekeeping expenses than that of Dr. Devlin. Dr. Devlin's belief that a chronic pain patient can overcome or ignore pain and perform activities if she wants to, as well as his approach to the treatment of chronic pain, i.e. patients suffering from pain or overwhelming fatigue should try to gradually increase their activity level so as to increase their stamina and endurance, has some support in the medical community. However, many practitioners would disagree and say that the pain experienced by chronic pain sufferers is genuinely limiting and restricts them from doing activities at home.

The question before me is not whether Ms. Kolonjari should push herself to work through pain. Rather, I must determine whether or not it is reasonable for the Insurer to continue to pay housekeeping expenses. This involves an assessment of how the Applicant's limitations, both physical and cognitive, impact on her ability to perform the relevant tasks. I find the occupational therapist, who has visited Ms. Kolonjari at home on several occasions, best suited to provide an opinion on her ability to function at the required level. It is clear from her report that Ms. Kolonjari needs assistance in performing basic household tasks such as meal preparation and laundry, due to her cognitive deficits. In the circumstances, and given the relatively modest amount being claimed for housekeeping expenses, I find these expenses to be reasonable.

Prescription medication

Ms. Kolonjari claims $1,309.06 for the cost of prescription medication. She currently takes several different medications for pain relief and to combat depression and anxiety. She also began taking sleeping pills shortly prior to the commencement of the hearing. The Insurer stated that it will continue to fund any anti-depressant and anti-psychotic medication that she takes, but will not pay for any opioid medication that is being prescribed. CUMIS takes the position that it is not obliged to fund this type of medication as the weight of medical opinion does not support its use in Ms. Kolonjari's case, and hence it is not reasonable under subsection 36(1)(c) of the Schedule.

As I understand it, the medication falling within this category includes MS Contin and Dilaudid.

As stated above, and as noted by Arbitrator Bayefsky in his decision on the motion brought for interim benefits, there is a significant debate among the medical practitioners who have treated and assessed Ms. Kolonjari regarding the appropriateness of the medications prescribed to her. Dr. Rothbart is of the view that the opioid medication he prescribes helps control the severe, constant pain she experiences that results from the disc damage she sustained. Many physicians have taken issue with the pharmacologic regimen set out by Dr. Rothbart, and attribute Ms. Kolonjari's headaches and her cognitive impairments to excessive analgesic intake. Ms. Kolonjari testified that the medications in question help reduce her pain.

The difference of opinion seems to have begun shortly after Ms. Kolonjari came under Dr. Rothbart's care during the spring of 1996. In June of that year she attended an Insurer Examination conducted by Dr. Grossman, who felt that her headaches were related to excessive analgesic intake and recommended that she be weaned off all narcotic and non-narcotic analgesics. Dr. Grossman stated that the use of opiate analgesics is controversial. He allowed that their use in non-malignant situations is generally accepted where it leads to a patient's return to daily activities, but opined that as Ms. Kolonjari's functional abilities were not improving, they would not be appropriate in this case.

The Applicant's use of opioid medication has since been assessed by a number of medical experts from different fields. Dr. Ian Kerr, a medical oncologist at Sunnybrook Hospital suggested to Dr. Rothbart in September 1996 that Dilaudid be used for her breakthrough pain. Dr. Frank Adams, a psychiatrist in Kingston with a special interest in neuropsychiatry and neuropharmacology, assessed Ms. Kolonjari in August 1997 and opined in a report to Applicant's counsel in November 1998 that the medication in question was "necessary".

Ms. Kolonjari underwent another Insurer's Examination by Dr. Ross, a psychiatrist, in September 1999. Dr. Ross disagreed with Dr. Adams and stated that she was being treated with narcotic analgesics at a level that is "inappropriate from a psychiatric standpoint". He stated that Ms. Kolonjari's "ongoing use of very significant doses of potent narcotic analgesics" gave rise to the dual DSM IV diagnoses of Opioid Dependence and Opioid-Induced Mood Disorder, with Depressive Features (moderate). Dr. Ross recommended that she withdraw from narcotic analgesics in a hospital setting, and speculated that once her opioid dependence was alleviated and issues related to her pain and anxiety disorders were outlined, she could consider returning to the work force.

As outlined above, the reasonableness of these medications was assessed by a med/rehab DAC at the Credit Valley Hospital in May 2000. Dr. Nguyen, the orthopaedic surgeon, determined that there was no objective evidence of structural abnormalities that would warrant the use of the medications in question. Dr. O'Riordan, the psychiatrist involved in the assessment, recommended that Ms. Kolonjari withdraw from all medication in an in-patient detox setting and pursue an active rehabilitation program. Under cross-examination by Applicant's counsel at the hearing, Dr. O'Riordan conceded that the use of MS Contin was reasonable if it provided pain relief for a few months, until a longer-term treatment plan could be put in place. Dr. O'Riordan also acknowledged that he does not have much experience in treating chronic pain patients.

Ms. Kolonjari was assessed by Dr. G. Bartolucci, a psychiatrist and professor emeritus at McMaster University in Hamilton, at her counsel's request in August 2000. The following quote from his report provides a useful context for the debate over the use of opioid medication:

The use of opioids in cases of intractable pain following trauma is a very contentious issue and I think that at this point everybody is entitled to their opinion but the fact remains that a small number of these cases do not respond to other forms of treatment and are incapacitated by pain. The whole issue is under review in this province as well as the rest of the country.

After reviewing the extensive medical investigations undergone by Ms. Kolonjari, Dr. Bartolucci opined that there is "certainly room for pharmacological fine tuning of her pain syndrome and this may include drugs that are not in the narcotic group."

Finally, as mentioned above, the parties agreed that the reasonableness of Ms. Kolonjari's consumption of opioid medication should be considered by Dr. Brian Kirsh, the medical director of the Chronic Pain Management unit at Chedoke-McMaster Hospital. Dr. Kirsh stated that Ms. Kolonjari should be on anti-depressant medication, but indicated that he did not support the use of opioid medications in this case. He then stated:

From what I can gather, certainly these medications have been tried, and there is no clear indication that she has gained benefit from them. She believes that she has and would like to use these medications again, but the genesis of this condition is so complex that it is not clear that medications were really helpful. I am not particularly worried about true narcotic abuse as described by DSM IV, but more importantly they may actually contribute to decreased functioning through fatigue. In the end, she will have to learn that there is no medication assistance for this condition, and that she has to find the assistance from within herself to be able to make progress. Certainly, there are no other analgesics or medications to help with the pain side of this problem.

Ms. Kolonjari testified that in response to the concerns expressed by some doctors regarding the effectiveness of the medication she was taking, she decided to wean herself off all of the drugs she was taking shortly before she saw Dr. Kirsh. Despite the fact that the doctors had recommended that she do so in a hospital or "detox" setting, she did it on her own, while still living at home with her mother. She stated that her pain increased significantly and that her condition deteriorated.

Dr. Roman Jovey, the Physician Director of the Alcohol and Drug Treatment Program at Credit Valley Hospital, also assessed Ms. Kolonjari during the summer of 2000 at the request of her counsel. He was asked to comment on "her current medication regimen and the impact it may have on her ongoing symptoms and function." Dr. Jovey allowed that it was possible that her current medication regimen may be contributing to some cognitive impairment and sedation, but stated that many of his patients taking much higher doses of opioids can function well, without any signs of cognitive impairment. He stated that there has been a "major shift in organizational support for this modality of therapy" and suggested that some of the IE doctors who assessed Ms. Kolonjari hold outdated beliefs on "the role of long-term opioid therapy".

Dr. Jovey commented that the only way to truly assess whether or not the opioid medication consumed by Ms. Kolonjari contributes to her cognitive impairment and headaches is to slowly taper her off the medication and reassess her status. He suggested that this be done as part of a multidisciplinary program "that can wean her appropriately and help her to cope with the withdrawal process and resulting pain flare-up using alternative means". He noted that Ms. Kolonjari was scheduled to see Dr. Kirsh shortly after his assessment, and stated that the pain program at Chedoke-McMaster was one of the few programs in the region "which would have the expertise to objectively assess the risk/benefit of opioid therapy while at the same time teaching her cognitive-behavioural techniques to help cope with her suffering and maximize her function." I note, however, that Dr. Kirsh advised that the program at Chedoke-McMaster was not suitable for Ms. Kolonjari, as it was geared to people who are more "capable and functional than she is now."

In the final analysis, the question boils down to whether the fact that the opioid medication seems to reduce Ms. Kolonjari's pain is sufficient to characterize it as a "reasonable" expense under section 36 of the Schedule, in the face of significant medical evidence that it may be affecting her mental functioning, causing or contributing to her headaches, and is generally used only for the short-term relief of pain. While it is not my role to determine whether an applicant's pharmacologic regimen is appropriate, the medical evidence available must be considered in my determination of whether the expense claimed is reasonable.

The weight of medical opinion in this case favours Ms. Kolonjari withdrawing from the opioid medication that is being prescribed by Dr. Rothbart. The evidence establishes that the use of this type of medication is somewhat controversial, and that it may be negatively impacting on her ability to function. At the very least, there is no medical evidence that she is benefiting in any way from these medications. I place much weight on Dr. Kirsh's opinion in this regard, given his expertise in the area and the fact that the parties agreed that he assess Ms. Kolonjari in order to consider this question. I also note Dr. Jovey's endorsement of the pain management clinic he oversees.

I am not persuaded that Ms. Kolonjari's use of this medication is reasonable. In coming to this conclusion, I have not ignored the fact that Ms. Kolonjari withdrew from these medications in the summer of 2000, and that her symptoms worsened. While I applaud her efforts to attempt this difficult task without assistance, all of the doctors who recommended that she withdraw from medications have suggested that this take place in an institutional setting, with the appropriate support and care. The evidence indicates that an essential feature of a supervised withdrawal would be the substitution of an alternate method of treatment to address the expected increase in her symptoms. As this was absent from her withdrawal last summer, I do not find the resulting increase in her symptoms to be persuasive evidence of the reasonableness of this form of treatment.

Accordingly, I find that the claim for prescription medications is not reasonable.

Indexation of benefits:

Finally, the Applicant disputes the manner in which her income replacement benefits have been indexed for inflation by the Insurer. Section 79 of the Schedule provides for an annual increase of weekly benefits by a prescribed percentage, effective on the first day of each year following the onset of an insured person's disability. Subsection 79(2) provides that the adjustment does not apply on January 1 of the first year following the initial receipt of weekly benefits. The relevant parts of section 79 are:

79.—(1) Each of the following amounts shall be revised, effective the 1st day of January in every year after 1994, by adjusting the amount by the indexation percentage published under section 268.1 of the Insurance Act:

The net weekly income from employment used to determine the amount of a person's weekly income replacement benefit under Part II.
The net weekly incomes used to determine the amount of a person's weekly loss of earning capacity benefit under Part VI, if the benefit is payable to a person who is less than sixty-five years of age.

(2) Subsection (1) does not apply to the amount referred to in paragraph 1 of subsection (1) if the person has been receiving the weekly income replacement benefits for less than one year after the onset of the disability in respect of which the benefits are payable.

The accident in question occurred on May 6, 1995. The parties agree that Ms. Kolonjari was not eligible for an adjustment of her income replacement benefits on January 1, 1996, as she had been receiving benefits for less than one year at that point. They agree that the first increase in her benefit rate should have taken place on January 1, 1997. They do not agree, however, on the amount of the adjustment. The Applicant argues that her benefits should have been increased on that date by both the prescribed indexation percentage for 1996 (2.3%) and for 1997 (1.5%). The Insurer contends that her benefit should only be increased by 1.5%, the prescribed rate for 1997.

Ms. Kolonjari argues that by not applying the 1996 indexation rate of 2.3%, her weekly benefit rate will not keep pace with the rate of inflation. She argues that as the language of section 79 is somewhat vague on this point, it should be interpreted in a manner that is consistent with the goal of the Schedule, which is to ensure that benefits paid to insured persons who have sustained injuries keep pace with inflation.

Mr. Wilson argues that subsection 79(2) only defers the increase prescribed, and that Ms. Kolonjari is still entitled to the 1996 indexation percentage on January 1, 1997, when she becomes entitled to the increase. He made the same argument in the case of Boniface and Liberty Mutual Insurance Company (FSCO A97-002106, December 22, 2000), before Arbitrator Makepeace. She determined that the legislative purpose behind section 79 is to protect the value of accident benefits against inflation. She also accepted the parties' submissions that the limitation in subsection 79(2) appears to be a cost containment measure, noting that the "legislature's balancing of the goals of providing comprehensive and accessible benefits, on the one hand, and maintaining reasonable premiums for compulsory automobile insurance, on the other, is evident throughout the Schedule."

While the arbitrator considered the policy aspects that bear on the issue, her decision to reject the Applicant's argument is based on the wording of the relevant provision. She states:

Policy considerations aside, the main problem with the Applicant's submission is the language of the Schedule. Subsection 79(2) states that the indexation rule set out in subsection (1) "does not apply"where the person has been receiving benefits for less than one year. I find the phrase "does not apply" clear and unambiguous. For persons who have been receiving benefits for less than one year, there is no entitlement to indexation pursuant to subsection 79(1)(a). If there is any remaining doubt about this, it is resolved by the fact that subsection 79(2) says the indexation rule does not apply to "the amount" referred to in paragraph 1 of subsection (1)." The amount referred to in that section is the net weekly income from employment used to calculate IRBs. Thus, the focus on the section is on the net weekly income amount, not the person receiving benefits. As the indexation adjustment does not apply to the net weekly income amount on January 1, 1996, the amount that is adjusted on January 1, 1997 is the net weekly income amount as it stood on December 31, 1995.

Mr. Wilson accepts the arbitrator's finding that the wording in subsection 79(2) is clear, but maintains that when the benefit is indexed for inflation on January 1, 1997, both the 1996 and 1997 percentages should be applied. He cited Justice Laskin's statement in the Court of Appeal's decision in Bapoo v. Cooperators General Insurance Company (1997), 1997 CanLII 6320 (ON CA), 36 O.R. (3d) 616, to the effect that when interpreting the provisions of the Schedule, an interpretation must comply with the legislative text, promote the legislative purpose and produce a result that is reasonable and just. Mr. Wilson contends that as section 79 is silent on the manner in which the indexation percentage is to be calculated on the first eligible date, and as the purpose of the legislative provision is to allow an insured person's benefits to keep pace with inflation, the just and reasonable result would be to include the 1996 rate in the calculation.

While I agree with the analysis urged upon me by Mr. Wilson, I cannot agree with the proposed result. As I read subsection 79(2), it provides that the indexation method set out in subsection (1), that is an upward adjustment of the relevant weekly benefit by the indexation percentage published in the appropriate section of the Insurance Act, does not apply on the first day of January following the date on which an insured person began collecting benefits. In this case, that means that Ms. Kolonjari's weekly benefits would first be increased on January 1, 1997. There is no mention anywhere in the provision that the calculation that is to be performed on that date must include the percentage for the prior year, as well as that prescribed for the year in which the adjustment is being done.

Mr. Wilson's argument would be attractive in the absence of subsection 79(2), which the parties agree is a cost-saving measure much like subsection 8(3) of the Schedule, which mandates a one-week waiting period before weekly benefits can be collected. Indeed, the result he urges would give an insured person full protection against the erosion of their benefits by inflationary pressures, which accords with the remedial nature of the provisions in the Schedule. However, I am simply unable to glean from the phrase "does not apply" in subsection 79(2), referring to the "indexation percentage published under section 268.1 of the Insurance Act" in subsection (1), an intention that the rate for the year during which an applicant is not entitled to an inflationary increase should be included in the calculation the following year, when she does qualify.

In the result, the Applicant's claim under this section is denied.

Special Award:

The Applicant argues that she is entitled to a special award as a result of the Insurer's unreasonable conduct in this matter. Counsel submitted that despite acknowledging that Ms. Kolonjari has no residual earning capacity, CUMIS seems determined to force Ms. Kolonjari to pursue her claims on every other issue through the dispute resolution process. He noted the Insurer's failure to pay for her chiropractic and massage therapy treatment at the Prevent clinic, as well as her transportation expenses, despite the "pay pending dispute" provisions in section 36 of the Schedule. He also noted that while the adjuster denied her claim for treatment at the Prevent clinic on the basis of a DAC assessment, a DAC had not in fact been arranged to assess that claim.

The Insurer points out that although the treatment in question at Prevent clinic was received by Ms. Kolonjari in 1999, the invoices were not submitted until the summer of 2000, after the DAC at Credit Valley Hospital had been conducted and the arbitration proceeding commenced. Counsel noted that subsection 39(3) of the Schedule provides that no DAC assessment is required for transportation expenses. He also submitted that the Insurer's decision to terminate payments for taxi transportation and housekeeping expenses was based on Dr. Devlin's opinion, as well as that of the DAC assessors, and should not therefore be considered unreasonable.

Subsection 282(10) of the Insurance Act requires an arbitrator to order a special award upon determining that an insurer has unreasonably withheld or delayed payments owing to an applicant. Although I did not ultimately accept Dr. Devlin's opinion regarding Ms. Kolonjari's ability to perform household tasks, the Insurer's reliance upon it to terminate the payments for housekeeping services that they had been making was not unreasonable. Similarly, while I have found that the $200 per week claim for taxi transportation is reasonable, CUMIS was within its rights when it decided to discontinue paying these amounts prior to the hearing. While these amounts were ordered to be paid by Arbitrator Bayefsky until a final determination was made at arbitration, the parties' interim agreement at a mediation six months later effectively determined the issue.

However, Ms. Kolonjari's claim for treatment at the Prevent clinic and for prescription medication are subject to the "pay pending dispute" provisions set out in section 36. CUMIS's decision not to pay these expenses was in blatant disregard of these provisions. I find that this constitutes an unreasonable withholding of a benefit and warrants a special award, regardless of the fact that I ultimately found that Ms. Kolonjari's claim for medication was not reasonable. Aside from the requirement to pay under subsection 36(4) of the Schedule, I note that subsection 268(8) of the Insurance Act also addresses the payment of certain benefits pending the resolution of a dispute. It states:

Where the No-Fault Benefits Schedule provides that the insurer will pay a particular no-fault benefit pending resolution of any dispute between the insurer and an insured, the insurer shall pay the benefit until the dispute is resolved.

In my view, this expresses a strong legislative intent that insurers pay for the designated items claimed, pending a determination as to whether or not they are reasonable. I find that a special award is warranted when an insurer breaches this requirement. I note that other arbitrators have expressed similar views on this point.¹²

In the circumstances, I find that a special award in the amount of $5,000, inclusive of interest, is appropriate.

EXPENSES:

I did not receive any submissions on this issue. I urge the parties to resolve the question of entitlement to and quantum of expenses on their own, failing which they should advise me within 30 days of the date of this decision and an expense hearing will be arranged.

October 4, 2001

Shari L. Novick Arbitrator

Date