Neutral Citation: 2001 ONFSCDRS 7

FSCO A99-000984

BETWEEN:

ELVIRA B. MOSTAJO

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

David Leitch

Heard:

October 24, 25 and 26 and November 9, 2000, at the Offices of the Financial Services Commission of Ontario in Toronto

Appearances:

Altor Shields for Ms. Mostajo

Darrell P. March for Wawanesa Mutual Insurance Company

The Applicant, Elvira B. Mostajo, was injured in a motor vehicle accident on June 5, 1998. She applied for and received statutory accident benefits from Wawanesa Mutual Insurance Company ("Wawanesa"), payable under the Schedule.¹ Disputes arose which the parties were unable to resolve through mediation, and Ms. Mostajo 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. Mostajo entitled to medical benefits for treatment expenses she incurred at Sports Medicine and Rehabilitation Clinics ("SMRC") during the period April to July 1999?
Is Ms. Mostajo entitled to housekeeping and home maintenance expenses for the periods June 5, 1998 to January 27, 1999 and March 19 to May 24, 1999?
Is Ms. Mostajo entitled to the cost of the psychological examination and report of Dr. Godwin Lau?
Is Ms. Mostajo entitled to a special award under section 282(10) of the Insurance Act?

Ms. Mostajo is entitled to medical benefits in relation to the treatment she received in accordance with the two treatment plans submitted to the Insurer by SMRC, plus interest.
Ms. Mostajo is not entitled to housekeeping and home maintenance expenses.
Ms. Mostajo is entitled to the cost of the psychological examination and report of Dr. Lau, plus interest.
Ms. Mostajo is not entitled to a special award under section 282(10) of the Insurance Act.

Introduction:

Section 14 confirms that Ms. Mostajo is only entitled to medical benefits under the Schedule for reasonable and necessary treatment expenses she incurred as a result of the accident. At the hearing, the Insurer took the position that the treatment expenses incurred by Ms. Mostajo at SMRC were not as a result of her accident of June 5, 1998. In particular, it argued that this treatment was required primarily for Ms. Mostajo's right knee problems, problems which were not the result of her accident. I will deal with this submission first. I will then deal with the question of whether the treatment proposed and provided by SMRC was reasonable and necessary. Finally, I will determine whether Ms. Mostajo followed the correct procedure for claiming treatment expenses and whether she is entitled to a special award.

(a) Did Ms. Mostajo injure her right knee in the accident?

Ms. Mostajo was 44 years old at the time of the accident. She testified that she was in the driver's seat when her vehicle was hit on the front passenger side at a right angle, causing her left leg to hit the inside driver's door and her right knee to hit the radio. In identifying the injured areas of Ms. Mostajo's body, the emergency hospital records² refer only to left lower leg and left shoulder. The part of the Disability Certificate³ completed by Ms. Mostajo states "legs hurt" with the word "left" inserted before the word "legs." The part of the Disability Certificate completed by Ms. Mostajo's family physician, Dr. Francisco Portugal, refers only to neck whiplash, left shoulder strain, left hip and leg and rib contusion. In completing a Disability Questionnaire on July 28, 1998, with the assistance of the Insurer's Field Adjuster, Tina Karzis, Ms. Mostajo provided the following list of the injuries she sustained: "whiplash-neck, L shoulder strain, Lumbar strain, swollen L thumb, sore L knee, frequent headaches, difficulty sleeping, depression — thinks of suicide."⁴

These documents make no specific mention of a right knee injury. Nor do the documents outlining her early treatment by Dr. Portugal and by ACT Health Group Corporation.⁵Moreover, at the hearing, Ms. Mostajo acknowledged that she made no complaint about right knee problems until November 23, 1998. On that date, she attended at the emergency department⁶ of the hospital where she worked as a patient care aide. According to a Disability Certificate⁷ completed by the hospital's occupational health and safety physician, Dr. Gabor Lantos, Ms. Mostajo's attendance at the emergency department was necessitated by "spontaneous swelling & pain R knee" which Dr. Lantos diagnosed as a "menisceal tear and loose body." He referred Ms. Mostajo to an orthopaedic specialist for an MRI and arthroscopy. In answer to the question put by the Disability Certificate "did the applicant sustain an impairment as the result of this automobile accident?", Dr. Lantos put an "x" in the "no" box.

I acknowledge that the sudden onset of right knee problems, almost six months after the accident, raises an issue of causation but I do not find that this issue is resolved by Dr. Lantos' "x." The question Dr. Lantos was answering was not whether the impairment he had diagnosed was the result of the automobile accident, as Insurer's counsel suggests. It was whether the impairment he had diagnosed met any of the disability tests established by the Schedule as summarized in the same part of the Disability Certificate. Ms. Mostajo's right knee impairment could have been the result of the automobile accident without meeting any of the disability tests established by the Schedule.

In my opinion, the causation issue raised by the history of Ms. Mostajo's right knee problems must be resolved in her favour for the following reasons. First, I accept Ms. Mostajo's evidence that she struck her right knee in the motor vehicle accident. Insurer's counsel speculation that Ms. Mostajo injured her knee at work is not supported by any evidence. Second, the operative report of Dr. Paul H. Marks⁸, the orthopaedic specialist who performed arthroscopic surgery on March 19, 1999, confirms that Ms. Mostajo did have a right knee medial menisceal tear. None of the other medical evidence before me, including the reports of two specialists who saw Ms. Mostajo after that surgery (Drs. S. W. Joseph Wong, a physiatrist, and R. Zarnett, an orthopaedic surgeon⁹), suggests that such a tear could not have remained asymptomatic from June 5 to November 23, 1998. A finding that such a tear could not have remained asymptomatic from June 5 to November 23, 1998 would not be based on any medical evidence. In the absence of such evidence, and of any evidence identifying a cause other than the one identified by Ms. Mostajo in her description of the accident, I find that she has discharged the burden on her to establish, on the balance of probabilities, that her right knee problems were the result of the accident of June 5, 1998.

(b) Was the treatment reasonable and necessary?

The treatment plans.

Some of the treatment provided by SMRC was proposed in two treatment plans, both dated April 23, 1999. One treatment plan was submitted to the Insurer over the signature of Dr. Z. (Marc) Marciniak,¹⁰ a general medical doctor. It contained the following entries:

Impairment

R knee injury/post arthroscopic with limited ROM Neck injury with limited ROM Headaches Paresthesia (?)/ R shoulder dysfunction

Pain control. Decrease inflammation in soft tissue.

Increase range of motion in C/sp. and R knee. Improve ROM in all affected areas. Eliminate restrictions/fixations in spine & soft tissue. Restore good function.

Active rehabilitation with chiropractic care and passive modalities (as needed). Return to pre-accident function by restoring ROM, eliminating soft tissue restrictions. Prevent further injuries. Posture education. Increase endurance

6 weeks, 3x per week Estimated cost:

$1,800.00

The other SMRC treatment plan was submitted to the Insurer over the signature of Karen Spivak, a psychologist.¹¹ It contained the following entries:

Impairment

[upperward arrow] emotional distress, dysphoric symptoms associated with knee pain and limited physical activities following the knee surgery; provide pain management skills; adjustment difficulties not disabling but emotional distress will hamper recovery process

improve pain management skills & [downward arrow] dysphoria [upperward arrow] client's competence & confidence to manage daily activities, set realistic goals & pacing strategies. accelerate client's physical recovery and emotional status to pre-accident level

cognitive - behavioural intervention for pain management & coping with daily stressors. Interventions include: setting realistic goals, pacing, relaxation techniques, cognitive restructuring. Client will return to pre-accident emotional status & accelerate physical recovery

6-8 weekly one hour session Estimated cost $1080-1440.

In brief, these treatment plans expressed the opinions that Ms. Mostajo was continuing to experience pain in her right knee and cervical spine as a result of the accident and that she required active and passive rehabilitation and psychological care in order to return to her pre-accident physical and emotional status. The strength of these opinions must be assessed in light of the evidence concerning Ms. Mostajo's pre-accident health and post-accident recovery and in light of the reports of the Medical and Rehabilitation Designated Assessment Centre (the "DAC").

Early treatmentat ACT Health Group Corporation:

Within a few weeks of the motor vehicle accident, Ms. Mostajo was assessed at ACT Health Group Corporation. Chiropractor Thomas Blau of that organization submitted a treatment plan to the Insurer in which he diagnosed cervical strain, lumbar myofascial strain and shoulder strain, and recommended passive therapy and active rehabilitation several times a week.¹² Psychologist Joanna Mitsopulos, also of ACT Health Group Corporation, observed that Ms. Mostajo was "exhibiting a severe level of anxiety and a moderate level of depression as a result of her accident" but that "there was no evidence of any significant pre-existing psychopathology."¹³Dr. Mitsopulos submitted a treatment plan of twelve to fifteen weekly psychotherapy sessions in order to "return client to pre-accident level of psychological functioning."¹⁴

Dr. Blau discharged Ms. Mostajo after seven weeks of treatment, on September 28, 1998, noting that "patient still complains of residual neck and shoulder pain" and recommending that she "continue with a home program of stretching and strengthening."¹⁵ Psychotherapist Jacqui Gajewski discharged Ms. Mostajo after six months of treatment, on January 6, 1999, observing that "during this time, she made good progress despite her ongoing struggles with chronic depression" for which she should continue to seek counselling.

Assessments by Drs. Uro vitz and Bacal and by Janice Taylor:

The Insurer arranged for Ms. Mostajo to be assessed by Dr. E. P. Urovitz, an orthopaedic specialist, on December 12, 1998, Dr. Sergio Bacal, a psychologist, on December 1, 1998, and to undergo a Functional Capacity Evaluation conducted by Janice Taylor, on December 3 and 4, 1998.

Dr. Urovitz could not find "any major, consistently reproducible, objective signs of impairment;" rather, his examination demonstrated "numerous inconsistencies indicating probable somatization and psychoemotional overlay" indicative of "chronic pain behaviour and pain-focusing behaviour."¹⁶ Dr. Urovitz did not believe that Ms. Mostajo required further physical therapy.

Similarly, Dr. Bacal noted the chronic nature of Ms. Mostajo's psychological problems:

Based on her current complaints, the clinical findings on today's examination, and review of the history and the documentation on file, Mrs. Mostajo appears to be suffering from chronic symptoms of depression and post-traumatic anxiety, as indicated by her complaints of pervasive feelings of dysphoria, irritable mood, apathy, tension, mildly diminished cognitive efficiency, sleep disturbance, appetite loss, reduced libido, accident-related nightmares and apprehensiveness while driving or riding in a car.¹⁷

Dr. Bacal agreed with the extension of Ms. Mostajo's psychological therapy by an additional six sessions through to January 6, 1999 but no further. He wrote:

Although this extension of her treatment may not completely resolve her symptomology, it would provide the opportunity to complete the type of treatment which, in my experience, is indicated by the psychological sequelae of her car accident. Upon completion of her therapy, Mrs. Mostajo would benefit from further therapy for problems which appear to be not directly related to the accident in question, including suppressed or unacknowledged premorbid depression and comorbid psychosocial circumstances.¹⁸

The "premorbid depression" referred to is the depression Ms. Mostajo suffered following the murder of her sister, who lived in Spain, in 1997. Dr. Bacal noted that:

At the time, her family doctor placed her on psychotropic medication, and she also received short-term psychotherapy biweekly for one month. As a result of her emotional distress, she was off work for three weeks, and, subsequently, she continued to take her medications for two or three additional months.¹⁹

Another premorbid, i.e, pre-automobile-accident, factor Dr. Bacal referred to was the right shoulder strain Ms. Mostajo suffered in a workplace accident in April, 1998. He noted that just "as she readied herself to return to work, she was then involved in her motor vehicle accident in June 1998. "²⁰

The "comorbid psychosocial circumstances" referred to by Dr. Bacal were those mentioned by Dr. Jacqui Gajewski in her report of November 2, 1998, though Dr. Gajewski described them as premorbid:

I am aware that she is experiencing some interpersonal conflicts with other co-workers on the job presently, my feeling is that these issues are premorbid in nature and have nothing to do with the trauma of the accident per se. Nevertheless, these conflicts on-the-job are causing her some amount of distress and contributing to her ongoing depression.²¹

Dr. Bacal's opinion can, therefore, be summarized as follows: Ms. Mostajo recovered from her automobile-accident-related psychological injuries by January 6, 1999; any psychological treatment after that date was not required by those injuries but by Ms. Mostajo's premorbid or comorbid depression.

After conducting a Functional Capacity Evaluation, Janice Taylor expressed the following opinion:

Evaluation today demonstrated voluntary restriction in all areas and significantly less than expected strength and positional tolerance. There were numerous inconsistencies observed during the evaluation and pain-focussed behaviour was evident. Therefore, despite the fact that the client did not demonstrate the ability to meet the physical requirements of her job as a patient care assistant, the results are considered unreliable and submaximal.²²

Assessments by Drs. Wong and Lau and by Katrena Pankew:

Applicant's counsel arranged for Ms. Mostajo to be assessed by Dr. S. W. Joseph Wong, an orthopaedic specialist, Dr. Godwin K. Lau, a psychologist and to undergo a Functional Abilities Evaluation conducted by Katrena Pankew, on April 28, June 11 and 15 and June 3, 1999, respectively.

Dr. Wong disagreed with Dr. Urovitz's opinion that there was no objective sign of impairment. His examination confirmed that Ms. Mostajo had sustained injuries to the muscles and ligaments surrounding the cervical, thoracic and lumbar sections of her spine. He noted that the arthroscopic surgery had only reduced, and not eliminated, the pain in her right knee and he listed left tennis elbow, cervicogenic headaches and post-traumatic insomnia and depression as ongoing problems caused by the automobile accident. Dr. Wong did, however, agree with Dr. Urovitz that Ms. Mostajo had developed what he, Dr. Wong, called "chronic pain syndrome" and he expressed the opinion that it would be very difficult to alleviate the pain almost a year after the accident. He nevertheless endorsed Dr. Bacal's recommendation for further psychotherapy treatment but without distinguishing, as had Dr. Bacal, between treatment required by the accident and treatment required by Ms. Mostajo's other psychological problems.²³

Dr. Lau administered a battery of psychological tests and concluded that Ms. Mostajo was suffering from two chronic conditions: Chronic Adjustment Disorder with Depression and Anxiety Features (moderate to severe level) and Chronic Pain Disorder with Both Psychological Factors and a General Medical Condition.²⁴ As regards Dr. Bacal's distinction between treatment required by the accident and treatment required by Ms. Mostajo's other psychological problems, Dr. Lau expressed the following contrary opinion:

I support the notion that her pre-existing conditions, including the loss of her sister and WCB injury, are related to her current symptom presentation. However, I do not believe that after 6 additional psychotherapy sessions, Ms. M's need for further psychological treatment is no longer related to the car accident. In fact, it is extremely difficult to determine how much of her current psychological problems are related to the car accident as opposed to pre-existing factors. The best way to understand her situation is to consider the interactive effect of her pre-existing vulnerabilities and the trauma sustained from the car accident.²⁵

Dr. Lau concluded her report as follows:

I support that Ms. Mostajo receive psychological assistance to cope with chronic pain and depression/anxiety. She is currently receiving counseling from Dr. Karen Spivak. I support an additional course of 12 weekly sessions for Ms. Mostajo²⁶

After conducting a Functional Abilities Evaluation, Katrena Pankew expressed the following opinion:" ... Ms. Mostajo is not able to meet her critical job demands. However, Ms. Mostajo did not put forth a maximal effort since she was limited by pain in completing the assigned tasks."²⁷

The DAC reports:

The DAC assessments were conducted on July 29, 1999 by Chiropractor T. Blackmore, Physiotherapist I. Oliver, Orthopaedic Surgeon Dr. R. Zarnett and Psychologist R. Ladowsky-Brooks.²⁸ By that date, Ms. Mostajo had been receiving the treatment proposed by Dr. Marciniak since April 8, 1999 and the treatment proposed by Karen Spivak since May 3, 1999.

Ms. Mostajo presented the following symptoms on July 29, 1999: "neck pain, upper back pain, low back pain (with numbness in the right thigh and knee area; with right hip pain), right shoulder pain, right knee pain, headaches, numbness in both arms/elbows/hands, pain in the left thumb, nervous and upset when driving, dizziness, 'blackouts', sleep disturbance, nightmares, behaviour and personality changes."

Chiropractor T. Blackmore mentioned Dr. Wong's report and noted at least one indication of "symptom magnification or pain-focussed behaviour" but he/she did not comment on Dr. Wong's use of the term "chronic pain syndrome". With respect to chiropractic care, he/she concluded that "Ms. Mostajo has achieved maximum therapeutic benefit". He/she did not respond specifically to SMRC's original proposal that "active rehabilitation with chiropractic care and passive modalities" was intended to achieve the treatment plan goal of "pain control."

Likewise, Physiotherapist I. Oliver concluded that SMRC's treatment plan for active rehabilitation "is not reasonable and necessary for the soft tissue injuries sustained in the motor vehicle accident" but, again, without responding specifically to the original proposal that such treatment was intended to achieve the treatment plan goal of "pain control." The Physiotherapist's report noted that Ms. Mostajo rated the pain in her head, neck, right shoulder and right knee, on a scale of 0 to 10, at 8, and the pain in her low back and right hip, at 5.

Dr. Zarnett's report did not mention the reports of Dr. Urovitz or Dr. Wong, though both were made available to him, and did not, therefore, comment on their references to Ms. Mostajo's chronic pain "behaviour" or "syndrome". Dr. Zarnett acknowledged that Ms. Mostajo exhibited features of "pain magnification" and that she was "pain focussed" but he concluded:

The injuries to her neck, shoulder and low back are all soft tissue in nature, and given that the accident was over one year ago, one would have expected resolution of her symptoms at this point in time. As such, I do not feel she would benefit from further formal therapy for these injuries.

Psychologist R. Ladowsky-Brooks' report states:

A file review suggests that she has had a reasonable trial of psychotherapy which lead to a reduction in symptoms of anxiety, yet symptoms of depression persist. Further psychological intervention is not recommended at this time.

It would not appear that this Psychologist was aware of Dr. Lau's report; it is not listed in the documents made available to the DAC and no reference is made to it. However, the Psychologist endorsed Dr. Bacal's opinion that "there are many contributing factors to [Ms. Mostajo's] affective disorder, which appears to have its roots in her pre-accident personal history." Indeed, this Psychologist added to Dr. Bacal's list of "premorbid" factors contributing to Ms. Mostajo's ongoing depression, noting that Ms. Mostajo's former husband had been abusive and that she had separated from him and her three children in 1982, only reuniting with her children more than ten years later. R. Ladowsky-Brooks concluded his/her report as follows:

The history given at interview suggested that Ms. Mostajo has been abused at times in her life (for example, in her marriage) but that she managed to suppress any sadness that might have resulted from such abuses until now. The accident may have triggered her current emotional condition in that it was probably perceived as another physical violation.

Ms. Mostajo should continue to be monitored by her family physician and should continue to take anti-depressant medication. She is religious, attending church every Sunday, and she may be better served by seeking spiritual renewal in weekly meetings with her Priest than by participating in more psychotherapy at this time. If she does seek psychotherapy, her problems must be viewed as pre-morbid, and she will require a long course of therapy in order to start addressing pre-accident issues regarding family relationships and early life events.

Analysis:

In my opinion, the evidence is preponderant that Ms. Mostajo's accident of June 5, 1998 triggered or contributed in a material way to her developing a pattern of chronic, pain-focussed behaviour, or a chronic pain syndrome, and that this behaviour or syndrome explains her symptoms in the seven month period prior to and during her treatment at SMRC. I accept Dr. Lau's opinion that "the best way to understand her situation is to consider the interactive effect of her pre-existing vulnerabilities and the trauma sustained from the car accident". The presence of various "pre-existing vulnerabilities" does not eliminate the car accident as a material contributor to her condition. Many of the pain sites identified by Ms. Mostajo correspond to parts of the body where she sustained soft tissue injuries.

I further find that the treatment proposed by SMRC was reasonable and necessary. It was specifically intended to help Ms. Mostajo control pain at the sites of her accident injuries and to generally improve her pain management skills. Drs. Urovitz, Wong and Lau all remarked upon the chronic nature of Ms. Mostajo's pain condition. This was, in other words, a condition of potentially indefinite duration. In my view, it was reasonable and necessary for Ms. Mostajo to undergo treatment aimed at shortening the duration of this condition, even though earlier treatment at ACT Health Group Corporation had not returned Ms. Mostajo to her pre-accident health and even though further treatment at SMRC was not guaranteed to do so either. While I agree that an insurer should not be required to finance repeat treatment which cannot be reasonably expected to benefit the insured person any further, there is no evidence to support such a conclusion in this case. The DAC references to the achievement of maximum benefit and the lack of further benefit were not made in relation to the treatment proposed and provided by SMRC; they were made in relation to treatment beyond that already proposed and provided by SMRC.

(c) Did Ms. Mostajo follow the correct procedure for claiming treatment expenses?

Subsections 38(1) and (2) of the Schedule contemplate that treatment plans will be submitted prior to treatment expenses being incurred, though subsections (17) and (18) allow for exceptions. These subsections read as follows:

38.(1) Before expenses in respect of which a medical or rehabilitation benefit may be payable are incurred, the insured person shall submit an application for the benefit to the insurer.

(2) The application must include a treatment plan.

(17) If an insured person incurs expenses in respect of which a medical or rehabilitation benefit may be payable without complying with subsection (1), (2) or (3), the insured person shall submit to the insurer an application for payment of the expenses that complies with subsections (2) and (3) within 30 days after incurring the expenses.

(18) Despite subsection (1), if the insurer receives an application under subsection (17), the insurer shall, within 30 days after receiving the application,

(a) pay the expenses; or

(b) give the insured person notice of its reasons for not paying the expenses.

The SMRC treatment plans dated April 23, 1999, set out above, covered treatment for six to eight weeks. However, treatment was actually provided, and is being claimed, up to July 26, 1999. Neither the Applicant nor Dr. Marciniak, who also testified at the hearing, provided any explanation why no further treatment plans were submitted to the Insurer. On these facts, I accept the submission of Insurer's counsel that Ms. Mostajo is not entitled to recover the cost of treatment for which treatment plans were not submitted to the Insurer. Dealing specifically with an argument made by counsel for the Applicant, I find that where no treatment plan has been submitted, an insurer cannot be obliged, under section 38(12) of the Schedule, to state its reasons for not agreeing to pay for the goods and services contemplated by a treatment plan.

However, I reject Insurer's counsel's submission that Ms. Mostajo is not entitled to recover the cost of treatment for which treatment plans were submitted to the Insurer but not to her employer's insurance carrier, Metropolitan Life. At no time prior to the hearing did the Insurer identify the availability of collateral benefits as a reason for its denial, though it was made fully aware of the existence of the employer's insurance plan by October 15, 1998 at the latest.²⁹The evidence before me does not, in any event, establish that collateral benefits were available.

I conclude that Ms. Mostajo is entitled to the cost of the treatment for which treatment plans were submitted to the Insurer and the interest which accrued thereon. The parties will advise me in writing within 30 days of this decision in the event they cannot agree on the amount payable by the Insurer.

(d) Is Ms. Mostajo entitled to a special award in connection with treatment expenses:

SMRC invoices³⁰ confirm that the treatment proposed by Dr. Marciniak started in early April 1999, two weeks before his treatment plan was written. The treatment proposed by Karen Spivak started in early May, 1999, two weeks before her treatment plan was received by the Insurer on May 18, 1999.³¹ This meant that even if the Insurer had arranged a DAC assessment the day the treatment plans were written, April 23, 1999, that assessment would still have taken place after, not before, some or all of the treatment proposed in the treatment plans had been provided. In fact, the Insurer denied the expenses by Explanation of Benefits dated May 18, 1999³²; Ms. Mostajo appears to have signed the OCF-14, permitting disclosure of Health Information of the DAC, on May 31, 1999, the request for assessment was received by the DAC from the Insurer on June 21, 1999³³ and Ms. Mostaj o was then examined by the DAC on July 29, 1999.

This sequence of events complied with the procedure contemplated by subsections 38(17) and (18) of the Schedule but also made it more difficult for the DAC assessors to answer the questions they were required to answer under section 43(6)(a) of the Schedule. That section, with my emphasis added, reads as follows:

(6) If the assessment is required under section 38 in respect of a claim for a medical or rehabilitation benefit, the report shall include,

(a) a statement of whether, in the opinion of the person or persons who conducted the assessment, an expense in respect of the benefit is [emphasis added] reasonable and necessary for the insured person's treatment or rehabilitation; and

When the treatment in question has already been provided, the DAC assessors can no longer answer the question whether it "is" reasonable and necessary. The best they can do is answer the question whether it "was" reasonable and necessary, a question which may be difficult to answer from a post-treatment point of view when the pre-treatment condition may no longer be ascertainable.

Perhaps because of this difficulty, the DAC assessors in this case chose not to answer the relevant question but another question, namely whether additional treatment, beyond that already proposed and provided by SMRC, was reasonable and necessary. The Insurer then relied, mistakenly but understandably, on that answer as though it were responsive to the relevant question which, in fact, it should have been.

In these circumstances, I am not prepared to find that the Insurer unreasonably withheld or delayed the treatment expenses in question.

Issue 2: Housekeeping and home maintenance expenses:

In accordance with section 22 of the Schedule, I must determine whether Ms. Mostajo sustained an impairment from the accident of June 5, 1998 which resulted in "a substantial inability to perform the housekeeping and home maintenance services that ...she normally performed before the accident."

Ms. Mostajo testified that after the accident, she received housekeeping and home maintenance assistance from Milagrosa Bautista, Janice Calixtro and Gregory Seaborn. She submitted to the Insurer, and into evidence at the hearing, documents purportedly signed by these people setting out the tasks they had performed on her behalf during the periods June 5, 1998 to January 27, 1999 and March 19 to May 24, 1999.³⁴ She also relied upon statements by Drs. Portugal, Wong and Lau³⁵ that she required such assistance.

I agree with Ms. Mostajo's counsel that in determining her pre-accident housekeeping and home maintenance activities, I should ignore the period between her workplace accident on April 1998 and her automobile accident in June 1998. That period would not fairly reflect "the housekeeping and home maintenance services that ...she normally performed before the accident". However, I cannot ignore the following weaknesses and inconsistencies in the evidence submitted in support of Ms. Mostajo's claim for housekeeping and home maintenance expenses.

First, none of the three people who allegedly provided housekeeping and home maintenance services testified at the hearing. I was informed that the first two were out of the country and that the third could not be located. This may well have been true but it meant that the documentary evidence submitted in support of Ms. Mostajo's claim remained uncorroborated by any of the people who supplied the services. Nor was Ms. Mostajo able to provide much additional information on cross-examination. Second, while garbage removal, snow shovelling and aquarium cleaning are listed in the documentary evidence, Ms. Mostajo admitted on cross-examination that these tasks were performed by her son, Ian, before her workplace accident. Third, at the Functional Capacity Evaluation conducted in December 1998, Ms. Mostajo admitted that she could do at least some of the tasks listed in the documentary evidence.³⁶ Fourth, in a letter dated November 3, 1998 to Ms. Mostajo's counsel, the Insurer's Field Adjuster, Tina Karzis wrote: "during our meeting of July 28, 1998 at your offices, Ms. Mostajo stated that she receives no help with housekeeping."³⁷ Ms. Mostajo denied making this statement but she also admitted on more than one occasion during her cross-examination that she had suffered memory losses.

Moreover, all of the medical opinions stating that Ms. Mostajo required housekeeping and home maintenance assistance were expressed well after her return to work in September 1998. This raises the question of how Ms. Mostajo was able to return to work in September 1998, at least intermittently, but was not able to return to any of the household tasks listed in the documentary evidence until May 24, 1999. Ms. Mostajo attempted to answer this question by testifying that she only returned to part-time, modified duties which did not involve lifting, bending, squatting, pulling or climbing ladders. Nevertheless, she admitted on cross-examination that these modified duties involved changing and cleaning beds and helping others handle garbage and dirty linen, duties which resemble some of the tasks listed in the documentary evidence. More significantly, Ms. Mostajo provided no reason to doubt that in June 1999 she gave Dr. Lau the following description of her work duties just prior to the onset of her right knee problems on November 23, 1998:

...she said it was not really modified work. Her work requires much physical labour. Her duties include lifting patients, giving them bed bath, taking them to the shower and the bathroom, helping them change or move, changing patients' diapers, and transferring them to different rooms or different floors.

I appreciate that November 23, 1998 was the first day of a period during which Ms. Mostajo was unable to work and I acknowledge that there was at least one other period prior to May 24, 1999 when Ms. Mostajo was unable to work, that being the period commencing March 19, 1999 when she underwent arthroscopic surgery. However, the evidence confirms that Ms. Mostajo worked through at least some of the two periods for which she claims housekeeping and home maintenance expenses. I fail to understand how Ms. Mostajo could have been able to discharge her "modified" duties at work during these periods but not her household duties.

I conclude that the cumulative effect of these weaknesses and inconsistencies defeats Ms. Mostajo's claim for housekeeping and home maintenance expenses. I want to emphasize, however, that this conclusion does not constitute a finding that Ms. Mostajo deliberately misrepresented her ability to do housework or home maintenance. While her return to work creates yet another reason to doubt her claim for housekeeping and home maintenance, it also confirms her efforts to return to pre-accident activities, even though these efforts were perhaps "submaximal" due to her chronic pain syndrome. My rejection of Ms. Mostajo's claim for housekeeping and home maintenance expenses only constitutes a finding that the evidence submitted to support it does not meet the required standard of proof, that is, the balance of probabilities.

Issue 3: The cost of the psychological examination and report of Dr. Godwin Lau:

Dr. Lau's psychological assessment was requested by Ms. Mostajo's counsel and conducted on June 11 and 15, 1999.³⁸ The cost of the assessment and the report was $1,250.³⁹ By Explanation of Benefits dated August 27, 1999, the Insurer refused to pay anything towards this amount for the following reason: "not a reasonable or necessary expense. The Insured attended a psychological assessment at West Park Hospital [the DAC] July 29, 1999. This is a duplicate expense."⁴⁰

This dispute must be resolved in accordance with section 24(1)(a) of the Schedule and a recent interpretation of that section by a Director's Delegate in the case of Tsimidis and Liberty Mutual Insurance Company.⁴¹ That decision indicates that I should consider three factors: whether it was reasonable in the circumstances for Ms. Mostajo's counsel to have referred Ms. Mostajo for the assessment, whether Dr. Lau's report was ultimately useful or helpful and whether the cost charged was justified having regard to the time, care and expertise involved in conducting the assessment and preparing the report. The Director's Delegate wrote:

Some of the expenses contemplated by s. 24 relate to reports requested by the Insurer such as certificates and treatment plans, but many of the assessments will be requested by the insured person or his advisors. In a case such as this one where the report was prepared at the request of a family doctor to assist him in the management of his patient, the question of its reasonableness does not turn on whether it is useful or even comprehensible to the insurer. Provided that it was appropriate for the family doctor to order the report, and the expenses associated with the report are reasonable, the insurer is bound to pay the fee irrespective of its usefulness to the insurer.

Since my earlier findings confirm that Dr. Lau's report was useful or helpful to the Applicant in this proceeding and since the Insurer did not challenge Dr. Lau's account in relation to the time, care and expertise involved in conducting the assessment and preparing the report, the governing factor in this case is whether it was reasonable in the circumstances for Ms. Mostajo's counsel to have referred her for assessment by Dr. Lau. In considering this factor, I note the following additional comments by the Director's Delegate in Tsimidis:

Liberty's submission [that since it was being asked to pay for the assessment, it was entitled to expect a report it could make use of] also underscores the danger in comparing too closely an IME [an Insurer's Medical Examination under section 42 of the Schedule] and a s. 24 assessment. If the same type of testing is being done, there is obvious merit in comparing the assessment procedures and reports, but the respective audiences and purposes may be different, and this should not be overlooked.

I do not understand these comments to mean that an assessment at the Applicant's request is unreasonably duplicative of an assessment of the same type at the Insurer's request. On the contrary, these comments recognize the "obvious merit in comparing the assessment procedures and reports," having regard for their different "audiences and purposes."

Similar comments can be made in this case in relation to the psychological assessment conducted by Dr. Lau at the request of Applicant's counsel and the psychological assessment conducted by the DAC. The resulting reports may have addressed similar issues but they were not written, in the first instance, for the same audience or purpose. In reaching my decision, I have analysed and compared not only these two psychological reports but the psychological report of Dr. Bacal, requested by the Insurer. In my view, all these reports were important for the adjudicative process; I would describe none of them as "duplicative" of any other. Given that both assessments took place prior to the DAC, I find that it was just as reasonable and appropriate for Applicant's counsel to have Ms. Mostajo assessed by Dr. Lau as it was for the Insurer to have her assessed by Dr. Bacal.

The Insurer is, therefore, required to pay Dr. Lau's report in its entirety together with the interest that has accrued thereon.

The Insurer is not, however, required to pay a special award in relation to this claim. The Tsimidis decision was not released until August 2000, a year after the Insurer's refusal to pay Dr. Lau's account. This decision re-stated the law in a way which, in my opinion, made the Insurer's position untenable. The Insurer relied on the decision in M.D. and Halifax Insurance Company,⁴² issued only a month before the Tsimidis decision. While distinguishable because it dealt with post-DAC assessments, the M.D. case provided at least some authority for the Insurer's position.

EXPENSES:

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

January 16, 2001

David Leitch Arbitrator

Date