Neutral Citation: 2002 ONFSCDRS 80

FSCO A00-000206

BETWEEN:

S.D.

Applicant

and

TTC INSURANCE COMPANY LIMITED

Insurer

REASONS FOR DECISION

Before:

Susan Sapin

Heard:

February 5,6 and 7, May 11, September 12,13 and 14, 2001, at the offices of the Financial Services Commission of Ontario in Toronto.

Written submissions were received November 2001.

Appearances:

Annelis Thorsen for Mrs. S.D.

Jeffrey A. Gauze for TTC Insurance Company Limited

The Applicant, Mrs. S.D., was injured while riding in a city bus on August 15, 1997. She applied for and received statutory accident benefits from TTC Insurance Company Limited ("TTC"), payable under the Schedule.¹ TTC then terminated medical benefits and refused to pay a caregiver or non-earner benefit. The parties were unable to resolve their disputes through mediation, and Mrs. D applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended. Due to the personal nature of some of the evidence, the decision has been anonymized.

The issues in this hearing are:

Is Mrs. D entitled to physiotherapy and psychological treatment claimed pursuant to section 14 of the Schedule?
Is Mrs. D entitled to the cost of examinations pursuant to section 24 of the Schedule?
Is Mrs. D disentitled to medical benefits under section 14 and assessment expenses under section 24 because she failed to make herself reasonably available for a medical rehabilitation Designated Assessment Centre (Med/Rehab DAC) assessment, pursuant to section 43 of the Schedule?
Is Mrs. D entitled to payment for housekeeping and home maintenance services from December 19, 1997 to August 15, 1999 pursuant to section 22 of the Schedule?
Is either party liable to pay the arbitration expenses of the other under section 282(11) of the Insurance Act, R.S.O. 1990, c.I.8?
Is TTC entitled to the return of its $3,000 assessment pursuant to section 282(11.2) of the Insurance Act on the basis that Mrs. D commenced an arbitration that was frivolous, vexatious or an abuse of process?

Mrs. D is entitled to the physiotherapy treatment claimed and to the psychological treatment as per the treatment plan of Dr. Peter Price.
Mrs. D is entitled to the cost of the medical assessments claimed pursuant to section 24 of the Schedule.
Mrs. D is not disentitled to medical or assessment expenses pursuant to section 43 of the Schedule.
Mrs. D is entitled to housekeeping expenses of $2,034 from December 19, 1997 to August 15, 1999 pursuant to section 22 of the Schedule.
Mrs. D is entitled to her arbitration expenses in accordance with this decision.
Mrs. D did not commence an arbitration that was frivolous, vexatious or an abuse of process, and TTC is not entitled to the return of its $3,000 assessment.

Preliminary matters:

Claims withdrawn

Mrs. D withdrew her claim for caregiver benefits at the pre-hearing of this matter. On the first day of the arbitration hearing, she withdrew her claim for non-earner benefits.

Late filing of medical report on behalf of the Applicant

On January 29, 2001, three days prior to the arbitration hearing, the Applicant served on the Insurer an expert medical report prepared by Dr. Herbert Kaye, a neuropsychologist who assessed Mrs. D on January 12 and 13, 2001. Rule 36 of the Dispute Resolution Practice Code - Third Edition (the "Code")² provides that expert reports be served no less than 10 days prior to the start of the hearing, subject to the discretion of the arbitrator. TTC objected, arguing that it was unfairly prejudiced because it had neither the opportunity to have one of its own medical experts review and respond to the report, which it claimed raised new issues, nor to have Mrs. D assessed by one of its own experts prior to the arbitration. The last Insurer's Examinations (IEs) conducted on behalf of TTC were in early January 1998. A multidisciplinary Med/rehab DAC was conducted in June 1998.

The Applicant argued that Dr. Kaye's report did not in fact raise new issues, but was a follow-up to her complaints of memory loss and confusion which she attributed to the mild head injury she sustained in the accident, and to an August 2000 report by Dr. Lorne Switzman, a psychologist who recommended that a neuropsychological report was necessary to determine whether Mrs. D's cognitive and emotional problems were the result of the accident, and what treatment was necessary. The Applicant pointed out that evidence of her complaints of memory loss and confusion is contained in the reports of the IE and DAC doctors, that TTC had ample opportunity to have her assessed by its own neuropsychologist since August 1997, and that its failure to do so should not now either delay the hearing or result in an opportunity to obtain what would essentially be a defence medical.

Having reviewed Dr. Kaye's report and considered the arguments of the parties, I admitted the report, with conditions. The report was relevant to the issues in dispute, and was the type of assessment that was apparently overdue. Furthermore, any prejudice to TTC could be dealt with by means other than excluding the report, such as by considering the weight to be given to an assessment conducted four years after an accident in which the possible sequelae of a head injury was an issue, a situation where contemporaneous assessments, of which TTC had many, are of particular importance.

For several reasons, I declined to allow TTC an opportunity to have Mrs. D assessed in response to Dr. Kaye's report. Firstly, TTC was well aware of Mrs. D's claims of emotional and cognitive impairment, which are well documented in the previous medical reports of both parties. One of the issues in dispute is a claim for psychological treatment to address these complaints, dating from March 1998. TTC has been aware of this issue, or it certainly should have been, for quite some time, and had ample opportunity to have Mrs. D assessed, as is its right, by its own experts in the four years since the accident. Secondly, it was not clear to me how much assistance yet another assessment, three and a half years after treatment was recommended, would be in determining whether treatment was reasonable and necessary in 1998. Thirdly, I was reluctant to further delay or add to the cost of proceedings which had already been much delayed, simply to allow TTC to do what it had every opportunity to do earlier. Finally, in my view, an adequate and cost-effective remedy to TTC's claim of prejudice was to require the Applicant to produce Dr. Kaye for cross-examination, and to allow TTC to have Dr. Kaye's report reviewed by its own expert, should it feel this was necessary, who would also have an opportunity to testify. I also agreed to consider the late introduction of Dr. Kaye's report when dealing with costs.

For similar reasons, and on similar conditions, I agreed to allow the Applicant to introduce two reports of Dr. Ogilvie-Harris, dated September 26, 2000 and January 16, 2001, over TTC's objections.

BACKGROUND

S.D. was born in Jamaica on November 19, 1927, the fourth of 13 children. She did not attend school because she was required to look after her younger siblings. A religious woman, she believes she learned to read the bible on her own. As an adult, she worked as a fishmonger in Jamaica prior to arriving in Canada in 1980 at the age of 53 to work as a nanny. At the time of the accident she was a homemaker living on a pension with her husband of 32 years, G.M., whom she has known for 46 years. She also looked after her grandson "K," who lived with her and her husband during the week and who would have been about four years old at the time.³

Mrs. D was three months' short of her 70th birthday when the TTC bus in which she was a passenger stopped suddenly, throwing her to the ground and causing her to strike her head. Ambulance records indicate Mrs. D was unconscious for five minutes prior to the arrival of the ambulance, which took her to the emergency department at Sunnybrook Hospital. The hospital records indicate her Glasgow Coma Scale (GCS), a rating system used by medical professionals as a measure of brain injury, had returned to normal by the time she was admitted to hospital. This is a significant point which will be discussed later. Mrs. D was treated and released late that evening. TTC does not dispute Sunnybrook's diagnosis of a minor closed head injury and soft tissue injuries.

Mrs. D attended at the office of Dr. Gary J. Mansfield, her family doctor since October 1996, when it reopened after the weekend. She was seen by a locum, who took special note of her complaints of burning pain in the low back/right buttock area, which he found to be "exquisitely tender," and bruising to her chest. A week later, he noted that she complained of dizziness and headaches since the accident, and that she was "very emotionally upset" over the accident.

Dr. Mansfield saw Mrs. D himself on September 2, 16 days after the accident. He prescribed pain medication and completed a Treatment Plan dated September 27, 1997, jointly with ACT Health Group, the treatment provider, which recommended eight weeks of physiotherapy three times per week to treat cervical and lumbar strain, headaches, and difficulty with activities of daily living (ADLs). The short and long term goals of the treatment were to decrease headaches, increase neck and low back range of motion, improve gait and mobility and increase functional mobility, strength and endurance for ADLs. The total cost of the treatment was $2,320.

TTC paid for exactly eight weeks of treatment from September 5 up to and including November 3, 1997, at a total cost of $2,565.⁴ ACT's invoice indicates it treated Mrs. D until November 14, 1997, at an additional cost of $650, which Mrs. D now seeks to recover.

In a discharge report dated November 10, 1997, ACT stated that Mrs. D was treated for 10 weeks, provided with pamphlets and instructions, and released to a home exercise program, having achieved almost full neck and back range of motion and a substantial decrease in pain, but with ongoing complaints of headache and generalized weakness. However, in his submissions, counsel for TTC pointed out that an unsigned version of the discharge report, also dated November 10, 1997, recommended that the program continue, with exercises to be progressively increased as tolerated.⁵

In December 1997, TTC referred Mrs. D for an Insurer's examination (IE) with Dr. F.K. Deegan, a surgeon, and an in-home functional abilities evaluation (FAE). In early January 1998, Mrs. D attended a psychiatric IE with Dr. Allan Rosenbluth and a neurological IE with Dr. Neville Bayer. As a result of these four assessments, TTC concluded that no further treatment was necessary.

Mrs. D returned to Dr. Mansfield on December 18, 1997 and again on January 6, 13, 21 and February 4, 1998, complaining of headaches and low back and leg pain. Dr. Mansfield felt additional therapy was warranted and recommended a full rehabilitation program. Pursuant to his referral, ACT submitted a second treatment plan dated January 22, 1998, for a "full rehabilitation program" of pain control modalities and an active exercise programme of 8 sessions over 4 weeks.⁶ TTC refused to pay for this treatment and advised Mrs. D that she had the right to attend a Med/rehab DAC assessment.⁷ The assessment took place in May and June 1998.

In the meantime, Mrs. D returned to Dr. Mansfield in March 1998, still complaining of pain and headaches as well as right arm pain. He prescribed pain medication and, in April, recommended physiotherapy for the third time.⁸ TTC refused to pay.

In addition, treatment plans for psychological therapy for emotional difficulties arising from the accident and chronic pain management were submitted on behalf of Mrs. D (and independently of each other) by two psychologists, Dr. Joanna Mitsopulos and Dr. Jeffrey L. Price in February and March of 1998, respectively. TTC refused to pay for this treatment as well. As a result of the multidisciplinary Med/rehab DAC assessment conducted by a neurosurgeon, a psychiatrist and an occupational therapist in May and June 1998, TTC stood by its refusal to pay for any more treatment of any kind.

Dr. Mansfield again recommended physiotherapy and submitted a Treatment Plan in February 1999,⁹ for treatment at Lawrence-Weston Rehabilitation. This facility did not provide treatment. Instead, Mrs. D received 74 OHIP-funded physiotherapy treatments from Professional Physiotherapy Centre, between February 23 and November 8, 1999.¹⁰

Mrs. D continues to complain of lower back pain that radiates to her legs, headaches, emotional difficulties, and cognitive difficulties such as memory loss and confusion. She feels that all of these symptoms, which she attributes to the accident, have led to a diminished ability to carry out her activities of daily living.

Entitlement to medical benefits:

Pursuant to section 14 of the Schedule, Mrs. D is entitled to all reasonable and necessary medical expenses if she establishes, on a balance of probabilities, that the accident was a significant or material contributing factor to the impairments for which she is claiming physiotherapy and psychological therapy. The Schedule defines impairment as "a loss or abnormality of psychological, physiological or anatomical structure or function." This would include a loss of mobility and reduced activity due to pain. It is also well established that pain relief is in and of itself a legitimate goal of treatment, even where such treatment might have no significant impact on an insured's ongoing recovery.¹¹

TTC disputed that the physiotherapy and psychological treatment claimed was necessary because of the accident. It attributed Mrs. D's post-accident complaints of pain and emotional and cognitive difficulties to her significant pre-existing medical conditions and to her life circumstances both before and after the accident. It argued that the medical evidence indicates that Mrs. D recovered from the physical injuries and the mild head injury she received in the accident by November 1997, when her first course of physiotherapy ended. TTC further argued that its medical experts found no evidence of cognitive or significant emotional symptoms in early 1998, and concluded there were no sequelae from the head injury. It submitted that this conclusion was confirmed by the multidisciplinary assessment of Mrs. D's medical and rehabilitation treatment needs conducted by a Med/rehab DAC in June 1998.

To be entitled to physiotherapy and psychological treatment beyond November 8, 1997, therefore, Mrs. D must meet a three-fold test. Firstly, did she suffer a physical or psychological impairment at that time? Secondly, if so, was the accident a significant or material cause of that impairment? Thirdly, was the particular treatment claimed reasonable and necessary in the circumstances? Based on the evidence below, I find that Mrs. D meets this test.

EVIDENCE AND FINDINGS:

Testimony of Mrs. D

Mrs. D testified that, at the time of the accident, her activities of daily living consisted of caring for her four-year old grandson, "K," and housekeeping chores such as laundry, grocery shopping, meal preparation and housecleaning, and attending church on Sunday. In addition, she would buy products that she would pack into large barrels and take to Jamaica two or three times a year to sell, and so raise money for her many grandchildren who live there. For six months after the accident, "K" went back to live with his mother because Mrs. D could not look after him. Mrs. D testified that she was unable to resume her full range of pre-accident activities and that her husband must now cook, clean and do laundry with her son. She testified that, just after the accident, her husband had to bathe and dress her, and look after the apartment on his own. She became fearful of riding on the bus and is no longer able to manage trips to Jamaica on her own since the accident. She has not returned to Jamaica since.

Mrs. D described cognitive difficulties such as forgetting to take her money with her when she goes shopping and difficulty making change. She stated that her hands tremble and that she cannot hold anything. Mrs. D became tearful during parts of her testimony. Mrs. D continues to complain of lower back pain that radiates to her legs, headaches, emotional difficulties, disturbed sleep, tiredness, dizziness and cognitive difficulties such as memory loss and confusion.

Mrs. D testified that she felt the physiotherapy she received after the accident was helping her to get better and feel "OK," when it was stopped because TTC refused to pay. With respect to the home exercises she was given to do upon her discharge from ACT, she stated that she was unable to read the booklet, that the exercises were for young people, that she tried them about three times but gave up because they hurt too much.

I did not find Mrs. D's testimony to be reliable on some points. Her persistent denial on cross-examination of any pre-accident problems related to heart trouble, dizziness, back, shoulder, leg, and wrist pain and/or numbness and uncontrolled diabetes in the face of a well-documented medical history to the contrary was not helpful to her case.

Her testimony also varied from statements she apparently made to the various physicians who assessed her. For example, contrary to her testimony, Dr. Frank Deegan noted on December 18, 1997 that she performed her home exercises once a day "for the better part of 30 minutes." However, on January 14, 1998, Dr. Neville Bayer, a neurologist who assessed her on behalf of the Insurer, reported that she told him that she could not manage the home exercises. Despite the inconsistencies in her testimony, I find Mrs. D's pain complaints and her emotional distress to be genuine. She impressed me as a genuinely religious woman of simple beliefs, with a strong sense of duty, particularly to her children and grandchildren. Her testimony showed that she was more likely to deceive herself by minimizing her pre-accident health problems, than to knowingly set out to deceive others. I find the evidence presented at the hearing supports this conclusion. I did not find the evidence presented by TTC in support of its allegations that Mrs. D was not credible to be either sound or persuasive, or to undermine her claim that she needed treatment.

Surveillance

TTC argued that surveillance conducted on October 20, 22, and 23 1997, two months after the accident and while she was still attending physiotherapy, suggests that Mrs. D was more active at that time than she claimed to be when describing her limitations to some of the physicians who assessed her. It asserts that the videotape undermines Mrs. D's credibility. The videotape shows Mrs. D stoically waiting at numerous windswept bus stops and travelling alone on TTC buses to attend physiotherapy, an appointment with her eye doctor and to do some shopping in a butcher/deli.

I do not find that the surveillance videotape supports the Insurer's assertion that Mrs. D misrepresented her willingness to take the bus, because she testified that, although she was fearful of taking the bus after the accident unless her husband went with her, she gradually "got over it." According to her husband's testimony, if he was not able to accompany her, she had to manage by herself, and did not complain to him about having to do so. Furthermore, Mrs. D was attending physiotherapy during this period, which both she and her husband testified helped her to continue her activities. I find it reasonable that she would be more functional than she was later, when she was without benefit of any therapy. As well, at the time the surveillance was taken, Mrs. D was not burdened with the full-time care of a preschool child as before the accident, and presumably had more time and energy to take care of herself. I do not find the surveillance evidence to be inconsistent with Mrs. D's testimony.

In fact, the contrary is true. I note that in this videotape, Mrs. D moved at a deliberate, measured pace, that she got on and off the bus carefully and slowly using her cane and the bus handles for support, and that she appeared at times to walk with a slight limp or hobble. This limp was particularly noticeable when she attempted to quicken her pace so as not to miss a bus, or to cross a street, or when she carried her cane in her left hand, rather than her right, while approaching a bus. I note that the shopping carried in a plastic bag appeared to be one or at most two items that did not appear to be very heavy. Contrary to some of the assessors who viewed the videotape, I would not characterize this as evidence that she was able to "do her groceries" or that she had resumed most of her activities of normal living. I find that the most that can be concluded from the surveillance itself was that, at the time it was taken, Mrs. D had progressed sufficiently to take the bus to appointments (including physiotherapy) and to carry out small errands, which is consistent with her testimony and that of her family doctor that her physiotherapy helped her remain active.

The more troubling aspect raised by the surveillance evidence is the fact that it was submitted to several medical experts who examined Mrs. D on behalf of TTC. They reviewed the surveillance tape, commented on it in their reports, and it clearly influenced their conclusions that her complaints were unfounded. Yet, they did not disclose this evidence to Mrs. D, nor did they provide her an opportunity to discuss it with them. In fact, Mrs. D viewed the tape for the first time at the hearing.

Such practice is patently unfair and has never been permitted at the Commission. The Director's Delegate has stated:

...the Practice Code, together with arbitration and appeal decisions, have restricted an insurer's ability to rely on surveillance evidence without disclosing it. I would expect arbitrators to resist any attempt by an insurer to enhance the evidence of its experts by showing them surveillance evidence, while not making it reasonably available for review by the insured person's experts.¹²

On that basis alone, I would have excluded the surveillance videotape, as well as any expert opinion that was largely based upon it. However, I decided to admit the tape in this case, as the end result was not prejudicial to Mrs. D's case, and afforded some insight into the handling of her claim by the Insurer.¹³

Testimony of G.M., Mrs. D' husband

Mrs. D's husband, G.M., testified that his wife had changed considerably since the accident, that she terminated sexual relations, and that she no longer cooked for him, did laundry or cleaned house, all chores he now does himself. He stated that she complained continually about pain, and that the worst part was the change in their interpersonal relationship, that she was "not in her right mind, she is very ignorant and crass," that she was confused and forgetful, and that she never behaved like that before the accident. He denied that she complained about headaches or had been hospitalized prior to the accident but stated that she did suffer dizziness because of her diabetes. He confirmed that the therapy his wife received helped her cope with the pain, which is worse now. He stated that a second grandson, a 15-years-old, and an elder brother of the younger "K," had been living with them for the past three months, as a condition of his bail release.

Testimony of Mrs. D's daughter

Mrs. D's daughter, S, who is 36 years old, testified that her mother had changed since the accident, that she no longer did laundry or shopping or cooked for her, that she complained constantly of pain, mostly in her head and back, and that her memory was poor. Despite this, she testified that her son "K" continued to live with her mother. S stated that she looked after "K" herself on weekends and holidays during the school year.

The evidence of Mrs. D's family supports her testimony that she suffered pain and diminished function after the accident, but it was not clear from their evidence, at what point after the accident Mrs. D's marked decline in function became apparent. More precise information would have been helpful, as the medical evidence indicates that, although Mrs. D's mental and physical function was much deteriorated by the time of the hearing, she had actually improved gradually in the first six months after the accident.

Although Mrs. D's pain complaints have been constant throughout, medical records indicate that she appeared to cope better at some times rather than others. Her family doctor noted emotional complaints after the end of therapy in November 1997 but did not consider them significant enough to warrant treatment until the spring of 1998. Mrs. D's pattern of gradual recovery followed by deterioration suggests that factors unrelated to the accident were at work. One such factor, missing from the evidence of Mrs. D and her family, is that, between September 1999 and at least August 2000, Mrs. D assumed the full-time care for not one but two small grandsons, "K, aged 6 and "T," aged 4, who both lived with her.¹⁴ I find the fact that her family would leave the boys in Mrs. D's care full time for almost a year belies somewhat their assertions that she was significantly dysfunctional at that time.

Medical evidence

Due to the considerable amount of medical evidence before me in this case, I have broken it down for ease of analysis into the following categories: pre-existing medical conditions, physical impairment, and psychological impairment, which includes emotional and cognitive complaints.

i) Pre-existing medical conditions

Mrs. D's pre-accident medical history is relevant to the issues in dispute because many of the symptoms documented are similar to those she complained of after the accident:

October 1996-February 1999 - dramatic fluctuation in blood sugar levels, indicating that her diabetes was not well-controlled during this period. Dr. Mansfield conceded that this could cause some of Mrs. D's post-accident symptoms.

December 1996/January 1997 - consultation in the Fracture Clinic of Northwestern Hospital for pain, swelling and tenderness in the radial carpal joint of the right hand due to arthritis and degenerative changes, treated with injection.¹⁵ Mrs. D's post-accident complaints included right hand and arm pain;

January 28, 1997 - Dr. U. Gizzi, the family doctor who treated Mrs. D's diabetes, notes complaints of poor sleep, no energy and irritability; also notes that Mrs. D's sister died and that her son was in jail.¹⁶ Mrs. D complained of similar symptoms after the accident and her family continued to be troubled.

April 6 1996 - Dr. Gizzi notes "anxiety disorder."¹⁷

March 17, 1996 - emergency admission to Humber River Regional Hospital Hospital for neck and head pain; Demerol and Gravol prescribed;¹⁸ no diagnosis.

March 11, 1996 - complaints to Dr. Gizzi of left neck and shoulder pain, and on March 15, "severe" headaches and balance problems significant enough that he prescribed Tylenol #3 and ordered a CT scan;¹⁹

August 29 - September 2, 1994 - admission to the Toronto Hospital, primary diagnosis of a transient-ischemic attack (TIA), with secondary diagnoses of hypertension and anxiety; Drowsiness, light-headedness and right-sided hemi-paresis noted, residual weakness of right arm and numbness in both feet, and "clouded" memory. CT of head and neurological consultation ordered, random glucose of 18.8;²⁰ Mrs. D also complained of low back pain at this time.²¹

Mrs. D disputed that she suffered a TIA, or minor stroke, in 1994. A close examination of the hospital records reveals that a TIA "could not be ruled out" as a cause of her symptoms and admission. It was clear the hospital treated it as a TIA, and she was discharged with the recommendation of "good diabetes management and blood pressure control as the most important aspects of stroke prophylaxis in this patient." As no other explanation for Mrs. D's symptoms was or could subsequently be found, I accept that a minor stroke and poorly managed diabetes were the most likely explanations for her symptoms at that time. The consensus of expert medical opinion at the hearing appeared to be that although these conditions could have made Mrs. D more vulnerable to a head injury, with a protracted recovery, there was no evidence of this in the six months following the accident, when significant symptoms would have been expected to appear.

ii) Physical impairment

Despite her pre-accident medical history, I find on the evidence below that Mrs. D suffered new physical injuries in the accident which aggravated her pre-existing back, leg and neck pain, and that her accident-related symptoms had not resolved by the time her first course of physiotherapy was terminated in November 1997. I find that her accident-related injuries continued to be a significant cause of her physical pain and limited functioning until the end of her second course of (OHIP-funded) physiotherapy in November 1999.

The strongest objective evidence in support of Mrs. D's claim that she suffered continuing physical impairment after the accident are the opinions of her family doctor, Dr. Mansfield, and Dr. Ogilvie-Harris, an orthopaedic surgeon who examined Mrs. D and provided medical reports dated November 6, 1998, September 26, 2000 and January 16, 2001.

Mrs. D became Dr. Mansfield's patient in October 1996.²² He testified that her injuries were accident-related, because, although she had some previous back pain with right leg sciatica that flared up occasionally, after the accident she presented with pain across her entire back and neck, which was new. She did not complain to him of headaches prior to the accident. Dr. Mansfield testified that the physiotherapy Mrs. D received after the accident relieved her pain and increased her mobility, and he felt it should have continued for the benefit of her recovery. He testified that there was a gradual improvement over time but that Mrs. D's condition remained "difficult," and she continued to limit her activities. She continued to need pain medication, in the form of Tylenol #3 with codeine, which he prescribed on a regular basis. According to Mrs. D's statements to almost every assessor who saw her, she took prescription pain medication regularly.

In January and April 1998, Dr. Mansfield prescribed pain medication and referred Mrs. D for physiotherapy. He also felt that she was suffering from anxiety and depression, which he attributed to pain, and felt that psychological counselling was warranted. Dr. Gizzi's clinical notes and records also contain entries of cervical/lumbar strain, shoulder and back pains, depression and possible fibromyalgia (February 10, 1998) and multiple pains (March 26, 1998) during this period. Dr. Gizzi also noted depression on January 7, 1999.

Dr. Mansfield stated that he felt the 74 OHIP-funded physiotherapy treatments Mrs. D eventually received between February and November 1999 would satisfy his recommendations for treatment, assuming the modalities were similar. As Mrs. D's treating practitioner, and the only medical witness who monitored Mrs. D regularly both before and after the accident, I place a great deal of weight on Dr. Mansfield's evidence and accept his opinion that Mrs. D suffered pain and physical impairment that required physiotherapy treatment between the end of treatment in November 1997 and the end of her last course of treatment in November 1999.

Dr. Ogilvie-Harris first examined Mrs. D on October 26, 1998. He also reviewed the reports of Dr. Deegan, Dr. Rosenbluth and Dr. Bayer, Nurse Badgley's FAE, the Sunnybrook Hospital records and CT scans of Mrs. D's neck and back. Dr. Ogilvie-Harris found tenderness in the paracervical and lumbar areas, limited range of motion, and noted numbness in the right arm and leg. He concluded that Mrs. D did sustain injuries to the lumbar and cervical spine as a result of the accident, that her frequent headaches resulted from these, and that her pain complaints were genuine. He provided persuasive reasons why Mrs. D's complaints continued to linger 15 months after the accident:

She did have pre-existing degenerative changes in the cervical and lumbar spine. These areas are weaker than normal. When subjected to trauma they sustain a greater degree of damage than normal. Recovery is prolonged compared to normal.

Recent studies from Switzerland have shown that where patients have intrusive pain symptoms plus restricted range of movement for more than three months following a whiplash injury, the symptoms tend to persist. In addition, studies have shown that patients with pre-existing degenerative changes are substantially more at risk of developing pain and having persistent pain than normal patients.

In addition, she does have positive Waddell's signs. This indicates an adverse psychological and emotional reaction to the injury. The prognosis for recovery is poor. It does not indicate malingering or consciously magnifying symptoms. Waddell described these signs as an indication of an adverse psychological and emotional response and a poor prognosis...

In my opinion ... she will have ongoing pain, suffering, and limitation of function in the cervical and lumbar spine. This is a result of the aggravation of the underlying degenerative disc disease.

This affects her day-to-day activities. It makes it difficult for her to maintain her household. She does not look after the household and do the cleaning as she did previously. She has trouble looking after her grandchild as she did previously. She has trouble being active in the church as she did before. Her mobility is limited. She has limited ability to walk and to carry things. She has limited use of public transportation. This has substantially changed her lifestyle...she is now significantly limited. She does a minimum of housework. Her whole enjoyment of life has been substantially changed. These problems are likely to be permanent. However, I do not think she will deteriorate in future. I do not think she will require surgical intervention or further medical treatment.²³

I accept Dr. Ogilvie-Harris'opinion because it is thorough, and provides a reasonable, well-founded medical explanation for Mrs. D's physical injuries and pain and their continuing impact on her functioning. Although Mrs. D did not tell Dr. Ogilvie-Harris that she had any pre-accident cervical and lumbar problems, it was evident from CT scans that she suffered, at the very least, pre-existing degenerative disc disease, and Dr. Ogilvie-Harris'explanation takes this into account. I heard no evidence that Mrs. D had ever received physiotherapy for her previous neck and back complaints, which appear to have been sporadic rather than ongoing prior to the accident.

I heard no evidence to contradict Dr. Ogilvie-Harris'explanation for Mrs. D's prolonged recovery or his interpretation of the significance of positive Waddell's signs. I accept his report as evidence that Mrs. D continued to suffer pain and physical impairment in November 1998, due to aggravation of her pre-existing condition by the accident.

However, with respect to the reasonableness and necessity of treatment, I prefer Dr. Mansfield's opinion. I find that Dr. Ogilvie-Harris' use of the term "further medical treatment," coupled as it is with "surgery," suggests that he had in mind a more radical form of medical intervention than either physiotherapy or chiropractic care. This would explain the discrepancy between his statement that Mrs. D did not require medical treatment and his findings that she suffered pain, had objective symptoms, and suffered restricted mobility as a result. His opinion also does not appear to consider that she might be entitled to treatment for pain relief or to deal with her "adverse emotional reaction" to her injury.

Dr. Ogilvie-Harris saw Mrs. D again in September 2000 and January 2001, noting that her physical condition had not changed. He maintained his conclusion that she would have ongoing pain, suffering and limitation of function in the future with regard to her cervical and lumbar spine directly as a result of the injuries she sustained in the accident. However, for two reasons, I do not find these two later reports to be sufficient evidence that the accident continued to contribute significantly to her condition in September 2000. Firstly, these reports were prepared almost two years after the first report and contain much of the same information, and Dr. Ogilvie-Harris did not see Mrs. D between reports. Secondly, he was not aware of the full extent of other medical and psychological factors in Mrs. D's life before or after the accident, such as the fact that she assumed the care of both her small grandsons in September 1999, as noted above.

An In-Home Functional Assessment conducted by an occupational therapist with F.I.T. Rehabilitation and Assessment Centres Inc., at the request of her then solicitors in August 1998 also supports Mrs. D's position that she had not recovered from the effects of the accident one year later. The injuries and ongoing subjective complaints documented by F.I.T. correspond to those noted by other assessors. The F.I.T. assessment concluded that Mrs. D was capable of personal care, washing dishes, cleaning her kitchen, grocery shopping, dusting and childcare.²⁴The report found that Mrs. D had "limited ability to perform" vacuuming, changing beds, meal preparation, washing floors, laundry and cleaning the bathroom, which her husband either assisted with or performed outright. As these tasks would seem to comprise a significant portion of Mrs. D's housekeeping duties, I find the report's conclusion that Mrs. D appeared able to handle "most" of her ADLs but had not reached her pre-accident level of functioning, to be contradictory. The assessor found that Mrs. D needed to increase her tolerance to reach her pre-accident function, and recommended home-stretching exercises for her back and neck to achieve this goal. I find this recommendation to be inadequate, given Mrs. D's physical limitations as identified in the report, her age, her limited education, lack of sophistication, the fact that her first course of physiotherapy appears to have been cut short, and her admitted difficulty with home exercises. Consequently, I find this report does not support TTC's position that Mrs. D required no formal physiotherapy after November 8, 1997.

I did not find the medical evidence presented by TTC to be nearly as persuasive regarding Mrs. D's physical impairments and the need for treatment.

An in-home Functional Abilities Evaluation (FAE) conducted on TTC's behalf by Angela Badgley, a registered nurse, on December 22, 1997, was of little value in determining whether or to what extent Mrs. D suffered a physical impairment for which treatment was required. Nurse Badgley noted that Mrs. D lay on the couch in a housecoat with a towel draped over her head for most of the assessment, and declined to demonstrate washing dishes, cooking, vacuuming, cleaning the bathroom, changing linen or washing windows because of complaints of pain in her low back, right wrist and numbness in her head. Nurse Badgley concluded that Mrs. D's performance during the assessment was "not a true indication of her maximal capabilities based on inconsistencies observed and measured during testing and as a result of her pain magnification." Consequently, I do not accept this report as evidence of anything other than that Nurse Badgley discounted Mrs. D's pain complaints.

The opinion of Dr. Frank Deegan, who examined Mrs. D at TTC's request in January, 1998, was also inadequate:

"It is my opinion that Ms.[ D] sustained multiple soft tissue injuries (not serious) in the areas of her complaints and probable minor closed head injury as a result of the subject MVA. It is my opinion that Ms. [D] will not have any permanent disability as a result of these injuries. I advised Ms. [D] of these opinions and I advised her of the necessity of her developing the proper understanding/perspective of any pain/discomfort that she may experience in the area of her injuries on the basis of the Hurt-Versus-Harm-Concept. "In view of her minimal abnormal findings on an anatomical basis, it is my opinion that Ms. [D] is not completely/substantially disabled from resuming her normal activities of living - as apparently she has started. On the basis of same information, it is my opinion that there is no medical necessity for Mrs.[ D] to participate in any continuing/maintenance programs of therapy for the injuries that she sustained in the subject MVA - which was apparently the opinion of her therapist at the end of her rehab program at ACT..." (Emphasis in the original) For several reasons, I reject this report as evidence that Mrs. D no longer suffered a physical impairment requiring treatment by January 1998. Firstly, Dr. Deegan appeared to base his opinion about the need for treatment at least in part on his conclusion that Mrs. D was not substantially disabled from her activities of daily living, and therefore treatment was not medically necessary. This is not the correct test. Secondly, although Dr. Deegan acknowledged that Mrs. D restricted her activities because of pain, going so far as to attempt to educate her on the topic of hurt versus harm, he did not consider whether treatment might be reasonable or necessary for pain relief itself, or to learn pain coping strategies. Thirdly, he appears to have relied to some extent on the opinion of the ACT therapist, which, as noted above, may have differed from her original opinion as to the need for continued treatment. As well, the ACT therapist's clinical notes indicated that although Mrs. D improved steadily as a result of physiotherapy, at the time treatment stopped she still complained of headaches and weakness. Lastly, as explained above, I prefer the evidence of Dr. Mansfield, the family doctor, who saw Mrs. D frequently and monitored her progress after the accident, and who observed that her treatment was beneficial to her and felt it should have continued.

In January 1998, Mrs. D was examined on behalf of TTC by Dr. Neville Bayer, a neurologist.²⁵He recorded her complaints of numbness in her head, lower back pain, anxiety and poor sleep, and that she took Tylenol #2 or #3 for pain and a tablet for sleeping. Dr. Bayer noted that his results compared with the completely normal test results obtained by Dr. Little, a neurologist to whom Mrs. D had recently been referred by her family doctor. Based on this, his own examination, and the fact that Mrs. D's GCS rating had returned to normal and she was fully alert by the time she was admitted to Sunnybrook Hospital's emergency department, Dr. Bayer ruled out the head injury as a cause of her symptoms, concluding "there is no residue from this motor vehicle accident from the neurological standpoint and no striking restriction either from the muscular skeletal standpoint."²⁶

Dr. Bayer's evidence that Mrs. D suffered no significant cognitive or physical symptoms attributable to her head injury five months after the accident is significant, because he was the only physician qualified to determine the effects of a head injury who examined both Mrs. D and the ambulance and hospital records within six months of the accident. Although he did not specifically test for cognitive deficits, I find his evidence and conclusion on the effects of the head injury persuasive.

However, although I agree with Dr. Bayer's conclusion that there were no signs of neurological damage that would account for Mrs. D's cognitive and physical complaints, I dismiss as poorly founded the following opinion:

What is presented is major functional overlay. The surveillance photographs again tend to verify that this lady is walking normally and picking up her groceries and going on the TTC and leading what seems to be a normal life. No further treatment modalities required [sic] and she should be quite capable in continuing on as she appears to be doing anyway from the surveillance reports of her activities of daily living... "

I find that Dr. Bayer overemphasized the surveillance videotapes and discounted Mrs. D's pain complaints in arriving at his conclusion that no treatment was required. TTC relied on the results of a multidisciplinary DAC assessment attended by Mrs. D in June 1998, to support its position that she did not require either physiotherapy or psychological treatment as a result of the accident. I found this assessment to be flawed in several respects.The physical aspects of Mrs. D's injuries were investigated by Dr. Jack Mayer, the DAC neurosurgeon, and Mrs. P. Saltzman, a physiotherapist. After a brief physical exam, Dr. Mayer found that Mrs. D showed many inconsistencies indicating symptom magnification and exaggeration of her head, low back, right shoulder and arm pain. He concluded that her soft tissue injuries had resolved and that she did not require any formal therapy. Dr. Mayer did not opine on whether Mrs. D's symptom magnification was conscious or unconscious, or whether he considered her pain to be genuine despite her exaggerated complaints. Standing alone, I find his explanation of Mrs. D's complaints to be superficial and cursory, and of little help in determining whether treatment was necessary.

The same is true of the report of Mrs. Saltzman, the physiotherapist, who noted that Mrs. D was very pleasant and cooperative but pain-focussed and self-limiting, and that she demonstrated "pain behaviours." What Mrs. Saltzman meant by this term was not explained. She concluded that Mrs. D should be encouraged to perform the home program of exercises that she was given by ACT on a daily basis, and there was no need for formal therapy.

Neither report considered genuine pain as a possible explanation for Mrs. D's "pain behaviours" or "symptom magnification," nor indicated why that explanation was not considered. In my view, the failure to explain these terms or to consider alternative explanations considerably weakens the value of the opinions expressed by Dr. Mayer and Mrs. Saltzman. Perhaps, as their assessments were part of a multidisciplinary effort by a team which included a psychiatrist, and which rendered a "consensus" opinion, one is expected to look to the psychiatric assessment for the missing piece of the puzzle, i.e., possible psychological explanations for Mrs. D's "pain behaviours."

In this case, the DAC psychiatrist, Dr. R. Herschberg, found that Mrs. D was motivated by secondary gain, in particular, the hope of a monetary settlement from the Insurer, which perpetuated her somatic complaints. He emphasized this point in his testimony, as well as the fact that he relied on the opinions of Dr. Bayer and Dr. Rosenbluth, whose findings he explained indicated that Mrs. D was either malingering,²⁷ or suffering from unconscious psychological causes of pain. He testified that he felt there were "some elements of malingering" but did not state that her behaviour was unconscious.

This is an important distinction, because a finding that Mrs. D was malingering would disentitle her to treatment, whereas a finding that her behaviour was unconscious might not. In his report, Dr. Herschberg concluded that Mrs. D suffered no significant behavioural, emotional or cognitive deficits directly arising from the motor vehicle accident. If there were unconscious psychological reasons for her pain, he either ruled them out, or simply did not have time to explore them in the very brief (less than one hour) time he spent with Mrs. D. Either way, I am left to draw the conclusion that Dr. Herschberg felt Mrs. D was malingering. I have no doubt that he found support for his opinion in the findings of Dr. Mayer and Mrs. Saltzman. A further difficulty is that Dr. Herschberg's report indicates that he reviewed the "extensive documentation" sent to him by TTC, which included surveillance evidence. However, as he did not refer to the surveillance evidence in either his report or his testimony, I am unable to determine whether or to what extent he was influenced by it. This detracts considerably from the reliability of his opinion.

For all of these reasons, and weighed against the other expert evidence presented, I find the individual DAC assessors' conclusions unsatisfactory, and the consensus opinion flawed. It was of no assistance to me in determining whether Mrs. D required treatment as a result of the accident.

I conclude from the medical evidence above that Mrs. D suffered impairment of anatomical and physical function due to pain from injuries caused in the accident, that had not resolved at the time physiotherapy was terminated in November, 1997. For the following reasons, I find that she continued to require treatment as a result of the accident until November 1999, when I find the accident ceased to be a significant contributing factor.

Firstly, the Lawrence Weston Rehab records indicate Mrs. D was discharged to home exercises in November 1999 after notations that she was "much better now" and "denies any pain." I conclude that she had derived maximum benefit from this last course of physiotherapy at the time of discharge.

Secondly, as of September 1999, Mrs. D had assumed the full-time care of her two small grandsons. I find this double responsibility, which did not exist prior to the accident, would considerably tax her physical and mental energies, given her age and her pre-existing medical ailments.

Thirdly, while Dr. Mansfield agreed on cross-examination that Mrs. D's blood sugar, which continued to be dangerously out of control at that time, could account for her symptoms of feeling "lousy, confused, dizzy, fatigued, unmotivated, lethargic and to not want to cook or clean," he pointed out that she did not present such complaints to him prior to the accident, when her diabetes was also out of control. This evidence suggests to me that the limited functioning that Mrs. D's family claims persisted after 10 months of physiotherapy in November 1999 was due in large part to her general physical condition and not to any lingering effects of her physical accident injuries.

Fourthly, Dr. Mansfield felt that Mrs. D's uncontrolled diabetes could be responsible for her headaches, one of her main complaints, although not for her muscular aches and pains. Her persistent denial that her diabetes gave her any trouble at all indicates that Mrs. D may not have understood the cause of her headaches. I find that the accident-related soft-tissue injuries, which Dr. Ogilvie-Harris found to be a cause of Mrs. D's headaches, played a significantly lesser role after her extensive second course of physiotherapy.

Finally, some of Mrs. D's physical symptoms, including headache, dizziness, low back pain and right arm and hand pain and right-sided weakness, which were addressed by her physiotherapy treatments, were present at various times in the years prior to the accident. Therefore, I find it unlikely that, to the extent they persisted or recurred after November 1999, this would be due to the accident.

I find therefore that physiotherapy was necessary as a result of the accident between November 1997 and November 1999, but not afterwards. I also find formal physiotherapy was reasonable during this time. I am not persuaded that unsupervised home exercises were a reasonable option for Mrs. D, for the reasons explained above. In addition, the abrupt transition from two-hour sessions of active and passive treatment three times a week²⁸ to home exercises using a pamphlet was not reasonable in November 1997. During the two periods Mrs. D did receive physiotherapy, she was motivated to attend regularly and consistently and her mobility and activity gradually improved. When given home exercises, she testified she was unable to follow through with them.

I find therefore that the physiotherapy treatment plans authorized by Dr. Mansfield were reasonable and necessary as a result of the accident, and that Mrs. D remained entitled to additional physiotherapy until she actually received it, that is, until the end of her course of treatment at Professional Physiotherapy Centre in November 1999.

The three physiotherapy treatment plans supported by Dr. Mansfield provided for treatment as follows:

#1 January 22, 1998 - active and passive, twice a week for four weeks, cost: $800

#2 April 27, 1998 - active five times a week for seven weeks; passive once a week for four weeks, cost: $1,340;

#3 February 25, 1999 - active and passive, 3 times per week for six weeks, cost: $1,780.

The total number of sessions amounts to 66 treatments over 17 weeks. Dr. Mansfield testified that the 74 treatments Mrs. D eventually received were adequate to fully address her physical treatment needs. The treatment records of Professional Physiotherapy Centre support this conclusion. They indicate that Mrs. D told them she continued to have pain in her neck and back from the accident, and that she had been discharged from physiotherapy in November 1997 before getting better. The records also indicate that Professional Physiotherapy treated Mrs. D for upper and lower back pain, that she improved slowly, and that she was discharged when she was much improved, denied pain, and could perform the home exercises she had been taught well enough to continue with them at home. I find the frequency and duration of the treatments were necessary and reasonable in the circumstances. I heard no evidence that this course of physiotherapy was prolonged beyond what was reasonably required. I find Mrs. D was delayed in receiving needed treatment because TTC refused to pay for it, and this delay, combined with her age, premature termination of her first course of physiotherapy and self-restricted activity due to pain and untreated emotional difficulties thereafter (discussed below), caused her subsequent progress to be slower as a result.

For these reasons, I find that all three of the Treatment Plans at issue in this arbitration were reasonable and necessary.

The Schedule requires insurers to pay for treatment that is reasonable and necessary. In this case, Mrs. D's treatment at Professional Physiotherapy Centre was paid for through OHIP. TTC argued that "once Mrs. D had obtained that OHIP-funded treatment, it was frivolous and vexatious for her to pursue an arbitration in respect of the moot Treatment Plan" (presumably, Treatment Plan #3).

I disagree. I heard no evidence or argument from TTC, that it was exempted pursuant to subsection section 60(2) of the Schedule from paying for the physiotherapy Mrs. D received, on the basis that OHIP funding fell within the type of payment that was "reasonably available to the insured person under any insurance plan or law or under any other plan or law" under that subsection. I am not aware of any previous decisions on point, and I make no finding on that issue.

In my view, the fact that Mrs. D eventually received appropriate OHIP-funded treatment should not relieve TTC of its legislated obligation to pay for treatment recommended in a Treatment Plan and subsequently determined, by an arbitrator, to be reasonable and necessary as a result of an accident. Such an outcome would allow insurers to refuse treatment plans simply by taking the position that the insured person was required to obtain OHIP-funded treatment. It would defeat the purpose of the treatment and dispute resolution provisions of the Schedule by essentially forcing claimants to obtain needed treatment through OHIP, and would deny claimants a corresponding remedy against such an insurer.

For these reasons, as I have found the three treatment plans to be reasonable and necessary in this particular case, I find that Mrs. D is entitled to the combined value of those plans, which is $3,920. As noted at footnote #5, Mrs. D is also entitled to the $650 incurred for her treatment up to November 14, 1997.

iii) Psychological impairment - emotional or cognitive difficulties

A great deal of conflicting expert evidence was presented at the hearing about whether and to what extent Mrs. D suffered emotional or cognitive difficulties, whether they were due to the accident, and whether the psychological treatment claimed in the two treatment plans submitted in March and April 1998, or any treatment at all, was necessary and reasonable.

After reviewing all of the evidence, I decided that the question of whether Mrs. D suffered cognitive impairments was not relevant to this arbitration, because neither of the two treatment plans in dispute in this arbitration purport to treat cognitive symptoms per se.

In any event, I do not find that the medical evidence as a whole establishes, on a balance of probabilities, that by March 1998, Mrs. D's cognitive complaints (or her headaches, for that matter), were caused by the mild head injury she sustained in the accident. In particular, the rapid return of Mrs. D's GCS scale to normal after the accident, discussed previously, her gradual documented improvement in the six months after the accident, and the fact that Drs. Bayer, Little, Rosenbluth and Herschberg, all of whom examined her in the crucial six months after the accident, observed no significant cognitive impairments, mitigate against the head injury as the likely cause of Mrs. D's cognitive complaints after March, 1998. I accept the opinion of Dr. Price, the psychologist who prepared the second treatment plan dated April 1998, that Mrs. D's cognitive complaints at that time, which is the only relevant time period for purposes of the treatment plans in dispute in this arbitration, were caused by her accident-related depression and sleep difficulties, and not directly by the head injury.

Dr. Price's opinion is consistent with that of others. The opinion of Dr. Lorne Switzman, a psychologist who examined Mrs. D in August 2000, three years after the accident, was particularly helpful on the issue of causation. Dr. Switzman felt that, "At this stage, it would be difficult to disentangle the causes" for Mrs. D's memory problems and "scattered" history-giving, without the benefit of a neuropsychological assessment, which had not been done and which he felt was long overdue. He felt her cognitive difficulties "could be due to the head injury, aging, emotional problems, diabetic control and/or Ms. D's communication style. One cannot also rule out the possibility of a change in personality functioning due to a combination of emotional distress and the traumatic brain injury." I find that, several years after the accident, the opportunity to determine whether Mrs. D's lingering cognitive effects were caused by the accident had passed.

Although a neuropsychological assessment was eventually conducted by Dr. Herbert Kaye in January, 2001, I find that, coming four and a half years after the accident, it was too late to be of any probative value on the question of what caused any cognitive impairments. As this was the main subject of Dr. Kaye's report, I did not find the report relevant to the question of whether Mrs. D required psychological treatment in March, 1998. For these reasons, in arriving at my decision, I did not consider Dr. Kaye's report or testimony, nor the rebuttal report and testimony of Dr. J.F.C. McLachlan, the neuropsychologist retained by TTC to review Dr. Kaye's report. I accept the testimony of Mrs. D, her daughter and her husband, that Mrs. D suffered genuine emotional distress after the accident, and that she behaved in a changed manner towards her family as a result, particularly to her husband, who expressed his bewilderment and frustration with his wife at the hearing.

I accept Dr. Mansfield's testimony that Mrs. D suffered anxiety and depression due to pain from her accident injuries, that his notes did not reflect any emotional or cognitive complaints prior to the accident despite her ongoing uncontrolled blood sugar levels, and that he felt her symptoms were serious enough in March 1998 to require some psychological counselling.

Although Dr. Mansfield agreed on cross-examination that other factors in Mrs. D's life, such as a son in jail, her husband's supposed alcohol problem, and a daughter in-law in jail in Jamaica could contribute to her emotional state, I am not persuaded that these factors detracted from the significant role pain and functional limitation played in Mrs. D's emotional state after the accident. By all accounts, and by any standard, Mrs. D has led a hard life, but has managed to cope with hardship, including troubling family issues, never ceasing to assist her family as much as she could. I note that the examples of family troubles brought up by TTC were based on statements Mrs. D had made to various assessors, and that counsel for TTC did not question Mrs. D, or her husband and daughter on any of these points. If there was any evidence that Mrs. D was emotionally unable to cope with adversity prior to the accident, it was not provided.

Dr. Ogilvie-Harris felt that Mrs. D's prognosis was poor and that she would have ongoing pain, suffering and limitation of function. I find that his evidence, as well as that of Mrs. D, her family, Dr. Mansfield, and Dr. Swizman, support the diagnosis of Dr. Price, the psychologist who assessed Mrs. D in March 1998, that Mrs. D suffered from an Adjustment Disorder with Mixed Anxiety and Depressed Mood, with a secondary diagnosis of Chronic Pain Disorder, and that treatment was necessary.

Dr. Price, who submitted the second of the two disputed psychological treatment plans,²⁹ noted complaints of pain and cognitive inefficiencies in terms of memory, attention and concentration, and significant sleep difficulties, and observed that Mrs. D had limited coping skills and little understanding about pain management strategies. As noted previously, Dr. Price concluded that Mrs. D's reported compromise in her cognitive functioning was most likely related to her emotional state. Dr. Price recommended cognitive-behavioural psychotherapy to alleviate symptoms, increase activity and augment coping skills, education and pain management strategies, and systematic desensitization to deal with pedestrian anxiety. He recommended eight weekly individual and six biweekly marital sessions at a total cost of $3,200.

I find that psychological treatment was necessary to alleviate Mrs. D's symptoms of depression and anxiety brought about by persistent, chronic pain, and to teach her specific strategies to cope with the pain itself. I reject TTC's arguments that Dr. Price's treatment plan should be rejected because his assessment may have been influenced by his financial interest in treating Mrs. D. I saw no evidence of this in Dr. Price's assessment. I find his observations and diagnosis to be consistent with other medical evidence presented, including that of Dr. Switzman, who made a similar diagnosis a year and half later. Dr. Switzman had no treating relationship with Mrs. D. He felt that Mrs. D's lingering emotional problems and inability to cope with chronic pain would definitely have benefited from timely, directed and concrete psychological intervention.

Furthermore, I was not persuaded by the expert psychiatric evidence presented on TTC's behalf that Mrs. D did not suffer psychological impairment, or that psychological treatment was unnecessary or unreasonable.

In support of its position, TTC relied on the opinion of Dr. Allan Rosenbluth, a psychiatrist, who conducted an IE in January 1998. He noted Mrs. D's complaints of memory loss, poor concentration and poor sleep, but did not see evidence of these problems in his examination or on testing. He found her to be a fluent historian who never lost track of what she was saying. A low score on a memory test designed to detect "purposeful faking," where only a severe brain injury would account for the low score, persuaded Dr. Rosenbluth that Mrs. D was indeed purposefully feigning or exaggerating her symptoms.

Prior to his interview, Dr. Rosenbluth reviewed the surveillance documents describing Mrs. D taking buses, and felt that they "appeared to indicate that she was not a reliable historian." He appears to have questioned Mrs. D closely about her feelings when riding the bus, although he did not tell her about the surveillance evidence. The pitfalls of such an approach and the reasons for rejecting evidence based on it, were discussed above, and I find Dr. Rosenbluth's use of the surveillance evidence reason enough to reject his evidence.

Dr. Rosenbluth concluded there was no indication of psychiatric disability interfering with Mrs. D's ability to perform her activities of daily living or which substantially interfered with activities which required communication, exercising her cognitive powers or controlling her emotions and behaviour. He did not comment about treatment in his report. In fact, there was no evidence that he was asked to comment on treatment as part of his assessment, or that he even turned his mind to that issue. Dr. Rosenbluth did state in his testimony, however, that Mrs. D did not need treatment or counselling. Given that this opinion was absent from Dr. Rosenbluth's original report and was offered over three and a half years later, I do not find it convincing.

Dr. Rosenbluth testified that he did not find Mrs. D to be believable in part because of her "histrionic" reactions to his questions, that is to say, she grimaced when asked about pain, and became dysphoric when asked about her mood. Given Mrs. D's complete lack of formal education, her limited vocabulary and use of Jamaican patois in daily speech, which she would be aware not everyone might understand, and her unsophisticated personality,³⁰ I do not see how her obvious use of non-verbal methods to attempt to communicate her feelings to Dr. Rosenbluth establishes that she was not "believable" or that she had no legitimate complaints at all.

I find that once Dr. Rosenbluth made up his mind that Mrs. D was not believable, he did not look further to determine the legitimacy of her emotional complaints. This further undermines his opinion that she did not require psychological treatment.

TTC also relied on the evidence of Dr. Herschberg, the psychiatrist, who conducted the Med/Rehab DAC in June 1998, to support its position that treatment was not reasonable. For the reasons outlined above, I gave little weight to several aspects of Dr. Herschberg's evidence. I also give little weight to his opinion that Mrs. D did not need nor would benefit from any psychological treatment. Dr. Herschberg testified that Mrs. D did not suffer from any "severe" psychological or psychiatric impairment that required specific psychiatric or psychological intervention. He opined that "the perpetuating element of her somatic complaints was her belief in her entitlement to a settlement." He felt that the psychological treatment recommended by Dr. Price was not reasonable or necessary, because Mrs. D was not psychologically-minded, and was unsophisticated and naive. He stated that her somatic complaints would improve over time on their own, and treatment would only make them worse, because she was a highly suggestible person. It would entrench her chronic pain, and impact on her future behaviour, which her husband, disabled as a result of a work injury and receiving a disability pension, was "modelling."

I do not agree that an insured person must suffer "severe" psychological symptoms in order to be entitled to treatment. I agree with Dr. Switzman, that early intervention in this case would likely have prevented the lingering of Mrs. D's symptoms. Nor do I find it reasonable that Mrs. D should be denied psychological treatment to relieve depression, anxiety and chronic pain, and be simply left to her own devices, on the basis of her personality type or that of her husband. I heard no evidence that a professional psychologist would not be able to tailor treatment to suit Mrs. D's specific personality and needs. I find that this could only be reasonably done over the course of at least a few sessions.

In that context, I find the treatment plan proposed by Dr. Price to be both necessary, and reasonable. Given the evidence of Mrs. D and her husband about how her changed emotional condition after the accident affected their 46-year relationship, I find the six marital therapy sessions recommended also to be necessary and reasonable.

I did not find the treatment plan of Dr. Joanna Mitsopoulos, submitted one month prior to Dr. Price's, in February 1998, and recommending similar treatment, reasonable. In the absence of any explanation why two very similar assessments and treatment plans were undertaken on behalf of Mrs. D within a month of each other, such duplication appears on the face of it to be unnecessary. Given my finding that Mrs. D required psychological treatment, it is clearly a matter of choosing which of the two treatment plans is the more reasonable. This requires an examination of the assessments conducted by each psychologist. Of the two, I found that of Dr. Price to be more sound. Dr. Mitsopoulos' diagnosis of severe depression is unique among all the medical experts who assessed Mrs. D between January and June 1998. I find it unlikely that severe depression would have gone unnoticed and untreated by Dr. Mansfield or Dr. Gizzi, and however much I discount the opinions of Dr. Rosenbluth and Dr. Herschberg, I find it unlikely that either psychiatrist would have missed such a serious condition in the same small time frame. I find that treatment based on Dr. Mitsopoulos' inaccurate diagnosis would be less likely to be successful than treatment based on Dr. Price's diagnosis, which I find was better founded. Mrs. D is entitled to the value of Dr. Price's treatment plan, which is $3,200.

Is Mrs. D entitled to the cost of assessments pursuant to section 24 of the Schedule?

Mrs. D claims expenses pursuant to section 24 as follows:

Assessment and report of Dr. Price:

$975

Preparation of treatment plan:

ACT physiotherapy assessment, April 24, 1998:

250

ACT Treatment plan

150

FIT In-home functional assessment, August 15, 1997

695.50

Audiological assessment of Dr. A. Noyek, otolaryngologist,

356.90

September 21, 1998

Section 24 requires an insurer to pay for "all reasonable expenses by or on behalf of an insured person for the purpose of this Regulation in obtaining and attending an examination or assessment or in obtaining a certificate, report or treatment plan... "

As the items above come within the definition set out in section 24, I find Mrs. D is entitled to the expenses claimed. This includes the assessment of Dr. Noyek, who examined Mrs. D and conducted tests for purpose of determining whether her complaints of dizziness were related to the accident.

Is Mrs. D disentitled to medical expenses pursuant to section 43 of the Schedule and section 24 expenses between January 28 and April 28, 1998 because she failed to make herself reasonably available for a Med/rehab DAC assessment?

TTC maintains that, in failing to request a referral to a Med/rehab DAC, Mrs. D failed to make herself reasonably available for an assessment, and so failed to comply with subsection 43(2) of the Schedule. The result, according to TTC, is that it is not required to pay Mrs. D benefits or expenses of any kind incurred between January 28 and April 28, 1998.

I find TTC's argument to be based on a misreading of the relevant sections of the Schedule. Subsection 38(12)(a) of the Schedule provides that where an insurer refuses to pay for goods and services outlined in a treatment plan, "the insurer shall require the insured person to be assessed in respect of those goods and services by a designated centre in accordance with section 43"(emphasis added).

Subsection 38(8) requires the insurer to notify the insured person, and article 38(12)(b)(ii) clearly states that the notice shall specifically include "notice that the insurer requires the insured person to be assessed by a designated assessment centre in accordance with section 43"(emphasis added). The language clearly sets out the insurer's obligation, namely, that where a particular treatment is in dispute, it is the insurer, and not the insured person, who requires Med/rehab DAC assessment.

Subsection 43(2)(b) sets out the obligations of the insured person, including the consequences of non-compliance with the process initiated by the insurer. It provides that, once properly notified, "the insured person shall submit to any reasonable physical, psychological...examinations" (emphasis added). If the insured person fails to comply, subsection 43(3) further provides that:

(a) the insurer may stop payment of the benefit related to the assessment until the person submits to the assessment or complies with subsection (2), after which time the insurer shall resume payment of the benefit; and

(b) no benefit is payable for the period after the insured person failed to make himself or herself reasonably available or failed to comply with subsection (2) and before the insured person makes himself or herself reasonably available and complies with subsection (2).

TTC denied all treatment plans submitted by Mrs. D after November 1997. On January 28, 1998, Steve Cummins, TTC's claims adjuster, wrote directly to Mrs. D's physiotherapy treatment provider, ACT Health Group Inc. pointing out that its IE experts did not support the physiotherapy treatment claimed, and stating that:

"Should Mrs. [D] disagree with the opinion of these assessors and the position I've taken she has the right to attend a Med/Rehab DAC assessment for an opinion on her treatment needs, if any. By copy of this letter I am enclosing the OCF-14 form to Mrs. [D]'s representative and would ask that this form be signed, dated and returned within 14 days if it is Mrs. [D]'s desire to be assessed through the Med/Rehab DAC."

The letter was copied to Mrs. D, Dr. Mansfield and Mrs. D's solicitor.

TTC eventually received a completed OCF-14 on April 28, 1998. TTC argues that Mrs. D unreasonably delayed in submitting the form, and she is therefore disentitled to all benefits claimed and otherwise payable between the time of its January 1998 letter to her and April 28, 1998. According to TTC, these would include the three physiotherapy treatment plans, the two psychological treatment plans claimed, and the various medical assessments claimed pursuant to section 24 of the Schedule.

I find TTC's argument to be without merit.

TTC's January 28, 1998 notice was not clear, as it should have been, that TTC required Mrs. D to be assessed pursuant to subsection 38(12)(a); the letter clearly suggests the decision is up to Mrs. D. Moreover, it does not point out the consequences to her should she not "desire" to attend. The adjuster may have confused subsection 38(12)(a) with subsection 37(3)(b), which does clearly state that, where an insurer intends to terminate weekly benefits, it is the insured person who has the right to require a section 43 assessment.

I find TTC's notice defective in a material respect because it does not accurately reflect the legislation, is misleading, and does not inform Mrs. D of the consequences of non-attendance. I agree with the reasoning of Arbitrator Allen in a similar case dealing with a defective notice under section 42 of the Schedule, that a notice that a person is required to attend an assessment should "permit the insured person to know the affected benefit and to decide whether to attend the examination and pursue the insurer for the benefit or not attend and forego the benefit (emphasis added).³¹ It would be very unfair to permit TTC to rely on this notice, and on the confusion of its own adjuster, to establish a basis upon which to disentitle Mrs. D to all treatment and assessments claimed between January and June 1998, without explaining the consequences to her. On that basis alone, I find that Mrs. D is not disentitled to benefits.

In the event that I am wrong about the notice, I would reject TTC's argument that Mrs. D was not entitled to be paid any benefits at all between January 28 and April 28, 1998, because it presumes an interpretation of section 43 that is far too broad, and which I find to be contrary to the intent of the legislation.

TTC's argument is based, presumably, on the assumption that the phrase "no benefit is payable," contained in clause 43(3)(b), is broader than the phrase "the insurer may stop payment of the benefit related to the assessment," which appears in 43(3)(a).

It was not clear from TTC's argument, however, how broad a meaning it intended to invoke. Clearly, an interpretation that would disentitle an insured person to all possible benefits payable under the Schedule, for failure to make themselves reasonably available for a DAC assessment, could not be sustained.

A close examination of section 43 and related sections reveals why this is so. Subsections 43(5),(6),(7) and (8) set out the types of disputed benefits that can be the subject of a DAC assessment, and specify precisely what the DAC assessors are to determine. The benefits referred to are specifically limited to income replacement, non-earner, caregiver, medical, rehabilitation, attendant care and catastrophic impairment benefits. The list is exhaustive. It clearly does not include "all benefits" available under the Schedule. In particular, as section 24 benefits are not included, no part of section 43 can be used to deny payment of expenses claimed under that section.

Subsections 43(1) and (2) set out the "rules" that insured persons, insurers and DACs are to follow. Subsection 43(1) sets out the general notice requirements that the insurer and DAC must adhere to in respect of "an assessment," meaning any one of the types of assessments listed. The notice requirements are the same for all.

Subsection 43(2) then sets out the obligations of the insurer and the insured person with respect to the particular assessment in question, "the assessment." The use of the definite article "the" in subsection 43(2) makes it clear that once a particular type of assessment has been initiated, the rules set out in subsection (2), and in the remaining subsections of section 43, apply to that assessment, and to the particular benefit to be assessed.

Subsection 43(3) then specifies what happens when the insured person does not follow the rules, and fails to "make himself or herself reasonably available for an assessment or fails to comply with subsection (2)" Pursuant to clause 43(3)(a), "the insurer may stop payment of the benefit related to the assessment until the person submits to the assessment...(emphasis added)."

So far, the language in section 43 has moved logically from the general to the particular, in accordance with the rules of statutory interpretation. So, when clause 43(3)(b) states that "no benefit is payable for the period after the insured person failed to make himself or herself reasonably available...(emphasis added)," there is no logical reason to suppose that "benefit" in this clause refers to anything other than the very same benefit referred to in 43(3)(a), the benefit related to the (particular) assessment in question.

To expand the meaning of "benefit" as it is used in clause 43(3)(b) to include all of the types of benefits for which assessments may be required, would have serious consequences. For example, insurers could stop paying IRBs on the basis that an insured person failed to attend a Med/rehab DAC assessment, without any assessment of whether the person was entitled to IRBs. It would render the notice and stoppage requirements set out in section 37 meaningless, and would impose a heavy and unexpected penalty upon an insured person. Had the legislature intended to impose a more drastic penalty upon an insured person, by extending the insurer's right to refuse to pay an IRB to refuse payment of the other benefits listed in section 43, it could easily have included in clause 43(3)(b) the words "no benefit otherwise payable under sections 37,38,39 or 40 is payable for the period after the insured person failed to make himself or herself reasonably available etc."

In my view, section 43(3) is intended to ensure timely compliance with the dispute resolution process, of which the DAC assessment is a key step, and not to provide insurers with an efficacious route to distentitle insured persons to a wider range of benefits than the particular benefit in dispute.

With respect to medical and rehabilitation treatment in particular, I find that the purpose of section 43(3), reading clauses (a) and (b) together in the context of section 43 as a whole and with reference to section 38, was clearly to deter insured persons from incurring treatment costs in the time between an insurer's refusal to pay for a particular type of treatment, and a DAC's determination of whether that treatment was reasonable. The risk to an insured person who proceeds to incur treatment costs during this period is that, if the treatment is subsequently determined not to be reasonable by a DAC, whether or not the DAC's decision is upheld by an arbitrator, the insurer will not be required to pay for the treatment. The insured person may be liable for the expense.

In this case, Mrs. D did not incur treatment costs, and in fact went without needed treatment for the period in question, January to April 1998. The consequences of going without treatment were serious enough in and of themselves. The concerns section 43 was intended to address did not arise, and I find that section 43(3) would not apply in these circumstances to disentitle her to treatment.

Housekeeping:

On June 9, 1999, Mrs. D's then solicitors wrote to TTC requesting payment of expenses for housekeeping services performed by her husband for a total of 12 hours per week, for six days a week.³² The services included, depending on the day of the week, general household cleaning, light cleaning and cooking, shopping and laundry.

The F.I.T. assessment conducted on Mrs. D's behalf in August 1998 concluded she could wash dishes, clean her kitchen, shop for groceries and dust, but she had limited ability to vacuum, change beds, prepare meals, wash floors, do laundry and clean the bathroom, which her husband either assisted with or performed outright. As noted above, I did not find the F.I.T. report's conclusion that housekeeping assistance was not required to be consistent with its findings. On the basis of my interpretation of the F.I.T. report, the evidence of Drs. Mansfield and Ogilvie-Harris, and the testimony of Mrs. D and her husband, I find that Mrs. D required housekeeping assistance for meal preparation, heavier household cleaning (vacuuming, washing floors, cleaning the bathroom and changing beds) and laundry, for three hours per week from December 19, 1997 until August 15, 1999, a period of 99 weeks.

Section 22 of the Schedule states that an insurer "shall pay for reasonable and necessary additional expenses incurred by or on behalf of the insured person as a result of an accident for housekeeping and home maintenance services." TTC argued that housekeeping expenses were not payable because they had not actually been "incurred," that is to say, Mrs. D did not pay her husband any money in exchange for the housekeeping chores he performed.

I find that the word "incur" admits of a broader interpretation than that submitted by the Insurer, both in its ordinary meaning and as a result of previous judicial interpretation in the no-fault insurance context.

The Concise Oxford Dictionary, eighth edition, defines "incur" as "to become subject to (something...) as a result of one's behaviour." This is about as broad or general a definition as one is apt to find in a general usage dictionary. Black's Law Dictionary, sixth edition, includes a similar definition:

"to become liable or subject to, to bring down upon oneself, as to incur debt, danger, displeasure and penalty, and to become through one's own action liable, or subject to."

In Jelisic,³³ Arbitrator Manji stated that actual payment for a service was not necessary in order to "incur" an expense, such as housekeeping services, within the meaning of the Schedule. In her view, an insured person could be said to have "incurred" the expense, and to be entitled to reimbursement, if he or she promised to pay or was otherwise legally obligated to pay the expense.

In Stargraat,³⁴ Arbitrator Wilson, referring to judicial interpretations of "incurred" in earlier no-fault provisions in the context of caregiver benefits, concluded that:

I find that the use of the word "incur" in subsection 13(2) of the Schedule does not restrict caregiving benefits to actual out-of-pocket expenses. Rather I find that the legislature in using a word that had an accepted, judicially interpreted meaning, intended that it should encompass a broader range of obligations..! find that Ms. Stargraat, in the words of Campbell, J., "need not actually receive the items or services or spend the money to become legally obliged to do so."

Arbitrator Wilson found that Ms. Stargraat's sister provided care when she was in need, and that Ms. Stargraat felt an obligation to her sister and had insufficient funds to pay her. He stated that, without the insurer advancing the money, no expenses would or could be paid.

I agree with these views. I would go as far as to consider that a person who was unable or unwilling to promise payment in exchange for housework because of financial hardship, and who did not in fact make any promise, could nevertheless "incur" an implied obligation to pay within the meaning of the Schedule.

In my view, such an interpretation accords with the intent of the Schedule. In most cases, where an insured person is unable to afford to pay for a commercial housekeeping service or arm's length assistance, the natural tendency is for family members to pitch in to do the necessary work. An insured person, particularly an unsophisticated or impecunious one, has very little choice if he or she wishes to continue to live in a reasonably clean home. The very fact of the insured person's need for assistance, and the provision of that assistance by the family member, creates the incurred obligation. I see no reason why an insurer should benefit from the fact that an insured person is forced to rely on family help, to avoid paying for the additional housekeeping services required as a result of the accident. TTC's response to Mrs. D's application for housekeeping expenses to pay for her husband's services, that they were not payable because they were not "incurred," on the basis that "One would think the services of a spouse are gratuitous given the special oath of marriage,"³⁵ is not only fatuous, but clearly contrary to the intent of the Schedule, which provides limited compensation for certain services if they are necessary and reasonable as a result of the accident, specific criteria that do not include ability to pay, or the availability of a husband.

The evidence was clear that Mrs. D and her husband, who are both over 65 years old, live on fixed pension incomes. Mrs. D testified that even to pay for small items such as Epsom Salts to ease her pains amounted to "spending what I don't have." I have no difficulty finding that Mrs. D could not possibly contemplate paying for housekeeping services unless TTC reimbursed her, and thus was forced due to financial hardship to rely on her husband for the help she needed.

In the absence of any evidence about the market value of housekeeping services, I find that Mrs. D's husband should be compensated at the very least at the current minimum wage of $6.85 per hour. At three hours per week for 99 weeks, this amounts to $2,034.

Was the arbitration frivolous, vexatious or an abuse of process?

Mrs. D did not commence an arbitration that was frivolous, vexatious or an abuse of process. TTC is not entitled to the return of its assessment.

EXPENSES:

In the absence of any Offer to Settle in accordance with Rule 74 of the Dispute Resolution Practice Code (Third Edition, April 15, 1997) (the "Code"), I would exercise my discretion to award Mrs. D her arbitration expenses pursuant to subsection 282(11) of the Insurance Act, R.S.O. 1990, c. I.8., in accordance with the criteria as set out therein as well as the criteria set out in Rules 76 and 77 and Section F of the Code on the following basis:

Mrs. D was largely successful at arbitration. However, despite the fact that a significant issue in dispute, that of entitlement to non-earner benefits, was withdrawn on the first day of the hearing, much of the medical evidence presented was directed to that issue, and was not particularly relevant to the remaining issues in dispute. I find that the arbitration, efficiently presented, should have taken no more than three full hearing days, and I would award Mrs. D her arbitration expenses on that basis.
With respect to determining a reasonable amount of preparation time, I adopt the method used by arbitrators of assigning a ratio of preparation time to hearing time, expressed either in terms of hours or days, in order to arrive at a reasonable assessment of expenses. Arbitrators have found ratios of preparation time to hearing time ranging from 1:1 to 4:1 to be reasonable.³⁶ Given that the issues in dispute in this arbitration were neither novel nor complex, I would consider a ratio of preparation time to hearing time of 2:1 to be reasonable. I consider a hearing day to consist of seven and one-half hours.
Mrs. D is not entitled to expenses for the report of Dr. Herbert Kaye. I allowed this report, despite the fact that it was served late, on condition that I would consider the late service and ultimate relevance of the report when it came time to determine expenses. As the report was not relevant, I decline to award Mrs. D this expense.
Mrs. D shall pay TTC its expenses of obtaining the report of Dr. Machlachlan. I find that, had Mrs. D not presented it with the last-minute report of Dr. Kaye, TTC would not have been put to this unnecessary expense.
Legal fees should be in accordance with the Legal Aid rate.

Given the limited submissions received with respect to expenses, if, despite these reasons, the parties are unable to agree on the amount of expenses to be paid, either party may request a hearing to determine the amount of expenses to be paid, in accordance with Rule 77 of the Code.

May 23, 2002

Susan Sapin Arbitrator

Date