Neutral Citation: 2002 ONFSCDRS 91

FSCO A00-000522

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

CHERYL CAMPEAU

Applicant

and

LIBERTY MUTUAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

David J. Evans

Heard:

September 24, 25 and 27, 2001, in Chatham, Ontario. Further written submissions were received on January 22 and February 1, 2002.

Appearances:

James E. S. Allin for Ms. Campeau

William G. Woodward for Liberty Mutual Insurance Company

Issues:

The Applicant, Mrs. Cheryl Horvath,¹ alleges that she was injured in a motor vehicle accident on September 23, 1994. In October 1996, she suffered a disc herniation. In 1999, she applied for statutory accident benefits from Liberty Mutual Insurance Company ("Liberty Mutual") pursuant to the Schedule.² Liberty Mutual has not paid benefits, alleging that any inability entitling her to benefits did not occur within two years of the accident and that the disc herniation was not caused by the accident. The parties were unable to resolve their disputes through mediation, and Mrs. Horvath 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:

Did Mrs. Horvath sustain an impairment within the meaning of section 1 of the Schedule as a result of the accident?
Is Mrs. Horvath entitled to receive weekly caregiver benefits from September 30, 1994 and ongoing, pursuant to section 18 of the Schedule?
Is Mrs. Horvath entitled to the supplementary medical expenses set out on pages 5 and 6 of the January 29, 2000 report of Sunnyside Rehabilitation services, claimed pursuant to subsections 36(1) and 40(5) of the Schedule?
Is Mrs. Horvath entitled to $1,200 for child care and housekeeping services, pursuant to sections 36, 54 or 55 of the Schedule?
Is Mrs. Horvath entitled to payment for the cost of examinations, including the sum of $482.82 for the January 29, 2000 report of Sunnyside Rehabilitation Services, Hotel-Dieu invoice of $243 and invoice of Dr. Al-Farra of $100, all claimed pursuant to section 57 of the Schedule?
Is Liberty Mutual liable to pay a special award pursuant to subsection 282(10) of the Insurance Act because it unreasonably withheld or delayed payments to Mrs. Horvath?
Is Liberty Mutual liable to pay Mrs. Horvath's expenses in respect of the arbitration under subsection 282(11) of the Insurance Act?
Is Mrs. Horvath liable to pay Liberty Mutual's expenses in respect of the arbitration under subsection 282(11) of the Insurance Act?
Is Mrs. Horvath entitled to interest on overdue payments, pursuant to section 68 of the Schedule?

Result:

Mrs. Horvath did not sustain an impairment as a result of the accident that led to the disc herniation.
Mrs. Horvath is not entitled to receive weekly caregiver benefits from September 30, 1994 and ongoing, pursuant to section 18 of the Schedule.
Mrs. Horvath is not entitled to the supplementary medical expenses set out on pages 5 and 6 of the January 29, 2000 report of Sunnyside Rehabilitation services, claimed pursuant to subsections 36(1) and 40(5) of the Schedule.
Mrs. Horvath is not entitled to $1,200 for child care and housekeeping services, pursuant to sections 36, 54 or 55 of the Schedule.
Mrs. Horvath is not entitled to payment for the cost of examinations, including the sum of $482.82 for the January 29, 2000 report of Sunnyside Rehabilitation Services, Hotel-Dieu invoice of $243 and invoice of Dr. Al-Farra of $100, all claimed pursuant to section 57 of the Schedule.
Liberty Mutual is not liable to pay a special award pursuant to subsection 282(10) of the Insurance Act.
If the parties cannot agree on expenses, they may apply to re-open the hearing for submissions on the issue of expenses.
Mrs. Horvath is not entitled to interest on overdue payments, pursuant to section 68 of the Schedule.

EVIDENCE AND ANALYSIS:

The first hurdle for Mrs. Horvath is whether or not she suffered an impairment as a result of the accident. Mrs. Horvath testified that she suffered back pain after a car accident on September 23, 1994 that worsened over the next two years and led to a disc herniation in October 1996. In 1999, she made a claim to Liberty Mutual for caregiver benefits under section 18 of the Schedule, as well as for a number of expenses. The first qualification for a caregiver benefit is that the insured person sustained "an impairment as a result of the accident," and most of the expense provisions³ begin with the words "If an insured person sustains an impairment as a result of an accident ..." "Impairment" is defined in section 1 as "a loss or abnormality of psychological, physiological or anatomical structure or function."

However, simply suffering an impairment is insufficient to entitle Mrs. Horvath to benefits. The brief recital of her testimony sets out the two major problems for Mrs. Horvath. First, in order to receive caregiver benefits, Mrs. Horvath had to suffer an "inability" within two years of the accident.⁴ However, the clearest evidence of an inability arose only at the time of the herniation, which was more than two years after the accident.

Second, Mrs. Horvath's expense claims all arose after the herniation. However, to be recoverable, such expenses must be incurred as a result of the accident.⁵ If they were incurred as a result of the herniation, but the herniation was not caused by the accident, then the expenses are not recoverable. This is an issue of causation. As noted, Mrs. Horvath did not make a claim until early 1999, more than two years after the surgeries for the herniation and almost five years after the accident; only then, after she had already made an unsuccessful claim for CPP benefits, did her doctors say — for the purposes of her claim for accident benefits — that the accident caused the herniation. The second major issue, then, is whether the accident caused or materially contributed to the herniation, for the purposes of the expenses. In that sense, the issue of an impairment is whether or not Mrs. Horvath suffered an impairment that led to the herniation.

If Mrs. Horvath had been successful in these issues, I would have had to consider additional issues such as the length of her inability or the reasonableness of the expenses. However, in light of my findings below, that is unnecessary.

My findings were influenced by the fact that only Mrs. Horvath and Dr. Chakravarthi, the surgeon who operated on her back, testified on her behalf. However, the medical documentation did not support her allegation that she had continuing and worsening back pain from the time of the accident to the herniation. On that crucial element, her evidence stood alone, as Dr. Chakravarthi had no direct knowledge of her condition until after the disc herniated. I find below that the unanswered discrepancy between her testimony and the medical records, combined with other factors, negatively affect her credibility.

I will focus first on the time limit issue for the caregiver benefits, as these benefits form the largest claim and the time limit creates the greatest problem for Mrs. Horvath, although I will also include testimony about elements of the causation issue. I will then consider the causation issue for the purpose of the expense claims.

Did Mrs. Horvath suffer an inability within two years of the accident?

Mrs. Horvath is only entitled to a weekly caregiver benefit if she meets a number of qualifications. There is no dispute that she meets two of the qualifications, namely that she was the primary caregiver for her son Matthew (who was four years old at the time of the accident) and that she was not working or self-employed.⁶ The most important disputed qualifications at this hearing have been the ones related to time limit and causation for the inability tests set out in paragraph 18(1)3 of the Schedule:

(1) An insured person who sustains an impairment as a result of an accident is entitled to a weekly caregiver benefit if the insured person meets the following qualifications:

As a result of and within two years of the accident, the insured person,

i. suffers a substantial inability to engage in the caregiving activities in which he or she engaged at the time of the accident, or

ii. suffers a partial or complete inability to carry on a normal life. [italics added]

Overview:

Mrs. Horvath testified that she was born in Windsor on October 13, 1962 and continued living there. She married Christopher Campeau on June 8, 1985 and also started seeing Dr. Donald Carom as her family physician in 1985.

Mrs. Horvath testified that she graduated from St. Clair College of Applied Arts and Technology in Windsor in 1985 with a Business Administration Diploma. Over the next eight years she worked full time at property management, at a Regal wholesale operation, at a Mac's Milk store as a manager, and finally at a Blockbuster outlet as an assistant manager. Her work had involved some physical aspects such as taking boxes of stock and unloading them resulting in some sporadic back pain. Dr. Carom sent her for X-rays on January 7, 1986 and saw her in followup on January 22, 1986 for right shoulder and neck pain. His clinical notes and records of December 1990 also refer to a back problem related to lifting boxes.

Mrs. Horvath testified that her son, Matthew Douglas Campeau, for whose care she claims caregiving benefits, was born June 27, 1990. Mrs. Horvath stopped working around March 1993 in order to look after him. Up to the time of the accident she was working "basically as a housewife," doing the household chores, laundry and washing.

The details of the accident and its aftermath are set out below. Briefly, Mrs. Horvath was in the accident in September 1994. She became pregnant afterwards, and her second son Adam Joseph Campeau was born June 16, 1995.⁷ In October 1996, a disc herniation became apparent. She was admitted to the Hotel-Dieu Grace Hospital in Windsor suffering pain and continence problems. Dr. Srinivas Chakravarthi, neurosurgeon at the Hotel-Dieu, performed two operations on the L4-5 disc: a discectomy and decompression on October 28, 1996, and a removal of scar tissue on November 25, 1996.

Dr. Chakravarthi on January 8, 1997 wrote⁸ that she was improving and that he advised "conservative management with exercise program and follow up after 6 months."

Mrs. Horvath returned to see Dr. Chakravarthi on June 10, 1997. He wrote to Dr. Carom as follows:

Cheryl is doing remarkably well. She had reduced weight. She has more urinary continence. Walking without a cane, motor function improving, saddle anaesthesia also improving. I am quite pleased with the progress and advised her to continue the same present activity. Will follow if needed.

Mrs. Horvath testified that she moved with her family to Tilbury in 1997. She stopped seeing Dr. Carom except for a couple of visits in 1999.⁹ Mrs. Horvath separated from Mr. Campeau in 1999. She blames the separation on her emotional problems arising from the accident. She continued living in Tilbury for a short period after the separation in August 1999 and then moved back to Windsor with her sons into a two-bedroom townhouse on September 1, 1999. She started seeing Dr. Lisa Jansen as her family physician.¹⁰

Mrs. Horvath testified that she is not currently receiving any treatment other than taking Tylenol and possibly considering some experimental surgery for her bladder problems. By the spring of 1997 she had mostly reached a plateau that continues to the present. Her counsel had arranged an Occupational Therapy Assessment by Toni Potvin of Sunnyside Rehabilitation Services, dated January 29, 2000.¹¹ Mrs. Horvath testified that in general her condition then, as laid out in the Assessment, was as it had been since June of 1997, with the biggest change being that now she can walk up stairs one step at a time instead of having to put both feet onto one step before advancing up the next step. The report sets out that she is independent in walking, driving, banking (using the telephone), preparing meals for herself and her children, loading and unloading the dishwasher, dusting, making beds and changing sheets, and cleaning the sink and toilet on a daily basis. I note that any caregiving assistance required seems to relate to Mrs. Horvath's second younger son, for which she cannot make a claim.

The Accident:

Mrs. Horvath testified that around 9 a.m. on Friday, September 23, 1994, she was driving alone, with her seat belt on, in her 1990 Pontiac Sunbird on her way from Windsor to St. Clair Beach. She was going about 20 kph on an entrance ramp to a highway. As she was making a turn to the left, she heard a bang and looked away to see what it was. She went off the road and travelled about 3 car lengths from the pavement through a ditch and into a field. She estimated the ditch was about 3 to 3.5 feet deep. After her lap and shoulder belts locked she felt "very restrained" while the car was going in and out of the ditch. The car bounced as it exited the ditch and stopped without striking anything. After the car stopped, a man came up to her, asked if she needed help, helped her out of the car, and called her husband. Mr. Campeau worked nearby, so he came to assist her.

Mrs. Horvath testified that the police were called, and she told the officer that she had pains in her legs and knees.¹² Mrs. Horvath felt very shaken as it was her first time in an accident and that it took her quite a while to calm down. This was Mrs. Horvath's initial testimony in chief. However, in cross-examination she testified that she had indeed been in earlier accidents. Mrs. Horvath in re-examination clarified that she meant this was her first accident as a driver.

Mrs. Horvath testified about the two earlier accidents. In December of 1986 or 1987 her husband rear-ended a vehicle on an icy road, causing about $1,500 in damage, but she was not hurt. However, at age 18 she had been a passenger in a serious motor vehicle accident when the vehicle was rear-ended by a transport truck. Her father suffered a head injury. She lost consciousness, had to be examined and later suffered headaches. She testified that she related this to Dr. Carom when she first met him after she married Mr. Campeau and that it should be in his notes. She testified that she also mentioned it to Dr. Chakravarthi. However, nothing in the notes indicates this. Furthermore, Dr. Chakravarthi testified that he only heard of the earlier accidents on the day he testified.

Mrs. Horvath testified that from the 1994 accident on she had increasing pain and an inability to carry on a normal life, which was exacerbated when the disc herniated in October 1996.

Overview of Post-accident activities:

Mrs. Horvath testified that prior to the accident she provided the main care to Matthew. She prepared meals for the family, washed Matthew's clothes, helped him get dressed and got him ready for bed. In September of 1994, he had started going half days to kindergarten. Mrs. Horvath would walk him to and from school, about 3.5 blocks away. After the accident she was in some pain and had to stop and take rests. In the fall of 1994 her neighbour and friend "Laurie" would come over for a couple of hours each day to vacuum or take Matthew for a walk to the park.¹³Laurie would also pick up him from school at least twice a week. Mrs. Horvath would lie down and rest for 30 to 60 minutes, and she would also rest for half an hour after her husband came home. She also stopped mowing the lawn and shovelling snow because those activities caused increased back pain.

Mrs. Horvath testified that by two years after the accident she had so much back pain that she could not concentrate on the house, so her friend and her husband were doing the housework. All she thought of night and day was the pain, which "overcame everything." She was upset with everybody and could not lift Matthew because of the pain. Her friend was there "24 hours a day" in October 1996. She would only leave when Mr. Campeau came home, so somebody was always with her.

Her husband did the groceries, while her friend prepared Matthew's meals and walked him to school.

Post-accident medical care:

Overall, Mrs. Horvath testified that the pain worsened over the two years after the accident. At first she had "regular" back pain with one-hour spasms, but by the fall of 1996 it was intense and lasted 24 hours a day. She could not cope with anything and she was taking medication three times daily "for months."

Mrs. Horvath testified that shortly after the accident she had back pain at her waist line and going down into her legs, as well as pain in her knees as she had hit them going into the ditch, but she was able to walk. She did not immediately seek medical treatment but went home to "get her nerves together" and take Tylenol for the pain. The pain worsened overnight, so she took more Tylenol the next day, Saturday. Eventually she told her husband they had to go to the hospital as the Tylenol was not relieving the pain. They went to the Metropolitan General Hospital around 8:00 p.m. where she described generalized body aches and stiffness pain to the attending physician.

The emergency record shows that Mrs. Horvath was admitted at 20:17 and complained of generalized body aches and stiffness. The diagnosis was of cervical muscle spasm arising from an accident. No X-rays were taken, and she was released at 20:50.

Mrs. Horvath testified that the attending physician at Metropolitan General told her that she had bruised muscles from the accident, for which he prescribed Tylenol, and suggested she continue with her family doctor.¹⁴

Mrs. Horvath testified that she filled the Tylenol prescription and took it as prescribed but it did not help her. She spent the weekend in bed and then saw Dr. Carom on Monday, September 26. She told him she was still in pain despite the Tylenol. He told her to finish the Tylenol and then start another medication. (Although Dr. Carom's entry for September 26, 1994 does not show any prescriptions, Mrs. Horvath testified that he failed to record what he prescribed.) She also filled that prescription and took it as prescribed but it did not mitigate the pain.

On September 26, 1994, Dr. Carom recorded that Mrs. Horvath told him she was driving and heard a "bang" because a man behind her blew a tire. She turned around and ran her car through a ditch and went into a field. She was alone and had her seat belts on. He noted that she complained of pain in her neck and thoracic-lumbar spine to her buttocks. She had decreased range of motion in her cervical neck and myositis in her thoracic-lumbar spine.¹⁵

They also discussed a second pregnancy. He noted that Mrs. Horvath was 32 years old, off birth control pills ("BCP") for the past three months and "should be ok"(to have a baby). Mrs. Horvath testified that she and her husband had discussed having another baby. She took birth control pills but stopped in anticipation of a pregnancy in mid-1994. She wanted Dr. Carom's assurance that it would be all right to get pregnant.

Mrs. Horvath testified that she saw Dr. Carom several more times in 1994 because her back was still causing her trouble. She told him of the back pain and that she needed relief as the medications were not providing relief. He told her it would take some time to recover from the accident, and later on he said she should lose some weight, which, combined with the medication, would stop the pain.

Mrs. Horvath was referred to the entry for November 15, 1994. It says that she was "nauseated had vomiting + sore breasts + sharp pain in pelvis." Mrs. Horvath confirmed that there was a positive pregnancy test as she was two weeks pregnant and was having the classic symptoms of pregnancy. She decided not to take any medications as they would harm the baby.

The next entry for December 12, 1994 shows that Mrs. Horvath was still nauseated and was scheduled to see an obstetrician. Her blood tests ("BL tests") were "all OK." There is a reference to "lifting heavy package" leading to abdominal, pelvic and back pain. Mrs. Horvath testified that she did not know how heavy the package was.

The next three entries of December 29, 1994, January 24, 1995 and January 27, 1995 deal with colds.¹⁶ Mrs. Horvath testified that they had discussions about her pregnancy. When it was pointed out that there was nothing about other difficulties, she replied: "That he reported, yes."

The next entry is on April 25, 1995. It appears to read that Mrs. Horvath had low back pain and spasm with her pregnancy of 6.5 months and that she should try an Obus Forme. Mrs. Horvath testified that she had complaints of increasing back pain as the pregnancy progressed. The next entry of May 29, 1995 contains no reference to low back pain.

Mrs. Horvath testified that Adam Campeau was born June 26, 1995, and that there was a "night and day" difference between the births of her two sons. With Matthew, Mrs. Horvath just had "regular" birth pain. During the second birth, she was screaming that something was going wrong and that her back was on fire. The staff took Adam away after the birth because she was still crying in pain and they needed 12 hours to calm her down.¹⁷ Subsequently, she still did not take any medications other than a little Tylenol because she wanted to nurse for two months.

The next entry by Dr. Carom is on July 10, 1995, after the birth. Mrs. Horvath believed this meeting was to reassure her about the birth.

Mrs. Horvath testified that when she saw Dr. Carom after Adam's birth she "constantly" complained of her sore back and that she wanted treatment. After she stopped nursing, she saw him to get a prescription. He told her that weight loss combined with Tylenol use would relieve her pain. She weighed about 225 pounds when Adam was born, and over the next three months she dropped to about 175. Although the prescriptions did not help her, Dr. Carom again told her to lose weight and take the prescriptions.

However, from the records it appears that in September and November 1995 Dr. Carom was still dealing with the follow-up to the birth.

Mrs. Horvath testified that, in the fall of 1995, Dr. Carom suggested physiotherapy for the back pain. However, the three or four sessions she took only provided temporary relief.

The clinical notes and records and OHIP records show that Mrs. Horvath had some back treatments at the end of 1995. The OHIP Entry for December 20, 1995 refers to a Pat Smith¹⁸ for Code 781, namely symptoms not yet diagnosed for the musculoskeletal system and leg cramps and the same date she saw Roy S. Tayfel¹⁹ for OHIP code 724, namely lumbar strain or lumbago. She saw Tayfel again on December 28, 1995 for the same thing, and then had three OHIP physiotherapy treatments on January 4, 9, and 11, 1996 at Wardle's Physio Clinic.²⁰

The OHIP records do not show any treatments for the back after the treatments at Wardle's Physiotherapy in January 1996 until the events of October 1996. There are several entries for family psychotherapy with Dr. Robert Drake in the summer of 1996 for Code 898, "marital difficulties."

Mrs. Horvath testified that by the fall of 1996 she was constantly complaining to Dr. Carom of her pain. Finally, she was crying because she had so much pain. However, the only entry of Dr. Carom's dealing with back pain prior to the fall of 1996 is that of February 2, 1996 in which Dr. Carom refers to "also back pain and spasm."

Mrs. Horvath testified that she saw Dr. Carom three times from February to April 1996, that these were the last visits until October 1996, and that she agreed it was a fairly wide gap between April 24, 1996 and October 9, 1996. At around this point, counsel for Mrs. Horvath objected that the notes were difficult to read, and then Mrs. Horvath alleged that she could not read the notes either, although she had been able to read the "also back pain and spasm" entry of February 2. 1996.

Dr. Carom's entry for October 9, 1996 shows that Mrs. Horvath was suffering acute lumbar myositis and spasm. Mrs. Horvath agreed with that portion of the entry, although she could not read the portion that seems to say "working around home with plumbing etc." She was prescribed some medications, probably Norflex and Naprosyn.

The next entry is for Friday, October 18, 1996. Dr. Carom noted acute left sciatica with intense pain and spasm and myositis. Mrs. Horvath testified that she had taken the medications from October 9, but they had not helped, so Dr. Carom prescribed Demerol as well and said to call the following Monday if she did not improve. He also thought that physiotherapy would help, so she went downstairs to the Berkeley Physiotherapy Clinic.²¹ She testified that she was in "drastic pain" after just one session of 15 or 20 minutes. Berkeley's note indicates "Sudden onset of severe pain in the back," worse on the right side, with discogenic pain and marked restriction of range of motion in all movements.

Mrs. Horvath testified that she disagreed with the first comment: the pain was not sudden, it was just suddenly so severe that she could not see at that point.

Mrs. Horvath testified that she spent the weekend in bed screaming of the pain because the pills were not helping. She did not remember that she went to the hospital on October 18, 1996.

The Hôtel-Dieu Grace Hospital Record for October 18, 1996, notes that Mrs. Horvath was admitted around 11 p.m. complaining of lower back pain for the previous two weeks, unrelieved with medication or the physiotherapy she had that day. She was complaining of numbness to her buttocks and in both legs from thigh to knees posteriorly, and she could not sit down due to the pain. The discharge diagnosis consisted of back pain and sciatica.

Mrs. Horvath testified that on Monday, October 21, 1996 at 7 a.m. her husband was getting ready to go to work. She got up to say goodbye but collapsed on the bedroom rug because the pain was "on fire." She told him she could not get up. He lifted her up and caught her as she fell again. He called Dr. Carom, who told him to take her to the hospital. Her husband carried her downstairs to the car and took her there. She was admitted immediately and had X-rays for the first time.

Dr. Carom prepared a History and Physical Report on October 22, 1996, the day after she was admitted to Hotel-Dieu. It contains no mention of the motor vehicle accident in 1994 nor of the other accidents. He wrote: "I saw this patient in the office about a week or so previous to this admission with moderately severe sciatic irritation. The pain has become much more intense and worse over the past few days." Dr. Carom also wrote: "She has had no other major problems in the past." Mrs. Horvath testified that she considered her pain "major" but Dr. Carom did not document it despite her complaints to him.

Dr. Carom also wrote that she felt "excruciating pain" in her left lower back and down her left leg while bending over to pick up one of her children. Mrs. Horvath testified that she "may have" told him about picking up the child. I note Mrs. Horvath's testimony that by October 1996 she was in too much pain to lift up Matthew. However, from this record, it appears that Mrs. Horvath was still prepared to lift a child (presumably her younger son) in early October 1996 and had a sudden onset of pain in so doing.

Dr. Carom also wrote: "She has had some degenerative disc disease in the lumbosacral area at L4-5, S1 in the past." Mrs. Horvath testified that she did not recall having had a disc disease but did recall the back pain in 1985.

The neurosurgeon who saw Mrs. Horvath at Hotel-Dieu Grace was Dr. Chakravarthi. Mrs. Horvath testified that she told him her back had been increasingly bad for the previous two years and then that morning she was unable to walk.²² He ordered diagnostic tests. On October 28, 1996 she had the back surgery and was discharged on November 11, 1996. Mrs. Horvath testified that although the pain was "drastically decreased," it was still there.

Dr. Chakravarthi testified that he first met Mrs. Horvath on October 22, 1996 at the emergency ward when she came in with back and leg pain and urinary retention. By the time he saw her, she had already been catheterized. Based on Mrs. Horvath's age, weight and original history (which did not refer to the 1994 accident), he was not surprised that she had a herniation: although in his view some factor usually precipitates a herniation, unless the person is sedentary, smokes, and weighs a lot, for many patients nothing obviously causes a herniation.

Dr. Chakravarthi testified that the initial clinical exam was limited because of Mrs. Horvath's pain, but it showed that the sciatic nerves leading to the ankles were affected. He diagnosed an extruded disc at L4-5 with bilateral leg involvement and urinary involvement. He recommended surgery on a semi-urgent basis because of the urinary problem. He operated on October 28, 1996 and removed large disc fragments at the L4-5 level.

Dr. Chakravarthi testified that the results of the October operation were good. Mrs. Horvath's pain improved but the urinary problem persisted. Once the pain improved, Mrs. Horvath realized she had numbness in the buttocks. On discharge November 11 she was walking with a cane because of weakness in her legs and feet, learning catheterization and controlling her pain. Dr. Chakravarthi testified that up to that point they had not discussed any connection with the 1994 accident. Mrs. Horvath testified that she had told Dr. Chakravarthi about the earlier accidents but "he didn't write it down."

Mrs. Horvath testified that after the initial discharge from the hospital, she still had back pain and was scared of doing catheters on her own. She was learning to walk again and was using the cane at home. She needed assistance because she was unable to care for herself or Matthew.

Mrs. Horvath testified that on November 12, 1996, she returned to the emergency because of a reaction to the enema. She was then admitted a few weeks later to remove excessive scar tissue.

Dr. Chakravarthi testified that Mrs. Horvath returned on November 21 with increasing numbness and persistent problems with urination and back pain. A repeat MRI showed some scar tissue. During the second operation he widened the opening around the nerve by taking out bone and adding fat padding so that the scar would grow around the fat. Afterwards, Mrs. Horvath's leg pain and weakness improved but she still had persistent peri-anal numbness and sporadic incontinence. Later he realized her sexual function had also changed.

Mrs. Horvath testified that her urinary and bowel problems continued after the surgery. She also developed numbness in the saddle area between her legs and in her toes that persists today.

Dr. Chakravarthi testified that he saw Mrs. Horvath several times in the following years. Her walking improved dramatically, and she stopped using a cane. She has periodic muscle aggravation, especially with some exertion like restraining a child, but she is managing her back pain well. Her major frustration was urinary incontinence, so he eventually referred her to a urologist.

Dr. Chakravarthi testified that all her symptoms have plateaued. He has nothing more to offer regarding the urinary or the bowel function, the leg and foot and saddle area numbness, or the foot drop. If the back pain worsens a fusion might be considered but it is not yet required. The numbness is likely to be permanent, as nerve-related damage still showing 2 or 3 years after surgery is not likely to improve.

Dr. Chakravarthi testified that, based on his last examination, standing for Mrs. Horvath is not likely to be a problem, although she may tire after one or two hours. Exercise may increase her tolerance, but "it's all subjective." Sitting too long can be painful or precipitate numbness, especially if she crosses her legs. He does not see any problem with her walking except for possible fatigue. She can carry weights and lift anything such as a basket of clothes off the floor, although the weaker back muscles may cause increasing pain.

Regarding recovery, Dr. Chakravarthi testified that he was concerned after the second surgery and advised Mrs. Horvath to lose weight and exercise. The restrictions he set post-surgery were to do nothing for the first six to eight weeks, then walk as much as possible with no heavy lifting, go to physiotherapy for two to three months, then learn how to lift properly without injuring herself. She could then gradually increase her duties from light to full-time work after a year, except for heavy lifting. Overall, he expected a return to normal function. With proper physiotherapy education on how to bend at the knees and lift properly, he saw no impediment to a return to normal activities. In Mrs. Horvath's case, he saw her improving in January and June 1997, when she stopped using her cane and was resuming her normal activities. He did not see back pain but rather the urinary problem as the main issue for her.

The Inability Tests

Three possible inability tests are set out in subparagraphs 18(1)3.i and ii. The broadest is the partial inability to carry on a normal life (the "partial inability" test). However, benefits on that test alone are available only for two years after the insured person first qualified for the benefits.²³

Partial inability to carry on a normal life is defined in section 2:

For the purpose of this Regulation, a person suffers a partial inability to carry on a normal life as a result of an accident if, and only if, as a result of the accident, the person suffers an impairment that results in a substantial inability to engage in,

(a) personal care activities in which the person ordinarily engaged before the accident;

(b) mobility activities in which the person ordinarily engaged before the accident;

(c) household activities in which the person ordinarily engaged before the accident;

(d) activities in which the person ordinarily engaged before the accident that require the exercise of cognitive powers;

(e) activities in which the person ordinarily engaged before the accident that require the ability to control emotions or behaviour; or

(f) activities in which the person ordinarily engaged before the accident that require communication abilities.

Mrs. Horvath testified in particular about mobility and household activities. Of course, these can overlap with caregiving activities. The second possible test, which is not time-limited, provides benefits where the insured person "suffers a substantial inability to engage in the caregiving activities in which he or she engaged at the time of the accident" (the "substantial inability" test).

Based on her testimony set out below, I find that Mrs. Horvath could not meet the third "complete inability" test, except for a short period after the surgery. This test requires a complete inability to carry on a normal life.²⁴ Clearly, Mrs. Horvath is not prevented from engaging in substantially all of the activities in which she ordinarily engaged before the accident.

Accordingly, first I will set out below her testimony regarding the "partial inability" test and then regarding the "substantial inability" test.

Partial inability: Personal Care Activities

Mrs. Horvath testified that she is independent in self care. She showers instead of bathes, and needs an extra 10 minutes to dress.

Partial inability: Mobility Activities

Mrs. Horvath testified that she can walk if she takes her time. She stopped using a cane in June 1997 and walks unassisted since then at nearly her former pace, but on some days the pain is so bad that she cannot walk. She cannot walk the distances she used to, and balance problems make her fall if she is on uneven ground. She also fell about 9 times in the last 6 months before the hearing when her left leg gave out.

Mrs. Horvath testified that she used to walk with Matthew to a park about four blocks away and to the corner store two blocks away. Now, she needs rests: she can walk to the bus stop five minutes away or to the store two blocks away but not without stopping. She does not walk with Matthew now as "you cannot expect an 11 year old to stop" and "he can go himself now."

Mrs. Horvath testified that she does not like to walk far because of the catheter; she feels embarrassed to stand up to use it in the bathroom stall. Because of continuing urine leakage, Dr. Chakravarthi recommended a urologist for other surgery, which took place in December 1999, but that did not help.

Mrs. Horvath testified that in the last few months she has been able to walk fairly normally up or down stairs, as long as there is a railing, whereas before she used to walk using one foot at a time. She cannot use a ladder as there are no railings on a ladder.

Mrs. Horvath testified that she is still able to drive. The only difference is that she needs more frequent stops, and after a longer trip she has to rest.

Mrs. Horvath testified that she used to garden before the accident. She had a vegetable and a flower garden in which she would plant the seeds, break up dirt into smaller clumps, and water and check on the plants to see if they were growing. She does no gardening now as she cannot dig or use her shovel. However, since her return to Windsor in 1999, Mrs. Horvath has been living in a townhouse complex that requires no outside maintenance.

Mrs. Horvath testified that she was involved in a number of non-household activities. About once a week in the year before the accident she and her neighbours would get together and play some softball. Matthew also liked to play with his T-ball set. She has not played baseball since the accident, nor was she able to show Matthew how to hit the ball.

Mrs. Horvath testified that she used to go to "Top 40" disco dancing every Saturday night. Now she can only slow dance if her husband holds her tightly. Any other moves require balance and she does not want to fall in public.

Mrs. Horvath testified that she cannot run, hop, skip or jump, which are movements required in tae kwon do. For about a year before the accident she went every other day to classes in tae kwon do. She placed third of 1000 competitors in a tournament and had risen through several belt colours. After the accident her teacher told her it would be too stressful for her to take any classes. She did take Matthew to classes after they moved to Tilbury, but she could not teach him herself.

Mrs. Horvath testified that recently she started selling Avon products for about two hours every three weeks. She makes no money but gets her makeup for free.

Partial inability: Household Activities

Mrs. Horvath testified that, prior to the accident, she had no problems retrieving items from the refrigerator, the freezer or cupboards. She would get up before Matthew and her husband to spend 20 minutes preparing breakfast and lunches. In the afternoon she would spend 20 to 25 minutes preparing the evening meal and about an hour cooking. Sometimes on weekends she tried to make fancier meals with her husband's help.

Mrs. Horvath testified that now, every morning before going to work, her husband gets the food she needs from the basement chest freezer, as she cannot bend into the freezer. The pots and pans are also kept at waist level and ready for her. She makes toast or cereal for the children, and Matthew helps and takes food to the table. It takes her longer to prepare a meal, especially the special weekend dinners, and she needs to take occasional rests before continuing. In the evening, if her back hurts, sometimes "Dawn" comes over to help, usually about twice a week.

Mrs. Horvath testified that before the accident she shopped alone, picking out the items she needed, taking them to the checkout and carrying them to and from the car. Now, she shops with assistance, picking up light items like bread or chips. She brings her son with her for the heavier items, and then she and her husband and Matthew then unload the car.

Mrs. Horvath testified that before the accident, about 90 per cent of the time she prepared and took out all the garbage, including heavy garbage bags, to the two garbage pails she had at the time. She then transported the pails to the edge of the alley. Now, she can only take out a light bag weighing under 10 or 15 pounds to the garbage bin (they don't need garbage pails in the townhouse). If the bag weighs more, her husband or Matthew takes it out.

Mrs. Horvath testified that she looked after cleaning the kitchen before the accident. Daily, she wiped the counters, did the dishes, and swept the floor. Twice a week she washed the floor, and once a week she wiped down the cupboards. Now, she can sweep the floor as before and do some dishes in the sink. She can stand for up to 15 minutes in one spot or a bit longer if she shifts her weight. She can also unload some dishes from the dishwasher. She leaves the floor washing and cabinet cleaning to her husband or a friend.

Mrs. Horvath testified that before the accident the house had one bathroom, which she cleaned every day in about 20 to 25 minutes, scrubbing out the tub and tiles, cleaning the sink and mirrors and washing the floor. Now, she can clean the toilets and sink every day, but the rest of the cleaning she leaves to her friend or husband, who do it three times a week.

Mrs. Horvath testified that she used to wash the floors in her old house. Now her neighbour or her husband washes the floors because she cannot bend over to do it. It bothers her to use a mop and she cannot carry a bucket of water.

Mrs. Horvath testified that she does not use her good cast iron vacuum any more. She used to be able to do the vacuuming in an hour. Her house now has three levels, and she leaves the vacuuming to her husband and friend. Even if she bought a lighter vacuum, the repetitious motion back and forth would bother her. However, she would possibly be able to vacuum on the main level and on the upper level with a lighter vacuum.

Mrs. Horvath testified that she used to wash every window in every room once a month. Now, she can only help her neighbour or husband by washing at arm level, as she cannot climb onto a ladder to wash at a higher level.

Mrs. Horvath testified that she used to wash the hallways and doorways at least once a week. Now, with the proper encouragement, her husband does them about once a month.

Mrs. Horvath testified that she used to do two to three loads of laundry a day, carrying it from the upper bedrooms down to the laundry room. She ironed and brought the laundry back upstairs and put it away without help. In her current home the washer and dryer are also in the basement. She can do the daily laundry to some extent. Her husband takes the dirty clothes hamper down before work and sorts it out. Mrs. Horvath testified she does one load, folds and puts it into the hamper, and somebody else brings it upstairs. She tried carrying the hamper upstairs once but hurt herself. The basket is round, needing two hands to be carried, so she is not able to carry the basket and, at the same time, hold onto the railing to go upstairs. She can carry some clothes and the children may do the rest.

Mrs. Horvath testified that she is still able to strip the beds and change the bed sheets on her own. The only change is that she needs the help of her husband to flip the mattresses. In addition, the children do their own beds now, with some assistance from her.

Mrs. Horvath testified that she can still iron. The only difference now is that the ironing board is left set up, as opening or closing it causes pain.

Mrs. Horvath testified that she is able to dust, although it takes a bit longer than before, and she has to leave the cobwebs in the corners for her husband to remove.

Partial inability: Emotional Control

Mrs. Horvath testified about the emotional effects of her problems. Every time she puts the catheter in, she is reminded that she is not complete. She cries a lot; every day she will lock herself in the bathroom to cry, or she will cry herself to sleep at night. After about an hour, she will calm down. Her husband takes the children away to make sure they do not see or hear her. She is not receiving any treatment for this.

Mrs. Horvath testified that she is not seeing a psychologist or psychiatrist now. Her husband is there to help her and talk to her.

Regarding her first marriage, Mrs. Horvath testified that she separated from Mr. Campeau in 1999, about five years after the accident. She feels the breakup was caused by her inability to feel sex. She testified that the couple had other problems and had argued about money and Matthew's upbringing, but prior to the accident they had not separated or consulted a lawyer. After the accident, Mr. Campeau queried her disability and complained that she was not the healthy woman he had married.

Substantial inability: Caregiving Activities

Under the test set out in subparagraph 18(1)3.i, Mrs. Horvath must suffer "a substantial inability to engage in the caregiving activities in which he or she engaged at the time of the accident" in order to qualify for benefits.

Mrs. Horvath testified that she hired a nanny, Ms. Abena Giles, when she first got home from the hospital after the surgery because she was unable to care for her family. She also had the services of the VON from October 1996 to February 1, 1997, and workers from Paraded Home Health Care cleaned twice a week, free of charge. She is claiming $1,200 for Ms. Giles; the invoice signed by Ms. Giles is "for childcare services between Oct. 21/96 and Feb 1/97."²⁵ Mrs. Horvath testified that Ms. Giles minded the children while Mr. Campeau was at work all day. Matthew, who was in grade 1 from 8:30 a.m. to 3:00 p.m., needed breakfast and lunch prepared and then caregiving after school. Ms. Giles continued caregiving even after Mrs. Campeau stopped paying her. She assisted three times a week, and Mrs. Horvath's friend, Laurie, helped on other days until the family moved to Tilbury in October 1997.

Mrs. Horvath testified that Matthew has outgrown the earlier level of care. He puts on his own pajamas and looks after his own grooming. He is now largely independent, although from ages 4 to 11 she "had to help him get there."

Videotape:

Although I excluded the videotape as an exhibit from the evidence when the investigator advised that he had only produced the tape showing Mrs. Horvath and not every single frame taped,²⁶ I held that I would still consider my notes taken when the videotape was shown.

Mrs. Horvath agreed that the tape showed her with her sons. On November 13, 2000, she is seen leaving and entering her house. Around 12:50 p.m. she goes out in her vehicle with Adam to a hair salon, where at one point she bends over. She goes to another store, and then back to her car. She is home by 1:37 p.m. On November 14 starting at 7:14 a.m she walks and, at another point, bends over. She waits for the bus with her son until its arrival at 8:06 a.m. Later, she waits for her children to come home on the bus and then walks back with them.

Mrs. Horvath testified that, although she appears to have had no apparent difficulty getting into or out of the vehicle, at times she does have difficulties, just as on some days she has difficulties walking. For instance, on bad days with severe back pain, she cannot walk Adam to school or to the bus stop. She estimated that the good and bad days are about equal in number since 1995.

During those two days of videotaping, Mrs. Horvath seemed to show no difficulties walking. For instance, she walked to and from the townhouse over a grassy area with a bit of a gully. She testified that this was a shorter route for her to get to the bus stop. Also, although the surveillance had taped her taking out the garbage and walking through the field, it did not show her falling at the bus stop. She testified that she reported her fall to her family doctor at the time, Dr. Jensen, but those records were not produced.

Mrs. Horvath seemed to have no obvious problems picking up her keys at the hair salon, and, at the door of the bus, she was able to bend over at the waist. She testified that although there are times when she will pick up things, she then suffers back pain immediately or later that day, for which she takes a pain reliever. Also, she assisted Adam with putting on his coat at the salon by sitting down rather than bending over because it was easier on her back.

Mrs. Horvath testified that the shopping she did with Adam was not a regular grocery trip as she only needed a couple of things. She carried three bags holding a couple of bags of chips, bread, a box of macaroni and cheese and a chocolate bar.

Dr. Chakravarthi was referred to points on the video where Mrs. Horvath bent over to pick something up. He testified that a surgery patient's status changes considerably over a few years. He believes that her back pain is not her main complaint any more, as she has only intermittent back problems, and that her major complaint is urinary. He would expect her to be able to stretch, swim and pick up light objects. Accordingly, her activities were not inconsistent for a patient whose status has improved after disc surgery.

Medical Documentation:

Only Mrs. Horvath and Dr. Chakravarthi testified on her behalf, although Mrs. Horvath claims to have relied a great deal on her friends and husbands. Any corroboration for her disability thus has to be found in the medical documentation.

The crux of Liberty Mutual's case is that the medical documentation shows a huge contrast in Mrs. Horvath's medical status before and after the disc herniation and that any disability arises from that herniation, not from the car accident.

Mrs. Horvath was directed to the contrast between the period immediately before and after the surgeries. She testified that her immediate problems after the surgery were her difficulties in walking, in helping Matthew dress or bathe, in cleaning the house, in caring for the baby, and in walking Matthew to and from school, leading to this exchange as recorded in my notes:

Q: So those were your needs after the surgery of October 1996?

A: Right.

Q: And prior to that you didn't need that level of care? A: No, but Laurie did help with breaks.

Q: But by and large you were caring for the children as in the past?

A: Yes, but with the exception of friends helping me out.

Q: But by and large except for the back pain you were able to function up to October 20, 1996:

A: No, it was more September and the pain was always there and increasing every day. October was when I lost the ability to walk, it was never gone the pain.

It must be remembered that for the caregiver benefits, the onset of disability must occur within two years of the accident. However, I find that the contemporary documentation almost exclusively points to an onset after that period, namely in October 1996. I find that Dr. Carom's notes and records do not support Mrs. Horvath's testimony that she had increasing pain and disability over the two years up to the time of the herniation. Dr. Carom was not called to explain this discrepancy. In addition, as I will now set out, other records, including claim forms filled out by Mrs. Horvath herself, indicate the onset occurred in October 1996.

CPP and other insurance claims:

Mrs. Horvath testified that she applied for CPP benefits in April 1997, completing the Questionnaire for Disability Benefits²⁷ herself. Under Question 16, she had indicated that she was no longer able to work as of October 20, 1996; Mrs. Horvath testified that in her view she had been capable of working up to that point.²⁸

Mrs. Horvath testified that at her request, Dr. Carom prepared a report for her CPP application on April 30, 1997.²⁹ He indicated that he has known her since November 1985 and that he started treating her for the "main medical condition" in October 1996.

Mrs. Horvath testified that the CPP benefits were denied. The officer wrote on May 28, 1996³⁰ that in order to be eligible she had to have a "severe and prolonged" disability keeping her from being able to do any (their emphasis) type of work on a regular basis, long-term. Their information showed that when Mrs. Horvath applied for benefits, she had the ability to do some form of light work suitable to her condition and limitations on a regular basis. Mrs. Horvath testified that she applied for reconsideration, and her claim was again denied on May 27, 1998. Although she had 90 days to appeal, she did not. She went to the office of her counsel, Mr. Allin, to discuss appealing this decision, and at that point they discussed obtaining benefits from Liberty Mutual in connection with the motor vehicle accident.

Mrs. Horvath testified that she had Dr. Carom complete a number of forms. One form was completed in 1997.³¹ It gives the date of October 9, 1996 in answer to the question "When did symptoms first appear or accident happen?" (The same date is given for "Date patient ceased work because of disability?") In response, Mrs. Horvath testified that the symptoms also appeared in February 1996. The form goes on to indicate that she had never had the same or a similar condition, that the condition did not arise out of employment, that the date of first treatment was October 9, 1996 and the last was on February 18, 1997, that her condition has improved, that she is ambulatory, and that Dr. Carom expected a "fundamental or marked change" in three to six months. Under "remarks" he wrote: "Slowly improving."

Dr. Carom also filled out an "Attending Physician's Statement" apparently in July 1997. Mrs. Horvath testified that this was for a Manulife life insurance claim. By that point, she had moved to Tilbury, explaining why Dr. Carom wrote that he had not seen her since April 1997. Under "Diagnosis," he wrote "Recent Disk Herniation." Again, he gave October 9, 1996 as the first date of treatment.

Mrs. Horvath testified that at some point after 1996 she also claimed a disability tax credit, for which Dr. Carom also prepared a form.³² He indicates that his patient "began having severe functional limitations" on October 21, 1996.

As for the hospital records indicating onset just two weeks before her admission, Mrs. Horvath testified that she had complained on February 2, 1996 to Dr. Carom and that she had always complained of back pain to him. She also did not discuss the onset dates that Dr. Carom used in the various forms: she gave him the forms and did not see them again before he mailed them. However, Dr. Carom was not called to explain why he did not set out all her complaints in his notes or why he used onset dates which Mrs. Horvath now contests.

Accident Benefit Claim:

Dr. Carom also filled in a Health Practitioner's Certificate on April 26, 1999,³³and under "Treatment/Prognosis" he wrote as follows:

At the time of the accident, she apparently cracked a lumbar vertebra. This was not recognized at the time, and did not present itself until 2 years later when she had the lumbar disk problem, [emphasis added]

Mrs. Horvath testified that she filled in an Accident Benefits Application Package³⁴herself and signed it on May 10, 1999. On page 1, Part 3, Accident Details, she wrote:

I heard a bang and turned around and went in and out of a ditch. The car behind mine backfired ... My first accident

Mrs. Horvath testified that she should have said it was her first accident as a driver. Her description continued on the next page as follows:

The emergency doctor just gave me Tylenol #3. My family doctor just continued with same medication. My back never was the same again. I kept going to my doctor and he recommended to stay in bed. The next day I was unable to walk. I went to emergency at Hotel Dieu.

Mrs. Horvath testified that the last three sentences referred to October 1996. She had also, as she testified, discontinued the Tylenol #3 because of her pregnancy. She testified that the rest of the description, in which she talks about problems with her legs, toes, urination, bowel movements and so on, all related to the effects of the surgery. Under Part 9, Caregiver, Mrs. Horvath indicated on the form that she was the primary caregiver of Matthew at the time of the accident and that she was prevented from carrying out caregiving activities from October 20, 1996. She testified that the explanation she set out on the form for why she needed a caregiver again related to her post-surgery condition.

Findings:

I find an unanswered discrepancy between Mrs. Horvath's testimony regarding the onset of her disability for the purpose of the caregiver benefits and the supporting contemporary documentation.³⁵ I find that the contemporary documentation indicates an onset of disability at the time of the disc herniation in October 1996 and not before then. The one exception is Dr. Chakravarthi's initial consultation report of October 22, 1996, in which he wrote that Mrs. Horvath "noted two months back spontaneous onset low back pain." However, the other contemporary documentation, including Dr. Carom's note of the same date and the emergency record of October 18 all point to an onset in early October 1996. Furthermore, even Dr. Chakravarthi in his testimony indicated an onset two weeks prior to the October 21, 1996 admission, as recorded in my notes: "She stated that the leg pain became quite worse over the course of time. The exact detail was that she got worse over two weeks." Accordingly, I find the reference in Dr. Carom's note to be a typographical error.

I find that this discrepancy between the documentation and Mrs. Horvath's testimony could have been answered by calling other witnesses to support her testimony, but these witnesses were absent. On that point, after the hearing in this matter, Arbitrator Wilson issued his decision in Stargratt and Zurich Insurance Company.³⁶I asked the parties to make further submissions in light of that decision. I quote the following submissions made by Liberty Mutual in Mr. Woodward's letter of February 1, 2002:

It is respectfully submitted that there are significant differences between the evidence called in the course of the Stargratt v Zurich arbitration and the within arbitration. In the Stargratt case contact was made less than three weeks post-accident in which the claimant explained that she was unable [to] provide care for her child. The family doctor's disability certificate, approximately two weeks post-accident also comments on the claimant's inability to care for her child. Although the fundamental issue in the Stargratt case appears to have focussed on the nature of the claimant's inability and whether it was related to her pre-existing condition or represented an exacerbation of her pre-existing problem, there was extensive evidence called to establish the nature and extent of the claimant's disability. It appears that not only were a number of medical witnesses called to deal with the nature and extent of the claimant's difficulties, but also her husband, mother, father and most importantly her sister who were all heavily involved, not only in the care of the claimant's daughter, but also of the claimant. These witnesses provided testimony of the time they spent as well as the types of services they provided. Extensive lists were provided to the insurer as early as three months post-accident detailing the time spent providing services to the claimant and her child.

It is submitted that the evidence presented in this arbitration is in stark contrast to the Stargratt case. Mrs. Horvath's evidence of any problem or incapacity she may have had between September of 1994 when this accident occurred and October of 1996 when she required the first of her surgeries is vague and is not supported by any independent testimony. The clinical notes and records of the family doctor, Dr. Carom, do not reflect any ongoing complaints of back pain and the only notations are shortly after the accident and during the claimant's pregnancy. There is no indication of any treatment or investigation and in fact the claimant did not see her doctor between April 24, 1996 and October 9, 1996. Although the claimant suggests that Dr. Carom's notes were incomplete, he was not called to explain his notes or give any evidence regarding the claimant's condition. The claimant testified that her friends provided assistance, but again they were not called as witnesses and the nature and extent of their help and the time frame in which it was provided, it is submitted, was rather vague.

With one proviso, I adopt these submissions. Mrs. Horvath had complained to Dr. Carom in February 1996 as well of back pain, but that was the last entry regarding back pain until the following October. I find that the contemporary documentary record does not support an increase in pain up until October 1996. I find little evidence supporting a substantial inability to engage in caregiving activities. Indeed, Mrs. Horvath, in her Application for Benefits that she filled out herself, indicated that she was only disabled from engaging in her caregiving activities from October 20, 1996. Accordingly, I find that Mrs. Horvath is not entitled to caregiving benefits under the substantial inability test, which relates to caregiving activities.

As for the partial inability to carry on a normal life test, again, I agree with Liberty Mutual's submissions that Mrs. Horvath's evidence is, in general, vague and also unsupported by other evidence. One of the few specific items she testified about for the initial two-year period was her inability to engage in tae kwon do. No evidence was called to support this evidence. On the other hand, I note that despite the accident she was prepared to and did become pregnant. Even as late as early October 1996, she was apparently still prepared to lift one of her children, despite her testimony that "pain overcame everything" and her friend had to be there "24 hours a day." Furthermore, I found her answers sometimes evasive, such as in her initial testimony that the 1994 accident was her "first accident," or in her grudging admission that she "may have" told Dr. Carom about lifting one of her children in early October 1996 when she felt the pain. In light of these contradictions, I am not prepared to accept Mrs. Horvath's unsupported evidence. Accordingly, I find that she is also not entitled to caregiving benefits under the partial inability test.

Therefore, as Mrs. Horvath has not succeeded in meeting any of the inability tests, I find that she is not entitled to caregiver benefits.

I will now turn to the question of causation regarding the onset of the disc herniation for the purposes of the expense claims.

Causation: Did the Herniation Result from the Accident?

Mrs. Horvath relied on the testimony of Dr. Chakravarthi for her claim that the herniation was caused by the accident.

Dr. Chakravarthi testified that he took a history from Mrs. Horvath indicating a spontaneous onset of the pain with no history of trauma. She stated that her leg pain had worsened over two weeks. This history changed after the operation when he was going through her history "at a later time" when he was made aware of the 1994 accident in which she had sustained back pain and a loss of consciousness. (However, the evidence at the hearing showed that there was no loss of consciousness.) He understood that she had been seeing doctors since the accident and had also gone to the emergency for her back pain. This increased until the pain was so bad that she came to the emergency where she met him.

Mrs. Horvath testified that she did tell Dr. Chakravarthi at the hospital that she had been in an accident in 1994. However, the earliest mention of the accident in Dr. Chakravarthi's records appears to be in his report of March 21, 2001, when he wrote:

The clinical history has been rather difficult and there were some inconsistencies which [I] perceive as secondary to pain and stress on the part of the patient when she did not mention the car accident at the time of her first examination in the emergency which was clarified subsequently.

Regarding the initial mechanism of injury, Dr. Chakravarthi testified that a car that does not stop suddenly is unlikely to cause a major injury even if the driver has the seat belt on, as injuries arise from sudden acceleration or deceleration. If those elements are not present, the accident is unlikely to have a significant effect.

Liberty Mutual called Dr. Hart Schutz, neurosurgeon, who had prepared a report based on a paper review of Mrs. Horvath's file. Counsel for Mrs. Horvath presented the theory to him that after Mrs. Horvath's car left the ditch and emerged on the other side of the field, her spine would have been compressed as the car bounced and she was restrained in her seat by the seat belt. Dr. Schutz testified that the effect of the seatbelt on any trauma would be only marginal. There are 33 discs in the spine, so all 33 would have to be compressed equally, making the scenario speculative and not fact-based. Dr. Schutz also stated that in many compression models where axial loading is applied, the bones usually shatter before the discs. He did agree that it was possible one disc could have suffered a prior trauma and be weaker than the others, although usually more than one is damaged. However, he dismissed as speculative the idea that the spine would collapse at the weakest point. The spine is S-shaped and not on a pure 180 degree axis. In the human form, there is no correlation between axial loading and rupture, whether degenerate or not.

Dr. Chakravarthi testified that only on the day of the hearing was he told of the rear-end accident in 1985 or 1986, and he had not been advised of the earlier more serious accident. He had also not been advised of any low back pain prior to 1994. He testified that the earlier accidents could have been the source of the injury. Equally, there could be two, three or four incidents that all contributed to what occurred. Dr. Chakravarthi testified he has no way of knowing if any of these traumas caused the process leading to the herniation: it was equally possible that none of these events caused the process.

I find that the expert evidence does not support a link between the accident and the subsequent disc herniation. Furthermore, in light of Dr. Chakravarthi's inability to say whether the accident or some other trauma caused the process leading to the herniation, I find that the accident did not cause or materially contribute to the herniation. Since the expenses were only incurred after and as a result of the herniation, I find that Mrs. Horvath is not entitled to the expenses for supplementary medical expenses, rehabilitation expenses, or child care and housekeeping expenses.

Costs of Examinations:

Subsection 57(1) provides as follows:

The insurer shall pay for all reasonable expenses incurred by or on behalf of an insured person in obtaining and attending an examination or assessment for the purpose of this Regulation or in obtaining a certificate or report for the purpose of this Regulation, including,

(a) fees charged by a person who conducts an examination or assessment or provides a certificate or report; and

(b) transportation expenses incurred in attending an examination, including transportation expenses for an aide or attendant.

The total costs of the expenses sought by Mrs. Horvath were only provided to Liberty Mutual at the hearing. I find that the items from Dr. Carom, Dr. Al-Farra and the Hôtel-Dieu Hospital are for records produced as part of the hearing process and are not recoverable under section 57.

Mrs. Horvath also claims for the reports by Dr. Chakravarthi and Sunnyside Rehabilitation. I find these were clearly medical-legal reports prepared for the purpose of the hearing long after the matter was in dispute and were not prepared for the purposes of the Schedule.

The claims for these expenses are denied.

SPECIAL AWARD:

As Mrs. Horvath has been unsuccessful in her claims, it is not necessary for me to consider whether she is entitled to a special award.

Miscellaneous:

The following are the orders I made regarding the testimony of Robert John Cianci, the investigator who videotaped Mrs. Horvath, and the videotapes. I referred to the earlier production order in this matter by Arbitrator Blackman dated March 12, 2001:

In his decision of March 12, 2001, Arbitrator Blackman ordered production of copies of all notes and summaries prepared by anyone, including the witness Mr. Cianci. The videotape and the report of Mr. Cianci were produced. On the morning of the hearing, Mr. Cianci started to refer to some notes he had made. This was in violation of arbitrator Blackman's order. Applicant's counsel requested that the witness not be allowed to refer to the notes nor give further evidence. He submitted that the integrity of the process has been violated and that a clear signal should be sent to insurers in future cases that they must comply.

Although the notes clearly should have been produced, I am satisfied that in this particular case compliance although not perfect has been overall sufficient. I have not heard that any new information was to be relied upon, and the insurer has not put anything to the Applicant regarding these notes. In my opinion, this is closer to an administrative error than any matter requiring such drastic action. However, Mr. Cianci will be restricted to relying on his report for his evidence.

The hearing then resumed, but then counsel sought another order:

After Mr. Cianci's testimony resumed, it became clear that counsel for both parties had only been provided with an edited version of the video surveillance. Mr. Cianci testified that the portions removed related only to scenes where he set the time and place or where you would see the interior of his vehicle. Mr. Allin objected again, submitting that it is not up to either the surveillance companies or the insurers to determine the content of the videotapes to be produced.

I find that the failure to produce the complete videotapes is of a different order of magnitude than the failure regarding the notes that I earlier dealt with. As I understood it, the contents of the notes had in effect been produced in the report of Mr. Cianci. However, now we are to look at new videotape that neither counsel have seen. Although I place no blame on any counsel or their principals, I find this is a matter where the complete videotape should have been produced, especially in light of the testimony I have heard from Mrs. Horvath regarding occurrences that do not appear on the tape I have seen.

In light of this failure to produce the entire videotape, I find that a sanction has to be imposed. Accordingly, I order that Mr. Cianci will not be allowed to testify further and that no videotapes will be filed. However, as the videotape has been viewed and the witnesses have testified about that tape, I will not simply ignore that evidence. I leave it to the parties to make whatever submissions they wish regarding the weight I give to that evidence.

In the result, there was no real challenge to the contents of the videotape.

EXPENSES:

If the parties cannot agree on expenses, they may apply to re-open the hearing for submissions on the issue of expenses.

June 10, 2002

David J. Evans Arbitrator

Date