minicounsel

Neutral Citation: 2003 ONFSCDRS 166

FSCO A02-000156

BETWEEN:

BRENDA HENDERSON

Applicant

and

CITADEL GENERAL ASSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Janice Sandomirsky

Heard: May 20, 21 and 22, 2003, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Jeffrey Raphael for Ms. Henderson Claude Blouin for Citadel General Assurance Company

Issues:

The Applicant, Brenda Henderson, was injured in a motor vehicle accident on June 15, 1996. She applied for and received statutory accident benefits from Citadel General Assurance Company ("Citadel"), payable under the Schedule.¹ Several issues in dispute between Ms. Henderson and Citadel were the subject of a previous arbitration.² Further disputes arose between the parties involving payment of supplementary medical expenses, rehabilitation benefits and housekeeping and home maintenance expenses. The parties were unable to resolve their disputes through mediation and Ms. Henderson applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

Is Ms. Henderson entitled to payment of supplementary medical benefits, pursuant to section 36 of the Schedule, for the following:

(a) an Ultramatic bed for herself in the amount of $3,105 and for her spouse in the amount of $2,300; and,

(b) massage and physiotherapy treatment from The Rehab Centre prescribed in an October 15, 2001 treatment plan.

Is Ms. Henderson entitled to payment of rehabilitation benefits pursuant to section 40 of the Schedule for the following:

(a) expenses related to the purchase of and moving into a condominium in the amount of $10,591.20; and

(b) taxi expenses.

Is Ms. Henderson entitled to payment for housekeeping and home maintenance expenses pursuant to section 55 of the Schedule for the following:

(a) expenses related to the cost of renovating a new condominium including: painting; plastering, sanding, repairing and installing doors; new wood flooring; window blinds and tracks; and the loss of a deposit on new doors, and,

(b) $2,400 for housekeeping services performed by her son between November 1997 and June 1998, and $5,000 for housekeeping services performed by her daughter from June 1998 to the date of the hearing at a rate of $40 a week.

Is Ms. Henderson liable to pay any amount to Citadel that does not exceed the amount assessed against Citadel in respect of the arbitration, pursuant to subsection 282(11.2) of the Insurance Act because she commenced an arbitration that is frivolous, vexatious or an abuse of process?
Is Citadel liable to pay a special award pursuant to subsection 282(10) of the Insurance Act because it unreasonably withheld or delayed payments to Ms. Henderson?
Is either party liable to the other for its arbitration expenses under subsection 282(11) of the Insurance Act?
Is Ms. Henderson entitled to interest on any overdue payment of benefits, pursuant to section 68 of the Schedule?

Result:

Ms. Henderson is not entitled to payment of supplementary medical benefits for the cost an Ultramatic bed for either herself or her husband, pursuant to section 36 of the Schedule.
Ms. Henderson is not entitled to payment of supplementary medical benefits for the cost of treatment from The Rehab Centre, pursuant to section 36 of the Schedule.
Ms. Henderson is not entitled to payment for the expenses related to purchasing and moving into a condominium as a rehabilitation benefit pursuant to section 40 of the Schedule.
Ms. Henderson is entitled to payment for the cost of taxi expenses as a rehabilitation benefit pursuant to section 40 of the Schedule, plus interest on the amount owing.
Ms. Henderson is not entitled to payment for housekeeping and home maintenance expenses pursuant to section 55 of the Schedule.
Ms. Henderson is not liable to pay any amount pursuant to subsection 282(11.2) of the Insurance Act..
Citadel is not liable to pay a special award pursuant to subsection 282(10) of the Insurance Act.

EVIDENCE AND ANALYSIS:

1. Preliminary Issue

As noted above, the parties were involved in a prior arbitration. Two of the issues in that proceeding were claims for reimbursement of transportation expenses and housekeeping and exterior home maintenance expenses. Citadel submitted that the transportation and home maintenance expenses that were incurred prior to the earlier arbitration were, or ought to have been, considered as part of that proceeding. Therefore, Citadel argued that Ms. Henderson was precluded from raising those issues again in this case and that to do so was an abuse of process.

Citadel noted that Ms. Henderson was ordered to provide particulars of her transportation and home maintenance and housekeeping claims at the pre-hearing discussion in the prior arbitration. Mr. Raphael provided the particulars for the housekeeping claim soon after the pre-hearing discussion. No other particulars were provided. A month before the prior hearing, Ms. Henderson made a claim for moving expenses.

Arbitrator Allen, in her November 9, 2000 decision, allowed Ms. Henderson's claims for payment of $120 for housekeeping based on two handwritten receipts from Ms. Henderson's daughter and son who assisted with cleaning her condominium, dated July 3 and 22, 1997. She also allowed payment of $133.50 for taxi receipts that Ms. Henderson brought to the hearing.

During the course of this hearing, Ms. Henderson and Citadel came to an agreement regarding the payment of the outstanding transportation expenses up to June 4, 2002, so the only transportation issue remaining in dispute was entitlement to taxi expenses after that date.

Ms. Henderson submitted that the fact that some of the home maintenance expenses were incurred prior to the last arbitration should not preclude her from making them issues in this proceeding. It was her position that the home maintenance claims in this arbitration were not issues in dispute in the prior arbitration, which only included claims for exterior maintenance.

In reviewing the history of the home maintenance claims, it is clear that they were submitted to Citadel after Arbitrator Allen's decision was released, even though most of the expenses were incurred prior to that hearing. Although home maintenance was an issue before Arbitrator Allen, the specific claim for payment of the expenses submitted in this hearing were not before her. As a result, I find that Ms. Henderson was not precluded from raising the issues in this proceeding.

In reviewing the housekeeping claim, I note that Ms. Henderson has submitted an ongoing claim for expenses beginning in November 1997. The housekeeping claim for the period up to the date of the prior arbitration proceeding was clearly before Arbitrator Allen, who ordered payment of that claim based on two receipts from Ms. Henderson's daughter and son in July 1997. Having had the opportunity to claim housekeeping expenses in the earlier proceeding, I find that Ms. Henderson is precluded from now claiming housekeeping benefits that pre-date the June 2000 arbitration hearing.

2. Claim history

Ms. Henderson was 41 years of age when she was injured in a single vehicle accident on June 15, 1996. She has very little recollection of the accident except that she was driving alone on a country road and the car ended up upside down in the ditch. She was taken to the hospital by ambulance. The accident caused injuries to her head, neck, left arm, lower back, knees and left ankle. She wore a neck collar for a long time and suffered from headaches and dizziness.

Ms. Henderson also had a significant pre-accident medical history. She was involved in a motor vehicle accident in 1985 while a passenger in a car driven by her husband on Highway 401. The driver of the other vehicle was killed. Ms. Henderson testified that she suffered injuries to her right leg and foot, upper back and jaw as a result of that accident. She also developed headaches.

Arbitrator Allen's decision reviewed Ms. Henderson's history, noting the substantial physical and psychological problems documented before the 1996 accident. Dr. A. Kachooie, a physiatrist who began treating Ms. Henderson after the December 1985 accident, stated in a report dated August 1987 that she suffered quite marked depression and fibromyalgia as a result of that accident. Reports from Scarborough Grace Hospital between March 1989 and June 1992 stated that Ms. Henderson displayed anxiety and continued to complain of neck and arm pain as a result of the 1985 accident. A psychiatric report dated August 4, 1992 stated that Ms. Henderson repeatedly complained about the ongoing physical and emotional problems she continued to suffer since the 1985 accident. It was also noted that Ms. Henderson had a history of childhood and marital abuse.

Ms. Henderson's life took another tragic turn in March 1993 when her second son committed suicide. One year later, in March 1994, she lost her grandfather with whom she was very close. Ms. Henderson underwent significant psychological treatment, including many emergency admissions to the hospital, after these events. That history was set out in Arbitrator Allen's decision as follows:

Ms. H's history of hospitalizations started with her admission to North York General Hospital from May 3 to June 11, 1993 and to the Day Program from June 21 to July 9, 1993 for mood disorders associated with her son's death and her grandfather's terminal illness. From September 24 to October 6, 1993 she was also admitted to Scarborough Grace Hospital for depression, personality disorder and possible abuse of medication.
In 1994, Ms. H again attended the Day Program at North York General Hospital from April 19 to June 2, 1994. During this period, she was admitted to this hospital for two days and taken to Scarborough Grace emergency in a suicidal state following alcohol and medication overdoses. In June and July 1994, she was also admitted to Scarborough Grace for over a month in a suicidal state, suffering from alcohol and medication overdose and was diagnosed with depression, borderline personality disorder and post-traumatic stress disorder. In September and October 1994, for over a month, Ms. H was again admitted to North York General Hospital and was diagnosed with depression, psychosomatic disorder, borderline personality disorder and back pain as a result of her 1985 accident.
In January, April, September and October 1995, for days and weeks at a time, Ms. H was admitted on and off to Scarborough Grace in suicidal states, suffering alcohol and medication overdoses and was diagnosed with major depression, substance dependency, a personality disorder, unresolved grief and chronic pain syndrome. Ms. H was also treated at North York General in September 1995 as a suicide risk. On November 30, 1995, Ms. H was admitted to Homewood Health Care Centre (where she had been in 1994 and earlier in 1995 for a drug and alcohol program) for depression, drug abuse and suicidal tendencies, where she remained into 1996.
For all of January until February 8, 1996, when she was discharged, Ms. H remained in Homewood. On February 29 and March 4, 1996, Ms. H attended Scarborough Grace emergency unit and was diagnosed with, among other problems, chronic depression, suicidal thoughts, borderline personality disorder, fibromyalgia and lower back pain. From May 6 to July 12, 1996, Ms. H attended the Day Treatment Program at Scarborough Grace. She was diagnosed with major depression and a personality disorder.

It is clear from this review of Ms. Henderson's history that she suffered from a significant pre-existing condition and that she was under intensive treatment for her physical and psychological illnesses at the time of the 1996 motor vehicle accident.

3. Supplementary medical claim

Subsection 36(1) of the Schedule provides for payment of medical treatment and other goods and services of a medical nature that the insured requires which are reasonable expenses incurred by the insured person as a result of the accident.

(a) Ultramatic bed claim

Pursuant to subsection 36(1), Ms. Henderson claims entitlement to payment of two Ultramatic beds. She testified that she had a hard time sleeping after the 1996 accident and found that she slept better in the hospital bed. She said that she decided to purchase the Ultramatic bed after talking to her doctor who told her that she should buy the bed if she felt it helped her. She also purchased a matching bed for her husband. Although the beds were purchased in September 1996, while she and her husband were still married, she did not submit the request for payment at that time because she did not think she could claim for the cost of this purchase.

Ms. Henderson was referred to a sleep disorder clinic in December 2001. In a report dated January 2, 2002, it was noted that she had had difficulty sleeping for 16 years. According to the history provided in that report, the problem started with the motor vehicle accident in 1985, and it became worse after her son committed suicide in 1993 and after the accident in 1996.

A report from Dr. Kachooie, dated February 20, 1996, a few months before the accident in issue, noted that she was having sleep problems and discussed proper techniques regarding sleep hygiene.

A rehabilitation report prepared by Cathy Marin on March 6, 1997, noted that Ms. Henderson used the Ultramatic bed, but continued to suffer from sleep difficulties despite the use of the elevated bed.

After considering this claim for payment, I find that the purchase of the Ultramatic beds was not a reasonable medical expense incurred as a result of the 1996 accident. The medical evidence establishes that Ms. Henderson experienced a long-standing sleep problem and received treatment for that problem prior to the accident. And, while she testified at the hearing that the bed helped her sleep better, the treatment reports noted that she continued to complain of sleep difficulties. Furthermore, there was no evidence that the purchase of the beds was in response to a medical treatment recommendation. As a result, I find that Ms. Henderson did not met the onus of establishing that the purchase of the Ultramatics beds was a reasonable medical expense incurred as a result of the 1996 accident as required under subsection 36(1) of the Schedule. Therefore, Citadel is not liable to pay for the cost of the Ultramatic beds.

(b) October 15, 2001 Treatment Plan

Ms. Henderson also claimed entitlement to payment for the cost of massage and physiotherapy at The Rehab Centre, as set out in the October 15, 2001 treatment plan. The plan recommended treatment three times a week for six weeks at an estimated cost of $1,944. The goal of the treatment was to increase range of motion, flexibility, general level of fitness and functional abilities.

Citadel denied the treatment request and referred Ms. Henderson to a Medical & Rehabilitation Designated Assessment Centre ("DAC") disability assessment. The February 25, 2002 DAC report concluded that Ms. Henderson's complaints of pain were more consistent with the prior diagnosis of fibromyalgia than injuries attributed to the 1996 motor vehicle accident and that she did not require further treatment.

Citadel also sent Ms. Henderson to independent medical assessments by a physiatrist, neurologist, neuropsychologist and psychiatrist in March 2002. All the assessments concluded that any ongoing symptoms and difficulties Ms. Henderson was experiencing were consistent with her pre-existing condition and no further treatment was recommended.

In support of her claim for further treatment, Ms. Henderson submitted a report from Dr. Kachooie, dated February 2003. It was Dr. Kachooie's opinion that the 1996 motor vehicle accident "has definitely been an important aggravating factor to her pre-existing fragile chronic pain situation and her emotional instability." In his view "her course following the MVA of June 1996 has been dramatically 'downhill' with destabilizing her fragile physical state in addition to her psychological status." Dr. Kachooie stated that Ms. Henderson's condition at that point in time was genuine, real and had profoundly affected her life. He concluded that having "followed Ms. Henderson as outlined above for a number of years, overall I must conclude that I have seen her deteriorate both physically and emotionally particularly following the MVA of June 15, 1996." Dr. Kachooie was of the view that the treatment plan of October 2001 for further conservative treatment for her chronic pain management was appropriate.

Ms. Henderson testified that the massage and physiotherapy treatment was not helpful immediately, but it did cut back on the pain and allowed for better sleep. She relied on the decision in Fehringer and Zurich Insurance Company (FSCO A99-000699, February 28, 2002) in submitting that relief from pain was a valid medical and rehabilitation goal.

After considering the evidence on this issue, I accept that the 1996 accident aggravated Ms. Henderson's pre-existing condition. However, in light of the long-standing pre-existing diagnosis of fibromyalgia and chronic pain, I find that the evidence does not meet the onus of establishing that the treatment in issue proposed more than five years after the accident was a reasonable expense incurred as a result of the accident as required under subsection 36(1) of the Schedule. Therefore, Citadel is not liable to pay for the October 2001 treatment plan.

4. Rehabilitation benefits

Under subsection 40(1) of the Schedule, the insurer shall pay for "reasonable measures"

(a) to reduce or eliminate the effects of any disability resulting from the impairment, and

(b) to facilitate the insured person's reintegration into his or her family, the labour market and the rest of society.

Subsections 40(4) and (5) state that:

(4) The payments required by subsection (1) for the purpose of facilitating the insured person's reintegration into his or her family and the rest of society include payment for social rehabilitation measures that are reasonably necessary to,

(a) return the insured person as much as possible to the family and social situations in which he or she lived before the accident;

(b) assist the insured person to adjust to family and social situations as a result of the accident; and

(5) The payments required under this section include payment of all reasonable expenses incurred by or on behalf of the insured person as a result of the accident for a purpose referred to in clause (1)(a) or (b) for,

(a) social rehabilitation, including life skills training, family counselling, social rehabilitation counselling, financial counselling, home renovations and home devices to accommodate the needs of the insured person, vehicles, vehicle modifications to accommodate the needs of the insured person, and communications aids for the insured person's home;

(b) vocational rehabilitation, including employment counselling, vocational assessments, vocational training, academic training, workplace modifications and workplace devices to accommodate the needs of the insured person, and communications aids for the insured person's employment;

(c) services provided by a case manager related to the coordination of medical, rehabilitation and attendant care services for the insured person;

(d) transportation for the insured person to and from counselling sessions, training sessions and assessments, including transportation for an aide or attendant;

(e) other goods and services that the insured person requires.

(a) The condominium purchase and moving expenses

Ms. Henderson sold her house and purchased a condominium after the break up of her marriage in 1997. A few months after moving into the condominium, she sold it to buy another unit in the same building. She claimed entitlement to payment for the cost of moving to the second condominium. She explained that she decided to sell the first condominium because she found herself completely unable to organize the kitchen and put things into the cupboards. She related this problem to the cognitive confusion she suffered as a result of the injuries she sustained in the 1996 accident. Feeling unable to resolve the organizational problem, she bought another condominium with more space. The moving expenses, including the real estate fees and legal costs, totalled $10,591.20.

A report from Dr. R. Davila, Ms. Henderson's treating psychologist, dated January 15, 2000, confirmed that Ms. Henderson had difficulty solving problems and became overwhelmed when faced with difficult situations. As an example, Dr. Davila noted that Ms. Henderson was very distressed and confused when she moved to the first apartment and could not unpack and arrange her belongings.

Ms. Henderson also submitted a report from Dr. H. Kaye, dated July 9, 2001, in support of her claim. Dr. Kaye noted that Ms. Henderson's medical history was extremely complex and, while he explored psychological problems consistent with the sequelae of a motor vehicle accident, he did not find them. He stated that in his view the complexities in Ms. Henderson's performance were "difficult to allocate to a specific trauma when one is dealing with so complex a history. "Although he did not rule out the possibility that previous psychological and physical traumas may have contributed to Ms. Henderson's "selective vulnerability, and may be responsible for the kinds of psychological problems she episodically shows," he stated that it would be difficult to assess this without further extensive and intrusive observation.

Citadel relied on a report from Dr. Allyson Harrison, a psychologist specializing in neuropsychology, dated September 30, 1996. In that report, Dr. Harrison concluded that the nature of Ms. Henderson's accident, and her reported cognitive state at the time, were consistent with at least a mild traumatic brain injury, however, "the objective evidence comparing her test scores from the present assessment with those of the assessment of 1991 fail to indicate any substantial decrease in any area of cognitive function."

In considering the issue of entitlement to the expenses of the condominium purchase and moving expenses, I find that the evidence does not support Ms. Henderson's claim that the limitation she experienced in trying to organize herself in her new condominium were caused by the 1996 motor vehicle accident. This conclusion is supported by the reports from Dr. Kaye who noted that Ms. Henderson had an extremely complex psychological history that pre-existed the 1996 accident. Dr. Harrison found that the 1996 accident did not cause any substantial decrease in any area of cognitive function. As a result, the evidence does not support a finding that the 1996 accident materially contributed to the cognitive difficulties Ms. Henderson experienced in trying to organize her belongings in her condominium. Therefore, I deny her claim to entitlement to the benefits related to moving expenses.

(b) Transportation claim

Ms. Henderson claimed that she developed a driving phobia after the 1996 accident and remains unable to drive. Ms. Henderson testified that she obtained her driving licence in 1988 and had no difficulty driving prior to the 1996 accident. Since the accident, she primarily relies on taxis to get to her medical appointments and attend other personal activities. Citadel paid her taxi fares to go to medical and treatment appointments. It also agreed to pay for taxis for Ms. Henderson to go to a grocery store once every two weeks.

At the hearing before Arbitrator Allen, Ms. Henderson argued that paragraph 40(5)(d) of the Schedule was broad enough to cover additional transportation expenses. She submitted taxi receipts totalling $133.50. Arbitrator Allen concluded that the transportation expenses submitted by Ms. Henderson were reasonably incurred as a result of the accident. In reaching this conclusion, Arbitrator Allen took into consideration the April 17, 2000 report from Dr. Davila, which stated that Ms. Henderson had developed a phobia to driving and public transit after the 1996 accident and needed assistance with transportation. Arbitrator Allen concluded that taxi services came within the purposes of section 40, noting that paragraph 40(1)(b) requires the insurer to pay for reasonable measures "to facilitate the insured person's reintegration into his or her family, the labour market and the rest of society." Arbitrator Allen stated that "the transportation in question was conducive to encourage her to get out and reintegrate into her family and social environment."

In reviewing the medical evidence submitted at the hearing, I note that there are numerous references to Ms. Henderson's driving phobia. These included reports from specialists Citadel retained to review the claim such as the report from Dr. Harrison whose review of Ms. Henderson's condition in September 1996 included a notation of a fear of driving. A December 8, 1997 report from Dr. A. Deshpande, a pain specialist, noted that Ms. Henderson had developed a driving phobia. Finally, the 1998 DAC report set out a diagnosis of pain disorder with associated psychological factors, with a specific diagnostic criteria of a driving phobia.

Citadel disputed Ms. Henderson's entitlement to transportation benefits under section 40. Although it agreed to pay for taxi services up to June 4, 2002, Citadel rejected the claim for entitlement for taxi expenses beyond that date, except transportation expenses related to treatment or rehabilitation. Citadel argued that any transportation entitlement under section 40(1)(b) must have a rehabilitation nexus, as set out in subsection 40(5)(d) of the Schedule. It cited a number of cases in support of this position.³

Citadel also argued that Ms. Henderson's inability to drive was not related to the 1996 accident. It relied on an Independent Examination assessment conducted through Bay Medical & Health Services between February 22 and April 3, 2002, which concluded that there are no indications that the accident inhibited Ms. Henderson's driving ability.

There is no issue between the parties about Ms. Henderson's entitlement to transportation expenses as a supplementary medical benefit for her to go to and from treatment. At issue, is her entitlement to transportation expenses as a rehabilitation measure. I accept Citadel's interpretation of section 40(1)(b) and find that the transportation claim must have a rehabilitation nexus. In light of the fact that the Insurer is already paying for taxi services to the grocery store on a bi-monthly basis, I find that the expense to participate in social activities on an occasional basis can be supported by the wording in subsection (40)(5)(e), that is "other goods and services that the insured person requires." I find that the evidence supports Ms. Henderson's claim that she developed a driving phobia after the 1996 accident. I also find that taking a taxi to attend the occasional social activity does facilitate her reintegration into society. As a result, I find that taxi services to participate in social activities is reasonably necessary. Therefore, Ms. Henderson is entitled to payment for the cost of a taxi ride to occasional social activities.

5. Housekeeping and Home Maintenance Expenses

Section 55 of the Schedule provides payment to an insured person for additional expenses incurred as a result of the accident for housekeeping and home maintenance.

(a) The renovation claim

Ms. Henderson claimed the cost of services related to hiring trades people to perform renovations on her present condominium as a home maintenance expense. Those renovations included the following:

painting the ceiling - $200 in labour charges;
plastering, sanding, repairing and installing doors - $2,286.34 in labour charges;
taking up the carpet and putting in wood flooring - $4,948.00 in labour charges;
measuring the windows and installing blinds and tracks - $235.00 in labour charges;
repayment of $550 for a lost deposit on new doors.

It was Ms. Henderson's position that, prior to the 1996 motor vehicle accident, she had the skills and capacity to perform these types of home maintenance projects herself. Ms. Henderson had not been employed outside the home prior to the 1996 accident. In 1985, just before her first motor vehicle accident, she began to take a weekly home renovation course. She undertook projects in her own home and for friends. The evidence contained few details, however, about when the work was performed. It appeared that most of it was done between 1985 and 1990.

Ms. Henderson testified that she was doing work on her grandfather's home prior to the 1996 accident. This work mostly involved cleaning and making preparations for others to do the necessary renovations. She testified that she began to feel better and more focused on her home and garden in the month or so before the 1996 accident.

Ms. Henderson submitted letters from a number of friends about her renovation work. These letters were also considered in the hearing before Arbitrator Allen. As Arbitrator Allen noted in her decision, the letters provide a credible description of some of Ms. Henderson's skills some time before the 1996 accident. Arbitrator Allen stated that she had "no hesitation in accepting that before her family tragedies in the early 1990s, she performed commendably at projects she undertook when she felt well enough."

After considering the evidence on this issue, I accept that Ms. Henderson had the skills to perform this type of renovation work prior to the 1996 accident. The question remains, however, whether her inability to perform the renovation work on her condominium was related to that accident. The medical reports suggest that she had been unable to undertake any projects of this nature for a long period of time before the 1996 accident. A report dated May 16, 2000 from Mr. C. Divitkos, a vocational rehabilitation consultant retained by Ms. Henderson, confirmed that she did not do any renovation work at her home or her friends' homes between March 1994 and the June 1996 accident. A vocational rehabilitation assessment report from Rehabilitation Management Inc, dated December 5, 1990, noted ongoing functional impairment related to the 1985 accident limiting Ms. Henderson's ability to deal with the day- to-day demands of running the household and providing child care, as well as restricting her social and recreational pursuits at home and in the community. The report stated that:

Prior to the accident, Mrs. Henderson was the family member who was responsible for household maintenance, including repairs and renovations. This included various larger projects such as redoing bathrooms, kitchen floors, plumbing and woodworking. She has recently tried to engage in this type of work, but has found it slow and tedious. She is unable to organize herself adequately in order to complete the task quickly and efficiently, the result of which is several started, but incomplete, projects.

When asked about this report, Ms. Henderson stated that she may have been impaired some days but some days she felt fine. She denied that she was experiencing chronic pain five years after the 1985 accident and claimed that the report did not reflect her condition at that time.

As noted above, Ms. Henderson was hospitalized for depression and suicidal ideation after her son's suicide in March 1993. Ms. Henderson also denied that she continued to experience ongoing complex physical and psychiatric problems during that period. She stated that she was gradually starting to get better prior to the 1996 accident.

According to the medical evidence, however, she was admitted to the Homewood Health Centre program between November 30, 1995 and February 1996. Ms. Henderson was also involved in a day treatment program at the Scarborough Grace Hospital at the time of the 1996 accident.

In addition, Ms. Henderson was continuing to see Dr. Kachooie prior to the 1996 accident for problems related to pain and frequent headaches. In a report dated April 5, 1995, Dr. Kachooie diagnosed chronic myofascial pain syndrome, fibromyalgia and occipital neuralgia.

After reviewing this evidence, I concur with the findings of Arbitrator Allen that it was unlikely that Ms. Henderson had the physical and mental capacity to undertake the renovation projects on her own for a number of years prior to the 1996 accident. I find that the 1996 motor vehicle accident did not make a material contribution to Ms. Henderson's inability to complete the renovation jobs on her new condominium. As a result, I find that she is not entitled to payment for the renovation costs outlined in her claim.

(b) The housekeeping claim

Ms. Henderson also claimed entitlement to housekeeping expenses. As indicated in this decision under preliminary issue, I will only deal with the claim to entitlement to housekeeping benefits after June 2000, the date of the prior arbitration hearing.

Ms. Henderson testified that she could do some housekeeping, but was unable to keep her house the way she wanted. Her daughter now lives with her and helps her with vacuuming, laundry, dishes and cooking. She is claiming entitlement to five hours of housekeeping a week at a rate of $ 8.00 an hour.

Ms. Henderson obtained an occupational therapist report from Ms. Carol Bierbrier, dated May 23, 2000, which considered her future care needs. Ms. Bierbrier reviewed Ms. Henderson's capacity to manage her household tasks and concluded that she could complete much of the routine housekeeping using pacing techniques over an extended period, but she needed assistance with heavier housecleaning chores.

Ms. Henderson also relied on the July 2001 report from Dr. Kaye who was of the opinion that it would "be of value" for Ms. Henderson to receive some home and personal assistance over the next several months. Dr. Kachooie's February 2003 report stated that Ms. Henderson was limited to perform many household activities such as lifting, bending, prolonged static positions, carrying, vacuuming, cleaning and mopping as a result of her chronic fatigue, sleep disorder, chronic pain and poor tolerance for physical activities.

Citadel disputed that Ms. Henderson was unable to perform all her housekeeping activities. It relied on the 1998 DAC report that concluded that Ms. Henderson was not substantially disabled from performing activities of daily living. The DAC report noted that Ms. Henderson could manage light housework duties, but required help from a housekeeper to do the heavier work. Citadel argued, however, to the degree Ms. Henderson was limited in her capacity to perform housekeeping duties, it was not much different from that prior to the 1996 accident. A review of daily living in October 1996, a few months after the accident, from Barbara Horne, the case manager, noted that Ms. Henderson's pre-accident "functional status with respect to household chores would not appear to be extensive."

Given that Ms. Henderson suffered from disabilities prior to the 1996 accident, it is important to establish her level of housekeeping prior to the accident. The only evidence regarding Ms. Henderson's housekeeping activities prior to the 1996 accident was the testimony of Ms. Henderson and her daughter Christina, who testified that her mother was able to do all the regular household duties prior to her 1996 accident without any difficulties. It is important to note, however, that Christina was 13 years old in 1996. Given her age, Christina's evidence was understandably vague in relation to her mother's pre-1996 condition and activities.

Arbitrator Allen decided that Ms. Henderson was entitled to compensation for the housekeeping expenses submitted to her at the hearing. Those expenses consisted of two receipts from her son and daughter for cleaning her condominium in July 1997 for an amount of $120. In allowing this claim, Arbitrator Allen noted that Citadel was paying Ms. Henderson caregiver benefits in July 1997 in response to medical evidence that established she was disabled from performing her caregiver activities including housekeeping. Ms. Henderson received care giver benefits until June 1998.

The claim for housekeeping benefits is for the period subsequent to June 2000. I accept that Ms. Henderson was limited in her capacity to perform some of the housekeeping activities. I am not satisfied, however, that the evidence presented supports a finding that the 1996 motor vehicle accident continued to materially contribute to those limitations four years after the accident. As a result, I find that Ms. Henderson is not entitled to payment for the housekeeping expenses for the period after June 2000.

6. Arbitration assessment

Under subsection 282(11.2) of the Insurance Act, Ms. Henderson may be liable to repay Citadel an amount up to its full arbitration assessment fee of $3,000 if it is found that she commenced an arbitration that is frivolous, vexatious or an abuse of process.

Citadel argued that the home maintenance expenses that were incurred prior to the last arbitration hearing ought to have been presented at that hearing, given that home maintenance was an issue in dispute between the parties in that prior proceeding. It noted that Ms. Henderson was ordered to provide particulars of those claims and failed to do so. Citadel made a number of requests for these particulars in the prior proceeding and none were forthcoming, except in relation to the housekeeping claim.

As noted above, I found that Ms. Henderson was not precluded from pursuing payment for the home maintenance claim even though those expenses arose prior to the hearing before Arbitrator Allen. I also find that the fact that Ms. Henderson failed to submit these claims as part of the hearing before Arbitrator Allen is not sufficient to support the argument that Ms. Henderson's decision to commence a second arbitration in relation to those claims is an abuse of process. However, this may be an issue that is appropriately dealt with in the claim for arbitration expenses.

SPECIAL AWARD

Ms. Henderson submitted that Citadel is liable to pay a special award pursuant to subsection 282(10) of the Insurance Act because it unreasonably withheld or delayed payments. The only claims allowed in this decision is the claim for taxi expenses. In light of the fact that even during the course of the hearing the parties had difficulty in sorting out the taxi claims and determining which were for treatment and which were for social activities, what had been paid and what had not been paid, I cannot conclude that the payment was unreasonably withheld or delayed. Therefore, I decline to exercise my discretion to give Ms. Henderson a special award.

EXPENSES:

If the parties cannot agree on the entitlement to or the amount of the expenses of this proceeding, they may request an appointment for a determination of that issue, in accordance with Rule 79 of the Dispute Resolution Practice Code..

November 25, 2003

Janice Sandomirsky Arbitrator

Date