Neutral Citation: 2004 ONFSCDRS 128

FSCO A03-000149

BETWEEN:

Ms. Y

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Suesan Alves

Heard:

November 10, 12 and 13, 2003 at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Carlos Castro and Zahilly Ramirez for Ms. Y

Jonathan B. Schrieder for State Farm Mutual Automobile Insurance Company

The Applicant, Ms. Y, was injured in motor vehicle accidents on December 29, 1999 and May 29, 2000. In this arbitration Ms. Y claims caregiver benefits, housekeeping and home maintenance benefits ("housekeeping benefits"), medical benefits and interest, as a result of the second accident under the Schedule.¹ She also claims her expenses under the Insurance Act, R.S.O. 1990, c.I.8, as amended. State Farm disputes all of Ms. Y's claims, and seeks its expenses of the arbitration.

The issues in this hearing are:

Is Ms. Y entitled to receive caregiver benefits at the weekly rate of $250 for the period from December 25, 2000 to May 29, 2002, pursuant to section 13 of the Schedule?
Is Ms. Y entitled to payments for housekeeping services at the weekly rate of $100 for the period from December 16, 2000 through May 29, 2002, pursuant to section 22 of the Schedule?²
Is Ms. Y entitled to receive a medical benefit for massage therapy provided by Sports Injury Rehabilitation Clinic pursuant to a treatment plan dated April 2, 2001 in the amount of $600, claimed pursuant to section 14 of the Schedule?
Is Ms. Y entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?
Which party is liable to pay the other's expenses in respect of the arbitration under section 282(11) of the Insurance Act?

Ms. Y is entitled to receive caregiver benefits at the weekly rate of $250 for the period from December 25, 2000 to February 23, 2001, pursuant to section 13 of the Schedule.
Ms. Y is entitled to receive housekeeping benefits at the weekly rate of $100 for the period from December 16, 2000 to February 23, 2001, pursuant to section 22 of the Schedule.
Ms. Y is entitled to receive a medical benefit for massage therapy provided by Sports Injury Rehabilitation Clinic pursuant to a treatment plan dated April 2, 2001 in the amount of $600, claimed pursuant to section 14 of the Schedule.
Ms. Y is entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule.
If the parties are unable to agree on expenses, that issue may now be addressed.

Background

Ms. Y was injured in two motor vehicle accidents on December 29, 1999 and on May 29, 2000. In this arbitration, she claims caregiver and housekeeping benefits as a result of the second accident, from the time they were terminated, in December 2000, until the two-year mark on May 29, 2002. She also claims $600 for massage therapy. State Farm disputes all of Ms. Y's claims.

Claims for caregiver benefits and housekeeping benefits

In order to succeed, Ms. Y must establish that she is substantially disabled from performing those caregiving and housekeeping activities she performed at the time of the May 2000 accident as a result of impairments she sustained in that motor vehicle accident. This arbitration only concerns the second of the accidents. However, because Ms. Y's pre-accident conditions have an impact on her level of function, I will also deal with her conditions before and after the first motor vehicle accident.

Pre-accident condition

(a) Pre-1999

In 1999, Ms. Y was about 42 years of age, and lived in an apartment with her two children, her son aged 19, and her daughter aged 10. Ms. Y claims caregiver benefits in relation to her daughter, who I refer to as A. Ms. Y has severe dyslexia, claustrophobia and a fear of elevators.

I have referred to the Applicant as Ms. Y because of the personal nature of some of the medical information.

At the time of the accident, Ms. Y was receiving an Ontario Disability Support Pension as she had been assessed to be unemployable. Ms. Y has degenerative disc disease in her low back, which caused her acute pain in September 1999, and which was symptomatic to some degree at the time of the December 1999 accident. Before the 1999 accident, Ms. Y experienced difficulties with depression, anxiety and panic attacks. I find these pre-accident conditions significant because Ms. Y's physical injuries in the first and second accidents involve her low back and because she experienced psychological difficulties following each accident.

(b) Post-1999 to May 2000 condition

In December 1999, Ms. Y was injured in the first motor vehicle accident. Her family physician, Dr. E.B. Marshall, referred her to the Sports Injury Rehabilitation Clinic, where she came under the care of Dr. Z. Marciniak. Dr. Marciniak reported Ms. Y complained of neck pain radiating to her right upper arm, right arm pain, weakness and numbness of her right upper arm, thoracic pain, low back pain radiating to her right buttock and right lower extremity, numbness in her right lower extremity, and dull pain, weakness and numbness in her right foot.

Ms. Y testified that she developed "whiplash migraines" and in March 2000, Dr. W. Pruzanski, a rheumatologist diagnosed her as suffering with post-traumatic fibromyalgia. Ms. Y testified that she had 14 out of 18 positive fibromyalgia points. She experienced a good deal of aching and was in a lot of pain. Her pain would calm down but would not go away.

As a result of her injuries, Ms. Y received chiropractic, physiotherapy, massage and psychological treatment for driving anxiety, nerve blocks, narcotic medications for pain (such as Tylenol 3, Fiorinal and Percocet), and medications to relieve her anxiety (such as Valium, and Ativan). In early March 2000, Ms. Y was taking 20-25 Tylenol#3 per week, 1 Percodan a week and 3-4 tablets of Valium per month.³ On May 12, 2000, Dr. Marciniak noted that Ms. Y "seems affected by her medications and looks a bit 'spaced out'."⁴

The parties disagree about the extent to which Ms. Y recovered from the first motor vehicle accident by the time of the second motor vehicle accident on May 29, 2000. Ms. Y's representative submitted she was "virtually healed," and relied on an insurer examination performed by Dr. T.K. Chan, orthopaedic surgeon, in March 2000, that Ms. Y was no longer substantially disabled from performing her housekeeping or caregiving activities.

Counsel for State Farm submitted that Ms. Y was probably capable of only minimal activity, based on Ms. Y's testimony, her calendar entries, and a report that an MRI could not be completed shortly before the second accident, because Ms. Y's severe back pain prevented her from lying flat on her back on May 15, 2000.

Based on Ms. Y's testimony, her calendar entries and the report of the May 15, 2000 MRI, and for the reasons detailed below, I find that on a fair and realistic assessment, Ms. Y was capable of only a minimal level of activity during the month before the May 29, 2000 accident. In making that finding, I note that I have no evidence as to whether Ms. Y's benefits from the 1999 accident were terminated on the basis of Dr. Chan's reports or whether the parties resolved Ms. Y's entitlement to benefits as a result of that accident. This arbitration was commenced only in relation to the May 2000 motor vehicle accident, and I was not asked to deal with the question of whether either party was estopped from asserting these positions in relation to Ms. Y's claims for benefits in relation to the May 2000 accident.

(c) Post May 29, 2000 condition

(i) Applicant's evidence

On May 29, 2000, five months after the first accident, Ms. Y was injured in a second motor vehicle accident. She again sustained soft tissue injuries to her neck, shoulders and back. Dr. E.B. Marshall, Ms. Y's family physician, diagnosed her as suffering with a whiplash associated disorder, Grade II.

Dr. Marshall completed a disability certificate in which he opined that Ms. Y was unable to do her current occupation and required help for her housework. He also opined that Ms. Y's consumption of Percocet, twice a day, was a medical restriction which prevented her from performing pre-accident activities or work. I understand from this that Dr. Marshall was of the opinion that Ms. Y was unable to perform her caregiving activities and her housework.

Dr. Marshall again referred Ms. Y to Dr. Marciniak. Dr. Marciniak diagnosed her impairments as an aggravation of her previous symptoms of severe occipital/frontal headaches, cervical dysfunction with bilateral radiculopathy, lumbar dysfunction with bilateral radiculopathy and fibromyalgia. He was of the opinion that Ms. Y was suffering from a Grade II - III whiplash associated disorder.

Ms. Y was treated with acupuncture, physiotherapy, massage, chiropractic, nerve blocks and medication. Her medication included pain killers such as Percocet, Fiorinal, anti-anxiety medication such as Ativan, and anti-depressants such as Elavil, Paxil, Zoloft, and Amitryptilline.

Ms. Y testified that after the second motor vehicle accident she experienced "breakouts" of her fibromyalgia which take place every two to three months for up to three weeks. She testified that during these episodes, her hair hurts, she lays in bed and takes medicine, aches day in and out, her body swells up so that her elbows are not visible and she appears to be pregnant. She can control the pain during breakouts to a certain degree by taking 4-5 Percocet a day. However, she cannot clean, shop, lift anything, function or hug her daughter when she has a breakout. As I understand it, a pattern of such flare-ups is not atypical of fibromyalgia.

On July 12, 2000, Dr. Marciniak opined that Ms. Y was "totally dysfunctional for psychological and physical reasons." He recommended that she obtain psychological counselling while continuing her physiotherapy and rehabilitation program.

(ii) Insurer's evidence post May 2000

In August 2000, Dr. Cheryl Gillin-Garling, a psychologist, assessed Ms. Y at State Farm's request. She diagnosed Ms. Y as suffering from a somatoform pain disorder and specific driving anxiety as a result of the May 2000 motor vehicle accident. Dr. Gillin-Garling noted that Ms. Y did not appear to be coping well with her limitations, and was moderately depressed. However, Dr. Gillin-Garling was unable to say whether some of Ms. Y's depression was the result of the May 2000 motor vehicle accident because she did not have documentation concerning Ms. Y's pre-accident history.

In Dr. Gillin-Garling's opinion, Ms. Y did not suffer a substantial psychological inability to perform her pre-accident duties as a caregiver. However, in her opinion, psychological intervention was reasonable and necessary, and she recommended that Ms. Y receive 12 treatment sessions involving cognitive restructuring and relaxation techniques including pain and stress management.

In November 2000, Dr. C.P.N. Watson, a neurologist, assessed Ms. Y on behalf of State Farm. Dr. Watson reported that Ms. Y was able to prepare meals, dress, bathe herself and was up and about most days. She was able to exercise and walk, and a friend came in to do her housework, laundry and shopping. In Dr. Watson's opinion, Ms. Y was not substantially disabled from performing her housekeeping and caregiving activities. In his opinion, no rehabilitation intervention was necessary and she had no neurological disability.

Dr. C.B. Paitich, an orthopaedic surgeon, assessed Ms. Y at State Farm's request. In a report dated December 4, 2000, he concluded that Ms. Y did not suffer a substantial inability to perform the essential tasks of her pre-accident caregiving and housekeeping duties.

I reject the opinions expressed by the Insurer's assessors because none of them state their understanding or assumptions of what caregiving, housekeeping and home maintenance in Ms. Y's household entailed. Further, none of the Insurer's assessments respond to Ms. Y's diagnosis of fibromyalgia.⁵

(iii) DAC assessments

Ms. Y requested an assessment of her disability by a Designated Assessment Centre ("DAC"). In February 2001, a psychologist; Dr. L. Switzman; a chiropractor, Dr. L. King; and a kinesiologist, Ms. M. Muthie, conducted a disability DAC assessment.

Dr. Switzman, a psychologist, reported that Ms. Y stated to him that "she feels 75-80% back to where she was before the second accident." He noted that she demonstrated good energy, was an affable person, and was open and direct. She was going to lunch twice a week and shopping weekly with her dad at the mall. She would go to the doughnut shop or browse in stores. If she felt up to it she would go to the movies, otherwise she would rent videos. She was walking daily, even if was just a block, and hoped to go swimming in the summer 2001. She was driving a car once a week if the pavement was dry. She was nervous in inclement weather and as a passenger. Her appetite was normal, her weight stable, and overall she was beginning to feel better again.

Ms. Y was also examined by Dr. L. King, chiropractor. Ms. Y reported to Dr. King that "she can pretty well do anything and is almost back to the condition she was in prior to the second motor vehicle accident." Ms. Y also reported to Dr. King, that she could manage all of her housekeeping tasks, with the exception of vacuuming and cleaning the bathtub, and that her headaches were down to once or twice per month. Dr. King noted that with minor variances, his findings on examination were significantly similar to the assessments of Ms. Y in March, April and May 2000, prior to the second accident.

Dr. King also reviewed the report of Ms. M. Muthie, a kinesiologist who conducted a functional abilities examination as part of the DAC. In Dr. King's opinion, Ms. Y was not substantially physically disabled from resuming her pre-accident activities of caregiving as a result of injuries sustained in the May 2000 motor vehicle accident.

(iv) Post DAC assessments from the Applicant

(a) Dr. Marciniak

Ms. Y testified that she was very sore after participating in the FAE, and saw Dr. Marciniak shortly afterwards. Dr. Marciniak reported that Ms. Y had tried her best, but she had been unable to complete the FAE, due to back pain and sciatica. Following the assessment, Ms. Y complained to him of increased headaches, pain in her right wrist, right thoracic area, posterior chest wall and muscles on the right side of her chest, and of difficulties taking a deep breath. However, there was no elaboration in the evidence as to the length of time it took for Ms. Y to return to her normal levels of pain or function.

Dr. Marciniak provided further reports of Ms. Y's condition between March 22, 2001 and September 2001. Generally, Dr. Marciniak comments on Ms. Y's range of motion, sets out various diagnoses, notes that Ms. Y still has significant physical and psychological impairments, and is at risk for drug addiction because of the amount of medication she needs to control her pain.

(b) Dr. Pilowsky

On February 21, 2001, Dr. J. Pilowsky, psychologist, assessed the Applicant, reported on her assessment and provided a treatment plan. Dr. Pilowsky recommended 12 treatment sessions to help Ms. Y cope with her depression, anxiety/phobia, and return to pre-accident levels of functioning. Dr. Pilowsky was of the opinion that Ms. Y was substantially disabled from performing her caregiving duties.

Dr. Pilowsky provided a list of Ms. Y's housekeeping and physical caregiving activities with a view to demonstrating Ms. Y's inability to perform her caregiving activities. However, I find that Dr. Pilowsky's list confirms that with one exception, Ms. Y was able to do all the activities she was able to perform at the time of the May 2000 motor vehicle accident. That possible exception relates to Ms. Y's ability to lift. At the time of the second accident, Ms. Y could lift five pounds; Dr. Pilowsky describes Ms. Y's difficulty post-accident with lifting a carton of milk of unspecified size and weight and needing to hold the carton against her chest in order to carry it. I am not persuaded that this possible exception amounts to a substantial inability to perform her housekeeping activities or the physical component of her caregiving activities at the May 2000 level. Unfortunately, Dr. Pilowsky does not address the impact of Ms. Y's psychological impairments on her ability to provide care, guidance and supervision for her daughter as part of her caregiving activities.

(c) Mr. Fernandez

On May 14, 2001, Mr. P. Fernandez, certified kinesiologist, reported on his in-home reassessment/ assessment to determine Ms. Y's needs for housekeeping, caregiver and attendant care services. He recommended a minimum of one hour per weekday morning of caregiver services to ensure that A. gets off to school on time with the requisite supplies. While it is critical to get A. off to school, I am not persuaded that one hour per weekday of caregiver services supports Ms. Y's claim that she is substantially disabled from performing caregiver duties.

Mr. Fernandez noted Ms. Y's difficulty with heavier lifting and carrying demands of grocery shopping, laundry tasks, and with bathroom cleaning. However, Ms. Y had these difficulties in the April - May 2000 period before the second accident. I cannot, without further evidence, attribute her inability to perform those tasks to the May 2000 motor vehicle accident.

(d) Mr. Donnison

In September 2001, Dr. K. Donnison, chiropractor, provided a report of his reassessment of Ms. Y. Dr. Donnison states that Ms. Y reported that she had healed significantly from the first motor vehicle accident at the time of the second motor vehicle accident, and her current complaints were low back pain mostly on the right side of her sacroiliac joint with radiation down her right leg. Dr. Donnison examined Ms. Y and commented on the limitations in her range of motion with forward flexion, extension, right lateral flexion and anterior rotation, and noted that all movements were moderately painful. Dr. Donnison diagnosed left sacroiliac dysfunction, and lumbar spine disc herniation with radiculopathy.

I find the premise of Dr. Donnison's report—that Ms. Y had virtually healed from the first accident at the time of the second accident—inaccurate. I also did not find this opinion helpful in assessing disability because Dr. Donnison did not address the tests in the Schedule for caregiver or housekeeping benefits.

Caregiving and Housekeeping Benefits

As other arbitrators have noted, there is some overlap in the services covered by the caregiver and housekeeping benefits under the Schedule. The housekeeping activities focus on the cleaning, upkeep and maintenance of the home, and the provision of services to the insured person and other members of the household, necessary for a safe and comfortable home environment. In this case, the housekeeping services would be provided for Ms. Y, her son and her daughter.

The caregiving activities relate to the provision of those housekeeping and home maintenance activities directly to or for the person in need of care, and also to unique activities covered only by the caregiver benefit, such as the provision of care, guidance, advice, emotional support and supervision.

A number of the activities can be categorized under either type of benefit, and some activities are appropriately considered under both. For example, driving would be a component of Ms. Y's shopping and errands for the household. Since Ms. Y drove A. to her friends, activities, and on longer trips during vacation, driving would also be a component of her caregiving activities.

Similarly, shopping, doing dishes, meal preparation and laundry, in my view, are appropriately considered as both housekeeping and caregiving activities. Because of the degree of overlap, I will deal with the common activities in relation to both benefits and then deal with unique caregiver activities.

Ms. Y's Caregiving and housekeeping activities pre-1999

Ms. Y testified that she kept a clean and sparkling house. I find that her housekeeping activities involved dusting, cleaning, and vacuuming daily or almost every day, because the family dog, a 110 pound Husky named Bear, shed a lot of hair throughout the apartment. I accept Ms. Y's evidence that she walked the dog daily for about an hour. However, I am unable to conclude that this was either a caregiving or a housekeeping activity within the meaning of sections 2, 13 or 22 of the Schedule.

I find Ms. Y's pre-1999 housekeeping activities included shopping, running errands, including associated driving, meal preparation, washing dishes, laundry, dusting, cleaning and vacuuming. I find that a component of the caregiver activities Ms. Y performed pre-1999 involved providing housekeeping and home maintenance activities in relation to A. Ms. Y testified that she was very close to her daughter, A. I find Ms. Y's pre-1999 caregiving activities included the provision of guidance, emotional support, and supervision to ensure A. completed her homework and other routines, as well as waking her up and walking her to school in the morning. I accept that Ms. Y drove her daughter to friends and to activities such as skating and tobogganing. In the summers she drove her children on longer car trips and went with them on outings to Heart Lake, to Sunnyside or to visit a friend who lived in the Caledon Hills.

Caregiving and Housekeeping activities in May 2000

Ms. Y testified that immediately after the 1999 accident, she really wasn't doing much of anything. It took all of her energy to attend therapy. Following the first accident, Ms. Y's friend and neighbour, Ms. M, provided housekeeping and caregiving in Ms. Y's household. She testified that she was driving to a park about a block from her home, walking daily with her father, and trying to get herself back into a routine. She walked, although it hurt to do so, and felt she was making some progress.

Ms. Y testified that around the time of the second accident in May 2000, she felt she was getting a bit better. In terms of her housekeeping, she had started to dust a little bit, was doing small loads of laundry and assisting the service provider with laundry. She was starting to go out socially. She could carry up to five pounds of groceries, but could not vacuum or clean the bathtub. She testified that she recalled helping with the Easter dinner by making yams; however, it took her the entire day to make them.

Ms. Y made notes on a calendar about how she felt following the 1999 accident. Her entries between late April 2000 to mid May 2000, in the period before the second accident, do not paint a rosy picture of her condition. There are notations that she had a bad bad migraine; that her back was in spasm; that her legs and hand were swollen; and that she was too sick to go to therapy. On May 14, 2000, Ms. Y noted in her calendar that her back was out. The following day, she attended for an MRI of her lumbar and cervical vertebrae, however, the MRI could not be completed because severe back pain prevented her from lying flat on her back as required.

I find that immediately after the first motor vehicle accident in 1999, Ms. Y's pain level was high and her level of activity low. I find that at the time of the second accident, Ms. Y was still recovering from the injuries she sustained in the first accident. Relative to her initial pain, energy and activity levels, I accept her testimony that she improved following the earlier accident.

In light of her testimony, her notes in her calendar, and other reports, I am not persuaded that Ms. Y was able to perform her housekeeping and caregiving activities at the level she did before the 1999 accident. However, Ms. Y's testimony did not specifically address her ability to perform some of those caregiving and housekeeping activities in the month before the May 2000 accident. At times I have drawn inferences from other evidence; at times I am unable to reach a conclusion.

In terms of her housekeeping activities, I find that in the month before the accident, Ms. Y was able to dust and do small loads of laundry. In March 2000, Dr. Chan, orthopaedic surgeon, noted that she was able to sit for approximately an hour with changes in her position, was able to walk reasonably well with no restrictions. I infer from her ability to walk that she would be able to stand. Since she was able to lift items up to five pounds, I infer that she could wash small loads of dishes. I infer from her ability to walk, dust and do dishes, that she could occasionally do some light cleaning. I infer that she could prepare light meals. However, given the length of time it took her to prepare the yams at Easter dinner, I find it unlikely she could prepare meals on a consistent basis. Since she was able to walk and drive, I find she would also be able to run some errands. I find she could not vacuum, or clean the bathtub. I find she could shop with the help of her father or a friend who carried items which were heavier than five pounds.

Of her caregiving activities, I infer that since Ms. Y walked on a daily basis that she could walk her daughter to school. Ms. Y began driving again. It is unclear to me whether this meant that she was able to drive her daughter to friends and activities during this period. I do not know whether she would have been able to drive for longer trips in the summer. Ms. Y's evidence and that of Ms. M, the housekeeper, suggest that Ms. Y was not performing the affective caregiving tasks.

This is the reduced level of activity against which I must measure Ms. Y's activity levels to determine if she is entitled to caregiving benefits after December 25, 2000 and housekeeping benefits after December 16, 2000, as a result of the injuries she sustained in the May 29, 2000 motor vehicle accident.

Conclusions on entitlement to caregiving and housekeeping benefits

The evidence suggests that physical, psychological and drug-related impairments might support Ms. Y's claims for further caregiver benefits and housekeeping benefits.

In the early period of Ms. Y's claim following the May 2000 accident, Ms. Y's family physician, Dr. Marshall, noted that her consumption of two Percocet per day was a medical restriction preventing her from doing her pre-accident duties. Ms. Y's consumption of narcotic medication to control her level of pain increased significantly following the second accident. In May 2000, Dr. Marciniak noted that Ms. Y was out of control, and appeared to be "spaced out" by medications.

Dr. Marciniak noted Ms. Y feared needles, which effectively ruled out further nerve blocks. He recommended morphine which he opined would provide Ms. Y with better pain control; however, she refused this due to a concern about the addictive properties of morphine. Although Dr. Marciniak repeatedly warned Ms. Y of the risk of addiction to Percocet, he continued to prescribe that medication. Eventually, Dr. Marciniak took comfort that persons who really need the dosages Ms. Y takes to manage her pain, do not in fact become addicted.

With respect to the issue of impairment from the medication, Dr. Marciniak opined that Ms. Y may not be able to provide guidance and proper supervision when she is on medications that can cause drowsiness and impair her judgment. Given the frequency with which Ms. Y saw Dr. Marciniak, in my view, he should be in a position to provide an actual opinion on the impact of medication on Ms. Y's ability to perform such tasks. I find it likely that if there were an actual ongoing problem of impairment, it is likely that it would come to Dr. Marciniak's attention, and he would have reported on actual impairment. I did not find Dr. Marciniak's reports helpful in assessing Ms. Y's claims of ongoing disability, because he did not address the disability test under the Schedule.

In terms of her ability to provide care for her daughter, Ms. Y testified that she never realized how sick her daughter was, lost control of her, and, as of the time of the hearing, still had not regained control. Ms. Y described her daughter as having lots of problems, and stated that she attended counselling and therapy sessions. Ms. Y testified that she attends relaxation sessions with her daughter.

The evidence with respect to A.'s difficulties and the role of Ms. Y's post-accident condition in her loss of control of A. was not well fleshed out. While Ms. Y's testimony raises concerns about her ability to provide supervision, guidance and emotional support for her daughter, I am unable to reach any conclusions in this regard. Neither Dr. Pilowsky nor Dr. Gillin-Garling specifically address Ms. Y's ability to wake her daughter, supervise her, and provide her with guidance and emotional support.

I note that her daughter is now a teenager, and that control issues frequently occur between parents and teenagers. I am unable to draw any conclusions from this evidence as to the nature of the loss of control and the extent to which this is attributable to the motor vehicle accident in May 2000. Dr. Switzman assessed Ms. Y on February 23, 2001, and reported that A. is now doing well. Presumably, this is based on a report from Ms. Y, as there is no indication that Dr. Switzman assessed A.

In terms of the physical activities common to both housekeeping and caregiver benefits, I find Ms. Y's admissions in February 2001 to Dr. Switzman that "she feels 75-80% back to where she was before the second accident," and to Dr. King that "she can pretty well do anything and is almost back to the condition she was in prior to the second motor vehicle accident," are fatal to her claims for ongoing caregiver and housekeeping benefits. Based on the evidence from the DAC assessors, I find that by February 23, 2001, Ms. Y was substantially able to do what she was able to do physically and psychologically at or around the time of the second motor vehicle accident.

Many of Ms. Y's health practitioners provided diagnoses and concerns, but did not address the requirements of function under the Schedule. State Farm's medical opinion evidence addressed the requirements of function, but the health practitioners did not state the assumptions they made as to which activities were involved, or state the basis on which they reached those conclusions. None of the Insurer's assessments addressed Ms. Y's diagnosis of fibromyalgia.

Subsequent to the DAC assessments, reports have been provided by various health practitioners of the Applicant, or on behalf of the Applicant, such as from Dr. Marciniak, Mr. Fernandez and Dr. Pruzanski. I did not find these reports persuasive in establishing a further period of disability or entitlement to caregiving or housekeeping benefits. The reports either speak of impairments without addressing disability, or, if there is an opinion on disability, they ignore Ms. Y's pre-accident history or her co-existing conditions. For these reasons, I conclude that Ms. Y's entitlement to housekeeping and caregiver benefits ends at February 23, 2001.

State Farm paid Ms. Y a caregiver benefit of $250 per week up to December 25, 2002 and housekeeping services benefit of $100 per week up to December 16, 2000. In the result, I conclude that Ms. Y is entitled to further caregiver benefits from December 25, 2000 to February 23, 2001 at the rate of $250 per week and housekeeping benefits from December 16, 2000 to February 23, 2001.⁶

Claim for medical benefits:

Ms. Y claims a medical benefit of $600 under section 14 of the Schedule, for 15 sessions of massage therapy by a registered massage therapist, at a cost of $40 per half-hour session, as set out in a treatment plan of April 2, 2001.

To succeed, Ms. Y must establish that she sustained an impairment as a result of the accident, and that the treatment she claimed was reasonable and necessary. State Farm disputes that Ms. Y required the treatment.

Applicant's evidence

On March 21, 2001, Ms. Y re-injured her neck while carrying groceries.⁷ Her right hip was sore, and she had pain going into her right leg and foot. Ms. Y was taking 3 Percocets per day to manage her pain. Dr. Marciniak recommended further treatment with physiotherapy and acupuncture twice a week for six weeks. He noted that it might be necessary to consider a nerve block to reduce her muscle spasms and pain.

On April 2, 2001, Ms. Y requested another prescription for Percocet from Dr. Marciniak. He recommended a rheumatology assessment because she was having significant problems from her post-traumatic fibromyalgia. Dr. Marciniak recommended the treatment plan. The treatments were for massage therapy and remedial exercise to be provided over the course of an 8 to 10 week period, once or twice a week. The goals of the treatment were to decrease pain and muscle spasm, maintain the range of movement in her joints and spinal mobility, restore functional ability, and help with pain management, the anticipated benefits were an increase in her functional ability, range of motion, strength, and pain headache reduction.

Insurer's evidence

State Farm refused the treatment based on Dr. C.B. Paitich's orthopaedic examination of December 4, 2000. In that report, prepared approximately four months before the date of the treatment plan in dispute, Dr. Paitich opined that Ms. Y required no further physical treatment.⁸

Findings and Conclusions

The treatment plan addresses a short period of treatment to address an exacerbation in Ms. Y's pain. She was having a difficult time with her fibromyalgia. She was re-referred to a rheumatologist who saw her on two occasions. Dr. Pruzanski describes her as having 18 out of 18 positive points.

I find the treatment was necessary to deal with an exacerbation of her injury and to attempt to provide her with pain relief, where narcotic medication and other measures were also taken. In this context, I find the treatment plan for massage therapy reasonable in terms of the goals and the frequency of treatment. I find the cost per session was modest and therefore reasonable.

Dr. Paitich's report predates the re-injury of her neck while carrying groceries, and could not therefore have considered the exacerbation of her pain. I reject the notion that benefits can be denied in advance of a claim for those benefits, for the reasons given in the case of Ross and TTC Insurance Company Limited (FSCO A01-000064, April 5, 2002).

For these reasons, I conclude that State Farm is required to pay $600 for the cost of massage treatment claimed by the Applicant.

Claim for interest:

Ms. Y is entitled to interest on housekeeping, caregiver and medical benefits under section 46(2) of the Schedule.

EXPENSES:

The parties wished to address the issue of expenses once entitlement to benefits was determined. If the parties are unable to agree on expenses, that issue may now be addressed.

August 31, 2004

Suesan Alves Arbitrator

Date