Neutral Citation: 2004 ONFSCDRS 164

FSCO A03-001695

BETWEEN:

ZUAN YOU LIANG

Applicant

and

LIBERTY INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before:

Judith Killoran

Heard:

August 16, 17, 18 and 19, 2004, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Steven Sieger for Ms. Liang

Dean Sloan for Liberty Insurance Company of Canada

The Applicant, Zuan You Liang, was injured in a motor vehicle accident on October 11, 2002. She applied for and received statutory accident benefits from Liberty Insurance Company of Canada ("Liberty"), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms. Liang 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. Liang entitled to receive weekly caregiver benefits, pursuant to section 13 of the Schedule?
Is Ms. Liang entitled to payments for housekeeping and home maintenance services, pursuant to section 22 of the Schedule?
Is Ms. Liang entitled to receive a medical benefit for massage and chiropractic treatment in the amount of $6,872.20 for services provided by Health Assist Clinic, $7,440.53 for services provided by Backcare & Sport Injuries Rehabilitation Centre for the period October 12, 2002 to March 21, 2003, and $103.33 for medication, claimed pursuant to section 14 of the Schedule?
Is Ms. Liang entitled to payment of $1,000 for the cost of a medical report prepared by Dr. Wong, pursuant to section 24 of the Schedule?
Is Ms. Liang entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?
Is either party liable to pay the other's expenses in respect of the arbitration under subsection 282(11) of the Insurance Act?

Ms. Liang is entitled to payment of $1,860 from Liberty for caregiver benefits.
Ms. Liang is entitled to payment of $827.20 from Liberty for housekeeping services.
Ms. Liang is entitled to payment of $3,930 for treatment plans from Health Assist Clinic, $4,840 for treatment plans from Backcare & Sport Injuries Rehabilitation Centre ("Backcare"), and $103.33 for medications claimed, pursuant to section 14 of the Schedule.
Ms. Liang is entitled to payment of $1,000 for Dr. Wong's report under section 24 of the Schedule.
Ms. Liang is entitled to interest on overdue payments.
The parties may now speak to the issue of expenses.

Background

Ms. Liang testified that on October 11, 2002, she went for a morning walk before making breakfast for her two grandsons, who were aged 10 and 12 years old. At approximately 7:40 a.m., Ms. Liang was walking on a green light crossing the intersection at Finch and McCowan. As she approached the middle of the intersection, she was struck by a motor vehicle and fell to the ground. Afterward, her hands and feet were swollen and her bones were painful, especially her lower back. She had pain in the right foot and from the knee to the foot was black and swollen. She was taken to Scarborough Grace Hospital with upper and lower back pain, left hand and wrist pain and right leg contusions. She attended at Health Assist Clinic the next day and began receiving treatment.²

Caregiver Benefits

In the pre-hearing letter dated April 23, 2004, the issue in dispute with respect to caregiver benefits was identified, as follows:

Is Ms. Liang entitled to receive weekly caregiver benefits in the amount of $100.00 per week for the period October 18, 2002 to May 25, 2003 ($3,100.00) for services provided by Mo Jian Guo, pursuant to section 13 of the Schedule?

Based on both the documentary evidence and the testimony of Ms. Liang and Mr. Mo, I find that the quantum and duration of both the caregiver and the housekeeper claims were articulated incorrectly in the pre-hearing letter.

In an Application for Expenses with attached receipts dated November 29, 2002, Ms. Liang claimed $620 for caregiver expenses from October 18, 2002 to November 29, 2002. In an Explanation of Benefits Payable dated January 2, 2003, Liberty denied the caregiver benefit on the basis that it required "legal documentation" confirming that Ms. Liang was the "legal guardian of the child."

In an Application for Expenses with attached receipts dated January 2, 2003 and February 28, 2003, Ms. Liang claimed $1,240 for further caregiver benefits from December 2, 2002 to February 28, 2003. Liberty denied these expenses with the explanation that it was currently in the process of investigating the claim that Ms. Liang was the primary caregiver of her daughter's child.

It appeared from both the documentation submitted to me and the testimony of Ms. Liang and Mr. Mo that a total of $1,860 was claimed for caregiver expenses and none of that amount was approved by Liberty. Therefore, I evaluated the evidence with respect to a caregiver claim of $1,860.

The relevant portion of section 13 of the Schedule states:

(1) The insurer shall pay an insured person who sustains an impairment as a result of an accident a caregiver benefit if the insured person meets all of the following qualifications:

At the time of the accident,

i. the insured person was residing with a person in need of care, and

ii. the insured person was the primary caregiver for the person in need of care and did not receive any remuneration for engaging in caregiving activities.

As a result of and within 104 weeks after the accident, 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.

(2) The caregiver benefit shall pay for reasonable and necessary expenses incurred as a result of the accident in caring for a person in need of care.

(3) The amount of the caregiver benefit shall not exceed,

(a) for the first person in need of care,

(i) $250 per week, or

(b) for each additional person in need of care,

(i) $50 per week.

Housekeeping Benefits

In the pre-hearing letter dated April 23, 2004, the issue in dispute with respect to housekeeping benefits was identified, as follows:

Is Ms. Liang entitled to payments for housekeeping and home maintenance services in the amount of $213.60 for services provided by Mo Jian Guo for the period December 2, 2002 to February 28, 2003, pursuant to section 22 of the Schedule?

With respect to the housekeeping claim from October 18, 2002 to November 29, 2002, an Application for Expenses with receipts attached dated November 29, 2002, was submitted by Ms. Liang in the amount of $620. Liberty paid $393.60 with the explanation that based on an in-home assessment indicating that Ms. Liang required 8.2 hours per week of housekeeping at the rate of $8.00 per hour, her entitlement was reduced. Ms. Liang claimed the difference which was $226.40.

With respect to the housekeeping claim from December 2, 2002 to February 28, 2003, an Application for Expenses with receipts attached, dated January 31, 2002 and February 28, 2003, was submitted to Liberty in the amount of $1,240. Liberty paid $639.20 with the Explanation of Benefits dated March 17, 2003, that the in-home therapy assessment dated January 22, 2003, determined that Ms. Liang required 2.5 to 3 hours of housekeeping per week at $8.00 per hour. Ms. Liang claimed the difference which was $600.80. Therefore, I evaluated the evidence based on a total housekeeping claim for Ms. Liang of $827.20.

The relevant portions of section 22 of the Schedule are:

(1) The insurer shall pay for reasonable and necessary additional expenses incurred by or on behalf of an insured person as a result of an accident for housekeeping and home maintenance services if, as a result of the accident, the insured person sustains an impairment that results in a substantial inability to perform the housekeeping and home maintenance services that he or she normally performed before the accident.

(2) the amount payable under this section shall not exceed $100 per week.

Pre-Accident Activities

Ms. Liang is 65 years old. She had been diagnosed with hypertension and diabetes prior to the accident.³ Ms. Liang's testimony was straightforward with no tendency to exaggerate. However, she did have some memory problems.

Ms. Liang arrived in Canada in February 1997. She was sponsored by her daughter to emigrate from China to assist in the housekeeping and childcare after her daughter's divorce. She testified that before the accident she also worked as a salesperson. She arranged her schedule to fit in with that of her two grandchildren. She worked 5 days a week from 11-3 p.m. She walked the children to and from school even while working. However, Ms. Liang lost her job before the accident occurred. At the time of the accident, her grandchildren were 10 and 12 years of age.

As Ms. Liang's daughter worked as a salesperson from 11-to 8 p.m., Ms. Liang testified that prior to the accident she looked after the two grandchildren during the day. She did the household work and brought the children to school, brought them home, did the laundry, cooking and cleaning, including the vacuuming. She mopped the floors, especially the kitchen, and she shared the cleaning of the bathroom with her daughter. Sometimes, she did the grocery shopping and sometimes her daughter did. She also changed and made the beds, and did the cooking for the entire household.

Post-Accident Activities

On October 19, 2002, Ms. Liang visited Dr. Chu, her family doctor. Also, an in-home assessment was conducted by a kinesiologist on October 30, 2002.⁴ The assessment determined that Ms. Liang was entitled to 8.2 hours of housekeeping per week and 12.5 hours of caregiving per week. Ms. Liang hired Mr. Jiang Guo Mo immediately following the accident. Mr. Mo testified that a friend of Ms. Liang asked if he could help her with the children and housework. Mr. Mo had a van and was self-employed. He adjusted his time to fit Ms. Liang's schedule.

Mr. Mo began helping Ms. Liang on October 15, 2002 and worked until the end of February 2003. He stopped performing the housework and childcare tasks because Liberty refused to pay Ms. Liang for his services. His invoices, which claimed 22 hours per day for each of housekeeping and caregiving, were submitted to Liberty.⁵ He testified that he received $500 on two occasions from Ms. Liang as payment toward his housekeeping and caregiving services.

Whatever housework and caregiving Ms. Liang did before the accident, Mr. Mo did after the accident. Both Ms. Liang and Mr. Mo testified about the nature of the duties performed by Mr. Mo. They are summarized in the following paragraph.

Mr. Mo would prepare the lunch and dinner. He helped with the children, walked them to school, picked them up, got the groceries and daily items. On a typical day, Mr. Mo would arrive at 7:30, help the children tidy up, and take them to school. He came back to the condominium with groceries, cooked lunch and left around 11 after cooking lunch. He returned later in the day at about 3:30 to pick up the children at school, help clean up the house and cook dinner, after which he would leave. He testified that he cleaned the kitchen, washroom, living room, but not the bedrooms. He vacuumed every 2 to 3 days and mopped the kitchen and bathroom floors.

Both Ms. Liang and Mr. Mo testified that initially Ms. Liang could not leave her room. Her feet were all black and swollen and her hands were badly bruised. Ms. Liang began to move about more easily by the end of February 2003. In the beginning, Mr. Mo drove her to the clinics. Later, as her health improved, the grandchildren were taking her by public transit.

Mr. Mo testified that Ms. Liang's physical condition very gradually improved, particularly after her treatment at the clinics. He stopped working sometime at the end of February even though Ms. Liang was not fully recovered. Ms. Liang was functioning better and could perform light duties. However, she could not walk for a long distance outside and needed some assistance at home as she was not fully recovered.

In-Home Assessment

Ms. Susan Bourbeau, an occupational therapist, testified for Liberty. She conducted an in-home occupational therapy assessment on January 22, 2003.⁶ The purpose of the assessment was to determine Ms. Liang's ability to perform personal care and housekeeping. Also, caregiving was identified in the body of the report. Ms. Liang lived in a small condominium with her daughter and two grandchildren and slept in the sunroom. Ms. Bourbeau confirmed that Ms. Liang's daughter left for work at approximately 10:00 a.m.

Ms. Liang itemized five complaints to Ms. Bourbeau: pains in her neck, left arm at the elbow, left wrist, low back and occasional cramping in her left calf. Ms. Bourbeau testified that Ms. Liang's duties before the accident included almost all the housekeeping and meals, although her daughter assisted with doing the dishes. She walked to do the groceries and took the bus home. She did mopping, sweeping and helped with the laundry. Ms. Bourbeau's understanding was that Ms. Liang's daughter did the vacuuming, dusting, bathroom cleaning and shared the laundry.

Ms. Bourbeau testified that Ms. Liang was functional in her mobility and able to walk around the apartment. Ms. Liang experienced pain and discomfort with neck flexion and her left shoulder when reaching behind her back. However, she demonstrated a functional range of motion. Her grip strength was below the 10th percentile. Ms. Bourbeau testified that was not important because grip strength of 4 kg. was sufficient for most activities. In her left hand, Ms. Liang had only 2 kg. strength. According to Ms. Bourbeau, Ms. Liang needed education in hurt versus harm and more efficient, easier ways of preparing meals. She perceived herself as capable of doing less than she could do. Ms. Bourbeau also found Ms. Liang capable of walking her grandsons to school. She had about a 30-minute tolerance for walking around the condo although occasionally, she would lean on counters or walls to support herself.

The total assessment by Ms. Bourbeau was for 22 to 3 hours, as follows: physical assessment for 15-25 minutes, 30 minutes walking around the condominium, 12 to 2 hours with background information and interpretation. About 5 minutes in total were spent testing Ms. Liang's back, neck, shoulder, elbow and lower extremities.

Ms. Bourbeau testified that it was possible for Ms. Liang to be within normal limits of function and still in a great deal of pain. In fact, she observed Ms. Liang rubbing her left arm in pain. Ms. Liang told Ms. Bourbeau that her neck pain interfered with her sleeping. However, Ms. Bourbeau did not believe that Ms. Liang was so sleep deprived that it would have an effect on her function. In her opinion, although there were subjective complaints of pain, given that it was three months post-accident, it was necessary to work around these complaints.

Ms. Bourbeau did not believe that Ms. Liang was substantially disabled. She thought she would benefit from temporary assistance with specific tasks. For example, she recommended 12 hours of assistance from an occupational therapist for educative purposes. Ms. Bourbeau testified that Ms. Liang was capable of doing most activities and required no further assistance than 22 to 3 hours of housekeeping for two weeks. She recommended assistive devices to make the transition.

Ms. Bourbeau concluded that Ms. Liang did not demonstrate an impairment or a substantial inability to do housekeeping. With respect to caregiving, she felt that Ms. Liang could bring the children to school every day and given their ages, she was required more for homemaking, such as meals, laundry, bed making and general clean-up, all of which she could do.

Conclusion re: Caregiver and Housekeeping Benefits

Mr. Mo and Ms. Liang were straightforward, credible witnesses. The disability certificate dated February 15, 2003 confirms injuries to Ms. Liang's neck, low back, pain and stiffness. Dr. Chu states in the disability certificate that Ms. Liang cannot take care of her grandchildren. I noted that the disability certificate was signed after the in-home assessment.⁷ Liberty was provided with itemized invoices for caregiver and homemaking provided by Mr. Mo. Mr. Mo confirmed that Ms. Liang was the primary caregiver. I find that Ms. Liang was the primary caregiver for her two grandchildren.

Dr. S.W. Joseph Wong, a physiatrist who testified for Ms. Liang, had many criticisms of the in-home assessment. As of March 2003, Dr. Wong testified that Ms. Liang was still unable to perform heavier tasks. Dr. Wong discussed how Ms. Liang's difficulty sleeping affected her recovery. He took into account how pain and fatigue can affect one's ability to function. I prefer the testimony of Dr. Wong to that of Ms. Bourbeau. Dr. Wong provided some valid criticisms of the in-home assessment conducted by Ms. Bourbeau. His testimony was compelling when he related his physical findings with respect to Ms. Liang and his conclusion that she was unable to perform her pre-accident caregiver and housekeeping tasks. A summary of his testimony can be found later in this decision.

I find that Ms. Liang is entitled to payment of the entire amounts that she has claimed for caregiver and housekeeping benefits. That is, for the caregiver benefit, Ms. Liang is entitled to payment of $1,860 which she claimed from Liberty. For the housekeeping benefit, Ms. Liang is entitled to the difference between $1,860, which she claimed, and $1,032.80, which was paid by Liberty. That amount is $827.20.

Medical Expenses - Section 14

The relevant portion of section 14 states:

(1) The insurer shall pay an insured person who sustains an impairment as a result of an accident a medical benefit.

(2) The medical benefit shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for,

(b) chiropractic, psychological, occupational therapy and physiotherapy services;

(h) other goods and services of a medical nature that the insured person requires.

There were three sets of treatment plans submitted to Liberty - the first set was dated October 12, 2002, the second November 22, 2002, and the third March 5, 2003.

First Set of Treatment Plans

Liberty's records indicate that the first set of treatment plans was approved for the period from October 12, 2002 to November 23, 2002. The treatment plan at Health Assist Clinic was for chiropractic five times a week in the amount of $1,000 and massage three times a week for $1,260. The treatment plan for physiotherapy at Backcare was for five times a week for 4-6 weeks in the amount of $2,550. Rehabilitation exercises were recommended for five times a week in the amount of $2,250.

On November 28, 2002, Liberty approved a total of $7,200 for the following treatments: $4,800 for physiotherapy and active rehabilitation to Backcare and $2,400 for chiropractic and massage to Health Assist. Liberty was informed that the costs were broken down in the following fashion: $38 per hour for chiropractic, $70 per hour for massage and $120 per hour for physiotherapy. Liberty paid in excess of the $7,200 approved. It paid $2,930.75 for chiropractic and massage and $5,199.23 for physiotherapy and active rehabilitation which totalled $8,129.98.

Second Set of Treatment Plans

The second set of treatment plans, dated November 22, 2002, were received by Liberty on December 12, 2002 and denied on December 16, 2002.

Health Assist Clinic recommended chiropractic care 4-5 times a week for 4-6 weeks for approximately $900 and massage therapy for 4-5 times a week for 4-6 weeks for approximately $1,380. The second treatment plan from Backcare recommended rehabilitation exercises II 4-5 times a week for 4-6 weeks and education and other assessment, as necessary, for approximately $2,800.

Third Set of Treatment Plans

On March 5, 2003, a third set of treatment plans was prepared for Liberty. Health Assist Clinic recommended chiropractic care 2-3 times a week for 4-6 weeks for approximately $650 and massage therapy 2-3 times a week for 4-6 weeks for approximately $1,000 for a total of $1,650 for chiropractic and massage. Backcare recommended rehabilitation exercise II for 2-3 times a week for 4-6 weeks and education and other assessment, as necessary, for a total of $2,040.

On March 26, 2003, Liberty sent correspondence to Ms. Liang that it would make a determination about the third set of treatment plans once the medical/rehabilitation DAC assessment report was completed. On April 15, 2003, the DAC assessment report was completed. On May 7, 2003, Liberty forwarded to Ms. Liang an Explanation of Benefits, four months after the OCF-14 requesting a medical/rehabilitation DAC assessment was forwarded by Ms. Liang to Liberty.

Multi-Disciplinary DAC Assessment

On January 8, 2003, Ms. Liang submitted to Liberty a completed OCF-14 for a medical/rehabilitation DAC assessment. In March 2003, Ms. Liang attended a multi-disciplinary DAC assessment. She was examined on March 12, 2003 by Ms. Sheila Graham, massage therapist; on March 18, 2003 by Dr. L.M. Barbuto, chiropractor; and on March 18, by Mr. Michael Drinkwater, physiotherapist.

The DAC assessment concluded that the second set of treatment plans submitted on November 22, 2002 was not reasonable and necessary. Ms. Graham thought the first massage therapy treatment plan dated October 12, 2002 for 3 times a week for 4-6 weeks was excessive but appropriate. The second treatment plan for massage therapy, she considered excessive for 4-6 weeks at 4 to 5 times a week. She recommended no further massage.

Dr. Barbuto concluded that Ms. Liang had an uncomplicated sprain and strain and found no objective evidence of musculoskeletal problems. He concluded that further chiropractic treatment was not reasonable or necessary. He considered that Ms. Liang had attained maximum therapeutic benefit and required no further treatment.

Mr. Michael Drinkwater, the physiotherapist, stated that there was no indication of underlying pathology beyond the October 12, 2002 treatment plans. He diagnosed Ms. Liang as suffering from an uncomplicated soft tissue injury with further treatment found to be not reasonable or necessary.

Expert Testimony

Dr. L.M. Barbuto, a chiropractor, testified for Liberty. He assessed Ms. Liang on March 18, 2003 as part of a multi-disciplinary DAC assessment with a Cantonese interpreter present.

Dr. Barbuto testified that Ms. Liang did not have a lot of complaints but said that she could not carry on with her day-to-day activities. She had neck and low back pain as ongoing problems. Dr. Barbuto had Ms. Liang move her head and neck, tested her muscle strength with a straight leg raise, and conducted a musculoskeletal examination of about 15 minutes. He diagnosed her as having uncomplicated soft tissue injuries. He conceded that she would not respond as well as someone younger.

From a functional perspective, Dr. Barbuto found that Ms. Liang was capable of performing her day-to-day household activities. In his opinion, there was nothing that would disqualify her from being more active. He found that the first treatment plan dated October 12, 2002 was reasonable and necessary. With respect to the second treatment plan, he concluded that more treatment was neither reasonable or necessary as maximum therapeutic benefit had been attained.

Dr. Barbuto had no report from Ms. Liang's treating chiropractor, Dr. Sheppard, although there were two narrative reports from Dr. Sheppard subsequent to the request for the DAC assessment which he acknowledged would have assisted him. In his reports, Dr. Sheppard commented on Ms. Liang's reduced range of motion and her muscle hypertonicity.

Dr. Barbuto saw Ms. Liang five months post-accident. He conceded that elder patients require supportive care and may take longer to heal than younger patients. However, because Ms. Liang continued to receive treatment with the same frequency and was not gradually being weaned from treatment, in his opinion, the treatment was not reasonable or necessary. Dr. Barbuto testified that he did not understand why the clinics continued to treat Ms. Liang past the date of the second treatment plan. In his opinion, 6-8 weeks should suffice for treatment.

Dr. S.W. Joseph Wong, a physiatrist, testified on behalf of Ms. Liang. He examined Ms. Liang on March 6, 2003, October 31, 2003 and February 18, 2004, for evaluations. Ms. Liang was referred by her family doctor, Dr. Chu, to Dr. Wong. Dr. Wong learned from her that she was receiving physiotherapy. He was aware that she had been attending for 4 to 5 times a week which had been reduced to twice a week.

In his March 6, 2003 notes, Dr. Wong commented on the following: the pains in Ms. Liang's neck, left shoulder, left arm, lower back and her inability to sleep. He conducted a physical examination and looked for muscle and neurological damage. He found mainly soft tissue damage in the left shoulder, left elbow and lower back. He did not find Ms. Liang's symptoms abnormal as she was 63 years old with arthritis. In his opinion, it was to be expected that an older person such as Ms. Liang would take a significant period of time to recover after being struck, as a pedestrian, by a motor vehicle. Ms. Liang also had chronic insomnia which resulted in slower healing. In his March 2003 report, Dr. Wong found that Ms. Liang required comprehensive active and passive therapy treatment. Dr. Wong thought all treatment plans submitted by the clinic were reasonable and necessary.

When Dr. Wong saw Ms. Liang in October 2003, he prepared a report incorporating the findings from his first examination in March. On her second visit, Ms. Liang's acute, initial severe pain had subsided. She continued to have stiffness and tenderness in the neck, lower back area and in one arm. She had not recovered completely and still had complaints of insomnia and psychological distress. Dr. Wong reviewed the DAC assessment report, the in-home assessment, Ms. Liang's written statement, and the police report. Ms. Liang had stopped physiotherapy and Dr. Wong's physical findings were worse than before, which he attributed to the lack of treatment.

Dr. Wong's next report was in February 2004. He noted degenerative disc disease in Ms. Liang's neck and degenerative changes in her lower back. She had a herniated disc on her left side. She had no musculoskeletal problems before the accident. Dr. Wong referred to the reports in the DAC assessment; more specifically to the massage therapist's report which found increased tension in muscular attachments and hypertonicity in the left upper lumbar spine. In Dr. Wong's opinion, the massage therapist examined and commented on the soft tissue damage so it was not reasonable to say no further treatment was reasonable and necessary.

As well, Dr. Barbuto's report, dated March 18, 2003, confirmed Ms. Liang's muscle hypertonicity, joint dysfunction and the weak muscles in her neck. In Dr. Wong's opinion, this pathology would improve if there were ongoing therapy. He believed that it was unfair to determine at the DAC assessment in March that treatment provided to Ms. Liang in November was not reasonable or necessary. In Dr. Wong's opinion, based on the DAC assessors own findings, Ms. Liang would have benefited from ongoing treatment.

Dr. Wong found stiffness and tenderness on palpitation of Ms. Liang's cervical spine. Dr. Wong's opinion was that Ms. Bourbeau's report based on an in-home assessment of January 22, 2003 was not a very fair report. There was no adequate measurement of Ms. Liang's endurance and strength. Dr. Wong pointed out that Ms. Liang had a physical impairment which would prevent her from pushing her buggy to do the grocery shopping. In Dr. Wong's opinion, exacerbating features which impaired Ms. Liang's function were her arthritis, disc herniation and insomnia. On October 31, 2003, he diagnosed that Ms. Liang's range of motion was limited due to soft tissue abnormalities. He commented that her pain could flare up even one year later and she would require treatment whenever that occurred.

Ms. Liang's last visit to Dr. Wong was on February 18, 2004. An MRI revealed degenerative changes in the spine with a disc protrusion on the left side. As Ms. Liang had no symptoms pre-accident, Dr. Wong concluded that it was reasonable to think that the disc protrusion was caused by the accident. Dr. Wong said that during his three evaluations, Ms. Liang continued to experience the same three areas of pain in her lumbar, cervical and thoracic spine.

Conclusion re: Section 14 Medical Benefits

I prefer the evidence presented by Ms. Liang, Mr. Mo and Dr. Wong to that of the DAC assessors, including Dr. Barbuto. I found Dr. Wong's report and testimony to be detailed, precise and specific in its references to Ms. Liang's particular situation. I agree with him that it was not appropriate that the DAC assessment commented on the reasonableness and necessity of treatment which had occurred up to five months previously. I also agree that many of the findings of the DAC assessors, for example, Ms. Liang's muscle hypertonicity and soft tissue damage, support a conclusion that the treatment plans submitted by the clinics were reasonable and necessary.

At the clinics, Ms. Liang testified that she received massage and stretching. She said the treatment was helpful but slow. She went to the clinics for four to five months until Liberty refused to pay for treatment and she stopped. Ms. Liang had some memory problems but she tried her best to describe the treatment she received. She testified that she spent about 2 hours every day at the clinics receiving treatment.

Ms. Liang testified that her condition gradually improved as a result of the treatment received at the clinics. She did not attend the clinics for treatment after the DAC assessment report was released. Mr. Mo confirmed that her treatment at the clinics improved her function and decreased her pain.

In the case of Violi and General Accident Assurance Co. of Canada, the arbitrator found that the relief of pain is a legitimate medical and rehabilitative goal. She accepted Mr. Violi's testimony that chiropractic and massage treatments, together with daily stretching and treadmill work, relieved his pain and permitted him to maintain function. In similar fashion, I find that Ms. Liang's chiropractic and massage treatments, together with rehabilitation exercises, relieved her pain and contributed to her recovery. I also find that the cost per individual treatment was not unreasonable.

As no further treatment plans were filed and no witnesses appeared on behalf of the clinics to testify about the invoices submitted totalling $6,872.20 for services provided by Health Assist Clinic and $7,440.53 for services provided by Backcare, I have restricted my findings to the second and third sets of treatment plans which were rejected by Liberty. I find that the second and third sets of treatment plans which were submitted by the clinics were reasonable and necessary. Therefore, I find that Ms. Liang is entitled to payment of $3,930 for treatment plans from Health Assist Clinic and $4,840 for treatment plans from Backcare.

Both Dr. Wong and Ms. Liang testified that her medication, an anti-inflammatory, was taken daily by her to assist in controlling pain resulting from the accident. There was no evidence to the contrary. Consequently, I find that Ms. Liang is entitled to payment of $103.33 for medication.

Section 24 Expense - Medical Report

Section 24 of the Schedule states:

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

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

Dr. Wong's report of October 31, 2003 for $1,000 is a reasonable expense under section 24, as it was prepared for the purpose of the Schedule. The report reflects a review of Dr. Wong's notes taken at the time of his March 2003 assessment of Ms. Liang and compares her condition in March 2003 with her condition in October 2003. Dr. Wong's report was reviewed and provided helpful evidence about Ms. Liang's medical condition for the hearing.

Interest on Overdue Amounts

Ms. Liang is entitled to interest on overdue amounts under subsection 46(7) of the Schedule.

EXPENSES:

The parties are encouraged to resolve the issue of expenses. If required, they may apply for an expense hearing under the provisions of the Dispute Resolution Practice Code (4th Ed., Updated October 2003).

November 12, 2004

Judith Killoran Arbitrator

Date