Neutral Citation: 2004 ONFSCDRS 43 FSCO A03-000529

Between: Janet Zepotoczny Berger, Applicant and Gore Mutual Insurance Company, Insurer

Reasons for Decision

Before: Judith Killoran Heard: February 2, 3 and 4, 2004, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Ms. Berger was unrepresented. Edmund Kent for Gore Mutual Insurance Company

Issues:

The Applicant, Janet Zepotoczny Berger, was injured in a motor vehicle accident on July 14, 1999. She applied for and received statutory accident benefits from Gore Mutual Insurance Company ("Gore"), payable under the Schedule.¹ Gore Mutual terminated weekly income replacement benefits on September 15, 2000. The parties were unable to resolve their disputes through mediation, and Ms. Berger 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. Berger entitled to a weekly income replacement benefit, from September 15, 2000 onward, pursuant to section 4 of the Schedule?
Is Ms. Berger entitled to receive a medical benefit for physiotherapy and massage at Physiotherapy on Bay, and Athlete's Care, and transportation, from April 2001 onward, claimed pursuant to section 14 of the Schedule?
Is Ms. Berger entitled to receive a rehabilitation benefit for the increased cost of automobile insurance (approximately $450), claimed pursuant to section 15 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?
Is Ms. Berger entitled to interest for the overdue payment of benefits pursuant to subsection 46(2) of the Schedule?

Result:

Ms. Berger is not entitled to receive a weekly income replacement benefit from September 15, 2000 onward, pursuant to section 4 of the Schedule.
Ms. Berger is not entitled to receive a medical benefit for physiotherapy and massage at Physiotherapy on Bay, and Athlete's Care, from April 2001 onward, claimed pursuant to section 14 of the Schedule.
Ms. Berger is not entitled to receive a rehabilitation benefit for the increased cost of automobile insurance (approximately $450), claimed pursuant to section 15 of the Schedule.
The issue of expenses may now be spoken to.
Ms. Berger is not entitled to interest for overdue payments pursuant to subsection 46(2) of the Schedule.

Evidence and Analysis:

Ms. Berger was sitting in an aisle seat at the front of a TTC bus on July 14, 1999. The bus was proceeding north on Bay Street. A truck was blocking the bus lane as it tried to cut across four lanes of traffic while westbound from Temperance Street. The bus driver slammed on the brakes and Ms. Berger went flying out of her seat. She grabbed the pole in front of the right window seats. Her left knee struck the ground and her right knee struck the steel edge of the seats. She grabbed the pole with her right hand while her whole body was twisted around the pole. She felt an extremely sharp pain from her knee to her pelvis.

Ms. Berger had abrasions on both her feet and on her left knee, which was bandaged by paramedics. She struck her left shoulder, bruised her clavicle, and had bruises below her right knee on the inner side, her wrists and her upper arm.

Is Ms. Berger entitled to receive a weekly income replacement benefit, from September 15, 2000 onward, pursuant to section 4 of the Schedule?

Gore raised as a defence that Ms. Berger did not apply for mediation within the two-year limitation period. Gore claimed that the limitation period began to run as of its June 7, 2000 termination letter.² In that letter, notice was given under section 37 of the Schedule of Ms. Berger's right to a DAC assessment if she disagreed with the stoppage. The June 7 letter informed Ms. Berger that Gore would continue to pay IRBs if Ms. Berger asked to attend to a DAC. The DAC assessment was done by Dr. Hugh Cameron as of August 18, 2000.³ Gore submitted that it was merely complying with a procedural requirement when it continued to pay IRBs until September 15, 2000.⁴ Gore argued that the date of refusal was June 7, 2000. Ms. Berger submitted that the date of refusal was September 15, 2000 when Gore terminated her income replacement benefits. She argued that she applied for mediation as of September 13, 2002 before the two-year limitation period expired.

As was made clear in Smith v. Co-operators General Insurance Co.⁵, the time limitation is only triggered where the insurer gives a valid refusal, which includes informing "the person in writing of the procedure for resolving disputes relating to benefits under sections 279 to 283 of the Insurance Act." Gonthier J., writing for the majority, stated:

In my opinion, the insurer is required under s. 71 to inform the person of the dispute resolution process contained in ss. 279 to 283 of the Insurance Act in straightforward and clear language, directed towards an unsophisticated person. At a minimum, this should include a description of the most important points of the process, such as the right to seek mediation, the right to arbitrate or litigate if mediation fails, that mediation must be attempted before resorting to arbitration or litigation and the relevant time limits that govern the entire process. Without this basic information, it cannot be said that a valid refusal has been given.

In this case, I have reviewed the correspondence and Explanation of Assessment forms. I find that the full details of the dispute resolution process were not provided to Ms. Berger on either June 7, 2000 or September 15, 2000. Therefore, the requirements of a valid refusal were not met. I find that Gore did not validly refuse these benefits and the time limits for Ms. Berger's claims never began to run. I conclude that Ms. Berger's claims are not time barred.

Subsection 4 of the Schedule specifies that:

The insurer shall pay an insured person who sustains an impairment as a result of an accident an income replacement benefit if the insured person meets any of the following qualifications:

The insured person was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment.

Ms. Berger was travelling to Physiotherapy on Bay when she was involved in the accident. She had received a preliminary assessment for one hour and had another appointment for some active learning exercises. Ms. Berger admitted to having intermittent lower back problems prior to the accident. Sometimes the back pain disappeared but it always reappeared. However, Ms. Berger testified that her back pain prior to the accident did not compromise her functional ability.

Ms. Berger had a long occupational history of working part time at The Toronto Star while also working part time as a critical care nurse at various Toronto hospitals. However, at the time of the accident, Ms. Berger was working only as a part-time nurse at The Toronto Star for 16-24 hours a week. She continued to work at The Toronto Star after the accident. Ms. Berger had ceased being a critical care nurse six months prior to the accident based on her own evidence.⁶ She resumed some casual work as a critical care nurse by March 2000.⁷ Ms. Berger was hired by a nursing agency, NHI, in March 2000. She testified that she worked some 1,000 hours from March 2000 to January 2002. Ms. Berger explained that she stopped her critical care nursing with NHI because she lacked a qualifying certificate. However, she worked at Assure Health Management assisting with their flu clinics and a couple of shifts at Kumfee Kare Ltd. In March 2001, Ms. Berger started working in dental offices which offered anaesthesia services.

Ms. Berger testified that although she never stopped working, her income was adversely affected by the accident. She is self-employed as a nurse and claims that she has difficulty walking, and is unable to do the heavy lifting required of a critical care nurse. She questioned why her IRB was terminated in 2000.

Gore terminated Ms. Berger's IRBs after receiving a report dated August 18, 2000 from Dr. Hugh Cameron, an orthopaedic surgeon, who conducted an insurer's examination. Dr. Cameron concluded: "In my opinion this lady is fit to carry on with her normal working activities. She requires no further specific treatments other than of course to be encouraged to continue with a self-directed home exercise program."⁸

On February 7, 2000, Dr. Grant Lum, a practitioner at CBI Physiotherapy and Sports Injury Centre, wrote to Dr. Y.D. Verbeeten, Ms. Berger's family physician.⁹ In this letter, Dr. Lum noted that Ms. Berger had been seeing a physiotherapist for right lower back pain prior to the accident. He found that Ms. Berger has a right pes anserine tendinitis and bursitis, a quadriceps muscle and quadriceps tendon injury, as well as an injury to the flexors and adductors. He noted that x-rays of her knee were negative. Dr. Lum also commented that Ms. Berger had a preceding history of what looked like lumbar erector strain.

On July 13, 2000, Dr. Hamilton Hall, an orthopaedic surgeon, wrote to Dr. Verbeeten about Ms. Berger. He concluded:

Unfortunately, the patient's focus on her symptoms and her prolonged previous history will make full recovery difficult. I believe that she would be best served by a continued program of active exercise with a minimum of medical involvement. Sustaining her pattern of patient dependent behaviour will, I am afraid, do nothing more than prolong the inevitable recovery.¹⁰

An ultrasound dated January 11, 2002 of Ms. Berger's right knee reported that it was normal.¹¹ An MRI on Ms. Berger's knee on February 22, 2002 found no evidence of a meniscal tear with minor early degenerative changes at the tibiofemoral joint space.¹²

Angus Driver, a physiotherapist at Physiotherapy on Bay, completed a treatment plan dated July 10, 2000 recommending active treatment. Although Mr. Driver explained that he felt he was treating the symptoms rather than the core problem, Gore approved the treatment plan.¹³ On April 19, 2001, Mr. Driver stated in his progress report to Dr. Verbeeten that Ms. Berger had developed parasthenia and weakness in the left arm which he did not feel were related to her accident. On December 11, 2001, Mr. Driver stated that manual physiotherapy might improve some of Ms. Berger's impairments but it was unlikely that most of her issues were a direct result of the accident. He stated that Ms. Berger needed to take a more active role in her rehabilitation.¹⁴

The medical evidence supports that Ms. Berger did not have the requisite level of disability to meet the test outlined in section 4 of the Schedule after September 15, 2000. It is evident from the notes of Dr. Verbeeten, her family doctor, that she suffered from chronic low back pain and right side pain prior to the accident. Dr. Verbeeten's clinical notes and records from November 26, 1998 to January 12, 1999 confirm that Ms. Berger had great difficulty doing night shifts prior to the accident. Dr. Verbeeten wrote on May 4, 1999 that Ms. Berger wanted her to write a letter to her employer about her exhaustion and back pain which she claimed precluded her from working well. The doctor refused. On January 13, 2000, Ms. Berger fell at work and hurt her left side when her feet were tangled in crutches.

Ms. Berger's testimony conflicts with the DAC assessment report and the reports of Dr. Cameron, Dr. Hall, Mr. Driver and Dr. Verbeeten. I find that Ms. Berger does not meet the test for entitlement to income replacement benefits past September 15, 2000.

Is Ms. Berger entitled to receive a medical benefit for physiotherapy and massage at Physiotherapy on Bay, and Athlete's Care, from April 2001 onward, claimed pursuant to section 14 of the Schedule?

Under section 14 of the Schedule, Gore is required to pay an insured person who sustains an impairment as a result of an accident a medical benefit for, among other things, all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for chiropractic, psychological, occupational therapy and physiotherapy services. The treatments claimed by Ms. Berger involve chiropractic, physiotherapy, massage and acupuncture. The total payments are $4,135.65.

Ms. Berger asserted that it was the responsibility of Gore to get her back to her pre-accident condition. Ms. Berger submitted that she spent four and a half years trying to accommodate for her injuries by modifying her work and taking treatment.

Ms. Berger submitted two treatment plans for physiotherapy and chiropractic in July and August 2002. These two treatment plans were dealt with by a medical/rehabilitation DAC. The DAC assessment was conducted on November 27 and December 4, 2002 at St. Michael's Hospital.¹⁵ The DAC concluded that Ms. Berger had received extensive physio treatments since 1999 which included exercise programs which were minimally successful in reducing her subjective complaints. The proposed passive modalities and manual therapy were determined to be not reasonable and/or necessary for the impairments that Ms. Berger was presenting with three years after the accident. Dr. Howard Vernon, a chiropractor, stated that Ms. Berger likely suffered soft tissue injuries which were mild to moderate in degree. He concluded: "It is highly likely that by the end of 2001, Ms. Zepotoczny Berger would have reached a point of maximum clinical improvement and maximum therapeutic benefit."

Ms. Berger is still receiving treatment for the upper left side of her back and her neck and shoulders. She testified that nothing seems to free up the left shoulder pain which is on the upper back left side but sometimes aches in front and extends down the arm. Ms. Berger claimed that she did not have such pain before the accident. Ms. Berger testified that the following parts of her body have been affected by the accident: her right leg, her shoulders, her neck, and the muscles along her spine. These symptoms appear after she has been swimming, or engaged in long distance driving, prolonged walking, heavy lifting, and bending over. She attributes all her symptoms to the accident.

Ms. Berger submitted that her symptoms were related to the accident injuries and were of an ongoing, chronic nature. She testified that her maintenance therapy is necessary for pain management. In her view, the motor vehicle accident contributed to chronic pain, muscle tightness, and other related arm, neck and shoulder symptoms. She has received some support for her position. Most recently, on December 17, 2003, Dr. Lum, a physician who is now at Athlete's Care, encouraged Ms. Berger to continue treatment with her massage therapist and chiropractor.¹⁶ However, Dr. Lum did not treat Ms. Berger until January 2000, and so was not familiar with her pre-accident condition.

Dr. Verbeeten concluded on February 20, 2001 that Ms. Berger's left shoulder problems are not related to the accident.¹⁷ The Physiotherapy on Bay notes comment on Ms. Berger's "exaggerated pain behaviour."¹⁸ On March 19, 2001, Physiotherapy on Bay restated that it did not believe that Ms. Berger's problems are connected with the motor vehicle accident. On June 15, 2001, the neuropathy identified on the EMG was said to be "not related to the accident." Mr. Angus Driver comments on January 16, 2001 that the episode of sharp neck/shoulder pain was unrelated to the accident. On December 11, 2001, Mr. Driver sent a note to Dr. Verbeeten that manual physiotherapy and massage were helping but that the pain experienced by Ms. Berger was unlikely a direct result of the accident.

The medical evidence does not support Ms. Berger's claim that she required massage and physiotherapy treatment after April 2001, as a result of the accident. I find that the massage and physiotherapy expenses incurred by Ms. Berger were not reasonable and necessary under section 14 of the Schedule.

As I have found that Ms. Berger is not entitled to further medical benefits for physiotherapy and massage treatments under section 14 of the Schedule, it follows that she is not entitled to transportation expenses incurred to attend the treatments.

Is Ms. Berger entitled to receive a rehabilitation benefit for the increased cost of automobile insurance (approximately $450), claimed pursuant to section 15 of the Schedule?

On December 7, 2002, Gore cancelled Ms. Berger's automobile insurance policy for non-payment. Now Ms. Berger has to pay more for her annual premium because her policy was cancelled by Gore. Ms. Berger submitted that the reason she was late with her insurance payment was that she was still paying for medical treatment so that she could remain employed. While I agree that Ms. Berger's car does help her to get to work and perform her job, I do not accept that the increase in her insurance premiums is a benefit under the Schedule. The increased cost of Ms. Berger's insurance premium is not directly linked to the accident. I do not find that it qualifies as a rehabilitation benefit under section 15 of the Schedule.

Expenses:

I heard no submissions with respect to expenses. I encourage the parties to resolve this issue. If unable to do so, an expense hearing may be scheduled before me according to the requirements of the Dispute Resolution Practice Code.

March 26, 2004

Judith Killoran Arbitrator

Arbitration Order

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

Ms. Berger is not entitled to receive a weekly income replacement benefit from September 15, 2000 onward, pursuant to section 4 of the Schedule.
Ms. Berger is not entitled to receive a medical benefit for physiotherapy and massage at Physiotherapy on Bay, and Athlete's Care, from April 2001 onward, claimed pursuant to section 14 of the Schedule.
Ms. Berger is not entitled to receive a rehabilitation benefit for the increased cost of automobile insurance (approximately $450), claimed pursuant to section 15 of the Schedule.
The issue of expenses may now be spoken to.
Ms. Berger is not entitled to interest for overdue payments pursuant to subsection 46(2) of the Schedule.