Joanne Abela v. Wawanesa Mutual Insurance Company, 2004 ONFSCDRS 64

Financial Services Commission of Ontario

Neutral Citation: 2004 ONFSCDRS 64 FSCO A03-000905

Between: Joanne Abela (Applicant) and Wawanesa Mutual Insurance Company (Insurer)

Reasons for Decision

Before: David Leitch Heard: March 15, 17 and 18, 2004, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Joseph Campisi Jr. for Ms. Abela Ian D. Kirby for Wawanesa Mutual Insurance Company

Issues:

The Applicant, Joanne Abela, was injured in a motor vehicle accident on June 12, 2002. Pursuant to section 22 of the Schedule¹, she applied for and received housekeeping and home maintenance benefits from Wawanesa Mutual Insurance Company ("Wawanesa") until June 2, 2003. The parties were unable to resolve the issue of Ms. Abela's entitlement to housekeeping and home maintenance benefits beyond June 2, 2003 and she 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:

1. Is Ms. Abela entitled to housekeeping and home maintenance benefits under section 22 of the Schedule beyond June 2, 2003?
2. At what rate is Ms. Abela entitled to receive housekeeping and home maintenance benefits?

Results:

1. Ms. Abela is entitled to housekeeping and home maintenance benefits until September 15, 2003.
2. Ms. Abela is entitled to receive housekeeping and home maintenance benefits until September 15, 2003 at the rate of $30 per week.

Introduction

On June 12, 2002, the vehicle Ms. Abela was driving was rear-ended at a stop light. She acknowledged at the hearing that there was little, if any, damage to the vehicles involved but she testified that she felt immediate pain in her right arm, left knee, neck and lower back. She stated that the pain in her lower back was "really sharp" and different from the pre-accident low back pain she had experienced intermittently before the accident. Ms. Abela's counsel argued that this back injury aggravated Ms. Abela's pre-existing L5 spondylolisthesis and developed into a chronic pain condition. He submitted that Ms. Abela was entitled to housekeeping and home maintenance benefits at the maximum rate of $100 per week to June 12, 2004, the second anniversary date of the accident.

Wawanesa paid Ms. Abela housekeeping and home maintenance benefits at the rate of $100 per week from the date of the accident to July 24, 2002. It reduced the rate to $30 per week on July 25, 2002, the date of a first in-home assessment conducted by an occupational therapist chosen by Wawanesa. It increased the rate to $45 per week, the date of a second in-home assessment conducted by an occupational therapist chosen by Ms. Abela's representative. Finally, Wawanesa terminated housekeeping and home maintenance benefits on June 2, 2003 based on the results of an insurer's multi-disciplinary assessment.

Issue 1: Was Ms. Abela entitled to housekeeping and home maintenance benefits beyond June 2, 2003?

In my view, the multi-disciplinary assessment does not support Wawanesa's contention that Ms. Abela was not entitled to housekeeping and home maintenance benefits beyond June 2, 2003. This assessment contained the reports of an orthopaedic specialist, a neurologist and a psychiatrist. I will deal with each report in turn.

In his report to Wawanesa dated April 25, 2003, Dr. Garson S. Conn, the orthopaedic specialist, acknowledged Ms. Abela's pre-existing spondylolisthesis at L5-S1 and stated: "it is not unreasonable to expect that if the pain has been arising from her spondylolisthesis that the accident may have been [sic] aggravated it." It is true that Dr. Conn doubted that "the spondylolisthesis is the actual source of all her increased pain" but he was also careful to defer to the results of an MRI to be conducted by Dr. Nigel D. Clements, a treating orthopaedic specialist. Based on his own examination, Dr. Conn concluded:

I feel that her major problem is related to chronic pain and as such, she likely is having difficulty with the heavier aspects of her housekeeping and further assistance may well be required until the pathology is more clearly defined following her MRI.²

In his/her report dated April 29, 2003, Dr. Gordon M. Sawa, the neurologist, concluded that "from the neurological perspective, this claimant does not require housekeeping assistance". However, this opinion is difficult to reconcile with Dr. Sawa's earlier inclusion of housekeeping in Ms. Abela's "Activities of Daily Living" and his opinion that:

The major current motor vehicle related impairments are related to her low back pain which was present before the accident and has been exacerbated by the accident. This is limiting her in terms of her activities of daily living as discussed previously...She is unable to do many activities of daily living.³

In his report dated April 28, 2003, Dr. Stanley Debow, the psychiatrist, concluded that "the claimant is able, from a psychiatric perspective as a direct result of the motor vehicle accident, to perform her housekeeping activities". The problem with this opinion is its ambiguous use of the words "a direct result". Ms. Abela is only required to prove that the accident was a material cause of, or contributor to, the relevant disability, not that it was a direct cause of disability or "a direct result" of the accident.⁴ Morever, as I read the following portion of Dr. Debow's report, the accident was a material cause of, or contributor to, Ms. Abela's psychological disability in that it provided a focus for Ms. Abela's other, unresolved psychological problems. Dr. Debow wrote:

The claimant does fulfil the diagnostic criteria of pain disorder in association with psychological factors in that pain is present in one or more anatomical sites and is the predominant focus of clinical presentation. The pain causes subjective distress in important areas of functioning. The underlying pre-existing unresolved psychological factors are judged to have an important role in the severity, exacerbation and maintenance of her pain. The pain is not better accounted for by mood, anxiety or psychotic disorder.

The underlying factors pre-existed the accident but were not conscious focus of attention of the claimant. The claimant has focused on the accident as the cause of her symptoms in order to continue not to deal with the pre-existing psychological factors. The use of the accident as the cause of her symptoms is consciously psychologically acceptable to the claimant as opposed to the conscious acceptance of the underlying psychological factors.

The underlying psychological factors include unresolved feelings to a history of living with her sister's child, who has a history of behavioural problems, as well as unresolved feelings to previous pregnancies.⁵

While the reports of Ms. Abela's treating doctors also contain certain ambiguities, I find that they are generally supportive of Ms. Abela's claim.

In his report dated February 26, 2003, Dr. Clements stated that "the vast majority of her symptoms" were related to the spondylolisthesis at L5 on S1 but that "probably she had associated soft tissue injury in the motor vehicle accident which may have compounded her symptoms to some degree."⁶ The results of the MRI examination requested by Dr. Clements were not put into evidence before me.⁷

In his report dated August 25, 2003, Dr. Stephen W. McKenzie, a neurologist, stated that Ms. Abela's "complaints of aches and pains and low back pain relate more to her recent MVA" than to her pre-existing muscular dystrophy which was "stable, with no deterioration".⁸

Most importantly, in her report dated December 16, 2003, Dr. Linda MacDonald, Ms. Abela's family doctor, identified the accident as one of a number of causes contributing to an overall deterioration in Ms. Abela's physical and psychological health. In doing so, Dr. MacDonald made no attempt to downplay or deny Ms. Abela's pre-accident muscular dystrophy or back problems. She wrote:

Ms. Abela has been a patient in my practice since February 15, 2000. She related a number of chronic conditions including chronic back pain for which she sough intermittent chiropractic treatment, some type of muscular dystrophy which primarily affected her with extremity weakness and persistent left lid lag. She also suffered with anxiety and panic disorder. She was at that time employed on a full-time basis and managing all her activities of daily living. These conditions were present throughout my association with Ms. Abela. Her symptoms of anxiety and panic was improved after beginning Celexa (antianxyolytic/antidepressant) in May 2002. When assessed May 30, 2002 her mood was brighter, anxiety lessened and she indicated she was sleeping better. To my knowledge she continued to have intermittent worsening of her back pain and her muscular dystrohpy symptoms did not subside or disappear prior to June 12, 2002.

After her MVA June 12, 2002 Mrs. Abela complained of much increased pain not only in her low back, but also involving her neck, shoulders, and mid-back. She also complained of knee pain. She indicated she was unable to stand or sit for any length of time, and her sleep was disturbed due to pain. She was no longer able to manage her normal activities of daily living, such as hair washing, standing to cook, bathe, etc. Despite regular chiropractic treatments, these symptoms did not abate. Physically then as a result of the MVA June 12, 2002 Ms. Abela was significantly compromised in her functioning.

She had lost her job in October 2001. Her niece had come to live with her July 2002. There was much discord between her niece and common-law partner, as well as financial stress related to not working.

It is my opinion that the stress of having pain and lost opportunity to continue her job was most detrimental to Ms. Abela's emotional well-being.

On a background of heightened home stress, she clearly became more depressed, more anxious, with feelings of hopelessness. Her medication, Celexa, was increased March 11, 2003 and she was referred to a psychologist.⁹

In my view, this medical evidence, taken as a whole, supports a finding that the motor vehicle accident of June 12, 2002 was a material cause of, or contributor to, a serious deterioration in Ms. Abela's physical and psychological health. In particular, I find that the accident caused or contributed to the development of a chronic pain condition which limited Ms. Abela's ability to do housekeeping and home maintenance.

However, I do not accept that Ms. Abela was necessarily condemned to suffer from chronic pain for the rest of the two year period for which she claims housekeeping and home maintenance benefits. In that regard, I reject the following statement contained in the October 2, 2003 report of Dr. Samuel K. Silverberg: "Patients who recover completely from soft tissue injuries usually do so within 6 months of the injury. This patient will continue to suffer from pain from her soft tissue injuries indefinitely."¹⁰

On the contrary, on June 12, 2003, Wawanesa received a treatment plan from Dr. Herbert Kaye, a psychologist, recommending ten hours of psychotherapy in order to "reduce anxiety and depression and provide techniques for dealing with symptoms of PSTD and chronic pain."¹¹According to Dr. Kaye's report dated July 7, 2003, Ms. Abela began psychotherapy with him shortly before that date. He wrote:

Between this evaluation [June 9, 2003] and the production of this report [July 7, 2003] Joanne began psychotherapy with the undersigned. There is no question that she continues to suffer from accident-related depression, and that this may have impacted aspects of her cognitive functioning. It is suggested that before specific recommendations are made to provide cognitive rehabilitation, that the work designed to help her deal with her adjustment disorder be completed.¹²

Paradoxically, no further documentary or viva voce evidence was produced by either party regarding the treatment provided by Dr. Kaye or its results from Dr. Kaye's perspective. Ms. Abela did testify at the hearing that she was still unable to do many housekeeping and home maintenance tasks but she did not testify about the treatment she received from Dr. Kaye. This treatment was clearly recommended to ameliorate or eliminate Ms. Abela's chronic pain condition.

Ms. Abela's counsel clearly characterized chronic pain as both a result of the accident and a cause of her inability to do housekeeping and home maintenance. In these circumstances, I find that it was incumbent upon Ms. Abela to produce some evidence describing the treatment she received from Dr. Kaye and its results from his perspective. In the absence of such evidence, I draw an adverse inference against Ms. Abela. I find that she failed to prove that her chronic pain condition continued beyond the ten week period Dr. Kaye's treatment was scheduled to last.

I therefore conclude that Ms. Abela is entitled to additional housekeeping and home maintenance benefits up to September 15, 2003.

Issue 2: At what rate was Ms. Abela entitled to receive housekeeping and home maintenance benefits?

Ms. Abela has lived at all relevant times in a small two bedroom apartment. She testified that as a result of her own inability to do housekeeping and home maintenance since the accident, she has either simply lived in a dirty apartment¹³ or obtained household assistance from the people mentioned below. None of these people submitted records of their services rendered or time spent assisting Ms. Abela and, except for Ms. Reid and Mr. Kittson, none testified at the hearing.

Her father comes to the apartment three times a week to do small loads of laundry, to walk the dog, to move things as required on the balcony and to bring meals prepared and laundry done by her mother. Ms. Abela testified that she has sometimes paid her father money for his services but stated that the amounts varied according to what he did for her.

Her mother does not come to the apartment to do housework but prepares the meals and does the larger loads of laundry transported by her father.

Her former fiancé, who moved out in March 2003, did grocery shopping, some meal preparation and dishes, helped make the bed, occasionally cleaned floors, vacuumed and helped clean the fish tank.

Since June 2003, Ms. Abela has had another male friend. He lives in the same apartment building but not in Ms. Abela's apartment. He "does everything", for example, cleaning or washing dishes, floors, closets, windows and bathroom, doing laundry, preparing meals and buying food. According to Ms. Abela, a complete list of things he does would be endless. He has not, however, been paid for his services except with respect to a closet repair in June/July 2003.

Since July 2002, Ms. Abela's niece has been living in the apartment. She initially did meal preparation, took out the garbage, dusted and vacuumed. At some point, she stopped being helpful to Ms. Abela but still lives with her. Ms. Abela testified that she used the $45 per week she received from Wawanesa for housekeeping services, commencing in September 2002, to pay her niece an allowance of $25 per week.

The assistant superintendent in the building has assisted Ms. Abela to move her fish tank around as required and cleaned her balcony windows.

Ms. Amanda Reid is a friend of Ms. Abela. According to Ms. Abela, Ms. Reid did dishes and dusting. Ms. Reid testified that she did dishes (if she made a mess), vacuumed and dusted (twice since the accident) and cleaned Ms. Abela's storage locker. She testified that she visited Ms. Abela on weekends and estimated that she assisted Ms. Abela less than 30 minutes every two weeks, "twenty minutes top".

Mr. Fraser Kittson is Ms. Reid's fiancé. According to Ms. Abela, Mr. Kittson cleaned out her fish tank, painted her bedroom and dining room, fixed her sliding door, changed her locks, cleaned her storage locker, reinstalled some light fixtures, changed bulbs and moved furniture to repair a damaged floor. Mr. Kittson testified that even before the accident, he helped Ms. Abela move furniture, did handy work and cleaned out her fish tank. After the accident, he did painting, cleaned the storage locker and put up curtains. He too indicated that he only saw Ms. Abela on weekends when he visited with Ms. Reid but he estimated that he helped Ms. Abela five to six hours per week. He stated that she paid him $50 to paint her bedroom and sometimes $20 to clean the fish tank. He indicated that he cleaned fish tanks on a fee-for-service basis and normally charged $150 a visit. On cross-examination, Mr. Kittson agreed that the pre-accident "pattern" had continued though the frequency had increased since the accident. On re-examination, Mr. Kittson stated that he "might help with the vacuuming" after the accident.

I fully accept the submission made by Ms. Abela's counsel that, in accordance with the decision of the Director's Delegate in Zurich North America Canada and Stargratt, housekeeping and home maintenance services can be provided by friends and family members without expectation or promise of payment and that "although detailed contemporaneous record-keeping is ideal, evidentiary requirements should be tailored to the informal context."¹⁴

However, even by this relaxed standard, the evidence presented by Ms. Abela does not provide a reliable basis for estimating the time spent per week by each of the above-mentioned persons. Estimates were only provided by Ms. Reid and Mr. Kittson but, despite the fact that they visited together on weekends, their estimates were highly divergent. Mr. Kittson's evidence also raises doubts about whether the home maintenance services he provided after the accident were really any different from the home maintenance services he provided before the accident. Further questions arise from the fact that while Ms. Abela submitted current photographs of her dirty apartment, she testified that her current male friend "does everything" to keep it clean. Finally, as pointed out by counsel for Wawanesa, Ms. Abela admitted using money provided for housekeeping and home maintenance services for other purposes.

In my view, the in-home assessments provide a more reliable basis upon which to determine the rate at which housekeeping and home maintenance benefits should be paid to Ms. Abela. I accept the submission of Wawanesa's counsel that the $15 difference in rates recommended by the two assessments was attributable to an error in the second assessment. This error arose from the assumption that Ms. Abela's niece was living with her prior to the accident when she was not. Once that error is corrected, both in-home assessments, one commissioned by Ms. Abela's representative and one commissioned by Wawanesa, recommended a rate of $30 per week. I therefore find that Ms. Abela is entitled to housekeeping and home maintenance benefits at the rate of $30 per week until September 15, 2003.

EXPENSES:

I will entertain the parties submissions with respect to expenses should the need arise but only in accordance with the procedure stipulated by the Dispute Resolution Practice Code.

May 3, 2004

David Leitch Arbitrator

Neutral Citation: 2004 ONFSCDRS 64 FSCO A03-000905

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN: JOANNE ABELA Applicant and WAWANESA MUTUAL INSURANCE COMPANY Insurer

ARBITRATION ORDER

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

1. Ms. Abela is entitled to housekeeping and home maintenance benefits until September 15 2003.
2. Ms. Abela is entitled to receive housekeeping and home maintenance benefits until September 15, 2003 at the rate of $30 per week.

May 3, 2004

David Leitch Arbitrator

Footnotes

1. 1The Statutory Accident Benefits Schedule —Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended by Ontario Regulations 462/96, 505/96, 551/96, 303/98, 114/00 and 482/01.
2. 2Exhibit 2, Tab 19.
3. 3Exhibit 2, Tab 21.
4. 4Guarantee Company of North America and Pinhasov (FSCO P01-00054, September 4, 2002)
5. 5Exhibit 2, Tab 20.
6. 6Exhibit 3, Tab 3.
7. 7perhaps due to the SARS crisis referred to by Dr. Conn.
8. 8Exhibit 3, Tab 4.
9. 9Exhibit 1, Tab 4.
10. 10Exhibit 1, Tab 1.
11. 11Exhibit 2, Tab 24.
12. 12Exhibit 2, Tab 25.
13. 13Exhibit 1, Tab 6.
14. 14P01-00045, March 31, 2003.