Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2005 ONFSCDRS 124

FSCO A04-000773

BETWEEN:

ANTOINETTA VALLE

Applicant

and

AVIVA CANADA INC.

Insurer

REASONS FOR DECISION

Before:

David Leitch

Heard:

June 20, 21 and 23, 2005, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Joseph Campisi Jr. for Ms. Valle

Robert H. Rogers for Aviva Canada Inc.

Issues:

The Applicant, Antoinetta Valle, was injured in two motor vehicle accidents on October 29, 2003 and May 9, 2004. She applied to Aviva Canada Inc. ("Aviva") for attendant care, housekeeping, caregiver and medical benefits payable under the Schedule.¹ Aviva paid benefits for certain periods and treatments but when it refused to pay additional benefits, Ms. Valle applied for mediation and 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 proceedings are:

1. Is Ms. Valle entitled to additional attendant care benefits?

2. Is Ms. Valle entitled to additional housekeeping benefits?

3. Is Ms. Valle entitled to additional caregiver benefits?

4. Is Ms. Valle entitled to recover a special award in respect of Aviva's refusals to pay additional caregiver, housekeeping and attendant care benefits and in respect of Aviva's decision to suspend benefits from June 25, 2004 to December 8, 2004?

5. Is Ms. Valle entitled to additional medical benefits?

Result:

1. Ms. Valle is entitled to additional attendant care benefits in the amount of $2,352.46, plus interest in accordance with section 46 of the Schedule from November 4, 2004.

2. Ms. Valle is entitled to additional housekeeping benefits in the amount of $733.86, plus interest in accordance with section 46 of the Schedule from December 31, 2004.

3. Ms. Valle is entitled to additional caregiver benefits in the amount of $174.80, plus interest in accordance with section 46 of the Schedule from November 4, 2004.

4. Ms. Valle is entitled to a special award in the amount of $500 in respect of Aviva's decision to suspend benefits from July 22, 2004 to November 4, 2004.

5. Ms. Valle is entitled to an additional medical benefit in the amount of $1,523, plus interest in accordance with section 46 of the Schedule from April 20, 2004.

Background

The issues in this case arose out of disputes about the injuries sustained in the two accidents and the duration of the resulting disabilities. Ms. Valle maintained that she sustained soft tissue, bony and psychological injuries from which she had yet to recover. The resulting disabilities had, she submitted, rendered her incapable of taking care of her mother and grandchild, her home and herself as she was able to do, without assistance, prior to the accidents. Ms. Valle disputed both Aviva's termination of attendant care, housekeeping and caregiver benefits in 2004 and its decision to suspend benefits between June 25, 2004 and December 8, 2004. She also disputed the rates at which benefits were paid or payable and claimed a special award in relation to the termination and suspension of benefits. Ms. Valle argued that two denied treatment plans, dated February 20 and April 16, 2004, recommended treatment which was reasonable and necessary.

Aviva maintained that Ms. Valle sustained only soft tissue injuries in both accidents and that she recovered from those injuries during 2004. It argued that it was entitled to suspend benefits between June 25, 2004 and December 8, 2004 by reason of Ms. Valle's repeated and unreasonable refusals to submit to insurer examinations. Aviva submitted that the total benefits it paid to Ms. Valle corresponded closely to her actual entitlement. While it reinstated benefits for brief periods in December 2004, it did so for procedural reasons only and it did not claim repayment of those benefits. Aviva denied that the disputed treatment was reasonable or necessary.

The first part of the decision will determine whether Ms. Valle remained entitled to benefits after the end of 2004 and whether the termination of benefits in 2004 attracted a special award. Having concluded that Ms. Valle was not entitled to benefits beyond 2004, the second part of the decision will determine whether her benefits were properly suspended between June 25, 2004 and December 8, 2004. Having concluded that her benefits were not properly suspended for the period July 22, 2004 to November 4, 2004, the third part of the decision will determine whether Ms. Valle was entitled to benefits during this and the other periods in 2003 and 2004 when benefits were not suspended or not properly suspended. This part of the decision will also determine the rates at which benefits should have been paid in 2003 and 2004. In the fourth part of the decision, the suspension of benefits will be considered again, this time in relation to Ms. Valle's claim for a special award. The fifth and final part of the decision will determine the reasonableness and necessity of the two disputed treatment plans.

Part 1: did Ms. Valle remain entitled to benefits after the end of 2004?

For the reasons which follow, I find that the medical evidence does not support Ms. Valle's claim to attendant care, housekeeping and caregiver benefits after the end of 2004. In this part, I will analyse the medical evidence in relation to each of Ms. Valle's alleged injuries as described by her family doctor, Dr. V. J. Fiorillo, in his report dated May 20, 2005.²

Right Knee

Dr. Fiorillo's report stated that the first accident left Ms. Valle with "a residual ongoing injury to the right knee, namely an osteochondral contusion (bony) to the medial femoral condyle as outlined in the MRI report dated April 18, 2004....This residual right knee injury was determined to be permanent, as most severe bony contusions never heal completely."

There is no question that Ms. Valle injured her right knee in the first accident. This is confirmed by both the hospital emergency records³ and by photographs showing Ms. Valle's bruised right knee.⁴ However, I do not accept Dr. Fiorillo's opinion that this injury caused permanent damage to Ms. Valle's right knee.

X-rays taken at the hospital showed no fracture or dislocation and the MRI relied upon by Dr. Fiorillo only showed "mild osteochondral injury medial femoral condyle" (my emphasis).⁵The clinical examination of the right knee conducted on January 26, 2004 by Dr. Martin Heller, the orthopaedic surgeon who ordered the MRI, revealed: "full ROM. No effusion or synovitis is present, and ligament exam is normal...Her symptoms are slowly improving, but she still has some ongoing local tenderness."⁶ In a report to Ms. Valle's counsel dated May 4, 2005, another orthopaedic surgeon, Dr. Tommy Chan, found no right knee muscle atrophy or effusion and indicated that "the contusion to her right knee medial femoral condyle has to settle down on its own" through an exercise program.⁷ In my view, the findings and comments of Drs. Heller and Chan are inconsistent with Dr. Fiorillo's opinion that Ms. Valle's right knee was permanently damaged by the first accident.

I also cannot rely upon Dr. Fiorillo's medical opinion about the duration and disabling effects of the right knee injury. His opinion conflicts with the opinions expressed by Dr. Joel A. Finkelstein, an orthopaedic surgeon, by whom Ms. Valle was examined at Aviva's request on December 8, 2004, and Dr. M. Devlin, a physiatrist, who examined Ms. Valle at an Attendant Care Designated Assessment Centre (DAC) on two occasions, once on September 20, 2004 in connection with the first accident⁸ and again on December 2, 2004 in connection with the second accident.⁹ It is true that these doctors had less contact with Ms. Valle than Dr. Fiorillo but, in my view, this does not prevent their opinions as medical specialists from carrying significant weight.

Dr. Finkelstein testified that Ms. Valle's complaints of pain in the right knee on examination could not be related to the MRI finding relied upon by Dr. Fiorillo. Likewise, Dr. Devlin's first report stated that his examination of the right knee revealed marked medial tenderness but not over the medial femoral condyle as identified by the MRI relied upon by Dr. Fiorillo. This report also stated that a "bone bruise" of the type identified in the MRI "would have been expected to have healed by now, as almost 11 months have passed from the time of the accident." Dr. Devlin's second report stated that on re-examination of the right knee, he found no effusion and full extension to 120 degrees of flexion. He noted ongoing complaints of knee pain but again "without any significant findings on examination, other than marked tenderness."

Finally, I am unable to accept Dr. Fiorillo's opinion that Ms. Valle's residual right knee disability prevented her from resuming her pre-accident activities after 2004. His report stated that this disability continued to interfere with Ms. Valle's ability to engage in repetitive bending, crouching and lifting as required when doing household chores or attending to the needs of her mother and grandson. However, this conflicts with what Ms. Valle told other doctors about why she could not resume her pre-accident activities.

When seen by Dr. Joseph Bruni, a neurologist, on October 15, 2004, Ms. Valle complained of pain in the right knee but Dr. Bruni's report, dated October 25, 2004, stated: "Because of the back pain, she has difficulty coping with her housework. She needs assistance with shopping and is unable to lift anything heavy."¹⁰ The question of a back injury is discussed below. When seen by Dr. Finkelstein on December 8, 2004 Ms. Valle reported being unable to do her homemaking activities "due to her back and her right shoulder discomfort...she cannot use her right arm and raise her arm above shoulder height."¹¹ The questions of a right shoulder and a right arm injury are discussed below. When seen by Dr. Veronica Kekosz, a specialist in Physical Medicine and Rehabilitation, on or about February 3, 2005, Ms. Valle's "subjective complaints" did not include any reference to her right knee.¹² Dr. Kekosz concluded that she needed "assistance for heavy household chores as her right arm is significantly weak and there is an ongoing impairment."¹³When seen by Dr. Chan on April 26, 2005, Ms. Valle did complain of pain and tenderness in the right knee but, as I read Dr. Chan's report, he attributed her need for ongoing caregiving and housekeeping assistance to back problems, not to her right knee problems for which, as previously noted, he recommended an exercise program.¹⁴

Shoulders

Dr. Fiorillo's report of May 20, 2005 indicated that Ms. Valle injured her right shoulder in the first accident of October 29, 2003. It cited as the source of this information the report of Dr. Samuel Wong, a physiatrist, who appeared to have examined Ms. Valle for the first time on July 30, 2004.¹⁵ Dr. Fiorillo's report also stated that the second accident of May 9, 2004 "caused strains in both shoulders but mostly on the right side causing most likely subluxation with possible rotator cuff tears" and, to the same effect, "bilateral shoulder strain with possible right shoulder tendoniopathy (possible tears)."

In fact, Dr. Wong's report did not identify the shoulder that Ms. Valle injured in the first accident. It only confirmed that her shoulder symptoms were on "the right more than the left." However, it was a left shoulder injury which was reported in both the hospital emergency records and in Dr. Fiorillo's Disability Certificate in relation to the first accident.¹⁶ Moreover, the left shoulder was again identified as an injury site in Dr. Fiorillo's Disability Certificate in relation to the second accident.¹⁷ In my view, this medical evidence did not support a finding that Ms. Valle injured her right shoulder in either accident.

Moreover, while Dr. Wong's report of July 30, 2004 stated that Ms. Valle's "symptoms are consistent with a soft-tissue injury to the shoulder girdle, low back and scapular region," it went on to state: "There is no evidence of a rotator cuff tendonopathy to account for her symptoms."¹⁸

I acknowledge that the May 30, 2005 MRI investigation of the right shoulder was unable to exclude the possibility of "a small intraspinatus tear." However, that report stated that this finding "likely represents tendinosis" and it confirmed that the rotator cuff tendons and muscles were normal. In other words, even if the right shoulder was injured in one of the accidents, the available medical evidence, including Dr. Fiorillo's own opinion, supports only the possibility, as opposed to the required probability, of a rotator cuff tear.

The medical evidence also offered no explanation as to how the left shoulder injury developed into the "strain in both shoulders, but mostly on the right" or the "bilateral shoulder strain", as described by Dr. Fiorillo, or into the right shoulder and arm complaints as described by Dr. Finkelstein and Dr. Kekosz. Nor was there any medical evidence to suggest that the left shoulder injuries ever caused any significant residual disability.

Right Arm

Despite Ms. Valle's complaints of right arm pain to other doctors, as noted above, and to Dr. Fiorillo, his report said nothing about a right arm injury. Nor was there any other medical evidence to support a finding that Ms. Valle injured her right arm in either accident.

Head

Dr. Fiorillo's report stated that as a result of the second accident, Ms. Valle sustained a "head injury with skull contusion and concussion resulting in recurrent headaches and moments of memory lapses and poor concentration (dazed sensation)." His own Disability Certificate in relation to that accident referred to a "contusion, dizziness and confusion" but did not mention a concussion.¹⁹

The hospital emergency records in relation to the second accident confirmed that Ms. Valle "hit head side beam." However, there was no reference to a concussion. Moreover, the ambulance report described Ms. Valle as "conscious, alert." On arrival at the hospital, she obtained a perfect score on the Glasgow coma scale and her skull x-ray showed no abnormality.²⁰

Dr. Fiorillo referred Ms. Valle to Dr. Bruni, the neurologist mentioned earlier, for further investigation of her headaches and "a number of other symptoms." She was only seen by Dr. Bruni once, on October 15, 2004, though two reports were entered into evidence, one dated October 25, 2004 and the other January 31, 2005.²¹

Dr. Bruni did not testify and his reports are confusing, leaving important questions unanswered. The first report described a number of symptoms, including headaches, musculoskeletal neck and back pain and right knee pain, and then stated that Ms. Valle "appears to have sustained a closed head injury with a number of other post-traumatic symptoms as outlined above" (my emphasis). It is difficult to be sure which particular symptoms Dr. Bruni was attributing to a closed head injury. In the second report, Dr. Bruni identified the following "post-traumatic symptoms" or "post-closed head injury" symptoms: "lightheadedness, head weakness, forgetfulness, sleep disturbances, irritability, depression, blurred vision, ringing in the ears and decreased sexual interest." However, if these were the symptoms Dr. Bruni attributed to a closed head injury (should headaches have not been included in the list?), two more fundamental problems remain.

First, Dr. Bruni's reports provided no explanation as to how he, as a neurologist, was able to confirm that Ms. Valle did, in fact, sustain a closed head injury. The neurological examination on October 15, 2004 apparently revealed only normal results: "no focal cranial nerve signs", "motor was examination normal", "sensation was normal and reflexes were brisk and symmetrical with normal plantar responses", "clinically, she has intact motor, sensory and reflex functions with no clinical evidence of radiculopathy" and no further neurological investigations required. The second report did refer to "a history suggestive of a closed head injury with post-traumatic symptoms" but the only history specifically he referred to in either report was Ms. Valle's own statement that "she must of [sic] hit her head because there was a lump on the left side of her scalp" and that, "since then, she has had an increase in neck and headaches." Was this the history which permitted Dr. Bruni to conclude that Ms. Valle sustained a closed head injury? Was Dr. Bruni made aware of the ambulance and hospital records referred to above? Without answers to these questions, and in light of the normal neurological findings reported by Dr. Bruni, I am unable to accept his opinion that Ms. Valle sustained a closed head injury.

Second, Dr. Bruni's second report stated: "Based on the symptoms that she had when she was assessed, she had difficulty with completing her housework." Again, it is not clear what symptoms Dr. Bruni was referring to in making this statement though, as mentioned previously, Dr. Bruni's first report specifically mentioned back pain as the reason Ms. Valle was having difficulty coping with her housework. If Dr. Bruni also thought that Ms. Valle's ability to do housework was limited by her closed head injury symptoms and headaches, this opinion was not made clear by either report. For it to have been made clear, Dr. Bruni would have also needed to say something about the onset, frequency and severity of those symptoms.

In my view, the medical evidence does not establish either that Ms. Valle sustained a closed head injury in the second accident or that, if she did, the resulting symptoms rendered her unable to resume her pre-accident activities after the termination of benefits at the end of 2004.

Neck

Dr. Fiorillo's report stated that as a result of the second accident, Ms. Valle sustained a "cervical spinal strain involving the upper trapezium muscles." His Disability Certificates in relation to both accidents referred to "c-spine strain with tension headaches."²² The hospital records confirmed that Ms. Valle did complain of neck pain following both accidents though a cervical spine x-ray taken after the second accident showed "no definite abnormality."²³

Dr. Fiorillo's report was vague about the disabling effects and duration of the neck strain injuries. It referred generally to the loss of "spinal mobility" and to the loss of "strength of the right (dominant) upper limb" but without relating these symptoms to neck strain injuries or indeed to any of the injuries which the medical evidence established Ms. Valle sustained in the accidents. Dr. Devlin's second report in December 2004 acknowledged Ms. Valle's ongoing neck complaints but observed that they were "out of keeping with the natural history of musculoskeletal injury." In the absence of clearer medical evidence, I am unable to find that the disabling effects of Ms. Valle's neck strain injuries lasted beyond the end of 2004.²⁴

Right Hip, Pelvis and Lower Back

In Dr. Fiorillo's opinion, Ms. Valle sustained bony, not just soft tissue, injuries to the right hip, pelvis and lower back in the second accident.

With respect to the right hip, Dr. Fiorillo's report stated that an x-ray taken on May 25, 2004 "revealed a periosteal injury to the proximal right femoral bone (right hip) which corresponded to her complaints of severe right hip/pelvic pain." With respect to the pelvis, Dr. Fiorillo's report stated that a bone scan report conducted on July 6, 2004 "revealed subtle fractures of superior rami of both pelvic bones and the inferior ramus of the right side, explaining the patient's symptoms of severe right hip, pelvic and inguinal pain." With respect to the lower back, Dr. Fiorillo's report stated that an MRI study performed on August 18, 2004 "reveals leftward bulge of the disc at L3-L4 and L4-5, as well as a prominent lateral bulging in the thecal sac towards the right, which seems to be entrapping the L5 nerve root as well as other nerve roots, including the S1 nerve root." These MRI findings, Dr. Fiorillo report stated, "help to explain the severe pain, numbness and weakness that the patient experiences into her lower back and right lower limb."

Dr. Fiorillo did not fully describe the results of these investigations.

With regard to the right hip, the radiological examination of the right femora did find "a small protuberance from the cortex" but it went on to state: "This is smooth and well defined. It could be due to a small osteoma or could be due to calcification from a periosteal injury previously. It does have a benign appearance."²⁵ In my view, this report only established the possibility, as opposed to the required probability, that Ms. Valle sustained a periosteal injury to the right femoral bone as a result of the second accident. With respect to the pelvis, the bone scan report only stated: "focal areas in the right and left superior rami and right inferior rami possibly indicating fractures or other abnormality."²⁶ Again, this report did not establish, on the balance of probabilities, that Ms. Valle fractured her pelvis in the second accident.

With respect to the lower back, the MRI report itself said nothing to suggest that its findings could be attributed to the second accident or indeed to any other trauma or injury.²⁷ Dr. Fiorillo's report attempted to fill this gap by stating: "given that the patient was not complaining of these symptoms [in the lower back and right lower limb] prior to the accident, I conclude that these findings are as a result of the impact and trauma caused by the accident of May 9, 2004."

Again, Dr. Fiorillo's opinion is contradicted by other doctors, all specialists. In his report to Ms. Valle's counsel dated May 4, 2005, Dr. Chan stated that the disc bulging referred to by Dr. Fiorillo, known as dural ectasia, "is pre-existing and not symptomatic."²⁸ In Dr. Devlin's second Attendant Care report dated December 16, 2004, he described dural ectasia as a "congenital abnormality."²⁹ Dr. Finkelstein testified that disc bulges are common, do not always produce pain and, in Ms. Valle's case, did not produce clinically significant pain on examination. I, therefore, reject Dr. Fiorillo's opinion that Ms. Valle sustained any bony injuries in the second accident.

Nevertheless, I acknowledge Dr. Chan's observations that the MRI also showed "significant degenerative disc disease with moderate facet joint disease from L3-S1" and that his own examination confirmed the existence of this condition. In Dr. Chan's opinion, this condition carried a "poor prognosis for early and complete recovery" and, as I read his report, he was also of the opinion that this condition constituted the main source of Ms. Valle's inability to resume her pre-accident caregiving and housekeeping activities. Dr. Chan then addressed the issue of causation by applying the same logic used by Dr. Fiorillo. He wrote: "She was able to carry on with her normal household duties and provided care to her mother and two grandchildren with no difficulty prior to these accidents. Her current symptoms and therefore the sole result of the accidents in question with additive effects of the two accidents."³⁰

I am unable to understand how Dr. Chan was able to describe the accidents as the sole cause of Ms. Valle's lower back symptoms. According to his own report, another very significant cause of Ms. Valle's lower back symptoms was her degenerative disc disease. While it provided no medical explanation, Dr. Chan's report implied that the accidents somehow caused this previously asymptomatic condition to become symptomatic. However, I do not accept that the adverse effects of the accidents continued beyond the end of 2004 as indicated in Dr. Chan's report.

As mentioned, Dr. Chan's opinion was based, at least in part, on the results of his examination of Ms. Valle which, he wrote, "confirms findings of facet joint disease as noted on the MRI Scan." This conflicted with the findings of Dr. Devlin whose second report in December 2004 referred to the MRI of the lumbar spine but nevertheless stated "there are certainly no findings on examination in keeping with any dysfunction of her L5 nerve root."³¹ It also conflicts with Dr. Finkelstein's examination, conducted on December 8, 2004, which is described in his report as follows:

Physical examination reveals that she is right hand dominant but uses her left arm for some activities. She is 5'1" in height and weighs 150 pounds. During the evaluation she sits quite comfortably and is in no distress. She is able to sit throughout the entire evaluation and does not shift positions. She stands up, rises to an upright posture and is able to get up onto the examining table quite comfortably. She walks with a normal gait.

The rest of the evaluation at this point was most remarkable for the degree of functional overlay and overly dramatic behaviours. She pointed to me the areas of pain by herself touching the areas with her left arm she reached over her right shoulder to point to an area in her right side of her upper thoracic spine, while doing this she began to wince, cry and hyperventilate and excessively vocalize. I would then go to move her shoulder, she would tense the muscles and restrict movement in any plane. I would touch exceedingly lightly anywhere in the shoulder anteriorally or posteriorally and again she would excessively vocalize, begin to cry and lean against the wall and sigh. I barely touch her skin and she behaves in this manner. With just the anticipation of me moving her arm she behaved in this manner.

Similarily in her low back she pointed to the area of pain, when she got to the area I would then touch it, even through her shirt and then again she would show excessive functional overlay and non-organic findings, vocalizing, wincing and again displaying this most incredible dramatic behaviour.

She then wanted to show me where the soreness was in her knee, she rolled up her pant leg and a small area just beneath the level of the joint line, in a region where there is a skin fold, again this was touched exceedingly lightly and she would go through the same routine and the same degree of dramatic behaviour. She would then gently put her knee through a range of motion and would tell me that this would cause her discomfort.

I then proceeded to perform a neurological examination. This was normal. There was no motor weakness, her tone was normal and there was no dermatomal sensory abnormality.

I attempted to put her back through range of motion and with the slightest of rotation of her back with fixing her arms to her sides, whereby her back was not even stressed and rotating through her legs she again went through this dramatic scene. Again with light axial loading through her head there were the same findings. These signs are inorganic.

In summary, there is no organic basis to this behaviour. There is no objective organic or orthopaedic impairment. This behavior pattern is completely without validity for a bonafide musculoskeletal injury. I will point out that the reasons for this sort of behaviour are multi factorial and the reasons are well beyond the scope of this evaluation. However, I can confidently attest that there is no orthopaedic impairment or injury.³²

Ms. Valle sought a special award in relation to the termination of benefits based on Dr. Finkelstein's report on the ground that Dr. Finkelstein only became aware of the MRI report after his examination. I reject this claim. Dr. Finkelstein's opinion was still generally concordant with that of Dr. Devlin who had seen the MRI report before he examined Ms. Valle.

I also reject Ms. Valle's testimony that Dr. Finkelstein was rough with her during the course of his examination, that he grabbed her waist and twisted it and that he "took my wrists and threw them up." Dr. Finkelstein's report obviously conflicted with that allegation and he also specifically denied it in his own testimony at the hearing. Mr. Campisi's cross-examination of Dr. Finkelstein identified no need or reason for the behaviour described by Ms. Valle and I have no hesitation in accepting Dr. Finkelstein's evidence over Ms. Valle's. Indeed, I regard it as significant that Ms. Valle was, in Dr. Finkelstein's opinion, which I accept, prepared to overdramatize her symptoms on examination and then misrepresent the nature of that examination in her testimony at the hearing. This conduct, in turn, cast serious doubt on the reliability of the results of Dr. Chan's examination five months later, in May 2005, and on Dr. Chan's opinion about the ongoing nature of Ms. Valle's back symptoms. As a result, Dr. Chan's opinion again only established a possibility, not a probability, and was insufficient to support her claim for benefits beyond the end of 2004.

Psychological injuries

Dr. Fiorillo's report stated that Ms. Valle "suffers from ongoing psychological and emotional trauma as a result of these two accidents, especially the latter, which have impacted and caused stress in relationships with her husband, mother, children and extended family. She tends to isolate herself, and has developed a deep low self-esteem and depression with insomnia."

Ms. Valle was referred by Dr. Fiorillo to Dr. Salvatore Mallia, a psychiatrist. His report dated April 6, 2005 contained a diagnosis of "somatoform pain disorder with physical and emotional disturbances" but ruled out any "adjustment disorder" or "major depressive illness."³³ The report did not identify either the cause of the diagnosed condition or the resulting limitations or restrictions, if any, imposed by it. Indeed, it would not appear that Dr. Mallia asked Ms. Valle any questions about her pre-accident duties or post-accident limitations.

At Aviva's request, Ms. Valle was also examined by a clinical psychologist, Dr. Neil A. Weinberg. His report dated January 15, 2005 contained a diagnosis of "pain disorder associated with both psychological factors and a general medical condition (DSM-IV: 307.89) (chronic)" and recommended a "short course of psychological treatment (i.e. eight to ten sessions)...to adequately address her pain symptomatology and current accident-related psychological impairments." Dr. Weinberg found no signs of malingering or symptom fabrication or exaggeration. However, Dr. Weinberg was of the opinion that "from a psychological perspective, Ms. Valle does not evidence an impairment of sufficient severity that would substantially disable her from performing her pre-accident caregiving activities."³⁴ I accept Dr. Weinberg's uncontradicted opinion in this regard. Moreover, I am unable to see why, if Ms. Valle was not psychologically disabled from resuming her caregiver activities, she would have been psychologically disabled from resuming her housekeeping or personal care activities. In any event, there was no evidence that she was psychologically disabled from resuming any of her pre-accident activities.

Part 2: was Aviva entitled to suspend benefits between June 25, 2004 and December 8, 2004?

Aviva maintained the suspension was authorized by section 42 of the Schedule, the relevant parts of which are set out below:

INSURER EXAMINATIONS

42.(1) For the purpose of determining whether an insured person is entitled to a benefit for which an application is made, an insurer may give the insured person notice requiring the insured person to be examined by one or more persons specified by the insurer, each of whom is a member of a health profession or a person with expertise in vocational rehabilitation.

(3) The insurer may require examinations as often as is reasonably necessary.

(8) If an insured person fails or refuses to submit to an examination required by the insurer under this section or fails to comply with subsection (5),

(a) the insurer may stop payment of the benefit related to the examination until the person submits to the examination or complies with subsection (5); and

(b) no benefit is payable for the period after the person has failed to attend the examination or failed to comply with subsection (5) and before the insured person submits to an examination under subsection (1) and complies with subsection (5).

(9) If a person subsequently submits to an examination under subsection (1) or complies with subsection (5), the insurer,

(a) shall resume payment of the benefit; and

(b) shall pay all amounts that were withheld during the period of non-compliance, if the insured person provides a reasonable explanation for not attending the examination or not complying with subsection (5).

On May 11, 2004, Aviva invoked this section by requesting Ms. Valle to attend a functional abilities evaluation on June 7, 2004 and an orthopaedic evaluation on June 21, 2004.³⁵ The request for examinations indicated that they were intended to assess Ms. Valle's entitlement to caregiver, attendant care and housekeeping benefits. Ms. Valle's representative replied on June 1, 2004, alleging that since Ms. Valle had "recently been assessed by an Occupational Therapist on May 15, 2004", Aviva's request constituted "an abuse of process" and stating that Ms. Valle would not attend the insurer's evaluations.³⁶ In his response dated June 2, 2004, Aviva's adjuster, Mr. Cary Soules, maintained that an "an Occupational Therapist cannot diagnosis [sic] injuries." He indicated that the appointments would not be cancelled and he warned Ms. Valle that her benefits could be stopped "if you do not comply with this section 42 request."³⁷

When Ms. Valle did not attend the orthopaedic assessment on June 21, 2004, Mr. Soules sent her two Explanations of Benefits forms advising her that due to her non-attendance, she would not be entitled to further caregiver, attendant care or housekeeping benefits until she complied with section 42. The forms indicated that Aviva would reschedule the appointment at her request and attached a copy of section 42 in its entirety.³⁸ According to Aviva's counsel, the suspension took effect on June 25, 2004, four days after the date on the Explanation of Benefits forms in order to allow time for delivery.

I find that Aviva's request for an orthopaedic examination on June 21, 2004 was reasonably necessary for the reason given by Mr. Soules, i.e., the occupational therapist was not capable of providing a medical opinion about the injuries sustained in either accident. I note that Aviva had not yet obtained any other medical opinion in that regard. I also find that the suspension of benefits for non-attendance was properly imposed, from a procedural point of view, effective June 25, 2004.

However, I cannot accept Aviva's submission that, in accordance with section 42(8), this suspension remained effective between June 25, 2004 and December 8, 2004, the latter being the date Ms. Valle finally submitted to the orthopaedic evaluation conducted by Dr. Finkelstein. I might have accepted that submission had Aviva simply waited for Ms. Valle or her representative to ask for a rescheduled orthopaedic examination, as its Explanation of Benefits forms suggested it would do. But Aviva chose to take other steps in the intervening months.

On June 25, 2004, Mr. Soules requested that Ms. Valle submit to a new set of evaluations, one by a neurologist on July 20, 2004, a second by a physiatrist on July 29, 2004 and a third by a psychologist on August 4, 2004.³⁹ In a letter dated July 7, 2004, Ms. Valle's representative replied that he would only allow Ms. Valle to submit to an evaluation by a physiatrist as "there is currently no medical document in Ms. Valle's file indicating an impairment or treatment required from a Neurological or a Psychological perspective."⁴⁰ On July 8, 2004, Mr. Soules responded that his file contained information to the contrary.⁴¹ Without quoting it, he referred to Ms. Valle's own statement that she had been experiencing episodes of "depression, anxiety, frustration and nervousness."⁴² I find that his file would have probably, by then, also contained the Disability Certificate in relation to the second accident, dated June 6, 2004, in which Dr. Fiorillo indicated that he would refer Ms. Valle to a "neurosurgeon due to possible disc prolapse."⁴³

I, therefore, accept that Aviva's requests for these additional evaluations were reasonable but I reject Mr. Soules' method for dealing with Ms. Valle's failure to attend the first of these evaluations on July 20, 2004. Mr. Soules wrote to Ms. Valle on July 22, 2004 and to her representative on July 28, 2004 informing them that Aviva "will not Schedule any more insurer's examinations until the insured provides us a letter signed by her stating that she agrees to attend any further insurer's examinations."⁴⁴ Mr. Soules testified that he got the idea for this method of dealing with Ms. Valle's non-attendances from West Park HealthCare Centre in connection with Ms. Valle's non-attendance at that centre for an Attendant Care DAC on June 30, 2004. But there were important differences between the two situations.

First, the documentary evidence established that Ms. Valle's non-attendance at the Attendant Care DAC was related to a dispute about whether Aviva was required to provide her representative with a copy of the OCF-11 form requesting the assessment.⁴⁵ Mr. Soules initially denied that this was required by the Schedule. The dispute was eventually resolved in Ms. Valle's favour by reference to FSCO's DAC manual but not before June 30, 2004, the date of the assessment. It is true that West Park Healthcare Centre then required "a firm commitment regarding participation in the DAC process by the applicant, prior to scheduling any further appointments." However, since both Mr. Soules and the Centre were fully aware of the nature of the dispute and its resolution, neither of them had any reason to believe that this requirement was justified in the circumstances. Indeed, there is no evidence before me that Ms. Valle ever gave the required undertaking before attending two subsequent Attendant Care DACs at the West Park Healthcare Centre in September 20, 2004 and December 2, 2004.⁴⁶

More significantly, the undertaking sought by the West Park Healthcare Centre related to the rescheduling of a specific Attendant Care DAC. The undertaking sought by Aviva related to the scheduling of "any further insurer's examinations." In his letter to Ms. Valle's representative dated September 9, 2004, Mr. Soules repeated: "We will not book any more examinations under section 42 until we receive this document. This is our fourth request."⁴⁷ Aviva thus put Ms. Valle in the following situation: her benefits were suspended and would not be restored until she submitted to an insurer's examination but no such examination would be scheduled until she agreed, in advance, to whatever examination(s) Aviva wanted. In effect, Aviva required Ms. Valle to waive her right to question the number and the reasonableness of its examinations, a right which is clearly recognized by the case law on section 42; see for example, the appeal decision in Allstate Insurance Company of Canada and Sellathamby.⁴⁸

This situation continued for over three months, until a mediation at FSCO in early November 2004 when Aviva finally agreed to schedule two insurer's examinations without first requiring Ms. Valle to sign undertakings to attend, in particular, a functional capacity evaluation on November 25, 2004 and Dr. Finkelstein's orthopaedic evaluation on December 8, 2004.⁴⁹ Ms. Valle refused to attend the functional capacity assessment on November 25, 2004 but did attend the examination by Dr. Finkelstein and also attended an insurer's psychological examination conducted by Dr. Weinberg on January 4, 2005.

Mr. Rogers acknowledged that the undertaking sought by Aviva may have been too broadly worded but he nevertheless defended Aviva's demand for an undertaking as a reasonable method of dealing with Ms. Valle's repeated refusals to attend insurer examinations. He submitted that insurers should not be either deprived of the right to examine applicants under section 42 or required to repeatedly pay the significant no-show fees charged by examiners when applicants fail to attend scheduled evaluations.⁵⁰ He expressed uncertainty about whether insured persons could be required to pay no-show fees but, if not, he doubted that there was any better way of securing their attendance at insurer examinations than requiring their commitments to attend. He denied that this would conflict with the Schedule which, he maintained, was silent on the point.

In weighing the strength of this argument, it is important to note that, with one possible exception,⁵¹ Ms. Valle did not simply fail to attend insurer examinations without prior notice. While she refused to attend four of the eight scheduled insurer examinations as itemized above, in each case her representative gave prior written notice of her reasons for refusing.⁵² Moreover, while she only attended two of the eight insurer examinations, she agreed to attend two others which Aviva cancelled - the physiatrist's evaluation of July 29, 2004, which she had originally agreed to attend, and the neurologist's evaluation of July 20, 2004 which, on August 6, 2004, she asked to be rescheduled.⁵³

In my view, this is not a case where the applicant and her representative failed to recognize or respect the insurer's rights under section 42. Some of Ms. Valle's refusals to attend insurer's examinations may have been unreasonable, as I have already decided, but they did not manifest an attitude of disregard or contempt for the process contemplated by the Schedule. I cannot, therefore, agree with the suggestion that this was a case in which Aviva was entitled to adopt some new, more aggressive method for enforcing its rights under section 42. Each of its requests for an insurer's examination should still have been based on the then-available information and each of Ms. Valle's refusals to attend should still have been considered in light of the reasons given by her representative. Having determined that a refusal was unreasonable, and that benefits should therefore be suspended, Aviva was still obliged to respect Ms. Valle's right to bring the suspension to an end by requesting that the evaluation be rescheduled. As I see this issue, it was Aviva who, on July 22, 2004, abandoned the process contemplated by the Schedule by refusing to schedule any further insurer examinations until Ms. Valle signed a written undertaking to attend them.

Nor can I agree that Aviva was otherwise lacking in remedies to enforce its rights under section 42. In addition to its right to suspend benefits under that section, which it exercised, Aviva was entitled to refer the issue of Ms. Valle's refusals to mediation under section 280(1) of the Insurance Act. Indeed, it was as a result of the mediation at FSCO on November 4, 2004 that Ms. Valle agreed to "reconsider her position", though not to sign an undertaking, and Aviva agreed, without obtaining an undertaking, to schedule the appointment with Dr. Finkelstein for December 8, 2004.⁵⁴ Finally, Aviva was entitled, pursuant to section 50 of the Schedule, to rely upon Ms. Valle's refusal to submit to insurer examinations as a ground for challenging her right to recover disability benefits through either a court or an arbitration proceeding. Aviva chose not to seek this remedy.

I, therefore, conclude that while the suspension was properly imposed on June 25, 2004, it had no force or effect between July 22, 2004 and November 4, 2004, that being the period during which Aviva imposed the additional requirement that Ms. Valle sign an undertaking to attend any further insurer examinations.

I note that, in accordance with section 42(8), a suspension only ends when the claimant actually submits to the previously-refused examination. While the point was not argued, I would agree that once a claimant has indicated his or her willingness to attend a previously-refused examination, an insurer is not entitled to prolong the suspension by refusing or failing to reschedule the examination with reasonable dispatch. However, in my view, as long as an insurer does reschedule the appointment with reasonable dispatch, the suspension remains in effect until the claimant actually submits to the examination.

Following the mediation on November 4, 2004, Aviva rescheduled the previously-refused orthopaedic appointment with Dr. Finkelstein for December 8, 2004. In my view, Aviva acted with reasonable dispatch. I, therefore, find that the suspension ended, in accordance with section 42(8), when Ms. Valle submitted to examination by Dr. Finkelstein on December 8, 2004.⁵⁵

Part 3: what benefits was Ms. Valle entitled to receive in 2003 and 2004?

I turn now to the questions of when Ms. Valle ceased to be disabled by the impairments caused by her soft tissue injuries and, hence, no longer entitled to each of the three types of disability benefits she claimed. I will also deal with the question of the rates at which benefits were payable in both 2003 and 2004.

As will be apparent from Part 1 of this decision, I accept and find that Ms. Valle sustained soft tissue injuries to her right knee, left shoulder and neck in the first accident, and to her lower back, left shoulder and neck in the second accident. She also sustained psychological injuries as a result of the accidents but there is no evidence that those injuries were disabling.

As will be apparent from Part 2 of this decision, Ms. Valle is not entitled to claim attendant care, housekeeping and caregiver benefits for the two periods in 2004 during which those benefits were properly suspended, i.e., from June 25, 2004 to July 21, 2004 and from November 5, 2004 to December 7, 2004.

Attendant Care Benefits

Section 16(4) of the Schedule states that Ms. Valle's entitlement to attendant care benefits "is to be determined in accordance with Form 1." That form sets out both the categories of attendant care that can be claimed and the hourly rates payable with respect to each category of care.

Ms. Valle was assessed on several occasions in 2004 by persons familiar with the specific requirements of Form 1. In my view, her entitlement to attendant care can be determined on the basis of these assessments. I acknowledge that Ms. Valle presented additional oral and documentary evidence regarding the amount of attendant care she required or received from particular individuals. However, even if accepted, this additional evidence could only provide partial support for her claim for attendant care because it was not prepared or presented in line with the specific categories or at the specific rates stipulated in Form 1. In any event, for the reasons set out below, I regard this additional evidence as unreliable in relation to the amount of attendant care that was reasonable and necessary. In my view, this evidence can only be relied upon for the limited purpose of establishing that Ms. Valle incurred or agreed to incur expenses for attendant care up to the amounts determined to be reasonable and necessary on the basis of the assessments. Except for one period mentioned immediately below, this evidence established that Ms. Valle incurred or agreed to incur attendant care expenses well in excess of those amounts.

The first assessment was conducted on December 5, 2003 by a physiotherapist, Ms. Sheri Corriero. This in-home assessment determined that Ms. Valle required 5.6 hours of attendant care per week for dressing, undressing, grooming, personal hygiene and bathing at a cost of $256.23 per month.⁵⁶ At a second in-home assessment on February 14, 2004, an occupational therapist, Ms. Farah Khan, determined that Ms. Valle still required 5.09 hours of attendant care per week under the same categories at a cost of $258.13 per month.⁵⁷

Aviva terminated Ms. Valle's attendant care benefits in relation to the first accident on the strength of an examination conducted on April 27, 2004 by a chiropractor, P. Salituro, in the context of a Medical/Rehabilitation DAC. The report, dated May 4, 2004, diagnosed myofascial strain in the neck, right shoulder and lower back as well as contusion/strain of the right knee but recommended that Ms. Valle "resume all pre-accident levels of activity."⁵⁸ Ms. Valle requested that the termination of her attendant care benefits be reviewed by an Attendant Care DAC.

I would have been reluctant to rely upon the opinion of a chiropractor, expressed in the context of a Medical/Rehabilitation DAC, to determine Ms. Valle's need for attendant care, particularly when she requested an Attendant Care DAC. However, I do not need to rely upon this opinion because Ms. Valle submitted no evidence to establish that she incurred or agreed to incur attendant care expenses in relation to the first accident after February 20, 2004, the date Aviva stopped paying attendant care benefits.⁵⁹ I, therefore, find that Ms. Valle did not establish her entitlement to attendant care benefits in relation to the first accident beyond February 20, 2004.

When reassessed by Ms. Khan, on May 15, 2004, after the second accident, Ms. Valle was found to require 17.75 hours of attendant care per week for dressing, undressing, grooming, feeding, mobility, personal hygiene, basic supervisory care, coordination of care, exercise, skin care, medication, bathing and maintenance of supplies and equipment at a cost of $932.26 per month.⁶⁰

For the reasons previously explained, Ms. Valle was not examined at the Attendant Care DAC on June 30, 2004 but rather on September 20, 2004. She was examined by a physiotherapist, Debbie Westbrook, and by the physiatrist, Dr. M. Devlin, but since their report, dated September 27, 2004, only purported to address the effects of the first accident, they conducted a second Attendant Care DAC on December 2, 2004, resulting in a further report dated December 16, 2004. In fact, both examinations were based on Ms. Valle's condition after the second accident and both concluded that she no longer required attendant care within the meaning of Form 1.⁶¹ However, Miriam Kurtach, a registered nurse who performed a third in-home assessment on November 11, 2004, determined that Ms. Valle still required 4.74 hours of attendant care per week for dressing, undressing, grooming, feeding and personal hygiene at a cost of $194.83 per month.⁶²

I accept Mr. Rogers' submission that Ms. Valle probably required less attendant care as time passed after the second accident until, by some point, she required no attendant care. He urged me to find and fix the point at when she required no further attendant care at June 25, 2004, the start date of the suspension. While I acknowledge the findings of the first Attendant Care DAC examination on September 20, 2004, particularly the functional capacity assessment, I note that these findings were not made in Ms. Valle's home environment and were contradicted by Ms. Kurtach's in-home assessment on November 11, 2004. That latter assessment confirmed Ms. Valle's ongoing, though diminishing, need for attendant care. I, therefore, I find and fix the date at which Ms. Valle required no further attendant care at December 2, 2004, the date of the second Attendant Care DAC examination which confirmed that finding.

Taking into account both the effective dates of the suspension and Ms. Valle's diminishing need for attendant care, I calculate Ms. Valle's entitlement to additional attendant care benefits as a result of the second accident as follows: from May 10 to June 25, 2004: $1,409.90⁶³ minus $1,087.90 paid⁶⁴ = $322; from July 22 to November 4, 2004, $932.26 per month x .66 in respect of diminishing need x 3.3 months = $2,030.46, for a total of $2,352.46, plus interest in accordance with section 46 of the Schedule from November 4, 2004.

Housekeeping Benefits

I accept Ms. Valle's evidence that, prior to the accidents, she performed almost all of the housework required to maintain her large, three-level home, with four bathrooms and two kitchens. I also accept that just as the soft tissue injuries she sustained in the accidents prevented her from caring for herself for certain periods, they would have also prevented her from performing her more demanding housekeeping duties during the same, if not longer periods. I must now determine the amount of housekeeping benefits to which she is entitled during those periods. Section 22 of the Schedule stipulates a maximum rate of $100 per week.

Entitlement to housekeeping benefits is not based on specific categories of eligible services or hourly rates payable for each, as is entitlement to attendant care benefits. As a result, Ms. Valle's own evidence together with the evidence, oral or documentary, of persons who provided housekeeping services might have been sufficient to establish the amount of housekeeping expenses to which she was entitled. However, in my view, the evidence Ms. Valle entered in relation to that issue was unreliable.

Ms. Valle gave conflicting and confusing testimony about who performed her housekeeping duties. During her examination-in-chief, she testified that Melissa DeBartolo did them for the first seven or eight months, followed by Rosella DeBartolo for a further month and a half, followed by Lina Cuzzolino from June 2004 to February 2005. On this evidence, Ms. Valle appeared to identify the first accident as the point in time at which she started to need and receive housekeeping assistance. On cross-examination, Ms. Valle testified that Melissa DeBartolo performed her housekeeping duties for seven or eight months, ending in December 2004, followed by Rosella DeBartolo for a further month and a half, followed by Lina Cuzzolino to February 2005. On this evidence, Ms. Valle appeared to refer to the second accident as the point in time at which she started to need and receive housekeeping assistance and appeared to assign Ms. Cuzzolino a much less important role.

The Application for Expenses forms which Ms. Valle signed and submitted to Aviva were also entered into evidence. The forms appeared to favour the version of the facts given by Ms. Valle during her examination - in-chief by identifying the persons who provided housekeeping services to Ms. Valle as follows: Melissa DeBartolo for the period between the first and second accident,⁶⁵ Rosella DeBartolo and Lina Cuzzolino for the period between the second accident and July 23, 2004⁶⁶ and Lina Cuzzolino for the period from July 24, 2004 to the end of January 2005.⁶⁷ I might, therefore, have been prepared to accept this version of the facts over the version given by Ms. Valle during her cross-examination. However, for the following reasons, I find that the information contained in these forms was, itself, unreliable.

First, Ms. Valle testified that she was, herself, the source of the information set out in the Application for Expenses forms submitted to Aviva. She stated that her daughter, Elsa, completed the forms every day or so on the basis of information she provided. Elsa, she testified, was working outside the home during 2004. There was no evidence that either Melissa or Rosella DeBartolo provided or verified the information contained in the forms. Moreover, neither of these individuals testified to corroborate that information. Lina Cuzzolino did testify but, on cross-examination, she admitted that while her time spent doing housekeeping tasks, as opposed to attendant care and caregiving tasks, varied from day to day, she did not record or keep track of her time spent doing particular tasks. Meanwhile, the Application for Expenses forms signed by Ms. Cuzzolino showed remarkably little variation in the number of hours spent each day doing housekeeping tasks. More significantly, Ms. Cuzzolino admitted that while the forms showed her providing housekeeping services every day for long periods, she did not, in fact, provide such services on weekends.

Second, as the sole source of the information set out in the Application for Expenses forms, Ms. Valle was obliged to impress me as a reliable witness, at least in relation to that information. She did not.

During her examination-in-chief, Ms. Valle testified that she was unable to do any housekeeping throughout the period between the two accidents. This conflicted with statements which, I find, Ms. Valle made to Ms. Khan during the course of the in-home assessment on May 15, 2004. In addition to telling Ms. Khan that she was starting to feel "like her old self again" just prior to the second accident, she also told Ms. Khan she was "independently performing all of...her housekeeping tasks" and that the injuries sustained in the first accident "had been almost completely resolved before her most recent accident."⁶⁸

On cross-examination, Ms. Valle insisted that she did not tell Ms. Khan these things and that they must have failed to understand each other due to a language barrier. It is true that Ms. Valle testified in Italian but she appeared to understand some English at the hearing and there was no indication that she needed interpreters when being examined by most of the physicians whose reports have been put into evidence. A Medical/Rehabilitation DAC report completed in September 2004 stated that Ms. Valle "spoke English fluently."⁶⁹

I find it extremely unlikely that Ms. Khan misapprehended any of the multiple statements which she attributed to Ms. Valle. I also accept Mr. Rogers' submission that it is unlikely that Ms. Valle's daughter, Elsa, who admitted to being in the home at the time of the assessment, would have left her mother alone with Ms. Khan if she anticipated any serious language barrier.

Ms. Valle also testified, on both examination-in-chief and on cross-examination, that her daughters did not start to provide housekeeping services until February 2005. This conflicted with what Ms. Valle told Ms. Khan during the in-home assessment conducted on February 14, 2004. On that occasion, Ms. Valle stated that "her older daughter has been performing the household tasks at the present time."⁷⁰ Again, Ms. Valle denied telling Ms. Khan this but, again, I find it extremely unlikely that Ms. Khan misunderstood the person Ms. Valle was referring to. Indeed, Ms. Khan's report stated that Ms. Valle identified her daughter as the provider of all three types of services, attendant care, housekeeping and caregiving.

Given the absence of corroborating evidence from Melissa and Rosella DeBartolo, the inaccuracies in the forms signed by Ms. Cuzzolino and the conflicts between Ms. Valle's own evidence and her previous statements, I am unable to rely upon the information contained in the Application for Expenses forms in determining the amount of housekeeping services to which Ms. Valle is entitled.

Nevertheless, there was another source of evidence about the amount of housekeeping services Ms. Valle required as a result of her accidents. This evidence was contained in three of the four in-home assessments mentioned above, the first conducted by Ms. Corriero on December 5, 2003 and the second and third conducted by Ms. Khan on February 14, 2004 and May 15, 2004.

As with attendant care, I am prepared to determine Ms. Valle's entitlement to housekeeping benefits on the basis of these assessments. Again, I only accept the additional oral and documentary evidence entered by Ms. Valle for the limited purpose of establishing that she incurred or agreed to incur expenses for housekeeping up to the amounts determined to be reasonable and necessary on the basis of the assessments. This additional evidence established that Ms. Valle incurred or agreed to incur housekeeping expenses well in excess of those amounts.

It would appear that I was not given the pertinent portion of Ms. Corriero's report⁷¹but, according to Mr. Rogers' submission, which I accept, this report established that Ms. Valle needed approximately fifteen hours of housekeeping services per week. Mr. Rogers therefore acknowledged that, assuming an hourly rate of $10, Ms. Valle would have been entitled to the maximum rate of $100 per week. In my view, it is reasonable to conclude that Ms. Valle was entitled to housekeeping benefits at this rate from the date of the first accident to February 14, 2004, the date of Ms. Khan's assessment.

As a result of her assessment of Ms. Valle on February 14, 2004, Ms. Khan recommended "six hours a week of housekeeping assistance for the next four to six weeks", followed by reassessment.⁷² In my view, it is reasonable to conclude that Ms. Valle was entitled to housekeeping benefits at the rate of $60 per week from February 15, 2004 to March 1, 2004 and at the rate of $30 per week from March 2, 2004 to April 20, 2004. The reduction in rate on March 1, 2004 is intended to reflect my acceptance of the opinions of two treatment providers after that date which indicated that Ms. Valle was beginning to recover her ability to do housework.⁷³The termination date of April 20, 2004 is intended to reflect a finding that when assessed by Ms. Khan on May 15, 2004, Ms. Valle stated that "just prior to her most recent MVA on May 9, 2004, she was on her way to full recovery and had just started feeling like her old self again ...and was independently performing all of her ...household tasks."⁷⁴

Ms. Khan's assessment on May 15, 2004 after the second accident resulted in the recommendation that Ms. Valle again start receiving six hours of housekeeping assistance per week as a result of the accident on May 9, 2004.⁷⁵ In my view, it is reasonable to conclude that Ms. Valle was entitled to housekeeping benefits at the rate of $60 per week from May 10, 2004 to June 25, 2004, when the suspension took effect, and from July 22, 2004 to November 4, 2004, when the suspension was not in effect. I further find that Ms. Valle was also entitled to housekeeping benefits at the rate of $30 per week from December 8, 2004, when the suspension ended, to the end of December 2004. This latter finding is intended to reflect my opinion that while Ms. Valle was able to return to caring for herself and to performing many of her household duties by December 2, 2004, she was probably not able to return to all of her housekeeping duties until December 31, 2004.

Accordingly, I calculate Ms. Valle's entitlement to housekeeping benefits for both accidents as follows: from October 30, 2003 to February 14, 2004: 3.5 months x 4.3 weeks per month x $100 per week = $1,505; from February 15, 2004 to March 1, 2004: 2 weeks x $60 per week = $120; from March 2, 2004 to April 20, 2004: 7 weeks at $30 per week = $210; from May 10, 2004 to June 25, 2004: 6 weeks x $60 per week = $360; from July 22, 2004 to November 4, 2004: 3.3 months x 4.3 weeks per month x $60 per week = $851.40; from December 8, 2004 to December 31, 2004: 3 weeks x $30 per week = $90, for a total of $3,136.40 minus $2,402.54 paid⁷⁶= $733.86, plus interest in accordance with section 46 of the Schedule from December 31, 2004.

Caregiver benefits

Ms. Valle maintained that the accidents rendered her incapable of taking care of her elderly mother and grandchild, as she had done prior to the first accident, and that she was therefore entitled to caregiver benefits under section 13 of the Schedule. To establish her entitlement under this section, Ms. Valle had to establish that these two people resided with her and needed care, that she was their primary caregiver, that she was not paid to care for them before the first accident and that she incurred reasonable and necessary expenses paying others to care for them after that accident. The section limited her potential entitlement to $250 per week for the first person in need of care and $50 per week for the second.

Aviva denied that Ms. Valle was the primary caregiver of her grandchild and disputed the amounts and periods of entitlement in respect of Ms. Valle's mother.

Mr. Campisi stated in his opening that Ms. Valle's grandchild, Jonathan, was nine at the time of the accident. Ms. Valle testified that Jonathan was the son of her daughter Elsa and that she was required to care for him before the first accident because Elsa left for work at 6:30 each workday morning and did not return home until 6:00 p.m. She stated that she also sometimes cared for Jonathan on Saturday mornings. Ms. Valle's pre-accident duties, as she described them, were to dress Jonathan and feed him breakfast before he went off to school. While she also referred to after-school care, Ms. Valle testified that Jonathan arrived back at home with Elsa, presumably at 6:00 p.m. When she testified, Elsa Valle stated that Ms. Valle prepared Jonathan's breakfast and lunch and "sent him off to school." She acknowledged that she was with Jonathan every night after work and on weekends. Ms. Cuzzolino's testimony was that she arrived at the Valle home between 7:00 and 8:00 a.m., prepared Jonathan's breakfast and lunch and then put him on a school bus at around 8:00 a.m. She testified that she left the Valle home between 5:00 and 7:00 p.m. She did not testify that she took Jonathan to school, that she picked him up or that she spent time playing with him even though these were all activities listed on the Application for Expenses forms she signed.⁷⁷ Ms. Cuzzolino agreed that she spent more time caring for a much younger child, Joseph, who stayed at the Valle home all day. A caregiver claim was going to be, but was ultimately not, presented at the hearing in relation to this child. As previously mentioned, the other caregivers mentioned in the expense forms did not testify and there is no evidence that they provided or verified the information contained therein.

Ms. Valle's own evidence established that she was only Jonathan's pre-accident, pre-school caregiver. It was Elsa Valle who picked Jonathan up from some after-school facility and who was, in all likelihood, responsible for his care almost every evening, up to and including bedtime, and almost every weekend. Without belittling Ms. Valle's contribution, I find that Elsa provided her son Jonathan more significant and more time-consuming care on a daily basis than did Ms. Valle. This conclusion is confirmed by the role played Ms. Cuzzolino, the person who stood in for Ms. Valle for a certain period after the accident. She probably spent less than an hour each school day with Jonathan and she did not see him at all on weekends.

Accordingly, I conclude that Jonathan's primary caregiver before the accident was his mother, Elsa Valle, and that Ms. Valle's caregiver claim in relation to him must, therefore, fail.

This finding alone makes it impossible to rely upon the Application for Expenses forms to determine the amount of caregiver benefits payable in relation to Ms. Valle's mother. That is because those forms provided no breakdown of the amount of time spent caring for Ms. Valle's mother, as opposed to Jonathan or Joseph; they indicated only the total number of hours spent each day providing caregiver services.

Once more, the three in-home assessments mentioned above provide an alternate source of evidence. However, in this case, I rely only upon the two assessments conducted by Ms. Khan on February 14, 2004 and May 15, 2004, both of which indicated that Ms. Valle required seven hours of assistance per week to care for her mother. I accept Mr. Rogers' statement that Ms. Corriero's assessment on December 5, 2003 reached the conclusion that Ms. Valle only required three hours of assistance per week to care for her mother - once again, I was not given the pertinent portion of the report. I nevertheless consider it extremely unlikely that Ms. Valle required less assistance approximately one month after the first accident than she did approximately three and a half months after that accident. Since Ms. Khan had the benefit of assessing Ms. Valle on two occasions, both at Aviva's request, I resolve this conflict in favour of Ms. Khan's opinion.

As for the periods during which caregiver benefits were payable, Ms. Khan's assessments confirmed that the kind of assistance Ms. Valle needed to care for her mother was very similar to the kind of assistance she needed to care for herself, i.e., dressing, undressing, grooming, feeding, mobility, personal hygiene and basic supervisory care. I, therefore, find that Ms. Valle was entitled to caregiver benefits in relation to her mother for the same periods that she was entitled to attendant care for herself but with an additional two months of caregiver benefits after February 20, 2004. As to the latter, it will be recalled that Ms. Valle's entitlement to attendant care benefits ended on February 20, 2004 because she failed to prove that she incurred or agreed to incur attendant care expenses beyond that date. She did, on the other hand, prove that she incurred or agreed to incur caregiver benefits beyond this date. Moreover, the first medical evidence that she was able to resume her pre-accident duties following the first accident was the Medical/Rehabilitation DAC report dated May 4, 2004.⁷⁸ However, there must be a reduction for diminishing need at the end of both periods of entitlement.

Using the rates stipulated by the Form 1 as a guide, I find that Ms. Valle is entitled to caregiver benefits at the rate of $8.50 per hour, seven hours per week, for the following periods and in the following amounts: from October 30, 2003 to April 20, 2004: 5.75 months x 4.3 weeks per month x 7 hours per week x $8.50 per hour x .66 in respect of diminishing need = $970.95; from May 10 to June 25, 2004: 6 weeks x 7 hours per week x $8.50 per hour = $357; from July 22, 2004 to November 4, 2004: 3.3 months x 4.3 weeks per month x 7 hours per week x $8.50 per hour x .66 in respect of diminishing need = $557.24, for a total of $1,885.19 minus $1,710.39 paid⁷⁹ = $174.80, plus interest in accordance with section 46 of the Schedule from November 4, 2004.

Part 4: is Ms. Valle entitled to a special award?

I turn next to the question of whether I should grant Ms. Valle a special award on the ground that by suspending benefits from July 22, 2004 to November 4, 2004, Aviva unreasonably withheld benefits to which she was entitled during that period.

I could not deal with this issue until I had decided first, whether the suspension was properly imposed, and second, whether Ms. Valle was entitled to benefits during the period when it was not properly imposed. Had either of these questions been answered in Aviva's favour, there would have been no basis upon which to grant Ms. Valle a special award. However, since these questions have now both been answered in Ms. Valle's favour, the remaining questions are: by suspending benefits between July 22, 2004 to November 4, 2004, did Aviva unreasonably withhold or delay the payment of benefits to which she was entitled during that period, as required by section 282(10) of the Insurance Act, and, if so, what is the special award to which Ms. Valle is entitled?

As previously stated, it is my opinion that Aviva abandoned the process contemplated by the Schedule by refusing to schedule any further insurer examinations until Ms. Valle signed a written undertaking to attend them. I have observed that this effectively required Ms. Valle to waive her right to question the number and the reasonableness of Aviva's examinations. I have rejected the argument that Aviva lacked alternative remedies to enforce its rights under section 42. I have noted that Ms. Valle gave notice of, and reasons for, her refusals to attend insurer's examinations. I must now, therefore, conclude that by suspending Ms. Valle's benefits between July 22, 2004 to November 4, 2004, Aviva unreasonably withheld or delayed the payment of benefits to which she was entitled during that period. Accordingly, Ms. Valle is entitled to a special award.

I identify three factors influencing the amount of the special award.

First, it should not be forgotten that Aviva's decision to suspend benefits on June 25, 2004 was justified by Ms. Valle's unreasonable refusal to attend an insurer's orthopaedic examination on June 21, 2004. Moreover, it was only after Ms. Valle further refused to attend the insurer's neurological examination on July 20, 2004, again unreasonably, that Aviva decided to insist on her signing an undertaking to attend further insurer examinations. While Ms. Valle's unreasonable conduct does not excuse Aviva's unreasonable response, it is a mitigating factor in determining the amount of the special award payable to Ms. Valle.

Second, Ms. Valle's refusal to attend reasonable insurer examinations prevented Aviva from obtaining medical evidence which might have influenced its adjustment of Ms. Valle's claims. It is, of course, impossible to know whether that evidence would have supported an earlier denial of benefits, or the payment of benefits at lower rates, than ordered by this decision. That possibility must, however, be acknowledged as another mitigating factor in determining the amount of the special award payable to Ms. Valle.

The third factor is the amount of benefits payable in accordance with this decision for the period from July 22 to November 4, 2004: attendant care: $2,030.46, plus interest from November 4, 2004; housekeeping: $851.40, plus interest from December 31, 2004 and caregiver: $557.24, plus interest from November 4, 2004. The total of these amounts, exclusive of interest, is $3,439.10.

Taking all of these factors into consideration, I fix the amount of the special award Aviva must pay to Ms. Valle at $500, including interest payable under both section 46 of the Schedule and section 282(10) of the Insurance Act.

Part 5: Is Ms. Valle entitled to additional medical benefits?

The disputed treatment plans, dated February 20 and April 16, 2004, were both submitted by Wilson Physiotherapy and Rehab, referred to at the hearing as Back to Health, and both recommended soft tissue therapy, mobilisation and exercises. The estimated duration of treatment was six weeks in the first treatment plan and unspecified in the second treatment plan.⁸⁰ The first treatment plan was denied and Ms. Valle was referred to a Medical/Rehabilitation DAC where she was examined on April 27, 2004. This is the Medical/Rehabilitation DAC examination which resulted in the report dated May 4, 2004 recommending that Ms. Valle resume all her pre-accident activities. The DAC assessor denied that Ms. Valle required further treatment on the ground that the thirty treatment sessions she had attended at Back to Health prior to the submission of the first treatment plan "would have been sufficient to address the soft tissue injuries sustained as a result of the motor vehicle accident." In the DAC assessor's opinion, "prior to the submission of the February 20, 2004 Treatment Plan, it would have been reasonable to discharge Ms. Valle with a comprehensive self-directed home exercise program."⁸¹ On receipt of this opinion, Aviva sent Ms. Valle a letter dated May 20, 2004 stating that it would not pay for the treatment recommended in either the first or "any of the other treatment plans submitted ... as the DAC has not recommended any further treatment."⁸²

I am not prepared to rely upon the DAC assessor's opinion that the treatment recommended in the first treatment plan was not reasonable and necessary.

I accept Ms. Valle's evidence that she obtained pain relief, albeit temporary, from the treatment she received at Back to Health. According to the appeal decision in General Accident Assurance Co. of Canada and Viol⁸³, pain relief can be a legitimate goal of reasonable and necessary treatment but its effectiveness can be tested by monitoring the consequences when the treatment is withdrawn.

As the DAC assessor acknowledged, Ms. Valle had started treatment at Back to Health "a couple of weeks after" the first accident, had continued to receive treatment from Back to Health in the three and a half months leading up to the submission of the first disputed treatment plan, had, by April 27, 2004, the date of the DAC assessor's examination, already "consumed" or received most, if not all, of the treatment recommended by that treatment plan (which was dated February 20, 2004 and was only expected to last six weeks) and, as of that same date, continued to receive treatment twice a week at Back to Health. In short, prior to the DAC assessor's examination, there had been no attempt to test the effectiveness of the treatment Ms. Valle received from Back to Health by withdrawing it and monitoring the results.

I appreciate that the Violi decision did not say that such testing is either required or determinative in every case in which there is a dispute about treatment for the relief of pain. However, in this case, two additional factors influence my decision. First, the DAC assessor's opinion that the previously-received treatment "would have been sufficient" was expressed more than two months after the treatment was recommended and was probably based, at least in part, on an examination conducted after she had already received the disputed treatment. Second, I have already decided that Ms. Valle continued to require both housekeeping and caregiver assistance until April 20, 2004.

Taking all three factors into consideration, I find that the treatment recommended by the first treatment plan was reasonable and necessary to help relieve Ms. Valle's accident-induced pain and to maintain her level of functioning.

I note that this result does not raise issues of "inappropriate or indefinite dependency" as mentioned in Violi. On the contrary, I have previously found, based on her own statements to Ms. Khan after the second accident, that Ms. Valle had recovered from the first accident by April 20, 2004. I, therefore, find that treatment recommended in the second treatment plan, dated April 16, 2004, was not reasonable and necessary. In any event, since the duration of that treatment plan was not specified and the second accident happened on May 9, 2004, it is not clear that Ms. Valle would have fully benefited from the second treatment plan even if it had been determined to be reasonable and necessary.

Accordingly, based on the estimated cost of the first treatment plan, Ms. Valle is entitled to additional medical benefits in the amount of $1,523, plus interest in accordance with section 46 of the Schedule from April 20, 2004.

EXPENSES AND INTEREST:

Within thirty days of receiving this decision, the parties will advise me in writing in the event that they have not been able to resolve the remaining issues of expenses and the calculation of interest. Where expenses are concerned, they will follow the procedure set out in the Dispute Resolution Practice Code.

August 30, 2005

David Leitch

Arbitrator

Date

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2005 ONFSCDRS 124

FSCO A04-000773

BETWEEN:

ANTOINETTA VALLE

Applicant

and

AVIVA CANADA INC.

Insurer

ARBITRATION ORDER

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

1. Aviva shall pay to Ms. Valle additional attendant care benefits in the amount of $2,352.46, plus interest in accordance with section 46 of the Schedule from November 4, 2004.

2. Aviva shall pay to Ms. Valle additional housekeeping care benefits in the amount of $733.86, plus interest in accordance with section 46 of the Schedule from December 31, 2004.

3. Aviva shall pay to Ms. Valle additional caregiver benefits in the amount of $174.80, plus interest in accordance with section 46 of the Schedule from November 4, 2004.

4. Aviva shall pay to Ms. Valle a special award in the amount of $500.

5. Aviva shall pay to Ms. Valle an additional medical benefit in the amount of $1,523, plus interest in accordance with section 46 of the Schedule from April 20, 2004.

August 30, 2005

David Leitch

Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2Exhibit 2, Tab 2.
3. 3Exhibit 1, Tab 12.
4. 4Exhibit 1, Tab 14.
5. 5Exhibit 1, Tab 16.
6. 6Ibid.
7. 7Exhibit 1, Tab 9.
8. 8Exhibit 6, Tab 4.
9. 9Exhibit 6, Tab 9.
10. 10Exhibit 2, Tab 1.
11. 11Exhibit 7, Tab 5.
12. 12Exhibit 1, Tab 8.
13. 13Ibid.
14. 14Exhibit 1, Tab 9.
15. 15Exhibit 1, Tab 17.
16. 16Exhibit 1, Tabs 12 and 21.
17. 17Exhibit 1, Tab 22. As best I can read them, the hospital emergency records in relation to the second accident contain no reference to any shoulder injury. It is noted in those records that Ms. Valle was "able to move all limbs independently."
18. 18Exhibit 1, Tab 17.
19. 19Exhibit 1, Tab 22.
20. 20Exhibit 1, Tab 11.
21. 21Exhibit 2, Tab 1 and Exhibit 1, Tab 7. (Note: Exhibit 1, Tab 3 contains an incomplete copy of the first report.)
22. 22Exhibit 1, Tabs 21 and 22.
23. 23Exhibit 1, Tabs 11 and 12.
24. 24Exhibit 6, Tab 9.
25. 25Exhibit 2, Tab 1.
26. 26Ibid.
27. 27Ibid..
28. 28Exhibit 1, Tab 9.
29. 29Exhibit 6, Tab 9.
30. 30Exhibit 1, Tab 9.
31. 31Exhibit 6, Tab 9.
32. 32Exhibit 7, Tab 5
33. 33Exhibit 1, Tab 25.
34. 34Exhibit 7, Tab 6.
35. 35Exhibit 3, Tab 1.
36. 36Exhibit 3, Tab 2.
37. 37Exhibit 3, Tab 3.
38. 38Exhibit 5, Tab 13.
39. 39Exhibit 3, Tab 4.
40. 40Exhibit 3, Tab 5.
41. 41Exhibit 3, Tab 6.
42. 42Exhibit 5, Tab 1.
43. 43Exhibit 1, Tab 22.
44. 44Exhibit 10, Tabs 12 and 15.
45. 45Exhibit 9, Tabs 23, 24, 26, 28, 29, 30, 31.
46. 46Exhibit 9, Tab 34.
47. 47Exhibit 10, Tab 23.
48. 48(FSCO P-02-00009, December 17, 2002)
49. 49Exhibit 10, Tab 27.
50. 50I note that no specific evidence was entered in respect of no-show charges incurred by Aviva in respect of Ms. Valle's non-attendances at insurer examinations.
51. 51Ms. Valle failed, without providing reasons, to participate in an in-home assessment scheduled by Aviva for March 27, 2004. However, that assessment was later conducted on May 15, 2004. Exhibit 9, Tabs 10 and 11, Exhibit 7, Tab C4.
52. 52Ms. Valle's reasons for refusing to attend the functional capacity assessment scheduled for November 25, 2004 are found at Exhibit 9, Tab 46.
53. 53Exhibit 10, Tabs 16 and 17.
54. 54Exhibit 10, Tab 27.
55. 55While Aviva may have believed that Ms. Valle's refusal to attend the functional capacity evaluation on November 25, 2004 was also unreasonable, it did not argue that the suspension went beyond December 8, 2004.
56. 56Exhibit 4, Tab 4.
57. 57Exhibit 1, Tab 18.
58. 58Exhibit 6, Tab 1.
59. 59Exhibit 4, Tabs 23 and 26.
60. 60Exhibit 5, Tab 3.
61. 61Exhibit 6, Tabs 3, 4, 7 and 9, Exhibit 4, Tabs 45, Exhibit 5, Tab 33.
62. 62Exhibit 1, Tab 5.
63. 63This figure was suggested by Mr. Rogers using the $932.26 rate and I accept it.
64. 64Exhibit 5, Tabs 17 and 24. Aviva actually paid attendant care benefits beyond December 2, 2004 but, since it claimed no repayment of these benefits, it is not entitled to claim an equivalent credit either.
65. 65Exhibit 4, Tabs 3, 5, 6, 8, 13, 16, 28 and 36.
66. 66Exhibit 5, Tabs 15 and 21.
67. 67Exhibit 5, Tabs 26, 30 and 39.
68. 68Exhibit 7, Tab 3.
69. 69Exhibit 1, Tab 2.
70. 70Exhibit 1, Tab 18.
71. 71Exhibit 1, Tab 1.
72. 72Exhibit 1, Tab 18.
73. 73Exhibit 4, Tab 15 and Exhibit 8, Tab E1.
74. 74Exhibit 7, Tab 3.
75. 75Ibid.
76. 76Exhibit 4, Tabs 18, 38, 39 and 47(not including interest paid), Exhibit 5, Tab 17, 23 and 40.
77. 77Exhibit 5, Tabs 30 and 39.
78. 78Exhibit 4, Tab 34.
79. 79Exhibit 4, Tabs 22, 26 and 47 and Exhibit 5, 41 (not including interest paid).
80. 80Exhibit 4, Tabs 15 and 25.
81. 81Exhibit 6, Tab B1.
82. 82Exhibit 9, Tab 18.
83. 83Appeal (FSCO P99-00047, September 27, 2000)