Commission des services financiers de l'Ontario

Neutral Citation: 2005 ONFSCDRS 138

FSCO A03-001643

BETWEEN:

SYLVIA CROSSEY

Applicant

and

FARMERS' MUTUAL INSURANCE COMPANY

Insurer

Before:

Richard Feldman

Heard:

January 24, 25, 26 and 27 and March 29, 30 and 31, 2005, in Whitby, Ontario. Written submissions were received on July 7, July 12, July 26 and August 8, 2005.

Appearances:

David J. Gillespie for Mrs. Crossey

Darrell March for Farmers' Mutual Insurance Company

Issues:

The Applicant, Sylvia Crossey (formerly Ferguson), was injured in a motor vehicle accident on April 6, 1994. She applied for and received statutory accident benefits from Farmers' Mutual Insurance Company ("Farmers' "), payable under the Schedule.¹ Ultimately, disputes arose concerning Mrs. Crossey's claim for statutory accident benefits. The parties were unable to resolve their disputes through mediation and Mrs. Crossey applied for arbitration at the Financial Services Commission of Ontario (the "Commission") under the Insurance Act, R.S.O. 1990, c.I.8, as amended. Mrs. Crossey testified and called as witnesses: Arlene Garfinkle, Sue Wilkinson, Dr. Kevin Rod, Pam Beukeboom and Pat Sage. Farmers' called no witnesses.

The issues in this hearing are:

Is Mrs. Crossey entitled to receive a weekly income replacement benefit from December 7, 1994 onwards, pursuant to section 7 of the Schedule?
What is the amount of weekly income replacement benefit that Mrs. Crossey is entitled to receive pursuant to section 10 of the Schedule?
Is Mrs. Crossey entitled to supplementary medical expenses claimed pursuant to subsection 36(1) of the Schedule for the following:

(a) chiropractic treatment from January 1, 1999 to February 27, 2003 by Dr. S. Velji?

(b) massage therapy from January 1, 2002 to March 11, 2003 by Cheryl Wright?

Is Mrs. Crossey entitled to payment for housekeeping and home maintenance services in the amount of $2,600.00, pursuant to section 55 of the Schedule?
Is Mrs. Crossey liable to pay an amount to Farmers' that does not exceed the amount assessed against Farmers' in respect of the arbitration, pursuant to subsection 282(11.2) of the Insurance Act² because she commenced an arbitration that is frivolous, vexatious or an abuse of process?
Is Farmers' liable to pay a special award pursuant to subsection 282(10) of the Insurance Act because it unreasonably withheld or delayed payments to Mrs. Crossey?
Is Mrs. Crossey entitled to interest for the overdue payment of benefits pursuant to section 68 of the Schedule?
Is Farmers' liable to pay Mrs. Crossey's expenses in respect of the arbitration under subsection 282(11) of the Insurance Act?
Is Mrs. Crossey liable to pay Farmers' expenses in respect of the arbitration under subsection 282(11) of the Insurance Act?

Mrs. Crossey also originally asked the Commission to determine whether she was entitled to weekly loss of earning capacity benefits (or an offer of such benefits) pursuant to section 20 of the Schedule, but at the commencement of the hearing she chose to withdraw that issue from this arbitration.

Result:

Mrs. Crossey is entitled to receive a weekly income replacement benefit from November 21, 2000 onwards, pursuant to section 7 of the Schedule.
For the period up to and including March 31, 2005, Mrs. Crossey is entitled to receive income replacement benefits in the total amount of $44,274.00.
Mrs. Crossey is entitled to supplementary medical expenses claimed pursuant to subsection 36(1) of the Schedule for the following:

(a) $1,887.15 for chiropractic treatment from November 18, 1999 to February 27, 2003 by Dr. S. Velji; and

(b) $1,350.00 for massage therapy from May 16, 2002 to March 11, 2003 by Cheryl Wright.

Mrs. Crossey is not entitled to payment for any housekeeping and home maintenance services.
This application is not frivolous, vexatious or an abuse of process and Mrs. Crossey is not liable to pay an amount to Farmers' pursuant to section 282(11.2) of the Insurance Act.
Farmers' is liable to pay a special award pursuant to section 282(10) of the Insurance Act, fixed in the amount of $10,000.00, because it unreasonably withheld or delayed payments to Mrs. Crossey.
Mrs. Crossey is entitled to interest for the overdue payment of benefits pursuant to section 68 of the Schedule.
The decision on expenses is deferred at the request of the parties.

PROCEDURAL MATTERS:

Farmers' brought a motion, returnable at the commencement of this hearing (January 24, 2005), for production of the following documents: a copy of the transcript of the examination for discovery of the Applicant (from Mrs. Crossey's tort action against Ivan Gill, Court File No. 13317/2002 (Ont. S.C.J.)), Dr. Rod's complete file, a copy of the letter from Mr. Gillespie to Dr. Rod requesting the report of Dr. Rod, the Applicant's complete employment file at General Motors of Canada Ltd. ("G.M.") and the Applicant's complete file from Clarica Life Insurance (the collateral insurer). The Applicant consented to deliver to counsel for Farmers' Dr. Rod's complete file; it was expected that the file would include any correspondence from Mr. Gillespie. Since Dr. Rod referred in his report to the transcript of the examination for discovery of Mrs. Crossey and since he apparently reviewed and considered that transcript in preparing his report, I ordered that the Applicant provide Mr. March with a copy of the transcript.³ With respect to the records of G.M. and Clarica, Mr. Gillespie took the position that all documents that he had received from G.M. and Clarica had been forwarded to Mr. March and that, as far as Mr. Gillespie was aware, those documents were all that were available. Mr. March acknowledged receiving such documents but assumed that there must be more. I was not prepared to make an order against G.M. or Clarica on the basis only of Mr. March's assumption that other documents must exist. Also, Farmers' motion was not properly constituted so as to permit me to grant an order against either G.M. or Clarica – no notice of such a motion had been provided to either company.⁴ I indicated to Mr. March that he was still free to call witnesses from either company. Ultimately, Farmers' chose not to call any witnesses.

Subsequently, the Applicant was able to obtain some additional documentation from G.M. (pay stubs and a payroll history for Mrs. Crossey) and Farmers' did not object to the introduction of this new evidence on March 29, 2005. Also on that date, each of the parties indicated that they wished to submit new documentary evidence that had not previously been provided to the Commission and had not been disclosed until on or shortly before March 29, 2005; this included "supplementary" medical reports from Dr. Malcolm (proffered by counsel for the Applicant) and from Dr. Conn (proffered by counsel for Farmers'). On March 30, 2005, Farmers' requested that it be permitted to introduce into evidence surveillance video recordings that had been served by Farmers' upon the Applicant only a few days prior to the commencement of the hearing.⁵ I did not permit either the Applicant or the Respondent to file such evidence at that stage of the hearing. Neither party had complied with the Commission's disclosure rules⁶ and, when provided with an opportunity to make submissions on this point, neither offered any explanation for such failure. Since the videotape evidence was excluded, I also excluded the report of the investigator that allegedly describes the contents of the videotape.

EVIDENCE AND ANALYSIS:

Overview

Early in the morning of April 6, 1994, Sylvia Crossey (then Sylvia Ferguson) was a rear-seat passenger in a vehicle being driven by a co-worker, Ivan Gill. They were on their way to work at G.M. Mr. Gill sped up to pass another vehicle. In the process, he lost control of the vehicle and the car spun off the road and rolled over several times before coming to rest at the bottom of an embankment. Mrs. Crossey was not wearing her seat belt at the time of the accident. She was thrown through the rear window of the vehicle and was knocked unconscious. Her injuries included: a fractured right clavicle, a fractured right zygoma ("cheek bone"), a concussion and various soft-tissue injuries. She was also later diagnosed with post-traumatic stress disorder. She was kept in hospital for a week and then remained primarily at home for the next seven months.

From April through November 1994, Farmers' was quite supportive of Mrs. Crossey. They assigned a rehabilitation specialist, Voc-Care Rehabilitation Management Inc. ("Voc-Care"), to oversee her treatment and paid her all the benefits she requested. She received, amongst other things, income replacement benefits, physiotherapy, a home-exercise program, housekeeping benefits and therapy for post-traumatic stress disorder. With this assistance, and despite the severity of her injuries, Mrs. Crossey returned to full-time work at G.M. on November 8, 1994. Her previous job on the assembly line was no longer available so she was given new tasks that would meet the medical restrictions placed upon her by the G.M. plant physician. Farmers' followed Mrs. Crossey's progress until about December 1995 and then closed her file. Mrs. Crossey had not fully recovered, however. She experienced chronic pain in her back, neck, shoulders and head. Eventually, the pain got to the point where Mrs. Crossey and her doctors agreed that she could no longer do her job at G.M. She stopped working as of November 20, 2000 and has not worked since then.

Situations where honest attempts to return to work fail are common. What makes this case unusual, is the length of time between when Mrs. Crossey returned to work and when she stopped working because she felt that she was no longer able do her job. She worked full-time, with almost perfect attendance, from November 1994 until November 2000. Mrs. Crossey contacted Farmers' in late 1999 to enquire whether Farmers' would pay a medical benefit for chiropractic treatment (and, later, for massage therapy). Farmers' arranged for a medical assessment (an insurer's examination or "I.M.E.") to be conducted in December 1999. A further assessment was later done at a medical and rehabilitation Designated Assessment Centre (the "med-rehab DAC" ) in March 2001 to assess whether chiropractic treatment and massage therapy were reasonable and necessary. Based on the report of the initial assessment, Farmers' refused to pay for chiropractic treatment. Based upon the med-rehab DAC report, Farmers' maintained its position that it was not required to pay for chiropractic treatment or massage therapy. In November 2000, Mrs. Crossey advised Farmers' that she had stopped working as a result of her medical condition. In October 2001, she requested that the income replacement benefits be reinstated. On October 23, 2001, Farmers' advised Mrs. Crossey that it was denying her claim for income replacement benefits because (according to the testimony of the adjuster, Pam Beukeboom) Farmers' had come to the conclusion that the medical problems Mrs. Crossey was experiencing at the time she stopped working (in 2000) were not related to the 1994 accident.

Income Replacement Benefits

The "Test"

Part II of the Schedule provides that Mrs. Crossey is entitled to income replacement benefits if she can prove that she sustained an impairment as a result of the accident, that she was employed at the time of the accident and that, "as a result of and within two years of the accident, [she] suffers a substantial inability to perform the essential tasks of that employment." "Impairment", as defined in the Schedule, means a loss or abnormality of a psychological, physiological or anatomical structure or function. Farmers' paid income replacement benefits during Mrs. Crossey's initial period of convalescence (April through November 1994); the issue here is whether Farmers' ought to have continued paying such benefits at any time after her return to work in November 1994. To demonstrate such entitlement, Mrs. Crossey must prove that (at some point after her return to work at G.M.) she was substantially unable to perform the essential tasks of her pre-accident employment because of an impairment (or impairments) she sustained as a result of the 1994 accident.

Farmers' did not deny that it was at least theoretically possible for an applicant to be entitled to a reinstatement of income replacement benefits where there has been a failed attempt to return to work. In fact, it is clear that a reinstatement of income replacement benefits may be required in circumstances such as this, given the wording of s. 14(1) of the Schedule and given the Commission's interpretation of that section.⁷

Farmers' took the position, however, that Mrs. Crossey has failed to prove that any impairment she may have been suffering after 1995 (when Farmers' closed its file) was the result of that accident. Farmers' also submits that Mrs. Crossey has failed to prove that any impairment from which she may have been suffering after 1995 rendered her substantially unable to perform the essential tasks of the job she was doing immediately prior to the 1994 accident. This is the heart of the matter.

Did Mrs. Crossey sustain an impairment as a result of the accident?

There is no dispute that Mrs. Crossey sustained impairments as a result of the April 6, 1994 accident.

At the time of the accident, Mrs. Crossey was 42 years old. She had worked on the assembly line at G.M. for approximately 10 years and had an excellent attendance record. She had no significant medical history other than a history of irritable bowel syndrome which tended to flare up once a month or whenever she was under stress. Although painful and inconvenient, this condition did not affect Mrs. Crossey's job performance. She was off work for a short period in September 1993 for the flu and for three weeks in October/November 1993 as a result of a back strain.

Mrs. Crossey suffered a number of serious injuries from the accident including a concussion, fractured right clavicle, fractured right zygoma and soft-tissue injuries. X-rays also revealed degenerative changes in her cervical spine. She was diagnosed with post-traumatic stress disorder. She experienced chronic pain in her back, neck and right shoulder. She began to suffer from headaches brought on by pain in her neck. In November 1994, Mrs. Crossey was also experiencing pain and numbness in her arms at night. She was off work for about seven months, returning to full-time employment at G.M. on November 8, 1994. Even after her return to work, she continued to suffer from pain in her back, neck and head and loss of strength and range of motion in her arms. She required physiotherapy and other treatment for more than a year post-accident. Farmers' accepted Mrs. Crossey's claim and paid income replacement benefits, housekeeping expenses and supplementary medical benefits. Clearly, Mrs. Crossey sustained an impairment as a result of the accident.

Did the impairment continue through 1998?

In April 1995, Mrs. Crossey's family doctor, Dr. Price, completed a questionnaire for Marcia Hebert at Voc-Care in which he indicated that although Mrs. Crossey should improve over time, she would probably never return to her pre-accident status. In May 1995, Ren Jones, the physiotherapist who was treating Mrs. Crossey, noted that her main problems at that point were fatigue and neck pain. At the end of May 1995, Ren Jones confirmed however that Mrs. Crossey had made sufficient progress to be discharged from facility-based treatment and could continue on her own with a home programme. In a report dated July 4, 1995, Marcia Hebert reported to Farmers' independent adjuster (Francis, Labrash, Quibell & Associates) that Dr. Price had told Mrs. Crossey that she had arthritis in her neck relative to the motor vehicle accident injury. Around the same time (July 26, 1995), Mrs. Crossey was complaining to Dr. Price of ongoing pain in her neck. Ms. Hebert of Voc-Care recommended that she be allowed to visit with Dr. Price to review Mrs. Crossey's medical status and that the insurer authorize a functional capacity evaluation (F.C.E.) and an independent medical examination (I.M.E.). These recommendations were repeated a couple of times between August and December 1995. In December 1995, Voc-Care wrote a final report to Farmers' in which it confirmed that arthritis was settling in Mrs. Crossey's neck and that, despite Voc-Care's recommendation, approval was not given by Farmers' for: a follow-up with Mrs. Crossey, a follow-up with Dr. Price, an F.C.E. or an I.M.E. This report also confirmed that Voc-Care had been instructed by Farmers' to close its file. Because Mrs. Crossey had made significant progress in her recovery, had returned to full-time work and had made no further claims for benefits after 1995 (at least, that is, until 1999), Farmer's closed its file around the end of 1995.

Farmers' correctly points out that between 1996 and 1998, there is little medical documentation to support Mrs. Crossey's contention that she had ongoing problems during that period that were related to the injuries she suffered as a result of the accident. Because of this "gap", Farmers' has asked me to draw the inference that Mrs. Crossey had made a full recovery by the end of 1995 and to conclude that Mrs. Crossey has failed to prove that any medical problems she experienced from 1999 onwards were the result of the accident. In the absence of any credible evidence to the contrary, this might well be a reasonable inference to draw from the available medical records related to this time-frame.

The medical records that have been produced for the period of 1996 through 1998 appear to deal with complaints that are generally different from those made by Mrs. Crossey in the first year after her accident. The records reveal that she still complained to Dr. Price about pain in her neck and headaches, but he had her investigated by an allergist with respect to what appeared to be allergic rhinitis, chronic sinitus and possible sinus headaches. There was also a five-week period (December 1998 to January 1999) where Mrs. Crossey took time off from work when she had a flare-up of irritable bowel syndrome.

Despite the paucity of corroborating medical evidence during this time period, I accept Mrs. Crossey's evidence that her impairments from the accident continued from the date of the accident to the present. Mrs. Crossey was a credible witness. She told her story in a plain, straightforward manner and had, in general, an excellent recall of important events. She did not tend to exaggerate her symptoms or gloss over facts that might be prejudicial to her. She was not evasive on cross-examination. Mrs. Crossey appeared to be a pleasant, co-operative and honest woman who has a good understanding of her medical condition and the events that brought her to this arbitration. Several doctors, including those retained by Farmers', have commented favourably on the demeanour and credibility of Mrs. Crossey. Dr. Conn (the orthopaedic surgeon who helped prepare the I.M.E. report dated December 14, 1999) wrote that she was a "pleasant and cooperative quiet woman." Ian Cruikshank, the chiropractor who helped prepare the 2001 med-rehab DAC report, wrote that Mrs. Crossey was "very pleasant and co-operative" and that "she was extremely credible in her commentary and she did not appear to attempt any magnification of her symptomatology." Dr. Rod, who has been treating Mrs. Crossey for chronic pain since around October 2001, testified that he also found her to be very credible and found that her statements to him have been supported by the medical documentation which he has had an opportunity to review.

Mrs. Crossey testified that she has had pain (primarily in her neck, back and shoulders), fatigue, weakness in her right shoulder and headaches on an ongoing basis since the 1994 accident and that these conditions worsened over time. Her deterioration was more gradual from 1996 through 1998 and then accelerated in 1999. The G.M. physicians (Dr. R.A. Batten and Dr. G. Cook), who were familiar with the relevant medical history, periodically reviewed her condition and chose to keep the work restrictions in place throughout this period. In fact, these work restrictions were expanded during this period and were continued right up to the time when Mrs. Crossey stopped working in 2000.

There are also plausible explanations for the apparent gap" in the medical records during this period.

First, Mrs. Crossey is not a complainer. She coped as best she could on her own and did not constantly complain about her chronic problems. According to her testimony, she would typically come home from a shift at work and go immediately to bed for a couple of hours. If she was in a lot of pain she would take "over the counter" pain medication. She generally tried to avoid medication however because it often aggravated her bowel disorder. The lack of extensive clinical notes and records during this period, therefore, does not mean that she was free of the lingering effects of the accident.

Second, Mrs. Crossey testified that when she saw Dr. Price she often would mention that she was having neck pain and headaches. The clinical notes and records of Dr. Price confirm that Mrs. Crossey made such complaints during this period. Mrs. Crossey takes the position that the fact that Dr. Price and later Dr. Sinha (her family doctor as of February 1998) were exploring the possibility that the headaches might be related to sinitus does not mean that the headaches were not, in fact, a continuing symptom of the impairment sustained as a result of the accident.

Mrs. Crossey also suggested that the clinical notes of Dr. Price may not be as complete or accurate as one might expect during this period because, at that time, Dr. Price's wife was very ill and he may have been somewhat distracted. Also, because Dr. Price was away from his practice to deal with his wife's illness, some of the notes may have been made by other doctors who worked with Dr. Price but who were less familiar with Mrs. Crossey's medical history.

In any event, I accept the testimony of Mrs. Crossey and I find that during the period 1996 through 1998 she continued to suffer from pain (primarily in her neck), fatigue, weakness in her right shoulder and headaches. She had learned to cope with these problems and generally did not seek any further medical treatment for these problems during this period. Based upon the testimony of Mrs. Crossey and my assessment of her credibility, and based upon the documentary evidence that is available, I am satisfied that she has proven, on a balance of probabilities, that the impairments she suffered as a result of the 1994 accident continued through 1998.

Impairment from 1999 onwards

The pace of the decline in Mrs. Crossey's health accelerated in 1999. In March 1999, she strained her right arm (which was never fully functional after the accident) while attempting to untangle electrical wires she was required to install into car doors. She was put on light duties for a couple of days and then G.M. assigned someone to untangle the wires for Mrs. Crossey. In September 1999, Dr. Sinha noted complaints of headaches. By late 1999, the neck pain, shoulder pain and headaches were frequent and growing more severe. By this point, the headaches were migraine-like. Mrs. Crossey was having difficulty sleeping, she experienced numbness in both arms and her right shoulder tired easily. On her own initiative, Mrs. Crossey began receiving chiropractic treatment with Dr. Velji in November 1999. X-rays taken in late 1999 revealed moderate to moderately severe degenerative disc changes in her cervical spine with osteoarthritis. In his closing argument, Mr. March submitted that in the period 1998 through 2000, Mrs. Crossey saw Dr. Sinha on numerous occasions but did not complain of neck, back or shoulder pain during that period. A careful review of Dr. Sinha's notes, however, reveals (amongst other complaints) numerous references to complaints by Mrs. Crossey of chronic pain including: pain in her right arm, pain in her neck, pain in her back and severe headaches.

It was around this time (late 1999) that Mrs. Crossey contacted Farmers' to request that Farmers' pay for chiropractic treatment and massage therapy. Farmers' had Mrs. Crossey attend a multi-disciplinary insurer's examination in December 1999 to assess the reasonableness of the proposed treatment.

Some time thereafter, Pam Beukeboom of Farmers' completed a form entitled "Explanation of Assessment by Insurance Company", indicating that Farmers' would not pay for any chiropractic treatment or massage therapy as the "Insurer's Exam . . . indicates that this treatment is not reasonable and necessary." Mrs. Crossey continued to obtain, at her own expense, the chiropractic treatment and massage therapy she felt she needed to cope with the increasing levels of pain she was experiencing. Dr. Sinha also referred Mrs. Crossey to the Rothbart Pain Management Clinic where she began to be treated by Dr. Rod. The treatment she received during this period assisted Mrs. Crossey in continuing to work on a full-time basis.

In the summer of 2000, Mrs. Crossey's son was involved in a serious car accident and she took a couple of months off work to help care for him. The stress of her son's accident (and possibly some other personal problems) probably contributed to another flare-up of her irritable bowel syndrome at that time. Upon her return to work in September 2000, Mrs. Crossey discovered that they had changed the nature of her job so that it now involved more bending and twisting movements. She tried to cope but found that her condition was rapidly deteriorating. She met with Dr. Sinha and the G.M. doctor, Dr. Cook, and it was decided that, at least in the short-term, Mrs. Crossey could not continue working on the line at G.M. Effective November 20, 2000, she was placed on short-term disability.

Further investigations were conducted. An x-ray taken in November 2000 revealed that Mrs. Crossey had moderate to advanced degenerative disc disease at the C4-7 area of her spine, mild to moderate osteoarthritis throughout the cervical spine and mild degenerative disc disease at the mid- to lower-thoracic areas. She was in such pain that she took various pain medications even though she knew they would likely complicate her bowel problems; predictably, her gastro-intestinal complaints increased shortly thereafter. On examining the x-ray results, Dr. Cook wrote in December 1999 that "I don't see this lady being able to do a job on the line at this time." He deemed her unfit to return to work until the end of February 2001. He then extended this until April 2001.

Causation

Doctors Sinha (the family doctor), Cook (the G.M. doctor), Rod (the doctor treating Mrs. Crossey at the pain clinic) and Fang (an orthopaedic surgeon who examined Mrs. Crossey on a couple of occasions in 2001) all relate Mrs. Crossey's impairment to the 1994 accident. Dr. Sinha and Dr. Cook, both of whom had been following Mrs. Crossey's progress for years, concluded that the accident was the cause of the pathology in her cervical spine. Dr. Fang concluded that her spinal disability was the result of a combination of: the 1994 accident; G.M. adding a torque gun to her job in April 2000; the stress of her son's accident in the summer of 2000; and, changes to her job requirements that came into effect in September 2000. Dr. Rod testified that he was able to make a clear diagnosis that Mrs. Crossey was suffering from chronic pain and related problems; this included pain in her neck, right shoulder and upper and lower back, cervicogenic headaches (i.e. migraine-like headaches caused by neck pain), sleep problems and fatigue. Based upon information he gathered from Mrs. Crossey and from his review of the available medical documents, Dr. Rod testified that these problems were chronic since the 1994 accident, that there is no evidence that Mrs. Crossey suffered any of these symptoms prior to the accident and that the accident likely precipitated the development of these symptoms. Dr. Midha, neurosurgeon, confirmed that Mrs. Crossey had suffered from chronic neck pain since the 1994 accident. Even Dr. Conn, the orthopaedic surgeon involved in the I.M.E., stated that if Mrs. Crossey has had ongoing symptoms since the time of the accident, he would concur that the accident would "at least have been the precipitating reason for the development of neck symptoms."

Numerous cases have held that for the impairment to be the result of" the accident it need not be proven that the accident was the sole or even the main cause of the impairment. It is sufficient for the applicant to establish that the accident significantly or materially contributed to the impairment.⁸

With respect to the issue of causation, Farmers' relies upon the fact that the onus rests upon Mrs. Crossey to prove her case. Farmers' also relies upon the conclusions of the I.M.E. (by Dr. Conn, Dr. Mayer and John Cook) and the med-rehab DAC (by Dr. Cruikshank and Ms. Oldfield).

In the I.M.E. report, Dr. Conn indicated that the degenerative changes to Mrs. Crossey's cervical spine might be related to age but could also have been precipitated by the 1994 accident. Dr. Mayer commented that cervical disk disease is not unusual in a person of Mrs. Crossey's age but he did not give an opinion as to whether the 1994 accident materially contributed to the degeneration of her condition or to the other problems (such as chronic pain) that Mrs. Crossey was experiencing at the time. Mr. Cook gave no opinion with respect to the causation issue. With respect to the opinion of Dr. Cruikshank (chiropractor) and Ms. Oldfield (physiotherapist) on this issue, I find that their opinion is not determinative of the legal issue I must resolve as the test they have apparently applied is different than the one required by the Schedule (as interpreted by this Commission and the courts). At page 8 of the DAC report, Dr. Cruikshank writes as follows:

There appears to be a number of different events that have occurred over the past 10 to 12 months which have significantly contributed to her present symptomatology. A job change in March of 2000 in which the use of a torque gun was implemented seems to have initiated the downward spiral in her condition. The added stress of her son's accident and his subsequent surgery in July 2000 (which forced her to miss five to six weeks of work), combined with a further modification of her job in September, worsened her condition.

It would appear the main issue here pertains to whether her present symptoms relate directly to her motor vehicle accident of April 6, 1994. While certainly the type of physical trauma to the spine and supporting structures she sustained in the motor vehicle accident could make her more susceptible to the development of other conditions and symptoms . . . it is difficult to directly relate the current problems with the motor vehicle accident, given the length of time since the accident, and numerous complicating factors and events which appear to have initiated and exacerbated her condition as outlined above. (emphasis added)

At page 12 of the same report, Jane Oldfield writes:

It is difficult to relate Ms. Ferguson's present complaints directly to her motor vehicle accident of April 6, 1994. She has been open and honest regarding her work and clearly states that she began using a torque gun in March of 2000 which started to increase her neck and shoulder and mid back discomfort." (emphasis added)

The repeated use of the word "directly" in the DAC report is of some concern because, under Bill 164, insured persons could be entitled to benefits if their impairments were caused either directly or indirectly by the use or operation of a motor vehicle. It also appears that neither Dr. Cruikshank nor Ms. Oldfield turned their mind to the issue of whether the accident materially contributed to the degeneration of Mrs. Crossey's condition. Since, by Mrs. Crossey's own admission, there were a number of factors that contributed in or around early 2000 to the more rapid deterioration of her condition, Dr. Cruikshank and Ms. Oldfield focussed on those other factors and concluded that her medical problems at the time of the examination were not the direct result of the accident. Section 36 of the Schedule states that the impairment must be "as a result of the accident"; it does not state that the impairment must be as a direct result of the accident. By only determining whether the 1994 accident was the direct and/or primary cause of the symptoms in 2000, Dr. Cruikshank and Ms. Oldfield took too narrow a view of causation. For these reasons, I do not accept the ultimate conclusion of their report.

Clearly, the onus is upon Mrs. Crossey to establish causation. This onus can be difficult to meet where there are a number of factors likely contributing to an applicant's medical problems or where there is a substantial delay between the accident and the appearance of symptoms.⁹ In this case, there may be a number of factors that contribute to Mrs. Crossey's current complaints but there was not a substantial delay between the accident and the appearance of symptoms. The unusual delay in this case is between the time that Mrs. Crossey recovered sufficiently to return to work and the time when the gradual deterioration of her condition forced her to stop working.

Mr. March argued on behalf of Farmers' that Mrs. Crossey may well have developed these problems even if she had not had the accident in 1994, especially given the evidence that she had some degenerative disc changes around the time of the accident and given the history of osteoarthritis in her family. Mr. March further submitted that Mrs. Crossey failed to establish a clear link between the accident and the progression of her degenerative disc disease. He suggests that her problems are related to age rather than to trauma.

While I accept that it is possible that Mrs. Crossey may have developed many of her current symptoms even had she not been involved in the 1994 accident, based upon the evidence presented, I am satisfied that it is probable that the accident did materially contribute to the development of these symptoms. The preponderance of the medical evidence in this case (and the evidence by the doctors who know Mrs. Crossey best and are in the best position to assess her condition) clearly establishes that the accident contributed materially to the impairments from which Mrs. Crossey has suffered from the time of the accident to the present.

Did Mrs. Crossey suffer a substantial inability to perform the essential tasks of her pre-accident employment during her return to work (November 1994 through November 2000)?

Immediately prior to the accident, Mrs. Crossey was working on the assembly line at G.M. installing dust rubbers. This involved installing 30-inch strips of rubber at the bottom of the front and rear passenger-side doors (at approximately hip height) and tossing a hush pad into the vehicle. This process would be repeated approximately 500 times per day (i.e. 500 vehicles per day). The job required standing all day long and involved repetitive walking, bending, twisting, reaching, stretching and very light lifting. It was considered a light or very light job. She previously had other jobs on the line that were similar in difficulty but also involved the use of rivet guns, torque guns and pushguns.

Having reviewed the relevant medical documentation and having consulted with Mrs. Crossey, Dr. Martin (an orthopaedic surgeon who examined Mrs. Crossey for G.M.'s disability insurer) and Dr. Batten (the G.M. plant physician) approved Mrs. Crossey's to return to work, provided that the job to which she was assigned conformed to the following restrictions: no use of right shoulder above horizontal and no work involving heavy or repetitive loads. As is apparently typical at G.M., while Mrs. Crossey was away from work recovering from her injuries, another employee with more seniority took her job installing dust rubbers. She had been "bumped". G.M. then created a "make-work" job for her; it was an off-line job checking seats and she shared this job with another person. According to Mrs. Crossey, her first day back at work was a "disaster." She was suffering from pain in her back, neck and head. She had to stop half-way through the day and go home. She was, however, soon able to tolerate a full workday.

After about five months on that job, Mrs. Crossey was transferred to a job on the assembly line, installing speakers and ditch moulding. From April 1995 until November 2000, Mrs. Crossey worked at a number of "line" jobs at G.M., as she kept being bumped by other employees with more seniority. G.M. was happy with her work and she was able to work a full shift and perform all tasks required of her. It is important to note, however, that the work restrictions remained in effect (with some minor modifications) right up to November 2000. In January 1999, there was a model change at the plant (i.e. a change in the model of vehicle being produced on the assembly line) and Mrs. Crossey was asked to use a torque gun. Mrs. Crossey was unable to use the torque gun and the G.M. physician added to her list of work restrictions: "no heavy torque guns." She was moved to another job that met her work restrictions.

Except for the job Mrs. Crossey had for the first four months after her return to work, all of the jobs she performed at G.M. after the accident were regular assembly line jobs. They satisfied the medical restrictions placed upon Mrs. Crossey but they were not modified in any way for her. They did not involve heavy or repetitive lifting, working above shoulder height or the use of heavy torque guns. They did involve standing all day long and repetitive walking, bending, twisting, reaching, stretching and some light lifting. Mrs. Crossey was able to perform the essential tasks of these various jobs from 1995 through 2000. I find that the essential tasks of these jobs are consistent with the essential tasks of the job Mrs. Crossey was doing immediately before the accident in 1994. I therefore find that she has failed to prove that she suffered a substantial inability to perform the essential tasks of her employment from April 1995 until November 2000.

As of November 20, 2000, did Mrs. Crossey suffer a substantial inability to perform the essential tasks of her pre-accident employment?

Virtually all of the medical professionals who have turned their mind to this question have concluded that, as of November 20, 2000, Mrs. Crossey suffered a substantial inability to perform any assembly line job at G.M. This was the opinion of Dr. Sinha (her family doctor), Dr. Fang (orthopaedic surgeon), Dr. Cook (the G.M. physician) and Dr. Rod (the doctor treating her for chronic pain). The only opinion to the contrary is that of Dr. Brown, the orthopaedic surgeon hired by Clarica (G.M.'s disability insurer) to examine Mrs. Crossey and he limits his opinion to an assessment of her abilities from an orthopaedic standpoint. He does not purport to deal with issues of chronic pain and other complaints. Also, an important part of his December 15, 2000 report (the conclusion at page 2) is illegible. Dr. Brown was not called as a witness. I can therefore place little weight on his report and I prefer the opinion of the doctors who saw and treated Mrs. Crossey on an ongoing basis.

If Mrs. Crossey is unable to perform the essential tasks of any line job at G.M., that would obviously mean that she is unable to perform the tasks of the specific line job she was performing immediately prior to the 1994 accident. I am therefore satisfied that Mrs. Crossey has proven, on a balance of probabilities, that as of November 20, 2000, she suffered a substantial inability to perform the essential tasks of her pre-accident employment. As discussed earlier, I am also satisfied that she has proven, on a balance of probabilities, that this substantial inability to perform the essential tasks of her pre-accident employment is because of impairments she sustained as a result of the 1994 accident.

Date(s) of Entitlement to Income Replacement Benefits

There is no dispute that Mrs. Crossey was entitled to income replacement benefits immediately after the April 6, 1994 accident. Mrs. Crossey, however, did demonstrate that she was substantially able to perform the essential tasks of her pre-accident employment by April 1995. Although she had returned to work in November 1994, the tasks she was required to perform did not resemble those of her pre-accident employment until she was put back onto a "line" job around April 1995. The Applicant did not provide a more precise date for this change in assigned duties.

The impairments Mrs. Crossey sustained as a result of the accident never completely resolved. From April 1995 until November 2000, however, these impairments did not render her substantially unable to perform the essential tasks of her pre-accident employment. Mrs. Crossey has proven, on a balance of probabilities, that her condition worsened over time so that from November 20, 2000 onwards, she was unable to continue her employment. Her entitlement to income replacement benefits would therefore recommence as of November 21, 2000, subject, of course, to deductions for any income or collateral income replacement benefits she received after November 20, 2000.

Amount of the Weekly Income Replacement Benefit

(a) Gross Annual Income – wages

In their submissions to me at the conclusion of the hearing, counsel for the Applicant and the Respondent both based their calculations of Mrs. Crossey's gross income upon the G.M. pay stubs for the four-week period immediately preceding the accident. Although there is some evidence that Mrs. Crossey originally elected to base her claim on her income during the three-year period prior to the accident, it appears that she changed this election at some point to the four weeks preceding the accident, which yields a more favourable result for her. At no time did the Insurer object to calculating her income in this manner. I therefore accept Mrs. Crossey's election to calculate her income on the four weeks prior to the accident.

Mr. March submitted that the relevant pay stubs¹⁰ revealed a gross income of $3,549.86 for the four weeks prior to the accident. He did not explain how he arrived at that figure. The pay stubs do not support this figure. Mr. Gillespie submitted that the correct figure for Mrs. Crossey's gross income for the four weeks prior to the accident is $3,676.51. He also failed to show how this figure was arrived at. Since, however, the amount being claimed by Mrs. Crossey is actually less than the gross income I have calculated based on the relevant four-week period, I shall accept the figure of $3,676.51 as the starting point for calculating Mrs. Crossey's gross annual income. Multiplying that figure by 13, I find that Mrs. Crossey's gross annual income at the time of the accident was $47,794.63.

(b) Gross Annual Income – the value of other benefits

On behalf of Mrs. Crossey, Mr. Gillespie also argued that the figure of $47,794.63 does not represent the Applicant's total gross annual income. It is the Applicant's position that "gross income from employment", as that term is used in the Schedule, includes not only the Applicant's wages but also the value of employer-paid benefits to which the Applicant was entitled at the time of her accident. The accountants retained by Mrs. Crossey indicate in their report that the value of these benefits is 11.41% of gross income.¹¹ If the Applicant's argument were accepted, it would increase Mrs. Crossey's gross annual income from $47,794.63 to $53,248.00. Farmers' argued against the inclusion of the value of such benefits without providing any legal or factual basis for its position. Similarly, counsel for Mrs. Crossey provided no cases in support of her argument for the inclusion of such benefits in the calculation of her gross income from employment. The accountant's report¹², however, does refer to two FSCO decisions upon which the accountants apparently relied: Pafco Insurance Company and Howden¹³ and Lacroix and Jevco Insurance Company.¹⁴ While I accept that these cases both stand for the proposition that the value of employer-paid benefits can form part of gross income from employment, the cases also make it clear that the onus is upon the applicant to adduce evidence as to the exact nature and value of the employer-paid benefits in question. Virtually no such evidence was adduced in this case. The only evidence presented on this issue was the testimony of Mrs. Crossey that her benefits included medical and pension benefits and the assertion of Arlene Garfinkle (the accountant who testified on behalf of Mrs. Crossey) that Mrs. Crossey's wages ought to be increased by 11.41%.¹⁵ According to the report¹⁶ from Ms. Garfinkle's firm, this percentage was obtained from correspondence from G.M. dated June 8, 2001. That correspondence itself was not produced or put into evidence and Ms. Garfinkle did not testify about the contents of that letter.

The information allegedly contained in this letter (and upon which the Applicant's accountants apparently rely) may or may not have applied to Mrs. Crossey and it may or may not be accurate.¹⁷ No witnesses were called from G.M. to testify as to the nature or value of the employer-paid benefits allegedly provided to Mrs. Crossey.

Mrs. Crossey has failed to adduce sufficient credible evidence as to the exact nature and value of the benefits which she seeks to include in the calculation of her gross income. Given the other serious flaws contained in the accountant's report¹⁸, I am not inclined to simply accept the figures and conclusions contained therein without understanding the basis for those figures and conclusions. Although Mr. Gillespie is correct that, in law, an applicant may be entitled to include the value of employer-paid benefits in the calculation of gross income, in this case the Applicant has failed to meet the onus upon her to adduce sufficient evidence to permit me to find that she is entitled to include any specific benefit in the calculation of her gross income or to permit me to calculate the value of any such benefit. I must therefore base the calculation of Mrs. Crossey's gross annual income at the time of her accident solely upon her wages, which results in a total gross annual income of $47,794.63.

The amount of the weekly income replacement benefit is then calculated¹⁹ as 90% of the person's net weekly income²⁰, less a percentage of any net post-accident income²¹ or collateral benefits²² (such as net payments for loss of income that have been received by the insured person as a result of the accident under any income continuation plan).

(c) Collateral benefits

With respect to the issue of collateral benefits, it is perhaps appropriate at this point that I outline the benefits received by Mrs. Crossey after November 20, 2000. The best evidence available to me indicates that Mrs. Crossey received a gross monthly collateral benefit under an income continuation plan²³ of approximately $2,515.00 from November 24, 2000 until November 2002. Pursuant to subsection 75(8) of the Schedule, the parties will need to determine the net amount of this benefit (i.e. net of federal and provincial taxes) and the Insurer will be entitled to deduct from the income replacement benefits that would otherwise have been payable to Mrs. Crossey, the net payments Mrs. Crossey received from Clarica (or its predecessor) for loss of income under the said income continuation plan.

In November 2002, the gross monthly amount of this collateral benefit was reduced by the amount of the monthly disability pension benefit²⁴ that Mrs. Crossey began to receive as of November 2002. In a letter²⁵ dated July 3, 2002, Clarica advised Mrs. Crossey that since she was eligible to receive a disability pension benefit, her extended disability benefits would be reduced, effective November 1, 2002, by the presumed amount of the Disability Pension Benefits whether or not she actually elected to receive said pension benefits. She really had no choice but to apply for the pension benefits since the monthly extended disability benefits (the collateral benefits) would be reduced regardless of whether or not she was actually receiving pension benefits.

Farmers' points out that, under paragraph 2 of subsection 75(1) of the Schedule, an insurer is entitled to deduct not only income replacement benefits actually received by an insured but also net payments for loss of income that were available to an insured under an income continuation plan. Farmers' suggests that Mrs. Crossey did not have to elect to receive disability pension benefits in November 2002 (which benefits Farmers' cannot deduct from the income replacement benefits it must pay to Mrs. Crossey pursuant to the Schedule) and that she could have opted to continue receiving extended disability benefits only (which net benefits are deductible by Farmers'). Given the fact that the gross monthly collateral benefits were going to be reduced effective November 1, 2002 whether or not Mrs. Crossey actually received the disability pension benefits, I find that Farmers' submission on this point has no merit. Farmers' also adduced no evidence upon which I can conclude that the disability pension benefits are themselves deductible from income replacement benefits.

(d) Indexation

The final issue in the calculation of the income replacement benefits payable to Mrs. Crossey is that of indexation. The relevant portions of section 79 of the Schedule read as follows:

(1) Each of the following amounts shall be revised, effective the 1st day of January in every year after 1994, by adjusting the amount by the indexation percentage published under section 268.1 of the Insurance Act:

(a) The net weekly income from employment used to determine the amount of a person's weekly income replacement benefit under Part II.

(2) Subsection (1) does not apply to the amount referred to in paragraph 1 of subsection (1) if the person has been receiving the weekly income replacement benefits for less than one year after the onset of the disability in respect of which the benefits are payable.

Mr. Gillespie argued on behalf of Mrs. Crossey that, as a result of section 79, her net weekly income ought to be indexed every year, commencing January 1996.²⁶ Mr. March argued that the Applicant's income cannot be indexed unless income replacement benefits are actually payable by Farmers' during the period in question. On this point, I agree with the position taken by Farmers'.

Subsection 79(2) states that subsection 79(1) does not apply until the person has been receiving weekly income replacement benefits for one year or more after the onset of the disability. The initial onset of the disability in this case was at the time of the accident. Mrs. Crossey only received (or was entitled to receive) income replacement benefits from April 6, 1994 until around November 1994 (about seven months).²⁷ Since Mrs. Crossey was eligible to receive substantial collateral benefits, even after she stopped working in 2000, she did not again become eligible to receive income replacement benefits until November 2001. Subsection 79(2) indicates that indexation of the insured's income does not begin "if the person has been receiving the weekly income replacement benefits for less than one year after the onset of the disability."

In this case, indexation of Mrs. Crossey's net weekly income will commence on the first January after she has received income replacement benefits²⁸ for a total of at least one year. For the sake of clarity, the indexation at that point will be determined by the published percentage applicable for that year only. There will be no indexation for the intervening years during which Mrs. Crossey was not entitled to receive income replacement benefits because, according to subsection 79(2), s. 79(1) does not apply if the person has received weekly income replacement benefits for less than one year.²⁹ While I recognize that this analysis may result in some "erosion" (as a result of inflation during the intervening period) of the benefit which Mrs. Crossey might otherwise have received, I doubt that the drafters of section 79 of Bill 164 anticipated the type of situation presented in this case³⁰ and a plain reading of that section does not permit for any other reasonable interpretation. On this interpretation, indexation of the income replacement benefit does not begin, therefore, until January 1, 2003 (since it is not until some time in 2002 that Mrs. Crossey would have received or would have been entitled to receive income replacement benefits for an aggregate period of at least one year).

(e) Conclusion

By letter dated June 10, 2005, I advised the parties of my findings and requested that they file written submissions with respect to the calculation of the actual income replacement benefits to which Mrs. Crossey is entitled for the period from November 21, 2000 up to March 31, 2005 (the last day of the hearing of this arbitration). After reviewing the submissions I received from the parties, I then requested further submissions by letter dated July 12, 2005. I received those submissions by August 8, 2005. Although I requested that the parties attempt to tender a joint submission, they were unwilling or unable to do so.

Based upon my findings (as set out in my letters of June 10, 2005 and July 12, 2005), the Applicant has calculated that the total of the income replacement benefits owed to Mrs. Crossey from November 21, 2000 to March 31, 2005 (the last day of the hearing) total $44,187.00 and that the weekly income replacement benefit as of March 31, 2005 was $338.81. The Insurer has calculated that the total of the income replacement benefits owed to Mrs. Crossey (based upon the findings outlined in my letters of June 10, 2005 and July 12, 2005) for the same period total $44,274.00 (rounded to the nearest dollar) and that the weekly income replacement benefit as of March 31, 2005 was $339.19.

There is very little difference between these figures.³¹ Having considered the submissions of the parties, I accept the Insurer's calculations.³² I therefore find that Farmers' owes to Mrs. Crossey $44,274.00 for weekly income replacement benefits for the period up to March 31, 2005.

Although the parties did not agree on the exact amount of interest owing on this amount, their figures were, once again, very close. According to the written submissions of the parties, pursuant to section 68 of the Schedule, the interest owing on this amount would be (approximately) as follows: $17,000.00 as of March 31, 2005; $23,400.00 as of August 31, 2005; and $24,700.00 as of September 30, 2005. A rough idea of the interest owing is required for the purposes of dealing with the claim for a special award.³³

As of March 31, 2005, the weekly amount of the income replacement benefit to which Mrs. Crossey continued to be entitled was $339.19.

Treatment

Pursuant to section 36 of the Schedule, an insured person who sustains an impairment as a result of an accident is entitled to have the insurer pay for all reasonable expenses incurred with respect to chiropractic, physiotherapy and other treatment that the insured person requires.

Due primarily to her chronic neck pain, Mrs. Crossey sought assistance from a chiropractor, Dr. Simina Velji, commencing November 18, 1999. She received approximately 93 treatments between November 18, 1999 and February 20, 2003. These treatments assisted Mrs. Crossey by giving her some relief from the pain. The total cost to Mrs. Crossey of these treatments was $1,887.15.

As a result of a typographical error, although the invoice of Dr. Velji dated February 27, 2003 was attached to the application for mediation (showing the correct figure of $1,887.15), the Application form itself only claimed $1,487.15. This error was repeated in the report of the mediator dated October 1, 2003; that report was then attached to the Application for Arbitration. Counsel for Mrs. Crossey requested at the commencement of the hearing that I permit the Applicant to amend the application for arbitration to reflect the actual amount paid by her to Dr. Velji (as reflected by the invoice of Dr. Velji). Counsel for Farmers' objected to the amendment. I reserved my decision on this issue. Having now had an opportunity to consider the matter at greater length, I have decided to permit the requested amendment. This is not a case of an applicant attempting to add a new issue or even extend the period being claimed. The Applicant is merely seeking to correct a clerical error so that the amount claimed reflects the amount actually paid to Dr. Velji, as reflected in Dr. Velji's invoice, which has been in the possession of Farmers' since at least March 2003.

Mrs. Crossey also started in or about November 1999 a program of regular massage therapy which she found gave her some relief from the pain. She is claiming in this application the cost of such treatment from May 16, 2002 to March 11, 2003. The total cost to Mrs. Crossey of these treatments was $1,350.00.

In or about late 1999, Mrs. Crossey contacted Farmers' to ascertain whether Farmers' would cover the cost of the chiropractic treatment. Farmers' arranged for the I.M.E. The report³⁴ from this examination (dated December 14, 1999) was equivocal.

Dr. Conn, an orthopaedic surgeon, indicated in the I.M.E. report that he had no objections to Mrs. Crossey continuing with chiropractic treatments since they appeared to be helping her. He later clarified this statement to indicate that passive therapy would not likely be of any material benefit for rehabilitation of accident related injuries. He noted, however, that Mrs. Crossey reported symptomatic relief from her chiropractic treatments and that there was no orthopaedic reason for such treatment not to continue. He wrote, "such treatment would be considered to be for patient comfort and maintenance rather than for rehabilitation of accident related injuries." Mr. Cook, a physiotherapist, indicated that the chiropractic treatment had just begun and its effects were not yet known. He concluded as follows, "Apart from her chiropractic treatments I would not recommend any additional rehabilitation intervention at this time." While this may be open to interpretation, it is certainly not a clear finding that chiropractic treatment was unreasonable. Dr. Mayer, a neurosurgeon, stated that no further formal therapy is reasonable or necessary."

Farmers' then requested from Mrs. Crossey the clinical notes and records of her family doctor(s) from 1994 onwards and a medical certificate verifying that chiropractic treatment was reasonable and necessary. Around December 2000, Farmers' sent to Mrs. Crossey an Explanation of Assessment by Insurance Company form³⁵ in which it denied the claim for massage and chiro" on the basis that the I.M.E. indicated that "this treatment is not reasonable and necessary."

On November 28, 2000, Mrs. Crossey advised Farmers' that she was no longer able to work. Farmers' then arranged for a med-rehab DAC" for early 2001, ostensibly to assess the reasonableness of massage therapy and chiropractic treatment. Mrs. Crossey was examined by a chiropractor, Ian Cruikshank, and a physiotherapist, Jane Oldfield. The question posed to the DAC by Farmers' was, Does Ms. Ferguson require any treatment for injuries resulting from the motor vehicle accident of April 6, 1994?" The conclusion of Dr. Cruikshank and Ms. Oldfield is contained in their Summary Report³⁶ (form OCF-11B) dated March 23, 2001, which reads as follows: Massage and chiropractic treatment are beneficial in a supportive role however uncertainties regarding the causal relationship between the accident and her present symptoms indicates that she should continue to bear the cost of such treatment." I have previously in this order explained why I reject this conclusion and find that the impairments suffered by Mrs. Crossey were, in fact, sustained as a result of the 1994 accident.

Dr. Cruikshank, Ms. Oldfield, Dr. Conn and Mr. Cook did not state that chiropractic treatment and massage therapy were unreasonable or unnecessary, at least from the point of view of pain management. Pain reduction or management has been found in numerous cases to be a valid reason for undertaking therapy.³⁷ Dr. Conn had no objection to Mrs. Crossey continuing to receive such treatment as it appeared to be helping her (from a comfort and maintenance standpoint). Mr. Cook had no objection to chiropractic treatment. Dr. Cruikshank and Ms. Oldfield found that chiropractic treatment and massage therapy were beneficial to Mrs. Crossey (in a supportive role). Dr. Rod testified that he found such treatment to be reasonable and necessary as part of a larger pain-management program. Dr. Mayer's opinion that formal therapy was not required was, presumably, strictly from a neurological standpoint; he did not testify.

I therefore find that Mrs. Crossey has proven, on a balance of probabilities, that the chiropractic treatment and massage therapy in question were reasonable and necessary to treat impairments Mrs. Crossey sustained as a result of the April 6, 1994 accident.

Farmers' shall therefore pay to Sylvia Crossey supplementary medical expenses as follows:

(a) $1,887.15 for chiropractic treatment provided by Dr. S. Velji from November 18, 1999 to February 27, 2003; and

(b) $1,350.00 for massage therapy provided by Cheryl Wright from May 16, 2002 to March 11, 2003.

Housekeeping

Mrs. Crossey initially submitted a claim to Farmers' for housekeeping expenses of $50.00 per week that she paid to her daughter to assist her with some of the heavier chores around the house. With respect to housekeeping and home maintenance benefits, Farmers' paid all amounts claimed during the first year or so after the accident.

Mrs. Crossey made no further claim for housekeeping expenses until she served Farmers' with her application for mediation on or about March 24, 2003. Farmers' consented to the addition of this issue to the mediation (and, subsequently, to the arbitration) but took the position that since this claim was never denied by Farmers' prior to mediation, there was no jurisdiction to mediate the issue and, therefore, no jurisdiction to have the issue arbitrated.

The claim for this type of benefit was not made for the first time at mediation. It was made shortly after the accident. What Mrs. Crossey was seeking in the Application for Mediation was additional housekeeping benefits beyond those that had already been paid. The Application for Mediation can be seen as Mrs. Crossey's claim with respect to these additional amounts (for a period of time subsequent to that covered by the initial request for housekeeping benefits). Farmers' chose not to pay these additional amounts. This can be viewed as a denial of the claim. Clearly there is a dispute here between Mrs. Crossey and Farmers' concerning her entitlement to housekeeping benefits and that dispute was not resolved at mediation. I find that I have jurisdiction to deal with this matter.

Although, as previously indicated, I find Mrs. Crossey to be a credible person, I find that she has failed to meet her onus of proving entitlement to this benefit. She testified that she paid her daughter $50.00 per week for each week that her daughter assisted her with housekeeping and that her daughter provided her with a receipt for each payment. Mrs. Crossey failed to specify the dates and hours upon which the services were provided by her daughter, failed to specify the exact services that were performed, failed to produce the receipts or other proof of payment and failed to call her daughter as a witness. Furthermore, as early as September 1994, Mrs. Crossey's family doctor (Dr. Price) indicated that he did not feel the assistance of a homemaker was required. Given the lack of details, lack of evidence of the nature and duration of the services provided, lack of corroboration of the expenses incurred and lack of medical evidence to support the contention that such services were reasonable and necessary, I find that Mrs. Crossey has failed to meet her onus of proof. This part of the application is dismissed.

Penalty Against Mrs. Crossey

Farmers' requested that, pursuant to subsection 282(11.2)³⁸ of the Insurance Act, it be awarded an amount to be paid by Mrs. Crossey up to the amount assessed against Farmers' in respect of the arbitration under section 14 of the Insurance Act. This request is denied for two reasons. First, the section of the Insurance Act upon which Farmers' is relying was revoked as of October 1, 2003, prior to Mrs. Crossey even filing her application for arbitration.³⁹ Second, such an award is only permitted where the application is found to be frivolous, vexatious or an abuse of process; I make no such finding in this case.

Special Award

Entitlement

Pursuant to subsection 282(10) of the Insurance Act, an arbitrator shall award a lump sum of up to 50 per cent of the amount to which the person is entitled (together with interest) if the arbitrator finds that the insurer has "unreasonably withheld or delayed payments." The Applicant has requested a special award in this case. A special award is not granted merely because the insurer incorrectly interpreted or failed to comply with a provision of the Schedule; if that were the case, a special award would be granted to every successful applicant. There must be something more – unreasonable conduct on the part of the insurer that merits this type of remedy.

I find that Farmers' unreasonably withheld payments in this case and that a special award is warranted. Some of the conduct on the part of Farmers' that resulted in the unreasonable withholding of payments includes the following:

Farmers' failed to follow the recommendations of its own rehabilitation specialist who, in December 1995, advised Farmers' that Mrs. Crossey was developing arthritis in her neck related to the 1994 accident and urged that further medical inquiries and assessments be performed. By refusing to follow-up on these matters and by closing its file prematurely, Farmers' ignored the very real possibility that the accident may have caused or contributed to chronic injuries that might worsen over time.
Farmers' chose to take the narrowest possible view of the findings contained in the December 1999 I.M.E. report and ignored those parts of the report that were favourable to Mrs. Crossey's request for treatment.
Farmers' failed to make reasonable enquiries concerning Mrs. Crossey's employment status and income and failed to inform her of her possible renewed entitlement to income replacement benefits when she informed Farmers' on November 28, 2000 that she had recently stopped working (because of, amongst other complaints, pain in her neck).
Farmers' relied upon a flawed med-rehab DAC report to continue to deny Mrs. Crossey's entitlement to supplementary medical benefits (i.e. treatment) when Farmers' knew or ought to have known that the causation "test" set out in that report was not consistent with the Schedule and case law.
Farmers' relied upon the same flawed med-rehab DAC report to deny income replacement benefits.

Counsel for Mrs. Crossey also relied upon Farmers' alleged failure to comply with the provisions of section 64 of the Schedule (i.e. alleged failure to give proper notice of stoppage of benefits) as a basis for her claim for a special award.

Section 64 of Bill 164 provides that an insurer shall not stop payment of weekly benefits on the ground that the insured person no longer suffers from a disability as a result of the accident in respect of which weekly benefits are paid, except in accordance with the provisions of section 64. In general terms, section 64 requires an insurer to provide written notice to the insured of the date of stoppage, the reasons for the stoppage in payment and information about the rights of the insured to dispute the insurer's decision, the right to have an assessment conducted at a designated assessment centre and about the dispute resolution process.

Although Pam Beukeboom (the adjuster who had carriage of the file at Farmers' from late 1995 until at least late 2001) conceded that Farmers' failed to provide Mrs. Crossey in late 1995 (when it closed its file) with a proper notice in compliance with the provisions of section 64, this amounts to a legal opinion and I am not bound by her opinion. Farmers', in fact, did not stop paying income replacement benefits when it closed its file in late 1995. The payment of these benefits stopped around the time Mrs. Crossey returned to work in November 1994. It is not clear whether the stoppage was because Farmers' believed that Mrs. Crossey was able to perform the essential tasks of her pre-accident job or because her earnings after November 8, 1994 reduced the amount of this benefit to nil.

If the stoppage in November 1994 was on the ground that Mrs. Crossey no longer qualified for income replacement benefits (because she was able to do her job), Mrs. Crossey was entitled to be advised of this fact and she was entitled to be informed of (amongst other things) her right to attend a disability DAC and to have the benefits continue to be paid pending the issuance of the disability DAC report. Therefore, if the stoppage in November 1994 was based upon Farmers' assessment of her condition, Farmers' breached the provisions of section 64 and Mrs. Crossey has been prejudiced to the extent that she was denied the opportunity to have a DAC assessment. She would not have suffered any monetary loss, however, as a result of this possible breach of section 64. Had Farmers' followed the correct procedures, a disability DAC would likely have been scheduled some time in 1995 and, until the DAC report was issued, Farmers' would have had to continue paying any income replacement benefits owing to Mrs. Crossey. Given Mrs. Crossey's income from November 8, 1994 until November 20, 2000 (and her collateral benefits in 2001 and 2002), no income replacement benefits would have again been payable to Mrs. Crossey from November 1994 until late 2001.

In the alternative, if the stoppage in November 1994 was on the ground that Mrs. Crossey's income was such that there was no compensable loss of income (i.e. the income replacement benefit was nil), it appears to me that the provisions of section 64 do not apply.⁴⁰

In either case, Mrs. Crossey has not been seriously prejudiced by this aspect of Farmer's conduct and the alleged breach of section 64 is not a legitimate reason, on the facts of this case, to grant a larger award than would otherwise be appropriate.

Amount

The amount, if any, ordered against an insurance company under this heading must be large enough to further the goals of punishment and deterrence, but no larger than is needed to serve that purpose.⁴¹ The award must also be proportionate to: (i) the blameworthiness of the insurer's conduct; (ii) the vulnerability of the insured person; (iii) the harm or potential harm directed at the insured person; (iv) the need for deterrence; and (v) the advantage wrongfully gained by the insurer from the misconduct.⁴² The award should also take into account any other penalties or sanctions that have been or likely will be imposed on the insurer due to its misconduct. Factors that have been considered by the Commission include: the amount of benefits unreasonably withheld or delayed, the time the benefit was withheld, failing to respect important obligations under the Schedule, aggravating factors (such as bad faith on the part of the insurer), mitigating factors (such as where the insured person's conduct has contributed to the delay) and, possibly, the total interest the insurer will be required to pay as a result of the delay.⁴³

Although Farmers' initial handling of this claim (i.e. in 1994 and 1995) was fairly good, the same cannot be said of the manner in which Mrs. Crossey's claim was handled when she requested additional benefits in 1999. At that time, Farmers' appears to have quickly jumped to the conclusion that Mrs. Crossey's complaints were not the result of the 1994 accident. Although the adjusters at Farmers' took the issue seriously enough to arrange for an I.M.E., they focussed only on those parts of the I.M.E. report that supported their view and ignored the parts that supported Mrs. Crossey's claim. Farmers' also chose to ignore pain management as a legitimate reason for obtaining treatment. Even when the med-rehab DAC found the requested treatment to be reasonable and necessary, Farmers' continued to unreasonably deny this claim (on the basis of a flawed "causation" analysis).

The perceived paucity of medical records linking Mrs. Crossey's neck and other chronic problems to the accident may be attributed as much to Farmers' choice not to conduct the recommended medical examinations in 1995 as to any omission on the part of Mrs. Crossey. When Farmers' closed its file in 1995, it was aware that Mrs. Crossey was developing arthritis in her neck, purportedly as a result of the 1994 accident. It is therefore unseemly (and perhaps evidence of a lack of good faith) for Farmers' in 1999 to assume that her neck and chronic pain problems were completely unrelated to the accident and to then refuse to reconsider that position in the face of mounting medical evidence in support of Mrs. Crossey.

This is, however, certainly not the most egregious case to come before this Commission and there are a number of factors that tend to weigh in Farmers' favour. There is no evidence that Farmers' was acting maliciously or that the errors Farmers' made in handling this case form part of a larger pattern of misconduct. Given the passage of a substantial period of time (between 1995 and 1999) and Mrs. Crossey's demonstrated ability to work full-time at G.M. during the intervening period, it was understandable that Farmers' treated this claim with some level of skepticism. The medical records for the period of 1996 through 1998 did not (on their own) support Mrs. Crossey's assertion that the impairments she suffered as a result of the accident continued uninterrupted from 1994 onwards; as a result, the credibility of Mrs. Crossey became a crucial issue. In such circumstances, it is understandable that Farmers' might desire an arbitral determination of the issues in dispute.

In this case, the maximum special award that could be ordered would be approximately $37,000.00 (which is a rough estimation of 50% of the amounts I have found that Farmers' owes to Mrs. Crossey, plus interest due on those amounts up to the date of this decision, pursuant to section 68 of the Schedule). Bearing in mind the "proportionality" approach and the facts set out above, in all of the circumstances of this case, I find the appropriate lump sum amount of the special award to be $10,000.00.

EXPENSES:

The parties asked that I not deal with the issue of entitlement to expenses at the arbitration hearing. If they cannot agree on the issue of entitlement or amount, they may make submissions on both issues in accordance with Rule 79 of the Code.

September 28, 2005

Richard Feldman Arbitrator

Date

Financial Services Commission of Ontario