Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2006 ONFSCDRS 101

FSCO A99-000578

BETWEEN:

DEBORAH TURNER

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Beth Allen

Heard:

November 21, 22, 23 and 24, 2005, at the offices of the Financial Services Commission of Ontario in Toronto. Written submissions filed by February 25, 2006.

Appearances:

David S. Wilson for Ms. Turner

Robert S. Franklin for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Deborah Turner, was injured in a motor vehicle accident on June 16, 1993. She applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company ("State Farm"), payable under the Schedule.¹ State Farm terminated benefits. The parties were unable to settle the disputes at mediation and the Applicant filed an application for arbitration.

The issues that remain for this hearing are:

1. Is the Applicant entitled under section 6 of the Schedule to benefits in the total amount of $5,568.13 for rehabilitation services provided by Therapeutic Rehabilitation Services Inc.?

2. Is the Applicant entitled to expenses under section 7 of the Schedule for care services provided by:

a) Rehabilitation Management Inc. for the maximum monthly fee of $3,000 per month?

b) Ag Ta Home Health Care and Nursing Inc. in the total amount of $1,203.76?

3. Is State Farm liable to pay a special award pursuant to subsection 282(10) of the Insurance Act, R.S.O. 1990, c.I.8, as amended?

4. Is the Applicant entitled to her arbitration expenses pursuant to subsection 282(11) of the Insurance Act?

5. Is State Farm entitled to its arbitration expenses pursuant to subsection 282(11) of the Insurance Act?

6. Is the Applicant entitled to interest on any overdue amounts pursuant to section 24 of the Schedule?

Result:

1. The Applicant is not entitled to benefits for the rehabilitation services rendered by Therapeutic Rehabilitation Services Inc.

2. The Applicant is not entitled to benefits for the care services rendered by Rehabilitation Management Inc. or Ag Ta Home Health Care and Nursing Inc.

3. State Farm is not liable to pay a special award.

4. The parties made no submissions on arbitration expenses. I encourage the parties to settle that issue themselves. Failing this, I remained seized of the matter.

EVIDENCE AND ANALYSIS:

Background to the Case

By an Application for Arbitration filed with the Commission on June 10, 1999, the Applicant applied for weekly benefits and funding for various medical and rehabilitation services. State Farm raised a limitation defence in relation to the Applicant's claims arguing that the Applicant exceeded the two-year limitation period provided under subsection 281(5) of the Insurance Act, in effect at that time.

In an arbitration decision dated July 24, 2000, the Arbitrator held that the Applicant's claim for weekly benefits and certain medical and rehabilitation services and items were statute-barred, but allowed the Applicant to proceed to arbitration on her claims for the rehabilitation services of Therapeutic Rehabilitation Services Inc. The Applicant then brought an appeal before a Director's Delegate who, by decision dated February 1, 2002, upheld the Arbitrator's decision barring her claim for weekly benefits and certain medical and rehabilitation claims. The matter ultimately went to the Ontario Court of Appeal where the court, by decision dated February 7, 2005, upheld the decision of the Arbitrator. The Applicant's claims for weekly benefits and certain medical and rehabilitation benefits are therefore barred from proceeding to arbitration.

On December 23, 2003, the Applicant's current counsel corresponded with State Farm's claims representative enclosing a claim for care services to be rendered by Rehabilitation Management Inc. ("RMI"). By letter from State Farm's counsel, dated February 14, 2005, State Farm consented to having the care benefit issue added to the arbitration.

Preliminary Matters:

State Farm sought to put the following insurer's medical examination reports into evidence, namely:

1. Dr. Ezra Silverstein's orthopaedic report dated January 18, 1994

2. Dr. Henry Berry's neuropsychological report dated April 24, 1996,

3. Dr. A. I. Margulies' psychiatric report dated July 2, 1996,

4. Dr. C. J. Potyrak's occupational medicine report dated August 21, 1996,

5. Dr. A. I. Margulies' psychiatric report dated October 20, 2005.

State Farm commissioned these reports in relation to the Applicants medical/rehabilitation and care benefit claims. The Applicant's counsel submitted that for a number of reasons these reports ought to be excluded.

The Applicant submitted that section 23 of the Statutory Accident Benefits Schedule, the Ontario Motorist Protection Plan ("OMPP Schedule"), in place at the time of the Applicant's June 16, 1993 accident, is restrictive on when insurers can request assessments. The relevant portion of section 23 states as follows:

23. (1) Unless waived by the insurer, the insured person or the person otherwise entitled to make a claim under Part IV shall furnish a certificate from a qualified medical practitioner or psychological advisor of the insured person's choice as to the cause and nature of the injury for which the claim is made, an estimate of the duration of the disability caused by the accident and a treatment plan. R.R.O. 1990, Reg. 672, s. 23 (1).

(2) In respect of claims under Part IV, the insurer may, on reasonable notice, require an examination of the insured person by a qualified medical practitioner, psychological advisor or chiropractor as often as it reasonably requires, and require an autopsy of a deceased insured person in accordance with the law relating to autopsies. R.R.O. 1990, Reg. 672, s. 23 (2).[emphasis added]

The Applicants counsel argued that under that the OMPP Schedule, insurers were permitted to request, on reasonable notice to an insured, that the insured attend reasonably required examinations with respect to claims under Part IV of the OMPP Schedule. Part IV deals with weekly benefit claims for insured persons who earned income, were unemployed, or who attended school before the accident. The Applicants counsel pointed out that the Applicants claims do not involve weekly benefits, but medical, rehabilitation and care benefits. Relying on the Basu² decision, he further argued that reports from the Insurer's examinations should not be allowed into evidence to assist the Insurer with its denial of the Applicants medical and rehabilitation benefits. The Applicant's position is that the Insurer had no right to conduct the examinations at issue and for this reason, the reports associated with those examinations should be excluded from evidence. The Applicants counsel submitted that the reports are inadmissible because they were not obtained in compliance with the Schedule and are being sought to be used for a purpose different from that for which they were generated.

The Applicant's counsel, relying on a body of arbitration case law developed under the two succeeding accident benefits schemes³ argued that since the Insurer's medical assessments in question were conducted, for the most part, long before the Applicant's claim for care benefits, these reports were not generated as part of the process of adjusting the Applicant's medical rehabilitation and care benefits claims. He argued that under these circumstances, State Farm is attempting to use the reports as defense medicals for the sole purpose of bolstering its case for the arbitration hearing, and hence, the reports should not be admitted into evidence.

The Applicant's counsel also argued that State Farm chose not to call for cross-examination the authors of the various reports by assessors retained by the Applicant and for this reason, an adverse inference should be drawn that State Farm could not challenge the conclusions in these reports. He submitted that in these circumstances, State Farm should not be permitted to file its own opinions through the reports in question.

State Farm's counsel agreed with the Applicant's counsel that the OMPP Schedule only permitted insurers to conduct insurer's examination in relation to weekly benefit claims under Part IV. However, he submitted that he is aware of no case law that would bar the admissibility of the insurer's medicals in question. There is no evidence that the assessments were coerced or conducted without the consent of the Applicant directly, or through her previous counsel.

State Farm's counsel took issue with the Applicant's counsel's reliance on Basu as authority for the proposition that insurer's medicals obtained improperly under subsection 23(2) of the OMPP Schedule, are inadmissible in evidence as a basis to deny the Applicant's entitlement to medical and rehabilitation benefits. State Farm's counsel submitted that Basu does not speak to the inadmissibility of the insurer's reports in question in that case, but rather, raises a restriction on their use. According to State Farm, the arbitrator did not hold that the report at issue was inadmissible, but rather that the insurer could not use it to deny benefits.

State Farm's counsel argued that a distinction must be made between the right of a party to obtain evidence and the admissibility of that evidence in a legal proceeding. He asserted that the real issue is the relevance of the reports in question to the issues in dispute. In support of his argument, State Farm's counsel referred to an arbitrator's authority under the Statutory Powers Procedure Act ("SPPA")⁴ and the Dispute Resolution Practice Code ("Code")⁵ that set out the basic rule on admissibility that governs arbitration hearings - namely, that anything is inadmissible in evidence that would be inadmissible by any privilege under the law of evidence, or is inadmissible under the statute under which the hearing arises or any other statute. State Farm's counsel submitted that the insurer's reports in question would not be excluded under that Rule because they deal with matters pertinent to the issues in dispute - the Applicant's injuries and the related causation issues. Therefore, while arbitrators might not be able to deny medical and rehabilitation benefits based on the report, they have broad jurisdiction to consider any relevant evidence before them.

State Farm's counsel responded to the issue of adverse inference. He submitted that it is not appropriate to request that an adverse inference be drawn under circumstances where a party does not ask to cross-examine expert witnesses who have authored reports that are contrary to the expert opinions obtained by that party. He submitted that the purpose of requesting an adverse inference be drawn is to prevent a party who fails to call evidence from saying that the evidence would have helped them. State Farm's counsel asserted, moreover, that accepting the Applicant's counsel's position would be inconsistent with the Commission's objective of conducting expeditious proceedings that are an alternative to the courts. Therefore, if both parties were required to cross-examine all authors of reports contrary to their respective positions, the Commission's arbitration proceedings would be considerably lengthier and more complex.

I allowed the five reports into evidence for a number of reasons. I first note that these reports, for the most part, have been an integral part of the Applicant's medical record for about a decade. Over the years, some of those reports were passed on to assessors retained by the Applicant for medical opinions and are commented upon by the Applicant's assessors. I find therefore that many of the reports commissioned by the Applicant can only be understood with reference to the reports the Applicant seeks to exclude.

I accept that the five insurer's examinations in question were generated by State Farm for a purpose not contemplated by the accident benefits schedule in place at the time. However, I find the assessments are not inadmissible for that reason. The assessments are not protected by any privilege. The pertinent consideration is the relevance of the documents to the issues in dispute. The assessments were generated in relation to the Applicant's medical and rehabilitation benefit claims and are relevant to the Applicant's claims to entitlement to those benefits as a result of accident-related injuries.

Further, I do not accept the Applicant's counsel's argument that I should draw an adverse inference - from State Farm's failure to call the Applicant's expert witness for cross-examination - that State Farm would not be successful in challenging the opinions in those reports; and for this reason, according to that argument, State Farm should not be allowed to put the opinions in question into evidence. I agree with State Farm's position that the Applicant's counsel has misapplied the adverse inference rule. As State Farm's counsel submitted, the purpose of the rule is to preclude a party that chooses not to call evidence from saying that it would have helped that party's case. The rule does not extend to barring a party from calling their own expert opinion evidence if that party chooses not to cross-examine the experts of the opposing party. Applying adverse inference in the way suggested by the Applicant, I find, would run counter to the adversarial process where parties are permitted, within evidentiary and procedural rules, to call the witnesses they feel will best support their case. It is clear, as State Farm's counsel submitted, that requiring the parties to cross-examine expert witnesses with adverse opinions in order to avoid an adverse interest being drawn, would unnecessarily lengthen and complicate arbitration proceedings and negate the Commission's goal of being a more expeditious alternative to the courts. The Applicant's counsel's submission is also contrary to Rule 42.4 of the Code which limits the parties to calling two expert witnesses each at the hearing.

I therefore allowed the five assessments in question into evidence. I rely on the discretion given to arbitrators under Rule 39.3 of the Code and section 15 of the SPPA to admit into evidence documents that are relevant and not subject to privilege.

The Applicant also sought to exclude a report dated December 18, 1997 by Dr. W. Gary Snow, a psychologist, retained by the insurer in a related tort action. The Applicant's counsel argued that allowing in the defense medical from the tort action would prejudice the Applicant by giving an unfair advantage to State Farm. State Farm argued that Dr. Snow's report is relevant to the issue of the Applicant's psychological and cognitive impairments. State Farm's counsel pointed out that Dr. Snow's report had been provided by the Applicant's counsel to the Applicant's assessors for a medical opinion. State Farm's counsel argued that it would be prejudiced by the exclusion of Dr. Snow's report, because it would be difficult to understand the comments about that report by the Applicant's assessors who reviewed it.

I agree with State Farm's position. I find Dr. Snow's report relevant to the Applicant's cognitive and psychological conditions. I find that without access to Dr. Snow's report, it would be difficult to understand the opinions of the Applicant's assessors who commented on that report. I therefore allowed Dr. Snow's report into evidence.

Overview

This matter turns on causation. Following the accident and up to the present, the Applicant has complained of severe and pervasive physical, psychological and emotional symptoms. She attributes these conditions to the accident, arguing that the accident materially contributed to her impairments. State Farm's view is that the accident did not cause her medical problems. Medical assessors for both State Farm and the Applicant concur that the Applicant's medical conditions are chronic, pervasive and have had a pronounced effect on her physical, psychological and cognitive status. Some assessors for the Applicant diagnosed a head injury; while State Farm's assessors, for the most part, found the nature of the accident inconsistent with causing a head injury. Other assessors provided no diagnoses. The problem that confronted each assessor was the absolute absence of a documented medical history for the Applicant. The Applicant presented with a complex physical, psychological and cognitive clinical picture, but did not provide assessors with medical notes and records from her pre-accident doctors and treatment providers. Assessors had to rely on the Applicant's self-report of her health history under circumstances where she had a poor memory and difficulties with communication.

At the hearing, I was faced with a multitude of post-accident medical reports from both the Applicant and State Farm, but no documented pre-accident medical history. The Applicant displayed marked memory and communication problems at the hearing. She demonstrated poor recall of her medical history and relied on no other witnesses, neither medical nor lay, to assist her in this area of her evidence. I did not accept the Applicant's assessors' opinions that the accident caused the Applicant's conditions because those opinions were not based on knowledge of her pre-accident health. I found the Applicant's testimony about her pre-accident health and activities unreliable as it was unsubstantiated by other evidence. I received no explanation for the Applicant not calling oral or written evidence to support her claims, and this I found weakened her credibility.

For those reasons, I determined the Applicant not to be entitled to the rehabilitation and care benefits she claims.

The Accident

The Applicant was involved in an accident on June 16, 1993. She stated that she was on her way to Women's College Hospital ("Women's College") to a doctor's appointment with her family doctor, Dr. Randall Lee, whom she said she first began to see some months before the accident. The Applicant testified that, although she does not recall seeing the accident happen, a northbound vehicle struck her vehicle on the front corner of the driver's side at the end of the fender. The evidence is that the Applicant's vehicle was a write-off. The Applicant testified in chief that after her vehicle came to rest, she felt confused as to what had happened and recalled people trying to force her car door open to get her out. She stated that she was going in and out of consciousness. The Applicant testified that she noticed a large red mark or welt on her forehead after impact, that she felt intense pain and that she must have hit her head during impact. She testified that her body felt as though it was in shock.

Early Post-Accident Medical Evidence

The Applicant stated that she knows her boyfriend, Cameron, came to the accident scene and took her to Women's College but does not recall how she got to the hospital. She testified that she recalls going to her appointment with Dr. Lee and that he sent her to Emergency. The Applicant ceased seeing Dr. Lee after the accident. She recalls being on a gurney in Emergency and that she felt like she was "floating above her body".

The results of an x-ray and ECG taken at Emergency were normal. The Women's College Hospital Urgent Care Centre Report, dated June 16, 1993, show complaints of chest, sternum, rib cage and left hand pain as well as neck stiffness and frontal headaches. The Report records a question mark beside the words "hit head" and a notation of no loss of consciousness. The Applicant's counsel asked the Applicant about her evidence pertaining to hitting her head. He pointed to the notation in the Urgent Care Centre Report "? hit head". In answer to the question as to whether she recalls speaking to anyone at Women's College about hitting her head, the Applicant responded that she did not remember.

In cross-examination, State Farm's counsel questioned the Applicant on her evidence about the red welt on her forehead. He pointed to the fact that neither the Emergency doctor at Woman's College noted a red welt on the Applicant's forehead on June 16, 1993, nor did her family doctor in his June 21, 1993 clinical notes. State Farm's counsel also inquired about the fact that the Applicant's chiropractor, Dr. Ernest Perry, had also not noted the red welt on the Medical or Psychological Report dated June 29, 1993. The Application offered no explanation for this. The Applicant testified that her sister took pictures of her one or two days after the accident, which are filed in evidence. When asked about any bruises or cuts being depicted in these photographs, the Applicant stated that there is some discoloration on her face that did not exist before the accident. I did not find the photographic evidence helpful in showing whether or not the Applicant had an injury on her forehead.

State Farm's counsel pointed to the hand-written statement prepared by State Farm dated June 25, 1993 filed into evidence. The Applicant testified that she signed the statement and that she vaguely remembered making the statement but did not recall when. In the statement, the Applicant indicated that she felt stunned and shaky and may have blacked out for a few seconds following the accident and that there was swelling around her sternum and back. In this statement the Applicant is quoted as saying: "I think I may have hit my head because of the pain in my head." State Farm's counsel questioned the Applicant about the post-accident photographs revealing the Applicant's bare torso. Again, I did not find the photographs helpful in depicting the Applicant's injuries.

The evidence as to whether the Applicant hit her head or not is relevant in that many of the diagnoses of the Applicant's post-accident conditions were founded on whether she hit her head or not. I do not find the Applicant's uncorroborated evidence about hitting her head reliable.

Pre-Accident Life

As noted above, I received little evidence about the Applicant's pre-accident life. She presented some evidence that is not in dispute. She was age 37 years at the time of the accident. She graduated in 1979 from York University with a Bachelor of Arts degree in Physical Education. She testified that, from about 1979 to 1993, she taught sports for various school boards, parks and recreation departments and hospitals. She also worked supervising, coaching and teaching such sports as: aquatics, water polo and gymnastics to children and disabled persons. She participated in sports in her own right, such as: scuba diving, squash and skiing with her ex-boyfriend, before the accident. The Applicant also worked in sales and then in management at various retail shoe outlets for a shoe retail chain. Two or three years before the accident, the Applicant began working as a cashier\salesperson for Canadian Tire.

Non-Accident Related Medical Conditions

The Applicant displayed a weak memory about her health before the accident. In answer to questions about her pre-accident chiropractic treatment, the Applicant stated that for about four years, on a maintenance basis, Dr. Perry treated her for low back pain, neck stiffness and headaches from three times per week to once every three weeks, depending on her symptoms. As noted above, I did not receive Dr. Perry's records in evidence to substantiate this testimony.

Scattered throughout medical reports from various assessors are references to various pre-accident injuries: a sprained left wrist and a back sprain during childhood, and later, a work-related back injury at Canadian Tire in the months before the accident, which required chiropractic treatment. I did not receive in evidence an employment file from Canadian Tire or documentation of a possible Workers' Safety and Insurance Board claim.

The Applicant stated, supported by medical documentation, that she was diagnosed with borderline diabetes about three years ago which is controlled with pills and was diagnosed with cervical cancer about four or five years ago which resolved with surgical intervention.

The Applicant indicated she has received Canada Pension Plan ("C.P.P") disability benefits for the last few years. I did not receive into evidence medical records from the Applicant's C.P.P. file.

It is the Applicant's position that her pre-accident health was good and that the pain, fatigue, nausea, dizziness and emotional, psychological, sleep and cognitive problems that have persisted since the accident, are attributable to the accident. Again, I do not find the Applicant's uncorroborated testimony about her pre-accident health reliable. I also have concerns about the Applicant's credibility as I heard no explanation why she did not call oral or written evidence to support her account of her pre-accident health.

Physical Conditions and Treatment

Medical Assessments and Opinions Filed for the Applicant

The Applicant's evidence was that her symptomatology, for the most part, has been unrelenting over the 12 years since the accident despite her many years of treatment. Her evidence largely reveals little or no break in these symptoms. The Applicant testified that since the accident she has had headaches all day, everyday with vomiting, more severe at night. She also stated that she has suffered from persistent, daily pain in her neck, arms, shoulders, chest, mid and low back, hips and legs since the accident. She stated that the physical pain has caused sleep deprivation and has required the use of an assistive device to turn over in bed and various types of pillows to take pressure off her legs. She testified that she has had difficulty raising her head because of neck pain. The hip and leg pain has made it difficult for the Applicant to sit and stand.

Dr. Peter Dux, a post-accident family doctor, recommended occasional chiropractic therapy, ultrasound, TENS treatment, an exercise and rehabilitation program and prescribed medication for pain, sleep and depression.The Applicant testified that it took her two years before she could raise her left arm to shoulder level. Following the accident, from June 1993 to September 8, 1993, the Applicant received chiropractic treatment from Dr. Perry four times per week for her accident-related neck, back and hip pain. She left Dr. Perry's care to seek alternative treatment. The Applicant confirmed she subsequently underwent a variety of treatments for the pain in the various affected parts of her body, including: steroids and weight bearing exercises for her neck; passive physiotherapy; heat packs and TENS for her back, hips and arms.

In 1993, Dr. Dux referred the Applicant to Dr. Raphael Chow, a physical and rehabilitation medicine specialist, as did her family doctor, Dr. Paul Braude, on subsequent occasions. The Applicant's counsel also requested medicolegal opinions and assessments on several occasions from 2001 to 2005. Dr. Chow first saw the Applicant on July 22, 1993. There was scant reference in Dr. Chow's medical reports to the Applicant's medical history and no indication of any source for the information other than the Applicant's self-report. In his report dated April 18, 2001, requested by the Applicant's counsel, Dr. Chow summarized his observations of the Applicant from July 22, 1993 until February 27, 2001. Dr. Chow reported that the Applicant complained from the initial visit and thereafter of neck, back and sternum pain as a result of the accident and that despite her physiotherapy treatment, her pain persisted. Dr. Chow indicated that a bone scan and an EMG of the left upper limb were all normal. An EMG of the Applicant's neck showed mild degenerative changes at C 5, 6 and C6, 7. The Applicant continued with her physiotherapy treatment and was prescribed pain, nausea, and sleep medication. He diagnosed "myofascial strain to the cervical thoracolumber spine as a result of the motion injury of the accident."

On recommendation of Dr. Dux, the Applicant attended her first active rehabilitation and work hardening program with the Phys. Med. Rehab Clinic ("Phys. Med.") from November 28, 1994 until about March 1995, to treat her cervical, lumbar and thoracic spine, left knee and hip conditions. The goal of the Phys. Med. program was to increase functional ability to permit her to return to work part-time to her salesperson/cashier job at Canadian Tire. While Phys. Med. reported some improvement in flexibility and strength, the Applicant continued to complain of fatigue, sleep deprivation, head, neck and back pain and cognitive problems. The Applicant stated that she resisted the work hardening program, insisting that because of her health, she continued to be unable to return to work.

On further recommendation of Dr. Dux, on April 26, 1995, the Applicant began attending the Rothbart Pain Management Clinic ("Rothbart") for rehabilitation treatment, a pain assessment and a series of nerve block injections for her headaches, neck pain and chest and sternum muscle spasm. The Applicant indicated that she felt pain free for about three days after the injections. Rothbart diagnosed cervical strain, post-traumatic vascular headaches and a stress disorder.

Rothbart did not have the Applicant's pre-accident medical records. The assessors relied on whatever information the Applicant could provide through her self-report. Dr. G.D. Gale, a pain specialist, first saw the Applicant at Rothbart in 1996 and saw her at her current counsel's request on July 24, 2001 for the purposes of a medicolegal report. In 2001, Dr. Gale found that the Applicant suffered from multiple conditions affecting almost every system of her body, problems with regards to: headaches, cognition, balance, vision, hearing, vertigo, taste, smell, her mouth, her neck, voice, skin, chest, breathing, her heart, legs, appetite, swallowing, her gastrointestinal system, seizures, diabetes, incontinence, urinary tract problems, menstruation, arthritis and muscle weakness. Dr. Gale concluded that the Applicant would have difficulty with lifting, reaching, bending, prolonged sitting, standing, walking and problems with her memory and concentration. He opined that because of the Applicant's severe musculoskeletal and cognitive challenges, which she had been experiencing over eight years, she would never be able to work again or cope with her daily activities without the support of home care providers. He concluded that "she is seriously disabled both physically and mentally which resulted from the effect of the MVA [motor vehicle accident] of June 16, 1993."

Medical Assessments and Opinions Filed for State Farm

In early 1994, State Farm retained The Accident Management Group ("AMG") to assess the Applicant's disability. Relying solely on the Applicant's account of an unremarkable pre-accident medical history, in its report dated April 8, 1994, AMG accepted the Applicant's complaints of pain and emotional problems to be as a result of the accident and recommended counselling sessions with a female counsellor.

State Farm, with the support of Dr. Dux, referred the Applicant, to MEDEX Vocational Management Group ("MEDEX") to perform a vocational evaluation and to assist with the Applicant's rehabilitation. From October 1994 until March 1995, MEDEX consulted with the Applicant, Dr. Dux, and other treatment providers with a focus on the Applicant's return to work. In its Closure Report, dated April 27, 1995, MEDEX reported that Dr. Dux's view was that the Applicant's physical condition was plateauing and that he felt the Applicant could participate in the work hardening program, and physically, would eventually be able to return to her Canadian Tire job. According to the Closure Report, the Applicant resisted the work hardening program because of her pain complaints and ultimately refused to continue with the program.

AssessMed prepared an occupational medicine report, dated August 21, 1996, at the request of State Farm. Dr. C. J. Potyrak, an occupational medicine physician, found the Applicant uncooperative and resistant to giving maximal effort during the assessment. He concluded there was no causal connection between the accident and the Applicant's complaints and that she was physically fit to return to her cashier or similar job and of performing her activities of daily living.

Cognitive, Emotional and Psychological Conditions

Medical Assessments and Opinions Filed for the Applicant

The Applicant's evidence was that her emotional, psychological and cognitive problems have been unrelenting since the accident despite the various treatments she has undergone. She stated she thought people, including doctors, could not understand her when she tried to communicate verbally, nor could she understand others who spoke to her; she had difficulty with tasks like driving; her short term memory was affected to the point that she could not recall things that occurred five minutes earlier; she could not concentrate to watch television or read, follow or understand what she saw or read.

Because of the development of emotional and psychological issues, Dr. Dux ordered a psychological assessment of the Applicant by Dr. Leon Steiner, a registered psychologist. A neuropsychological assessment conducted by Dr. Steiner, on January 12, 1995, about 19 months after the accident, involved administering 17 tests. In his report dated February 6, 1995, Dr. Steiner concluded that the Applicant's language skills and spatial abilities were lower than expected of a person with her educational and vocational background. He further found deficits in memory, speech and auditory perception, word finding, auditory encoding, manual dexterity and speed. Dr. Steiner recommended a neurological assessment to rule out seizure activity or other medical causes for her condition. He also recommended a cognitive rehabilitation program to assist with her memory problems.

Dr. Steiner began treating the Applicant from November 29, 1994 for several months, teaching her cognitive-behavioral techniques aimed at treating her anxiety and depression and helping her overcome her cognitive barriers.

There is no indication in Dr. Steiner's report that he had available any of the Applicant's pre-accident medical records in that it makes no reference to the Applicant's pre-accident health. It does not appear from his report that he asked many, if any, detailed questions about her pre-accident medical status. He too relied on the Applicant's self report of the development of her health problems. Dr. Steiner concluded that without objective information regarding her employment tasks, he could not assess the impact of the Applicant's conditions on employment. Further, it did not appear from Dr. Steiner's report that he had information on the Applicant's daily activities and household tasks which would make it difficult to assess the impact of her psychological and cognitive problems on this area of her life. Dr. Steiner touched on the causation issue in his comment that "the Applicant was receiving treatment for accident-related impairments". But he did not offer a clear opinion on causation. I therefore find Dr. Steiner's reports do not assist with a determination of whether the Applicant's cognitive problems were caused by the accident.

Dr. Dux sent the Applicant to the Centre for Traumatic Brain Injury Rehabilitation ("CTBIR") for a comprehensive assessment, rehabilitation and treatment program to address her cognitive abilities, which she attended from June 1995 to July 1996. At CTBIR the Applicant underwent assessments in the following areas: speech-language therapy, occupational therapy, physiotherapy, audiology and neuropsychology. Neuropsychologist, Dr. Alina Kaminska, on behalf of CTBIR, concluded, based on an absence of neurocognitive impairment prior to the accident, as well as on CTBIR's assessors' observations of the Applicant's persisting neurobehavioral impairments, and the findings of Dr. Steiner, that "Ms. Turner sustained a mild to moderate brain injury in her accident on June 16, 1993." CTBIR, like Dr. Marek J. Gawel, a neurologist, and Dr. Steiner, also relied on the Applicant's self-report of her pre-accident health in arriving at its opinion. It recommended an intensive and well-integrated rehabilitation in the areas of cognitive, physical and emotional functioning. CTBIR reported that the Applicant was making progress in her treatment program. Dr. Robert D. Gates, a psychologist, prepared a report dated July 22, 1996 disgreed with Dr. Henry Berry's diagnosis (discussed below) of severe psychiatric disorder with features of pseudodementia. Dr. Gates recommended a neuropsychiatric consultation with Dr. Frank Adams. Dr. Adams, of Columbia Neuro-Rehabilitation Services, conducted a neuropsychiatric assessment of the Applicant for CTBIR. In his report dated September 13, 1996, he diagnosed "chronic cerebral insufficiency secondary to an acquired brain injury as a direct result of an MVA in 1993."

In his April 18, 2001 report, Dr. Chow noted cognitive impairment that worsened during a period he did not see her, from September 1, 1994 until March 7, 1996. Dr. Chow noted that a SPECT scan, a head CT scan, an EEG and an MRI head scan were all normal. In October 1993, Dr. Chow requested an ENT assessment for the Applicant's complaints of positional vertigo, which assessment diagnosed post-traumatic dizziness. The ENT specialist diagnosed post-traumatic dizziness with no conclusion as to whether the trauma was accident-related. Dr. Chow noted the Applicant's cognitive problems. He opined that "she did not have significant head injury from the accident, although there was some question whether she hit her head and had loss of consciousness." Dr. Chow did not come to a conclusion as to whether the Applicant struck her head, but added, "It is not uncommon for many patients with soft tissue injury after an accident and minor head trauma to experience ongoing cognitive impairment." He concluded in his April 18, 2001 report, and confirmed in his 2005 reports, that her prognosis was poor and her physical and psychological impairments permanently disabling.

The Applicant's previous counsel sent her to Dr. Gawel for a neurological assessment on November 20, 1993. In his report dated November 24, 1993, Dr. Gawel indicated that he did not have the Applicant's pre-accident medical records. In his September 25, 1996 report, Dr. Gawel indicated that the Applicant's condition had not improved since he first saw her in November 1993. He noted that a SPECT scan he ordered was negative and that the results of a sleep study revealed the Applicant did not suffer from sleep apnea. A later sleep study showed moderate apnea. Dr. Gawel reviewed the post-accident Women's College records and wondered if the Applicant had hit her head in the accident, but came to no conclusion on this. Dr. Gawel concluded, after reviewing a number of post-accident specialist reports (audiologist, rehabilitation, chiropractor, pain management and psychologist), that the Applicant continued to suffer from lower back, hips, neck and abdominal pain, as well as sleep disturbance, drowziness, fatigue, concentration, memory, dizziness and occasional black out problems. Dr. Gawel concluded the Applicant presented with significant cognitive symptoms, but "that there was not enough evidence for significant trauma to cause this." However, he opined, without the benefit of the Applicant's pre-accident medical records, that the Applicant's conditions developed after the accident.

The Applicant was sent for further neurological testing by Dr. Gawel in 2002. In a report dated July 15, 2002, Dr. Gawel stated that EEGs performed on April 3, June 10, and June 11, 2002 were normal. He pointed out that the cognitive problems: nausea, dizzy spells, cramps, headaches, shaking and diarrhea she displayed on June 11, 2002 had no neurological explanation and were probably emotional. In his November 21, 2003 report, Dr. Gawel noted a marked discrepancy between the Applicant's description of her pre-accident health and her presentation at the November 14, 2003 appointment. Dr. Gawel indicated that pre-accident health information might have been useful to understanding the Applicant's presentation. However, in his January 10, 2002 report, Dr. Gawel opined that "one has to accept that the accident precipitated the whole onset of her symptoms". I did not find Dr. Gawel's opinion in this regard helpful in that it was not founded on knowledge of the Applicant's pre-accident medical history.

Dr. Peter Rowsell, a psychiatrist with Rothbart, prepared a report dated September 22, 2003 at the request of the Applicant's current counsel. He concluded that the Applicant's physical conditions resulted from the accident. He gave no opinion on the cause of her cognitive and emotional problems. The Applicant's current counsel asked Dr. Michael G. Sumner to prepare a neuropsychiatric opinion which he offered in a report dated January 13, 2005. Dr. Sumner stated because "she is so confused and cognitively impaired as a result of the accident in 1993" she was unable to provide a medical history. He diagnosed cognitive impairment secondary to a traumatic brain injury, a depressive condition secondary to a general medical condition (chronic pain).

A former counsel for the Applicant requested that Dr. M. Mamelak, a psychiatrist, complete a psychiatric assessment of the Applicant which he conducted on May 27, 1996. Dr. Mamelak stated that he required further diagnostic data and a neuropsychological assessment before he could arrive at an opinion on the Applicant's medical status. Her current counsel requested a further assessment dated August 2, 2005. In his report, Dr. Mamelak reviewed previous neuropsychological, psychological and psychiatric assessments and diagnostic data. He found he had difficulty communicating with her, and concluded: "I don't know whether Ms. Turner had a concussion or whether her deterioration can be attributed entirely to pain, depression, medication and financial and social stress." Dr. Mamelak's final statement is "Clearly, her accident on June 16, 1993 has had a devastating effect on her life." I did not find that opinion of much assistance on the causation issue because it does not directly speak to the impact of the accident on the Applicant's health.

Medical Assessments and Opinions Filed for State Farm

State Farm requested that the Applicant be assessed by Dr. Henry Berry, a psychologist. Dr. Berry concluded that the Applicant's pervasive conditions were not caused by the accident. In his April 24, 1996 report, he concluded that: "Her clinical condition of widespread bodily symptoms and a worsening over the intervening years is entirely out of keeping with the natural history of such an accident."... He went on to say:

The Emergency records do not indicate any head injury or concussion. Her history, as given today, would suggest, at the very most, a possible brief interruption of memory (consciousness) amounting to minutes only and this could indicate a very mild form of concussion, as a possibility rather than a probability. Such a mild concussion would not result in any permanent brain damage.

Dr. Berry diagnosed an unusually severe psychiatric disorder with features of pseudodementia in the context of situational stresses.

The Applicant was also assessed by Health Recovery Group. In a report dated July 29, 1996, Dr. Allyson Harrison, a psychologist, concluded that a person with a mild traumatic brain injury should improve over the first 18 to 24 months, after which time, the symptoms should level off. Dr. Harrison provided no opinion as to the role, if any, that the accident might have had in the Applicant's clinical picture. She concluded that unless the Applicant experienced a stroke or other vascular event between the accident and the onset of the cognitive problems, these problems were not likely related to organic brain damage. Dr. Harrison recommended education and cognitive behavioural therapy.

Also at the request of State Farm, Dr. A. I. Margulies, a psychiatrist, did a psychiatric assessment of the Applicant in early 1996. In a report dated July 2, 1996, Dr. Margulies was unable to come to a definitive opinion about the cause of the Applicant's extreme cognitive and emotion presentation because certain early post-accident neurological data and additional neurological testing were unavailable to him. He recommended a neurological assessment.

Dr. Snow prepared a report dated December 18, 1997 for the insurer in the companion tort action. He concluded: "Looking at the history provided, I see no reason to conclude that Ms. Turner sustained a brain injury in her motor vehicle accident. One notes, for example, that she was not sufficiently injured to require immediate transport to hospital by ambulance." Dr. Snow also expressed concern about the Applicant's account of losing consciousness after impact when the Emergency reports state no loss of consciousness. He provided no definitive diagnosis.

Dr. Margulies did a further assessment on October 20, 2005. He questioned the assumption the Applicant made in her June 25, 1993 statement to State Farm that because she had head pain after the collision, she may have hit her head. He also queried the fact the Applicant did not complain of cognitive problems in her statement to State Farm nine days after the accident.

He also expressed concern that the medical records of the Applicant's family doctor, Dr. Lee, whom the Applicant saw the day of the accident, were not produced. It was Dr. Margulies' opinion that "It is well recognized that the effects of brain damage are maximal in the immediate, posttraumatic period and improve, to a greater or lesser degree, with the passage of time. The very opposite would appear to have been the case and is difficult to reconcile with the effects of brain damage." Dr. Margulies concluded that since he found no compelling evidence of underlying brain damage, other possible factors might explain the pattern of increasing dysfunction. Among those other factors, in his view, might be a progressive neurological disease process, further head traumas (for which there is no evidence for the former two factors), the effects of heavy dosages of opioids and other sedating drugs, or emotional and psychological factors. According to Dr. Margulies, there is inadequate evidence in this case to support how emotional factors alone could result in such a highly dysfunctional person.

The Applicant's Accident Benefit Claims

The Basis of her Claims

The Applicant testified that she has never been able to work, participate in sports or perform her household chores since her accident in June 1993. She stated that her doctors advised her not to engage in certain activities. She has therefore limited her household and other activities to: organizing her daily activities; doing light housekeeping with breaks; preparing simple meals; attending medical appointments; doing passive physiotherapy exercises; performing her daily personal activities with the assistance of personal care providers; watching television and movies; and eating. She has not vacuumed, mopped or swept the floors and does not wash dishes for more that five minutes at a time because of chest, low back and neck pain. She stated that she can only wipe kitchen counters but cannot clean the kitchen or the stove. The Applicant testified that since the accident she has never dusted her apartment and can only gather her laundry together, but cannot place it in the machine, wash or fold it. She takes taxis to get groceries and asks the driver to help carry them to her apartment. The Applicant testified that her cousin, David, her nieces and friends assisted her in the first few years with household tasks until Bellwoods Centres for Community Living Inc. ("Bellwoods") began to provide services in 1999.

The Applicant called no independent evidence to substantiate her post-accident abilities although she testified about persons who have been involved in her life and would have some knowledge of her circumstances. Given the Applicant's memory problems, I do not find the Applicant's evidence about her post-accident life reliable. I find this also raises a credibility issue as she did not explain why she did not call supporting evidence.

The Parties' Positions

The Applicant's counsel argued that she is entitled to case management, rehabilitation and care services because her need for these services results from the injuries she sustained in the accident. He submitted that the accident made a material contribution to the Applicant's post-accident impairments. He further submitted that the Applicant has properly applied for care benefits under section 7 of the Schedule and therefore access to these benefits is not subject to a time limit.

State Farm's counsel, on the other hand, submitted that the Applicant is not entitled to any of the services claimed because the medical evidence does not establish that the need for these services was caused by the accident. In the alternative, State Farm's counsel argued that the care benefits claimed by the Applicant would have more properly been claimed under section 6 of the Schedule as supplementary medical and rehabilitation benefits and for that reason are subject to the ten year limitation period under that section. Further, State Farm argued that the expenses for the care services claimed were not incurred and as such are not compensable under the Schedule.

Rehabilitation and Case Management Benefits

The Applicant claims entitlement to benefits for rehabilitation and case management services under subsection 6 of the Schedule. This section provides as follows:

6. (1) The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident all reasonable expenses resulting from the accident within the benefit period set out in subsection (3) for,

(a) medical, psychological, surgical, dental, hospital, chiropractic, nursing and ambulance services and the services of physiotherapists;

(b) prostheses, dentures, prescription eyewear, hearing aids and other medical or dental devices;

(c) rehabilitation, life-skills training and occupational counselling and training;

(d) transportation for the person to and from treatment, counselling and training sessions, including transportation for an assistant;

(e) home renovations to accommodate the needs of the insured person;

(f) other goods and services, whether medical or non-medical in nature, which the insured person requires because of the accident R.R.O. 1990, Reg. 672, s. 6 (1).

(3) For the purposes of this section, the benefit period is the longer of the two following periods calculated from the day of the accident and ending on the anniversary of the accident:

1. Ten years.

2. Twenty years less the age of the insured person on the day of the accident. R.R.O. 1990, Reg. 672, s. 6 (3).

(8) The maximum amount payable under this section is $500,000 with respect to each insured person. R.R.O. 1990, Reg. 672, s. 6 (8).

The Applicant submitted two invoices from Therapeutic Rehabilitation Services Inc. ("TRSI") dated October 31, 1995 and December 14, 1995. The first invoice covers the cost, with interest, of TRSI's initial rehabilitation report dated October 31, 1995 in the amount of $2,895.64 and the cost of TRSI's meeting with the Applicant and its consultations with treatment providers. The Applicant claims the further cost, with interest, of services rendered by TRSI from July 1, 1995 to December 14, 1995 in the amount of $2,672.49 for 25.5 hours expended in relation to rehabilitation recommendations. The Applicant claims that the amounts on both invoices are reasonable and not excessive in view of the fact that the services rendered are contemplated by section 6 of the Schedule.

State Farm's counsel submitted that the Application for Expenses dated October 31, 1995 for TRSI's services, associated with the October 31, 1995 invoice, indicates that the services provided would be limited to communications with the Applicant and two of her treating doctors and for the preparation of the initial report. State Farm's counsel argues there is no indication that TRSI was involved in case managing the Applicant's treatment program.

With regard to the first invoice, it is not clear from the report how TRSI's meetings and consultations were going to contribute to the overall management of the Applicant's medical treatment and assessment. As well, I find it difficult to determine the services covered by the second invoice since I received no report from TRSI in support of that invoice.

Care Benefits

Section 7 of the Schedule provides care benefits for insured person's whose need for these benefits arises from a motor vehicle accident:

7. (1) The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident, for the care, if any, required by the insured person,

(a) the reasonable cost of a professional caregiver or the amount of gross income reasonably lost by a person other than the insured person as a result of the accident in caring for the insured person; and

(b) all reasonable expenses resulting from the accident in caring for the insured person after the accident. R.R.O. 1990, Reg. 672, s. 7 (1).

(2) The maximum amount payable per month under this section is $3,000 a month with respect to each insured person. R.R.O. 1990, Reg. 672, s. 7 (2).

The Applicant claimed that she is not capable of doing the tasks done by the government-funded workers because of her pain and cognitive problems. She also expressed concern about safety issues if she were to attempt to perform tasks herself without support. She asserted that she requires the services recommended by RMI to fill in the gaps of chores that do not get done at all, like: dusting, vacuuming and moving furniture, or not often enough, like: cleaning the refrigerator and oven and washing curtains and floors. The Applicant also testified that she has had no assistance for several years with outdoor activities such as going for walks and grocery shopping. She relies on taxis to take her around.

At the time RMI made its recommendation for personal care services for the Applicant, she was receiving services from other agencies. In 1999, the Applicant began receiving government-funded care services from Bellwoods. From Monday to Friday, 1.5 hours per day in the morning, for a total of 7.5 hours per week, the Bellwoods care worker assists with personal hygiene, dressing, light homemaking, light meal preparation, assisting with the grocery list, grocery shopping and laundry. The Applicant has also been receiving, and continues to receive, government-funded care services from Toronto Community Care Access Centre ("CCAC") since 1999 for 3 hours per day, 21 hours per week. In total, the Applicant is receiving 28.5 hours of care services per week from government-funded agencies.

In advancing the claim for care benefits, the Applicant's counsel was mindful that the Applicant would be restricted to the $3,000 monthly limit imposed by subsection 7(2) of the Schedule.

In 2003, ten years post-accident, the Applicant's current counsel requested RMI prepare a functional needs and a cost analysis for care services for the Applicant. Ms. Sue Wilkinson, a registered occupational therapist and RMI counsellor, prepared a report dated November 25, 2003. Ms. Wilkinson interviewed the Applicant on October 10, 2003 and reviewed reports of the Applicant's post-accident physical, psychological, psychiatric and neurological assessors. She noted the Applicant's pervasive and persistent physical, cognitive and emotional symptomatology. Ms. Wilkinson concluded that due to her cognitive deficits and physical impairments, the Applicant needed the support of assistive devices and help with: personal hygiene care; reaching; bending; twisting; maintaining attention to tasks; dressing; shopping; transportation and meal preparation. According to this assessment, the Applicant needed support for involvement in indoor and outdoor leisure activities. Regarding her household responsibilities, Ms. Wilkinson found, due to cognitive and physical limitations, the Applicant required help with: cleaning, including scrubbing the bathroom and kitchen; vacuuming; working overhead; lifting; carrying; mopping activities and doing laundry which involves movement to and from the basement.

Ms. Wilkinson opined that the Applicant required personal care services 7 days per week. In her June 7, 2004 report, she recommended an additional 1.5 hours per day for personal care services (in addition to that provided by other agencies) for light homemaking, meal preparation and cleaning at an average hourly rate of up to $20.93. In the Applicant's estimate of her personal care needs, the weekly times claimed by the Applicant for the services recommended by RMI are reduced by the weekly times for services rendered by Bellwoods and CCAC.

Ms. Wilkinson's report included a cost analysis for the Applicant's community support needs, including items for a community support worker for a yearly cost of $23,718.24 for assisting "To engage Ms. Turner in productive activity outside her home, support in home function and assist in day-to-day activity completion/planning and follow through of plans from OT and Case Manager"; and for community support worker supervision for a yearly cost of $574.56 "To consult with Occupational Therapist, Case Manager."

Ms. Wilkinson recommended 9 hours of community support services. The hourly rate for the community support worker is $47.88 per hour, and for community support worker supervision also $47.88 per hour. Community support services are to be phased in gradually over 11 weeks to allow the Applicant to progressively get accustomed to outside activity. Ms. Wilkinson suggested the following: for the first 3 weeks, 5 hours of support at $237.90 per week plus mileage; for the next 8 weeks, 7 hours of support at $335.16 per week plus mileage; and after 11 weeks, 9 hours of support per week at $430.92 per week plus mileage.

The Applicant's current counsel requested RMI to do a progress report with respect to the Applicant's need for personal care giver services. Ms. Carolyn Degenhardt, a rehabilitation counsellor, attended at the Applicant's home on September 6, 2005 and prepared a report dated September 8, 2005. Ms. Degenhardt referred the Applicant to CCAC for an occupational therapy home safety and equipment assessment.

RMI concluded the Applicant required long-term personal care and community worker support as a result of the physical, psychological and cognitive impairments she sustained as a result of the June 16, 1993 accident. The Applicant's counsel submitted these services are required to supplement the government-funded services because the latter services are inadequate.

The Applicant's counsel prepared a breakdown of care services the Applicant requires. The figures for each period are broken down taking into account:

• separate calculations for community support services, personal care services and homemaking support services

• an hourly rate of $22.09 for personal care support

• an hourly rate of $47.88 for community support worker/supervision

• an hourly rate of $14.28 for annual house cleaning

• return trip mileage expenses of $25.20 per visit for service providers

• reductions for the services provided by other agencies

• $74.56 per month for statutory holidays

• G.S.T.

Time Period

Amount

December 23, 2003 to June 7, 2004

$3,595.00 per month

June 7, 2004 to June 28, 2004

$623.47 per week

June 28, 2004 to August 21, 2004

$727.53 per week

From and after August 31, 2004 to January 6, 2005

$3,595.00 per month

From and after January 6, 2005

$3,671.57 per month

Relying on previous arbitration and appeal cases⁶, the Applicant's counsel argued that the personal care and community support services recommended by RMI are the types contemplated by section 7 of the Schedule. He also submitted that section 7 does not require the expense to have been incurred by the Applicant to be compensable.

In a hand-written note dated December 3, 2003, Dr. Kirsch, a pain specialist, approved ongoing chiropractic and hydrotherapy recommended by RMI, but did not comment on care services. In a letter dated November 5, 2004, Dr. Chow approved the recommendations. Dr. Chow did not provide reasons for his approval. His approval took the form of merely responding "yes" to questions the Applicant's counsel posed about Ms. Wilkinson's recommendations.

The Applicant's counsel also submitted invoices dated December 31, 2003 for services rendered by RMI from October 1, 2003 to September 30, 2005 totalling $9,105.07. He submitted that the items covered by those invoices, that are not related to report writing, pertain to care services for the Applicant and are therefore compensable.

The Applicant is also seeking the cost of attendant care services rendered by Ag Ta Home Health Care and Nursing Inc. ("Ag Ta") for assisting her with moving from her apartment to a new residence. She submitted invoices totalling $1,203.76 with supporting time log sheets: invoices dated September 17, 2005 for $80.25; dated October 15, 2005 for $575.13; and dated November 2, 2005 for $548.38. The Applicant submitted that those amounts are reasonable and the services rendered pertain to activities the Applicant could not do for herself and therefore fall under the services contemplated by section 7 of the Schedule.

State Farm's counsel argued, relying on arbitration, appeal cases and court decisions⁷ that the personal care and community management services recommended by RMI are not the type of services contemplated by section 7. Many of these services are more in the nature of those covered by section 6. Further, it is State Farm's position that expenses for care services must be incurred to be compensable.

Declaratory Relief

The Applicant's counsel also requested an order for declaratory relief for ongoing entitlement to care benefits. State Farm's counsel argued that this is not the appropriate case for declaratory relief since the Applicant never submitted an application for the care benefits she is claiming. He relies on the Monachino⁸ case where the court stated that declaratory relief is not available under circumstances where there is no evidence that the benefits at issue would not have been paid without the intervention of the court.

Special Award

The Applicant claims a special award under subsection 282(10) of the Insurance Act on the basis that State Farm unreasonably withheld benefits for the medical and rehabilitation services rendered by TRSI, and the care services rendered by RMI and Ag Ta. State Farm argued that the medical evidence does not support the Applicant's entitlement to those benefits and as such it did not unreasonably withhold payment.

REASONS FOR DECISION

Did the Applicant Sustain an Injury as a Result of the Accident?

The Applicant's medical evidence reveals a complex and very unfortunate picture of physical, cognitive and psychological conditions. She has undergone many years of assessments, medical and rehabilitation treatment and personal care services. There is no dispute that the Applicant's health has continued to decline over the nearly 13 years since the accident. Assessors retained by both parties have been in agreement that the Applicant suffers from pronounced and persistent physical, cognitive and psychological problems. The Applicant asserted that she is entitled to benefits for rehabilitation services, a case manager and personal care and community support services because the accident has materially contributed to the medical conditions she has suffered since the accident. State Farm argued that the medical evidence does not support that the Applicant's physical, cognitive, psychological and emotional problems were caused by the accident and for this reason, she is entitled to no further benefits.

To establish entitlement to the rehabilitation and care benefits, the Applicant must satisfy the burden to prove, on a balance of probabilities, that her injuries were materially contributed to by the accident. I find, for the following reasons, that the Applicant has failed to satisfy this burden.

I find the Applicant's evidence was deficient and unreliable in certain critical areas. A fatal shortcoming is that she has presented no pre-accident medical records or independent information from which to establish a medical baseline from which to assess her post-accident health. Assessors retained by the Applicant, such as Dr. Gawel, and by State Farm, such as Dr. Margulies, expressed concerns about not having a documented medical history, particularly the medical records of the Applicant's pre-accident doctor, Dr. Lee. Assessors commented on the fact that they were required to rely on the Applicant's self-report of her pre-accident medical history under circumstances where she presented with marked memory and communication problems.

I was confronted with a similar problem at the hearing. The Applicant displayed poor memory at the time of her assessments, beginning over a decade ago, and that presentation continued at the hearing nearly 13 years after the accident. Having no pre-accident medical information, except for the Applicant's sporadic self-reports to assessors, makes it difficult to determine if the accident caused or contributed to her post-accident medical status.

The Applicant was the only witness her counsel called to testify at the hearing. Nor did State Farm call any witnesses. Considering the rather complex cognitive, psychological and physical pain conditions suffered by the Applicant, I would expect that the Applicant's counsel would have presented written or oral evidence from the Applicant's pre-accident family doctors, particularly Dr. Lee, and her pre-accident chiropractor, Dr. Perry, to give evidence about the Applicant's health before the accident. Those doctors might have been of some assistance in clarifying her pre-accident medical picture. The Applicant displayed memory problems when testifying in crucial areas of evidence. She made blanket statements about her health being good before the accident. When asked specific questions about her health before the accident, her recall was sketchy at best and for this reason, I found it unreliable.

The Applicant did not offer an explanation for the pre-accident medical records not being available or for not calling pre-accident doctors. I find it reasonable to infer from this that the records and doctors more likely than not would not have assisted the Applicant's claims.

The evidence pertaining to the impact of the collision on the Applicant, particularly as to whether she hit her head or not, was also problematic. This is an important area of evidence since opinions as to her diagnoses were founded on whether there was head trauma or not. There was no issue in this case, and I therefore received no opinions, on head injury in absence of impact.

The Applicant testified at the hearing that she struck her head during the collision and blacked out. I did not find her evidence in this area reliable. The evidence about head trauma and loss of consciousness was uncorroborated by independent evidence and diverged from her post-accident medical records. The Applicant testified that she had a "T" shaped red mark on her forehead after the accident. However, neither Women's College Hospital's Emergency records, nor Dr. Lee's records (who she saw on the day of, and five days after, the accident), nor any of the other doctors she saw within days after the accident, noted a red mark on her forehead. The Applicant was not able to explain this. The Applicant could not explain why the Emergency records note "?hit head" and no loss of consciousness because she said she could not recall talking to Emergency medical personnel about hitting her head.

As noted above, the Applicant's boyfriend came to the site of the accident and accompanied the Applicant to Women's College. I received no evidence as to why the Applicant did not call, or summons if necessary, the Applicant's ex-boyfriend or Dr. Lee, who might have been able to provide evidence about whether the Applicant had a red mark on her forehead. I infer from this that the Applicant's ex-boyfriend and Dr. Lee, more likely than not, would not be able to provide evidence to support the Applicant's account of her state after the accident. I am therefore not persuaded that the Applicant hit her head in the accident.

The medical evidence was complicated by the fact that the Applicant presented with pronounced cognitive deficits, and yet the many CT scans, x-rays, MRIs and SPECT scans of her head were negative. ENT and sleep tests were also negative. Her other pronounced cognitive problems such as visual, language and communication problems were also largely unexplained by the results of the diagnostic testing.

Assessors arrived at a variety of different diagnoses and divergent conclusions about the cause of the Applicant's conditions. For instance, Dr. Chow, a physiatrist for the Applicant, diagnosed myofascial strain to the cervical thoracolumber spine; Dr. Steiner, a neuropsychologist for the Applicant, diagnosed a mild to moderate brain injury; Dr. Sumner, a psychiatrist for the Applicant, diagnosed cognitive impairment secondary to a traumatic brain injury and a depressive condition; Dr. Adams, a neuropsychiatrist for the Applicant, diagnosed chronic cerebral insufficiency secondary to an acquired brain injury; Dr. Berry, a psychiatrist and neuropsychiatrist for State Farm, diagnosed a severe psychiatric disorder with features of pseudodementia; and Dr. Margulies, a psychiatrist for State Farm, diagnosed a somatoform disorder. Some of the other assessors offered no definitive diagnoses. For the most part, assessors retained by the Applicant found that the Applicant's medical conditions were caused by the accident and those retained by State Farm concluded that the nature of the accident was such that it could not have caused the Applicant's severe conditions.

I would have found it of assistance to have an explanation for how the Applicant's assessors arrived at definitive opinions that the Applicant's conditions were caused by the accident under circumstances where no pre-accident medical information was available, and the Applicant, with her serious memory problems, was the sole source of information about her pre-accident health. This created a serious deficiency in the Applicant's evidence.

I also find it problematic that the Applicant called no witnesses to substantiate her evidence about the differences in her life before and after the accident. She testified that she was very active in sports and other activities right up to the accident. She would engage in some of these activities with her ex-boyfriend, Cameron. The Applicant testified about the stark change right after the accident in her functional abilities with respect to her daily activities. And yet, she did not call any of the friends she referred to in evidence, her ex-boyfriend, her past co-workers, or any of her family members who helped her after the accident, to give evidence about the contrast in her abilities before and after the accident. The Applicant submitted brief letters, both dated and undated, from past co-workers that I did not find helpful in absence of those persons being called as witnesses. As well, I note that she did not call any contemporaneous evidence - her care providers from Bellwoods, CCAC or Ag Ta - to testify about her post-accident abilities. Again, I received no explanation why none of the persons involved in the Applicant's life before and after the accident were not called, particularly considering her serious memory deficits.

For this reason, I find it reasonable to infer that those persons were not called because, more likely than not, they would not have been able to support the Applicant's evidence in this area. Again, I find the Applicant's testimony about the changes in her pre-accident and post-accident life unreliable without independent supporting evidence. This failure to call supporting evidence weakened her credibility.

Without a pre-accident medical baseline with which to compare her post-accident physical, psychological and cognitive status, and in absence of evidence that corroborates the Applicant's description of her life pre-accident, I find I cannot determine which, if any, of the Applicant's disabilities were contributed to by the accident. In short, I do not know if the accident played any role in her post-accident medical picture. It was the Applicant's burden to establish a material contribution by the accident, and I find she failed to do so.

Conclusion

For all the above reasons, I find the Applicant did not persuade me on a balance of probabilities that the physical, cognitive and psychological conditions for which she claimed rehabilitation and care services were caused or contributed to by her motor vehicle accident. I am therefore not required to decide whether the rehabilitation and care benefits claimed are reasonable and necessary for her treatment or claimed under the appropriate provisions of the Schedule. I therefore dismiss her claims for rehabilitation services by Therapeutic Rehabilitation Services Inc. and the care services by Rehabilitation Management Inc. and Ag Ta Home Health Care and Nursing Inc.

Since a special award arises from a finding of entitlement, I need not decide that issue. Nor am I required to consider the Applicant's entitlement to declaratory relief.

June 16, 2006

Beth Allen Arbitrator

Date

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2006 ONFSCDRS 101

FSCO A99-000578

BETWEEN:

DEBORAH TURNER

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

ARBITRATION ORDER

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

1. Ms. Deborah Turner's claim for benefits for the rehabilitation services of Therapeutic Rehabilitation Services Inc. is dismissed.

2. Ms. Deborah Turner's claims for benefits for the care services of Rehabilitation Management Inc. and Ag Ta Home Health Care and Nursing Inc. are dismissed.

3. I make no order as to expenses pursuant to Rule 75 of the Dispute Resolution Practice Code (Fourth Edition, Updated October 2003).

June 16, 2006

Beth Allen Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule —Accidents Before January 1, 1994, Regulation 672 of R.R.O. 1990, as amended by Ontario Regulations 660/93 and 779/93.
2. 2Basu and Zurich Insurance Company (OIC A-01353, April 29, 1997).
3. 3For instance: CAA Insurance Company (Ontario) and Rajinder Sandhu (FSCO P01-00044, January 18, 2002) Appeal; Abate and Liberty Mutual Insurance Company (FSCO A03-001542, June 11, 2004); Snook and ING Insurance Company of Canada (FSCO A02-000728, September 15, 2003); Lombardi and State Farm Mutual Automobile Insurance Company (FSCO A99-000957, December 4, 2003).
4. 4Statutory Powers Procedure Act, R.S.O. 1990, c. S.22., section 15.
5. 5(Fourth Edition, Updated October 2003) Rule 39.3.
6. 6For example, MacMaster and Dominion of Canada General Insurance Company (OIC A-006025, October 26, 1994); Alfred and Allstate Insurance Company of Canada (FSCO A98-000559, June 1, 1999); Ms. Y. and State Farm Mutual Automobile Insurance Company (FSCO A03-000149, August 31, 2004).
7. 7For example: Le and Wellington [1992] O.I.C.D. No. 46; Park and Citadel [1993] O.I.C.D. No. 46; and Bibby and Pilot Insurance Company [1995] O.I.C.D. No. 207; Malfitano and CAA [1994] O.I.C.D. No. 82; Monachino v. Liberty Mutual Fire Insurance Company et al [2000] 47 O.R. (3d) 441.
8. 8Monachino, supra