Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2006 ONFSCDRS 140
FSCO A05-000779
BETWEEN:
D. F.
Applicant
and
WAWANESA MUTUAL INSURANCE COMPANY
Insurer
REASONS FOR DECISION
Before:
Robert A. Kominar
Heard:
January 16, 17, 18, 19, 24, 25 and February 9, 2006, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances:
Ms F represented herself
Ian Kirby for Wawanesa Mutual Insurance Company
Issues:
The Applicant, D. F.,1 was injured in a motor vehicle accident on October 13, 2002. She applied for and received various statutory accident benefits from Wawanesa Mutual Insurance Company ("Wawanesa"), payable under the Schedule2 Wawanesa denied income replacement and various medical/rehabilitation benefits. The parties were unable to resolve their disputes through mediation, and Ms F applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The issues in this hearing are:
Is Ms F entitled to receive a weekly income replacement benefit pursuant to section 4 of the Schedule?
What is the amount of weekly income replacement benefit that Ms F is entitled to receive pursuant to section 6 of the Schedule?
Is Ms F entitled to receive as either medical or rehabilitation benefits a Tempur mattress set and a lightweight laptop computer with accessories claimed pursuant to sections 14 or 15 of the Schedule?
Is Ms F entitled to payments for the cost of examinations for a neuropsychological re-assessment pursuant to section 24 of the Schedule?
Is Ms F liable to repay Wawanesa $1500.00 for advances made against income replacement benefits, as well as $2200.00 for funds advanced to obtain banking records, pursuant to section 47 of the Schedule?
Is Wawanesa liable to pay a special award pursuant to section 282(10) of the Insurance Act because it unreasonably withheld or delayed payments to Ms F?
Is Wawanesa liable to pay Ms F's expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
Is Ms F liable to pay Wawanesa's expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
Is Ms F entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?
Result:
Ms F's claims for income replacement benefits, a Tempur mattress set, a lightweight laptop computer and accessories, and a neuropsychological re-assessment are dismissed.
Wawanesa's claim for a repayment of income replacement benefits in the amount of $1500.00 is dismissed. Wawanesa's claim for a repayment of $2200.00 for funds advanced to obtain banking records is dismissed without prejudice to it being raised again within the context of an expense hearing.
Ms F's claim for a special award is dismissed.
If the parties cannot agree on entitlement to or quantum of arbitration expenses within 30 days of the date of this decision an expense hearing may be arranged through the case administrator, as provided for in Rule 79 of the Dispute Resolution Practice Code, Fourth Edition.
EVIDENCE AND ANALYSIS:
Self Representation
Ms F was self-represented throughout this arbitration. At the outset of the hearing I inquired into the matter of legal representation and Ms F advised me that, although she has retained legal counsel in other ongoing litigation, she has not in this arbitration. Ms F stated that she understood the implications of proceeding with the hearing as a self-represented applicant and that she was prepared to do so. Ms F did not request an adjournment of the arbitration to further pursue the option of obtaining legal representation.
Throughout this arbitration I believe that Ms F made good faith attempts to comply with the hearing format and procedures, many of which she seemed to find frustrating. Although arbitration is not as formal an adjudicative process as litigation in the courts, there still are basic procedural and evidentiary norms which govern arbitration hearings to ensure that both parties are treated fairly and to focus the evidence and legal submissions specifically on the identified issues in the hearing.
Self-represented people, at times, encounter challenges with understanding the boundaries of what evidence and submissions are relevant in an arbitration hearing. In mediation it is permissible, and often invited, for the discussion to range well beyond the formal boundaries of the specific issues in dispute. However, once the dispute is placed in the hands of an arbitrator, the issues must be clearly defined, as the arbitrator's sole task and authority is to render a decision on those precise issues. In this case, although Ms F frequently expressed that she has many concerns about the way she has been treated by Wawanesa and its various representatives after her automobile accident, and although she has quite specific expectations about what her resulting insurance entitlements are, my role as an arbitrator of statutory accident benefit claims is to make a decision on the various discrete issues raised in the arbitration. Although I will deal with each specific claim below, I believe that it is important to note at this point that Ms F, throughout the arbitration hearing, continued to allude to issues and concerns which I, as a statutory decision maker, have no authority to deal with in this arbitration proceeding.
General Factual Background
Ms F was involved in an automobile accident on October 13, 2002, giving rise to the claims asserted in this arbitration. She was driving her uncle's car at the time, and stated that, while she was stopped for a red light, she was rear-ended by another vehicle. Ms F testified that the vehicle she was driving was written off and that she had to be transported to hospital by ambulance.
Ms F clearly has had a difficult and personally challenging time dealing with the aftermath of this automobile accident as well as other challenging events in her life. She stated in her testimony that she was taken to the same hospital which she had been in after she was assaulted in 2000, and as a result of this, she believes that she was compelled to re-live the trauma of that assault – particularly due to the fact that a police officer was present at the hospital who is implicated in a lawsuit which she has filed based on that incident.
Ms F quite evidently has an artistic temperament. She is a professional actress who has appeared in motion pictures and in television commercials. In addition to her dramatic efforts she also ran a business providing mobile massage treatment to corporate clients in various venues around Toronto. Her evidence at the hearing was that the automobile accident had a significantly detrimental impact on her ability to complete her final qualification examinations for becoming a registered massage therapist. At a number of junctures in the arbitration she insisted on clarifying that she is not a registered massage "therapist," as that is a regulated status in Ontario, rather she operated a business which provided massage treatments to clients.
Ms F testified that her life changed dramatically, and for the worse, after the automobile accident. As noted above, her evidence was that she had been the victim of an assault in 2000. In addition, she also testified that she had suffered a head injury as a result of a large container holding a bike rack falling off a shelf onto her in a well known Canadian retail store in 1999. Her evidence was that both of these incidents were very traumatic, physically and psychologically, and that they both have affected her life in very significant ways. She is pursuing civil lawsuits in these matters. The Statements of Claim for both were filed as exhibits in the hearing.
What is salient in this arbitration is that Ms F testified that, notwithstanding these two prior traumatic injuries she suffered, she was well on the road to reconstructing her personal and professional life prior to the automobile accident which we are dealing with here. Her testimony was that, despite the serious setbacks which these two incidents caused her, she was, in her words, trying to "re-live." She testified that she had been able to once again access the energy and capacity to put her life back together and strive to achieve her personal and professional goals.
While Ms F had originally felt depressed and dispirited after these two earlier incidents, she stated that, with personal and professional support, she was reconstructing her life and trying to move herself out of depressive inactivity and to maintain a positive outlook on life. Specifically, she stated that the various acting jobs which she was able to secure compelled her to manifest some optimism and hopefulness about life. I found it quite moving when she testified how important it was that, as a black woman, she was able to comb her hair out once again, noting how culturally important, yet physically challenging, this simple daily activity was for her. Landing acting jobs allowed her to pay for getting her hair done, which in turn made it easier for her to manage her hair on a daily basis herself. Ms F used her hair as one example of how hard she was trying to work through her personal challenges and get herself back on the life path she wanted to travel. She mentioned other examples; however, I accept without qualification her evidence that she was trying to put her life back together, as best she could, prior to the automobile accident involved in this case.
Ms F testified that, after the automobile accident, she lost all of the energy and momentum which she had been utilizing to recover from the prior incidents and disabilities associated with them. Her evidence was that, after the automobile accident, she seriously started to wonder what was happening to her and to worry about whether other negative things would happen in the future. She said that she started to re-experience anxieties which she had after the earlier traumas. Her attempts to maintain a positive and productive attitude ultimately succumbed to the circumstances in which she found herself. She stated that, while Wawanesa's adjuster, Mr. Tim Votskos, was initially very helpful to her, his ultimate denials of various requests for medical treatments and rehabilitation measures only exacerbated the effects of this accident on her life and impeded her efforts to return to her pre-accident status.
Ms F was quite eloquent and frequently demonstratively emotive in her descriptions of how her life has changed as a result of this automobile accident. However, many of the concerns she expressed throughout the arbitration are more related to tort damages which she may be entitled to, and not statutory accident benefits. Although Ms F apparently initially had some legal advice about this matter, and does have legal representatives conducting her other civil litigation, she was fending for herself in this arbitration. This is a decision which Ms F made and therefore she must accept the consequences of. She was clearly well prepared for what turned out to be a long arbitration hearing given the issues in dispute. I consciously extended Ms F very broad latitude in direct examination, cross-examination and calling witnesses out of order to accommodate her self-representation. Ms F was provided a full opportunity, unrestrained by many normal procedural formalities, to present the case supporting her claims and in response to Wawanesa's. This hearing took significantly longer than I would have expected if Ms F had been represented. But I believe that honouring Ms F's right to full access to justice justified spending the extra time involved.
Each of the issues which the parties have put before me for decision needs to be considered independently. It is well accepted law that Ms F bears the burden of proof in the claims which she advances, and Wawanesa bears the same burden in its claim for repayment. This means that Ms F must provide evidence to me, on the balance of probabilities, establishing that her case is stronger than Wawanesa's case that she is not entitled to each specific benefit. She does not have to demonstrate that her claims beyond all doubt, only that her case is more persuasive than Wawanesa's on each discrete issue. Ms F, on a number of occasions, seemed to suggest that her claims were being advanced on an "all or nothing" basis. If that is what she believes, she is incorrect. Her entitlement to any specific benefit is independent of her entitlement to other claimed benefits. Wawanesa must establish its claim for repayment on the same basis.
INCOME REPLACEMENT BENEFITS
There are two distinct aspects of the income replacement benefit issue in dispute in this arbitration. For Ms F to be eligible for income replacement benefits during the first two years after the automobile accident section 4(1) of the Schedule provides that she must prove that, as a result of the accident, she has a "substantial inability to perform the essential tasks of [her] employment." This is commonly referred to as the disability test. But there is more in dispute in this case than the status of Ms F's disability. Even if it is determined that she meets the disability test, Wawanesa is entitled, according to section 6(2) of the Schedule to offset 80% of net post-accident income from any income replacement benefit to which Ms F would be otherwise entitled. Income replacement benefits under the Schedule are not the same thing as loss of economic opportunity damages in tort law. They are calculated, subject to entitlement, in accordance with the precise criteria set out in the Schedule.
At the time of the accident Ms F was self-employed. There is no dispute that she continued to work after her automobile accident. Although Ms F testified about the various reasons why she thought it was necessary and appropriate that she continue to work, the fact of the matter is that she did continue to work, despite her injuries. The question I have to answer is how her continued employment after the accident affects her entitlement to income replacement benefits.
On the issue of disability I find on the evidence before me that Ms F did not meet, at any relevant time, the test of substantial inability, let alone the much more onerous test of complete inability which applies after the two year anniversary of the accident. Ms F testified that, despite the challenges she faced in doing so, she continued to engage in much the same activity after the accident as she had before. She may well have experienced some pain and psychological stress, but that is a matter for a tort claim, not for the accident benefits insurer. There was no evidence presented to me in this hearing suggesting that pain was in itself disabling for Ms F. On the subsequent question of the quantum of income replacement benefits Ms F would be entitled to, if she met the disability test, I find that, based on the evidence I have, the quantum is zero.
The disability test for the first two years after the accident requires that Ms F prove, on a balance of probabilities, a substantial inability to perform the essential aspects of her pre-accident employment. Based on the evidence at the hearing, I find that Ms F's pre-accident employment consisted of acting, dancing and running a massage business which involved her and, at times, other persons providing massage treatment to clients. In order to determine whether Ms F was substantially unable to continue her pre-accident employment it is necessary to compare her pre-accident work activity with what she was able to do after the automobile accident. Often in such cases the applicant argues that he or she is simply unable to continue to work after the accident and so they don't do it. The insurer then typically raises the issue of whether that is in fact true, with the underlying assumption being that the applicant is able to do more than he or she is actually doing. However that type of scenario does not reflect the facts of this case, as Ms F admitted in her evidence, and all of the other evidence before me confirmed, that she continued to work after the accident. The question I am required to answer is not simply whether she "worked" in some capacity or not after the accident, but whether she was rendered substantially unable to perform the essential tasks of her pre-accident employment.
When I compare the evidence I have of what Ms F was doing prior to the automobile accident with what she was doing after the accident, I am unable to reasonably conclude that she meets the substantial inability test. The fact that she continued over an extended period of time to do much of what she did prior to the accident logically leads me to conclude that she was "able" to do that work. This is not to discount at all that Ms F may have been engaging in employment while suffering some pain and difficulty, but as I noted above, that is an issue relevant to a tort claim, not an application for statutory accident benefits.
Ms F, on the evidence I have, was engaged in occasional acting related work prior to the automobile accident. Her evidence was that she continued to do this after the accident. She testified that she appeared in a feature film as well as at least one television commercial after the accident, specifically noting that she was hired for the television commercial prior to the automobile accident but did the actual acting after it. Her evidence in cross-examination was that she continued to act after the accident because she simply "had to be out there." Based on this evidence I have no basis on which to reasonably conclude that Ms F suffered a substantial inability to engage in acting after her accident.
The evidence related to the mobile massage business was that Ms F was devoting approximately "three plus" hours per week to it just prior to the automobile accident. As Ms F explained to Mr. Kirby, she was not running a massage business at that time of the accident as much as "reviving" a business that was in serious decline due to the challenges associated with her two earlier traumas. Her precise testimony was that the massage business was "almost in non-existence" prior to the automobile accident. Ms F attributed the decline in her business to a failure to advertise it as well as to her no longer maintaining an active cell phone number where clients could contact her to arrange appointments. She also stated that losing 24/7 internet access was a significant factor in the decline of the business. She could only access the internet from a public library during its regular hours. Ms F did not offer any explanation as to why 24/7 internet connectivity was essential to operating her mobile massage business. Ms F did acknowledge that she was provided with lightweight massage equipment by Wawanesa to assist her in trying to maintain this particular employment. These assistive devices apparently had no significant effect on the viability of the business.
Ms F testified that before the automobile accident she had accepted the advice of a neurologist that she would no longer be able to work as a professional dancer. She provided me with no evidence describing her employment as a dancer prior to the accident other than that she considered dancing to be an area of her artistic competence. Nonetheless, her evidence was that she secured a job teaching line dancing to senior citizens after the accident. She stated that she started this job in approximately May of 2003. Her evidence was that she has continued in this employment right up to the arbitration hearing, earning approximately $100.00 weekly while working roughly 4.5 hours per week. Ms F also testified that she had recently entered into an arrangement with a private school to teach dance to elementary school students as part of their physical education program, a job which she said was actually scheduled to start during the period of the arbitration hearing.
In addition to the above post-accident employment, which I find strongly correlates with the type and amount of work Ms F was doing pre-accident, her evidence and that of M. P., Ms F's former boyfriend, was that she worked as a retail clerk in Yorkville, commencing sometime in 2004. Apparently she worked there mostly from Friday through Sunday. According to Mr. P, she worked, on average, five to six hour shifts. Ms F stated that her hours varied but that she, at times, worked up to twenty hours per week. She stated that she took this job because she had to pay legal fees for her other lawsuits.
The evidence before me is that Ms F acted from time to time before the accident and continued to do so afterwards. In fact she was not prevented by the accident from acting in the television commercial which she had landed prior to the automobile accident, or from appearing as a principal character in the feature film. She testified that she considered herself to be a dancer. However Ms F provided no evidence as to what professional dancing employment she had prior to the accident and also stated that she had concluded that she would never dance again professionally well prior to the accident. Notwithstanding this recognition, Ms F has clearly been able to teach dancing to seniors and elementary school students, which I assume requires her to demonstrate steps and techniques. I was presented with no specific evidence that Ms F's pre-accident dancing employment required abilities beyond those she continued to demonstrate in her teaching dance to others. Ms F testified that she was only engaged in "reviving" her flagging massage business prior to the accident. Her own evidence was that she was only devoting about three hours or so per week to the task prior to the automobile accident, as the business was almost defunct at that point in time. In addition to all of this, Ms F took up a new form of employment in 2004 as a retail clerk. When I consider the totality of this evidence related to employment, the only reasonable conclusion I can draw from it is that, even though she may have been experiencing physical pain and psychological stress, Ms F continued to be able to do the vast majority of what she was doing prior to the accident after it. She may have had some limitations in doing some portions of that work for some period of time, but I find that there is no evidence before me to support that she was ever substantially unable to perform the essential tasks of her pre-accident employment. In fact the evidence supports just the opposite conclusion. Ms F remained substantially able to carry out the essential tasks of her pre-accident employment after the accident and actually continued to do so.
There is other evidence which I believe independently, but strongly, supports my conclusion on the disability issue. I will speak more to this below, but the evidence before me is that Ms F's income from employment, as recorded in her income tax returns, remained relatively constant before and after the accident. Ms F agreed with this and that her income tax returns filed in evidence are fair representations of her income. She was supported in these statements by evidence provided by her accountant, Mr. Bruce Reilly, during the hearing. The inference I draw from this, as it relates specifically to disability, is that Ms F was able, for the most part, to do what she had done prior to the accident after the accident. The kinds of employment Ms F has testified she has had in her life have been short term and contract work. This did not change after the accident and the amount of money she earned doing these things did not significantly change after the automobile accident either. One would expect that if she was "substantially unable" to perform the essential tasks of her employment after the accident, and "if" her post-accident employment was basically of the same nature as her pre-accident employment, that a "substantial inability" to engage in that employment would be accompanied by a significant reduction in her employment income. That is not the case here. This, I find, strongly supports the conclusion that Ms F did not have a substantial inability to engage in her pre-accident employment after this automobile accident.
Even if I am wrong on the issue of entitlement due to substantial disability, I find that Ms F would not be entitled to an income replacement benefit, if for no other reason than that her employment income remained virtually constant after the accident.
Ms F called her accountant to testify about her employment income and tax returns. I agree with Mr. Kirby's assessment of this evidence and I find that in 2002 Ms F showed a net employment income, for tax purposes, of approximately $3627.00, in 2003 she showed a net income of approximately $3252.00, and in 2004, according to her "draft" tax return, she would have reported a net income of $3460.00. In 2001, the year prior to the accident, she reported a loss of $7482.00. The conclusion I draw from this evidence is that Ms F did not incur any significant reduction of income after the motor vehicle accident in 2002. In fact her business income went up after the accident. Both Ms F and her accountant acknowledged in their evidence that the tax returns are fair representations of her employment income for the relevant years.
Section 6(2) of the Schedule allows the insurer to deduct 80% of net post-accident income from any income replacement benefit to which an applicant is otherwise entitled. Given that an income replacement benefit is calculated based on 80% of an applicant's net pre-accident income, it is reasonable to assume that this deduction is normally intended to directly offset amounts payable by an insurer in many cases. It is certainly possible for post-accident income amounts to vary from pre-accident income, and if this were the case, there would not necessarily be a one-to-one offset. However in this case, my finding is that Ms F continued to earn, within an annual range of about $375.00, the same amount in each relevant taxation year. She did not lose any income which needs to be "replaced" by an income replacement benefit.
Another important aspect of calculation of the quantum of income replacement benefits, is that Wawanesa advanced Ms F $2200.00 to obtain banking records which they intended to have an accountant use to precisely calculate the amount of income replacement benefits Ms F might be entitled to. This is common practice when an applicant for income replacement benefits is self-employed. Ms F admitted that, despite receiving these funds, she did not provide these records to Wawanesa despite numerous requests made for them. I find that production of these banking records would have been relevant and useful in precisely quantifying an income replacement benefit. Given that Wawanesa advanced Ms F the funds necessary to obtain the records yet did not receive them, I am prepared to draw an adverse inference from their non-production to the effect that they would not have revealed any information which would have substantiated an income replacement benefit that would not have been offset by post-accident income. The evidence that Ms F presented at the hearing supports Wawanesa's position that any income replacement benefit Ms F might have been entitled to must be quantified at zero during the two years following the accident, a period for which we have tax documentation if nothing else. After the two year anniversary of the accident Ms F's continuing to work makes further consideration of this issue moot.
Therefore my ultimate conclusion on this issue is that Ms F does not qualify for an income replacement benefit because she did not demonstrate during the arbitration a substantial inability, for any relevant period of time, to perform the essential tasks of her pre-accident employment, let alone a complete inability to engage in any employment for which she is reasonably suited based on education, training or experience. Beyond that I find that the evidence of Ms F's post-accident income requires me to conclude that any income replacement benefit to which she might have been entitled, had she met the disability test, would have to be quantified as zero.
KING SIZE TEMPUR MATTRESS
Ms F claims, as either a medical or a rehabilitation expense, the cost of purchasing a king-size, extra long, Tempur mattress. Tempur mattresses, as Ms F testified, are mattresses which have no spring system in them, relying on the substance which they are constructed of to mold itself to body contours, thereby providing customized support to each user. She noted that her specification of a king-sized, extra long, mattress originated from her anticipation that she would marry some day and that her spouse would likely be taller than her, therefore requiring an extra long mattress, as she is a tall woman herself.
Wawanesa is required to pay for this mattress only if it is a reasonable and necessary expense related to Ms F's medical treatment or rehabilitation as a result of the automobile accident. Section 14(2) of the Schedule provides that the insurer shall pay "for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident" which relate to various specified categories of medical services. Section 15(2) of the Schedule provides that Wawanesa is also responsible for paying for "reasonable and necessary measures undertaken by an insured person to reduce or eliminate the effects of any disability resulting from the impairment or to facilitate the insured person's reintegration into his or her family, the rest of society and the labour market."
Ms F claims that she is entitled to have Wawanesa pay for this mattress under either section 14 or 15 of the Schedule. She testified that she researched the mattress on the internet, as she had a difficult time sleeping after the motor vehicle accident. She testified, and this was supported by the evidence of M. P., that even while she was living with him at his parents' home and sleeping on what she described as a "quality mattress," she still was unable to rest properly. After moving from the P. residence, Ms F constructed a bed of her own, which was essentially a wood frame topped by some type of foam. As a result of this she searched out other sleeping options and decided that the Tempur mattress was what she needed.
Although Ms F testified as to her desire for the Tempur mattress, as well as her personal belief that it would benefit her sleep and therefore her recovery from her accident injuries, I find that she did not meet the test of proving, on a balance of probabilities, that the mattress was both reasonable and necessary in her situation as the Schedule requires if Wawanesa is to be ordered to pay for it.
Ms F submitted in support of her claim to entitlement to this mattress a "prescription," dated October 8, 2004, written out by Dr. I. Mohamed, her family physician, as well as the treatment plan prepared by Dr. Rennie, her psychotherapist, dated January 21, 2005, which endorsed Dr. Mohamed's recommendation.
Dr. Mohamed was not called as a witness in the arbitration. His recommendation of this mattress for Ms F is located on a prescription form with the words "Tempur mattress set" penned on it. There is also a letter from Dr. Mohamed, dated December 14, 2005, stating that he would not attend at the arbitration due to his being on holiday. Within that letter Dr. Mohamed records that he had recommended the Tempur mattress set, as well as a lightweight laptop computer for business needs. He concludes by saying that "[this] may have had positive effect to her recovery process."
As Mr. Kirby pointed out in his submissions, there is no explanation in evidence from Dr. Mohamed as to why such a mattress would be either reasonable or necessary for Ms F to treat any accident related medical condition or to aid in her accident related rehabilitation.
Dr. Rennie is a family physician, who testified that he restricts his practice exclusively to providing psychotherapy for his patients. He explicitly stated that he has never conducted any physical examination of Ms F and that he is thus unable to offer any physical diagnosis or treatment recommendations for her. He was treating Ms F only for psychological problems.
Nonetheless, Dr. Rennie's treatment plan did recommend that Ms F be provided with a Tempur mattress set. I note that this recommendation for the mattress was actually written onto the treatment plan form by Ms F herself, although Dr. Rennie did acknowledge signing off on the treatment plan.
I do not discount that Ms F might possibly have experienced some psychological benefits from restorative sleep. However, mere "possibility" of a positive effect, which is the stated basis for Dr. Mohamed's recommendation, does not satisfy the "reasonable and necessary" test stipulated in the Schedule. Based on the evidence before me, I have no reason to conclude that a Tempur mattress is either reasonable or necessary for Ms F. I have no evidence before me that Ms F suffers, as a result of this accident, from any physical problem which would be benefitted by this particular type of mattress. I have only a prescription form and a letter from Dr. Mohamed which mentions the mattress in passing. The only other professional who rendered an opinion supporting the mattress is Dr. Rennie, who clearly stated in his testimony that he never physically examined Ms F and that he was unable to make recommendations regarding her physical treatment. Dr. Rennie also did not testify that such a mattress was psychologically reasonable and necessary for Ms F. In fact, he testified that he actually didn't know anything about the specifics of the Tempur mattress at all. His evidence was to the effect that he believed that, if Ms F wanted the particular items she was asking for, and if the insurer would pay for them, it might help her feel more at ease, which presumably would be a good thing for her psychological well being. Whether this would have been the case or not, I am not persuaded that Ms F has provided me with any cogent evidence that a Tempur mattress is either reasonable or necessary in her circumstances. I believe that Dr. Rennie is well meaning, but my view of his evidence was that he had no reasonable basis upon which to make the recommendations he did in his treatment plan. Blindly endorsing Dr. Mohamed's recommendation in a treatment plan filled out by Ms F is unpersuasive on the issue. I find that Dr. Rennie was acting more in the capacity of a concerned advocate for Ms F than as an objective health care practitioner in signing this treatment plan.
Ms F called two occupational therapists during the hearing, neither of whom commented on the need for the Tempur mattress. Dr. Levy, an orthopaedic surgeon, conducted a Med Rehab DAC regarding the claim for the mattress. His evidence was that he took a full medical history of Ms F and also conducted a physical examination on her, at least to the extent that Ms F would allow. On physical examination, Dr. Levy testified that he found mild tenderness in Ms F's upper trapezius, right upper back and shoulder blade. She had some decreased range of motion in her neck and low back. She also had slightly reduced range of motion in her baby finger and decreased pinprick sensation in her right thumb. He stated that he only conducted active range of motion tests on Ms F, as passive range of motion tests, where the physician controls the motion, are usually resisted by patients. Dr. Levy's testimony was that he uses evidence based medicine approaches to forming his conclusions. He was unable to find any clinical studies which confirm that the mattress Ms F requested was medically reasonable or necessary. Beyond not finding any evidence in the medical literature supporting the therapeutic value of such a mattress, Dr. Levy stated that his failure to find any evidence of neck or back deformities or any appreciable muscle spasm, neurological deficit or other physical pathology in Ms F also strongly warranted his conclusion that this mattress was not necessary for her accident related rehabilitation or treatment. On cross-examination Dr. Levy stated that another basis for his conclusion regarding the reasonableness and necessity of the mattress was that Ms F told him during his assessment that she typically sleeps between eight and nine hours per night. He stated that, in his clinical experience, people with disturbed sleep patterns typically stay in bed for much shorter periods of time. He concluded that if she was getting this much sleep on her current bedding she did not demonstrate any need for the Tempur mattress. Dr. Levy further clarified, as a result of Ms F's questioning, that there is only one clinical study on mattresses and back pain, and that it concludes that a medium-firm mattress may help people with low back pain. There is no published study relating specifically to the usefulness of the Tempur mattress.
Taking all of the evidence on the Tempur mattress issue into account, my finding is that Ms F has not met the burden of proof of establishing that it is either reasonable or necessary, let alone reasonable and necessary, for her medical treatment or rehabilitation as a result of this accident. The specific reasons supporting this conclusion are that Dr. Mohamed did not testify or provide a report clarifying any rationale for his "prescription" of the mattress. Ms F's evidence was that she told Dr. Mohamed that Wawanesa was denying her claim for this item and he offered to write the prescription for it. Without the benefit of further evidence from Dr. Mohamed, I am not prepared to conclude that the prescription form Dr. Mohamed filled out means that he believes the item is "reasonable and necessary" for Ms F. Dr. Rennie endorsed Ms F's request for the mattress in a treatment plan, but also testified that he never conducted a physical examination of her, had no evidence to offer about her physical condition, and he really doesn't know anything about this specific mattress. Finally, Dr. Levy's evidence, which I accept, is that there are currently no published clinical studies related to this specific mattress and that his physical examination of Ms F did not reveal the need for any special sleep aids, especially when one takes into account that she is managing to get eight to nine hours of sleep per night in her current bed.
LIGHTWEIGHT LAPTOP COMPUTER AND ACCESSORIES
The same statutory tests for medical and rehabilitation benefits apply to Ms F's request for a lightweight laptop computer and accessories as apply to her request for a mattress.
Ms F testified that she was endeavouring to revive her massage business after the automobile accident, despite her ongoing physical and emotional challenges. She felt that she really was driven to put forth a positive attitude toward life and overcome the obstacles confronting her.
One of the items which Ms F testified would benefit her in this regard was a lightweight laptop computer. In her evidence Ms F did not clarify what the necessity of the computer she wanted was. She testified that she already has a laptop computer and that she used it in her work prior to the automobile accident. She stated that her current computer weighs about twenty pounds and the one she is requesting weighs between seven to ten pounds less. Ms F did not testify that there is any functional problem with her current computer. As best I can determine from the evidence, Ms F claims that she would be able to carry a lightweight computer around more easily than the one she has been using in her massage business. I note that Ms F emphasized during her evidence and submissions that it was a "light-weight" laptop computer that she was requesting. From this I draw the inference that it is essentially the portability of her current computer which she finds challenging.
In support of her claims to the computer Ms F called Ms Kozina and Ms Gregory, who are both occupational therapists. The evidence of Ms Kozina was that she did not believe that a lightweight laptop computer was reasonable or necessary for Ms F, as she found such equipment to be a cost of doing business, and not something which was necessary to compensate for any disability Ms F suffered related to the automobile accident. Ms Kozina noted in her report, dated July 31, 2004, that Ms F told her that she wanted the laptop computer to do invoicing but also that she formerly accomplished this task with hand written receipts.
Ms Gregory is an occupational therapist whom Ms F specifically sought out based on her expertise in dealing with adaptive computer technology. Despite Ms F's efforts in direct examination to elicit a recommendation supporting the need for the computer, the most she was able to get Ms Gregory to say was that, "if" Ms F could ever establish the need for such technology, then she would be able to assist her in finding the right equipment based on her specifically identified needs. Ms Gregory was definitively unwilling to conclude that Ms F had any accident related need for the computer which she was requesting.
Although Dr. Rennie signed off on a treatment plan for the computer, the same one in which recommended the mattress, his evidence at the hearing was that he had no idea about Ms F's computer situation or how the computer she was requesting differed from the technology she already had. His evidence was that, essentially, he believed that a resolution of Ms F's conflicts with Wawanesa, on whatever basis, would likely help her psychologically.
During the arbitration Ms F did not provide any evidence that convinces me that there is any reasonable basis to conclude that she needs a lightweight laptop computer as a result of the automobile accident. The only relevant evidence which she provided as to the use of this equipment is that she might be able to generate bills for massage clients on the spot. As to the balance of her employment activity, I find that Ms F presented no evidence which supports the need for a computer which can travel with her in her work. I heard no evidence connecting such equipment with her work as a dance instructor, actress, or retail store clerk. Nor has she established any basis for concluding that she could not use her current computer, if necessary, to perform this invoicing work. I note that, although it is not in dispute in this arbitration, Wawanesa did provide Ms F with various assistive devices to facilitate carrying on her massage treatment business after the accident. It seems to me that equipment similar to that which allows her to move her massage table around can quite probably be used to transport the current computer as well. If not, then a luggage carrier type device of some sort would certainly be adequate to meet any needs Ms F has in regard to computing on the road. In fact this was the suggestion of Dr. Levy, who also assessed the request for a computer in the Med Rehab DAC.
The test in the Schedule is that the medical or rehabilitation benefit sought must be both reasonable and necessary. Based on the evidence in this hearing I am not satisfied that the lightweight laptop computer is a reasonable expense that Wawanesa should pay for. Even less am I convinced that it is a necessary expense. There clearly are much less costly and practical solutions to dealing with equipment mobility if that truly were necessary in Ms F's case – a conclusion which I don't accept in any event. Finally, I heard no evidence in the hearing which leads me to conclude that there is any significant problem for Ms F to move her current computer around with her as needed. Her testimony was that she believed that she needed a computer upgrade, but that is not relevant to my decision on her entitlement to have Wawanesa pay for it.
NEUROPSYCHOLOGICAL RE-ASSESSMENT
The conclusion I draw from the evidence presented by Ms F on this issue is that she personally decided that she would benefit from a neuropsychological re-assessment. She underwent an assessment in 2000, conducted by Dr. Kaminska, related to her pre-accident traumas. Ms F did not feel that she was improving and wanted what she called a "baseline" to know whether her cognitive functioning was deteriorating. At many points throughout the hearing Ms F alluded to her belief that she was cognitively challenged, particularly when it came to restricting her evidence and questions to the issues in dispute in the arbitration. I attempted to respond to these comments by allowing her a very wide latitude to engage in circuitous questioning and explore tangential evidence as she felt she needed to. In deference to her being self represented, I, to the extent that it was reasonable, did not overly restrict her actions when she, at times, combined her roles as witness and advocate.
The neuropsychological re-assessment requested in this case was recommended by Dr. Kaminska, neuropsychologist, who testified at the hearing. Dr. Kaminska was contacted personally by Ms F in this regard. Ms F provided Dr. Kaminska with the occupational therapy report which was prepared by Ms Gregory in 2004. In that report Ms Gregory stated that, based on her discussions with Ms F, she thought that a comprehensive assessment of psychological and cognitive needs was in order. With Ms F's consent, Ms Gregory discussed Ms F's concerns, without revealing any identifying data, with a neuropsychologist whom she knew, and was advised that Ms F needed to be referred to a clinical psychologist to do a full psychological assessment of her as it relates to the automobile accident. Ms Gregory declined to conduct an actual occupational therapy assessment of Ms F, believing that she needed someone with a speciality in dealing with soft tissue injury. Based on Ms Gregory's report, Dr. Kaminska recommended a neuropsychological re-assessment, with the proviso that someone would need to pay for it.
Wawanesa noted that Dr. Kaminska recommended this re-assessment without any evidence that Ms F had suffered a head injury as a result of this accident, or that she had experienced any change in her ability to work or to lead a normal life since the last assessment in 2000, or of any treatment which she was undergoing or had completed. This was notwithstanding that in her original neuropsychological report on Ms F Dr. Kaminska strongly recommended that Ms F obtain psychological counselling, as her assessment results were not what one would expect to arise out of a mild brain injury, and that her severe emotional distress was "clouding" the neuropsychological assessment of the etiology of Ms F's cognitive deficits.
The Med Rehab DAC assessment, conducted by the psychologist Dr. Zakzanis, on this issue concludes that there was no evidence that Ms F suffered any of loss of consciousness in this accident, experienced no retrograde or post-traumatic amnesia, and that the likelihood of traumatic brain injury surfacing is slight, at best, some two years after the accident. Therefore a neuropsychological impairment would be unexpected. His conclusion was that in such circumstances a neuropsychological re-assessment would be unnecessary.
Based on my experience of Ms F during this hearing, I am prepared to conclude that she is still suffering from significant psychological problems. They manifested themselves many times during the arbitration. I have no evidence from which I can reasonably determine whether these problems are causally connected with the motor vehicle accident or not. I have no ability to deal with anything other than the issues in dispute in this arbitration. However, having said that, it is apparent to me that Ms F would clearly benefit from a psychological assessment which could help determine what treatment options might assist her best.
I find that Dr. Kaminska's evidence in support of the re-assessment was unconvincing at best. I am particularly concerned that Dr. Kaminska testified that she was aware that she personally had recommended that a psychological evaluation of Mr. F be conducted, yet she nonetheless went ahead and recommended a neuropsychological re-assessment without even inquiring into what, if anything, had happened to Ms F between her initial assessment in 2000 and Ms F's new, self-referred, request. Dr. Kaminska suggested that her doing a neuropsychological re-assessment would provide a "comprehensive" view of Ms F's condition. However she did not state who exactly she believed would benefit from this assessment effort, which I find particularly salient, as Dr. Kaminska did not seem to be at all interested in the follow up to her original assessment. Dr. Kaminska also admitted in her evidence that Ms F's serious ongoing emotional challenges could compromise the findings of a neuropsychological re-assessment. This in itself, suggests to me that the reasonable course of action would have been to require that Ms F undergo the earlier recommended psychological assessment, prior to considering any possible need for a neuropsychological re-assessment.
In the face of Ms F's self referral, the failure of Dr. Kaminska to read or manifest any interest in any of the medical reports on Ms F that were available at that time, Ms Gregory's relating that the neuropsychologist she spoke to about Ms F recommended a psychological assessment and the Med Rehab DAC's concerns, I find that there was no reasonable basis for recommending a neuropsychological re-assessment of Ms F.
It is abundantly clear to me that Ms F has strongly entrenched views about the nature of her condition and the options open to her to address it. She is unrelenting in claiming those things which she believes will help her. There is nothing wrong with her advocating for these things on her own behalf. The problem arises, in my view, when Ms F closes her eyes to alternatives which other people want her to at least consider. Although it is ultimately Ms F's choice as to how she deals with her health situation, that does not automatically imply that Wawanesa is required to pay for whatever treatments and assessments Ms F wishes to explore. The Schedule makes it clear that Wawanesa is required to pay only for reasonable and necessary medical treatments and rehabilitation efforts. In this arbitration Ms F has not established, on a balance of probabilities, that the medical or rehabilitation treatments and devices which she has requested are either reasonable or necessary. Therefore I find that Wawanesa is not required to pay for them.
REPAYMENT
The evidence Mr. Votskos provided is that Wawanesa advanced the amount of $1500.00 to Ms F on account of potential income replacement benefits by a cheque dated February 6, 2003 in the amount of $1000.00 and a further cheque dated April 24, 2003 in the amount of $500.00. Ms F signed documents titled "Confirmation of Receipt of Payment" acknowledging the nature of the advance payments and agreeing to reimburse Wawanesa if the advances resulted in overpayments to her. Given that I have found that Ms F was not entitled to income replacement benefits, I find that these advances were in fact overpayments made by Wawanesa to Ms F on account of income replacement benefits.
Section 47(2) of the Schedule provides that if an insurer is claiming a repayment it must notify the person who is being asked to repay the benefit of the amount being claimed. Section 47(3) goes on to say that the notice under section 47(2) must be provided within 12 months of the payment being made.
I find that the advances against income replacement benefits are properly subject to a claim for repayment and that, in this case, there was in fact an overpayment of income replacement benefits to Ms F. However I am not satisfied that there is any evidence of Ms F being put on notice within 12 months of the payment dates that Wawanesa was actually, as opposed to potentially, claiming a repayment. There are letters from Mr. Votskos to Ms F dated February 6, 2003 and April 25, 2003 confirming the advance payments and requesting that Ms F execute the Confirmations of Receipt of Payment. Both of these letters state that "[In] the event that we have overpaid you, we will request reimbursement for any amounts owing to us." [emphasis added] I believe that it is fair to assume from the context that there was no reason at the time for Wawanesa to expect that they would be asking for the repayment of this money some day, otherwise they likely would not have advanced it. The conclusion I draw, grammatically abstruse as it may be, is that the phrase "we will request" is not a future indicative tense, but rather a future subjunctive construction.
Mr. Kirby's argument, when I asked about notice during his submissions, was that these letters from Mr. Votskos constitute the required notice to Ms F of the overpayment. I find that a condition precedent to an insurer issuing a valid notice requiring repayment is that the insurer at least prima facie believe that there was an overpayment. I find it implausible to argue that an insurer can make a valid demand for repayment of a benefit, based on a purported overpayment, at the same moment they are advancing funds to an insured person on account of that same benefit. Therefore, to validly claim a repayment here Wawanesa would have had to provide me with evidence that they notified Ms F, within one year of these funds being advanced to her, that there was an overpayment in a specific amount and that they were actually demanding repayment of the same. There is no such evidence before me. The best case which Wawanesa can press is that they made such a demand in their Response by Insurer to an Application for Arbitration, however that is beyond the one year limitation period.
Given that a repayment demand is something which should be strictly construed against an insurer, I find that Wawanesa is not entitled to claim these funds back from Ms F.
Mr. Votskos also testified that Wawanesa advanced Ms F the sum of $2200.00 in order to facilitate her obtaining banking records which the insurer's accountant requested to assess her entitlement to and quantum of income replacement benefits. I accept Mr. Votskos' evidence that these funds were paid to Ms F and also that the records were never provided to Wawanesa, despite the fact that they and their accountants continually requested that Ms F produce them. Ms F had no explanation for her failure to produce this documentation other than she thought they were sent. The cheque was made payable to Ms F and clearly was intended for her to obtain these records. She also testified that she used the money to "pay off debts." and that she intended to repay the money once her entitlement to income replacement benefits was established.
Since the documents were not provided to Wawanesa it seems unfair and unreasonable that they should be expected to pay for them. However, section 47 of the Schedule only authorizes an arbitrator to order repayment in certain specific situations.
Section 47(1)(a) of the Schedule requires that a person shall repay "any benefit under this Regulation that is paid to the person as a result of an error on the part of the insurer, the insured person or any other person, or as a result of wilful misrepresentation or fraud." [emphasis added] The $2200.00 Wawanesa advanced to Ms F was to obtain banking records. Although the term "benefit" is not explicitly defined, the Schedule uses it as a generic category which collectively describes a discreet and finite list of entitlements such as: income replacement, care giver, house keeping, rehabilitation, etc. Mr. Kirby did not make any submissions which cause me to conclude that Wawanesa's advancing funds to obtain banking records falls into any category of defined benefits in the Schedule. I am unable to find any benefit which this payment can reasonably be deemed to fall under. I find, therefore, that the $2200.00 advanced to Ms F was not a benefit as defined by the Schedule and, therefore, that I have no authority to order its repayment pursuant to section 47 of the Schedule. That being said, it may be that this is an issue more properly dealt with as an arbitration expense. Since no submissions have been made to me at this point regarding expenses, I leave that decision for further submissions if the parties are unable to resolve the question of expenses.
Special Award
Ms F requested a special award based on Wawanesa's unreasonable failure to pay benefits owed to her on time. My finding in this arbitration is that Ms F was not entitled to any of the benefits she has claimed in this arbitration and therefore no special award is owing.
Notwithstanding that, if I am wrong on the issue of entitlement to any benefits, the evidence of Ms F at the hearing was that Mr. Votskos, as Wawanesa's representative, was very helpful and in fact quite kind to her. She confirmed this in writing to Dr. Mohamed and told Dr. Rennie the same thing. She even hugged Mr. Votskos during the hearing and spoke quite positively of him. She noted that he engaged in activities such as driving her around to purchase assistive devices, an activity which one does not often associate with the job of an insurance adjuster, especially in the cases that wind up before the Commission. Ms F did complain about a disagreement she had with an associate counsel in Mr. Kirby's office at a pre-hearing, however I find that nothing out of the ordinary was involved in that episode, apart from a spirit of adversarialism which regrettably still infects many arbitrations. Once Ms F brought her issues to arbitration it was only reasonable that she expect Wawanesa to defend its position as strongly as she advocated hers. That is the essence of our adversary process and it reflects both its strength and its weaknesses. Thus I find that no special award is appropriate in the circumstances as the insurer did not unreasonably deny or delay benefits to Ms F.
Conclusion
As a result, Ms F's claims for income replacement benefits, a Tempur mattress, a lightweight laptop computer and accessories, a neurological re-assessment, a special award and interest are dismissed. Wawanesa's claim for a repayment of income replacement benefits in the amount of $1500.00 is dismissed. Wawanesa's claim for a repayment of an advance to obtain banking records in the amount of $2200.00 is dismissed, without prejudice to the issue being raised in the context of an expense hearing.
EXPENSES:
No submissions were made on expenses by the parties at the end of the hearing. I strongly encourage both parties to resolve the issues of expenses between themselves. In the event that no agreement can be reached within 30 days after the date of the release of these reasons for decision, either party may request an expense hearing from the case administrator and I shall assess entitlement to and quantum of expenses.
August 23, 2006
Robert A. Kominar Arbitrator
Date
Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2006 ONFSCDRS 140
FSCO A05-000779
BETWEEN:
D. F.
Applicant
and
WAWANESA MUTUAL INSURANCE COMPANY
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
Ms F's claims for income replacement benefits, a Tempur mattress set, a lightweight laptop computer and accessories, funding for a neuropsychological re-assessment, a special award and interest are dismissed.
Wawanesa's claim to a repayment of income replacement benefits in the amount of $1500.00 is dismissed. Wawanesa's claim for a repayment of an advance made to obtain banking records in the amount of $2200.00 is dismissed, without prejudice to the issue being raised in the context of an expense hearing.
If the parties cannot resolve the issue of arbitration expenses within 30 days of the date of this order, an expense hearing may be arranged through the case administrator for the determination of entitlement to and quantum of expenses.
August 23, 2006
Robert A. Kominar Arbitrator
Date
Footnotes
- A McKenzie friend is an individual who provides support of various kinds to an unrepresented litigant but who does not formally represent the person. Such support can range from note taking, to moral support, to sotto voce whispering ideas into the ear to assist the person with presenting their case. The term arises from an English case McKenzie v. McKenzie [1970] 3. All E.R. 1034. The English courts have recognized that lawyers and lay people can act in this capacity. The status differs from that of a "friend of the court."
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.