Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2006 ONFSCDRS 156

FSCO A05-000172

BETWEEN:

LORETA VALANCIUS

Applicant

and

AVIVA CANADA INC.

Insurer

REASONS FOR DECISION

Before:

Eban Bayefsky

Heard:

September 26, 27 and 28, 2005, at the offices of the Financial Services Commission of Ontario in Toronto and October 26, 2005 by teleconference.

Appearances:

Joseph Lam for Ms. Valancius

Raymond Murray for Aviva Canada Inc.

Issues:

The Applicant, Loreta Valancius, was injured in a motor vehicle accident on December 28, 2002. She applied for and received statutory accident benefits from Aviva Canada Inc. ("Aviva"), payable under the Schedule.¹ Aviva denied Ms. Valancius' claims for certain periods of caregiver and housekeeping benefits, as well as for certain types of medical treatment. The parties were unable to resolve their disputes through mediation, and Ms. Valancius applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

At the commencement of the hearing, Ms. Valancius sought to add a certain period of caregiving and housekeeping benefits to the issues for arbitration, specifically, caregiving and housekeeping benefits from February 9 to April 4, 2004. I denied Ms. Valancius' request primarily on the basis that these expenses had not yet been submitted to Aviva, let alone been considered by Aviva or mediated at the Commission.

Therefore, the issues in this hearing are:

1. Is Ms. Valancius entitled to weekly caregiver benefits from June 25, 2003 to February 8, 2004, in the amount of $2,005, and from April 5 to December 26, 2004, in the amount of $840, pursuant to section 13 of the Schedule?

2. Is Ms. Valancius entitled to housekeeping and home maintenance benefits from June 25, 2003 to February 8, 2004, in the amount of $2,250, and from April 5 to December 26, 2004, in the amount of $730, pursuant to section 22 of the Schedule?

3. Is Ms. Valancius entitled to receive the following medical benefits:

(a) a balance of $1,405 for treatment provided by New Age Recovery between December 30, 2002 and May 20, 2003;

(b) $1,577 for a treatment plan prepared by Dr. Light on February 17, 2004;

(c) $2,370 for a treatment plan prepared by Prime Health Recovery Centre on December 28, 2004;

(d) $1,820 for a treatment plan prepared by Prime Health Recovery Centre on February 22, 2005; and

(e) $1,292 for a treatment plan prepared by Prime Health Recovery Centre on April 4, 2005, pursuant to section 14 of the Schedule?

4. Is Aviva liable to pay a special award pursuant to subsection 282(10) of the Insurance Act on the basis that it unreasonably withheld or delayed payments to Ms. Valancius?

5. Is Ms. Valancius entitled to interest for the overdue payment of benefits, pursuant to section 46(2) of the Schedule?

6. Is either party entitled to its expenses of the arbitration proceeding, pursuant to section 282(11) of the Insurance Act?

Result:

7. Ms. Valancius is not entitled to weekly caregiver benefits from June 25, 2003 to February 8, 2004 or from April 5 to December 26, 2004.

8. Ms. Valancius is not entitled to housekeeping and home maintenance benefits from June 25, 2003 to February 8, 2004 or from April 5 to December 26, 2004.

9. Of the medical benefits claimed, Ms. Valancius is only entitled to $540 of the balance of treatment provided by New Age Recovery between December 30, 2002 and May 20, 2003.

10. Aviva is not liable to pay a special award.

11. Ms. Valancius is entitled to interest on the $540 found owing for the treatment at New Age Recovery.

12. If required, the parties may now make submissions on the issue of expenses, in accordance with the process set out in Rule 79 of the Dispute Resolution Practice Code.

EVIDENCE AND ANALYSIS:

Background

Ms. Valancius was injured in a motor vehicle accident on December 28, 2002 when the car she was driving spun out of control, turned on its side and hit a light post on the side of the road. Emergency workers attended the scene and had to extract Ms. Valancius from the vehicle. Ms. Valancius did not want to be taken to a hospital and was ultimately driven home by her husband, who had picked her up at the scene of the accident.

Ms. Valancius reported that she suffered various symptoms following the accident, including neck, back and knee pain, headaches, dizziness, nausea, anxiety, insomnia and occasional memory loss.

At the time of the accident, Ms. Valancius lived in a two-bedroom condominium with her husband and two children (ages eight and a year and a half). Ms. Valancius maintained that she did all of the housekeeping and childcare before the accident, with some assistance from her mother. Ms. Valancius and her family moved into a five-bedroom house approximately a month after the accident. She received help around the house from her husband and mother.

Based on various medical and functional assessments, Aviva denied Ms. Valancius' claims for caregiver and housekeeping benefits, as well as for medical treatment, beyond June 25, 2003.

Ms. Valancius maintains that she continued to require caregiving and housekeeping assistance, as well as medical treatment, beyond this date.

Ms. Valancius' Entitlement to Caregiving and Housekeeping Benefits

(i) The Applicable Law

Pursuant to sections 13(1) and 13(2) of the Schedule, Ms. Valancius would be entitled to benefits for reasonable and necessary expenses incurred as a result of the accident in caring for a person in need if, as a result of the accident, she suffered a substantial inability to engage in the caregiving activities in which she engaged at the time of the accident. Pursuant to section 22(1) of the Schedule, Ms. Valancius would be entitled to benefits for reasonable and necessary expenses incurred as a result of the accident for housekeeping and home maintenance services if, as a result of the accident, she sustained an impairment that resulted in a substantial inability to perform the housekeeping and home maintenance services that she normally performed before the accident.

I find the following comments on housekeeping benefits in the recent decision of Konstantakos and Aviva Canada Inc. (FSCO A05-000546, May 17, 2006) to be instructive in determining Ms. Valancius' entitlement to both caregiving and housekeeping benefits.²

I find that the test under section 22 involves a consideration of the housekeeping and home maintenance services the insured normally performed before the accident and then a consideration of whether the insured suffered a substantial inability to perform those services as a result of an impairment suffered in the motor vehicle accident. This involves a comparison of what the insured did before the accident and what he could do after the accident and whether the difference amounts to a substantial inability. If it does amount to a substantial inability, the next question is whether the expenses the insured incurred as a result of that inability are reasonable and necessary.

Therefore, the issue of Ms. Valancius' entitlement to caregiving and housekeeping benefits requires a determination of whether, based on a comparison of her pre- and post-accident household activities, and as a result of the accident, she suffered a substantial inability to perform her pre-accident caregiving and housekeeping activities. The analysis would also involve a determination of whether the caregiving and housekeeping expenses she incurred as a result of the accident were reasonable and necessary.

(ii) Ms. Valancius' pre- and post-accident caregiving and housekeeping activities

Ms. Valancius testified that she did all of the caregiving and housekeeping in her family before the accident, which included cleaning, cooking, getting her children ready to go to school and to daycare, driving them to and from school and daycare, helping her older son with his homework, taking him to after-school lessons, and getting her children ready for bed at night. Ms. Valancius also testified that she worked as an assistant pharmacy technician two days per week (for six to eight hours per day) and that she went to night school to become a pharmacy technician two to three times per week (for two hours per night). Ms. Valancius also stated that she worked two nights a week selling tickets at a bingo hall. She stated that at these times, her mother, husband and babysitter would assist with the caregiving and housekeeping tasks. Ms. Valancius testified that her mother "helped [her] all the time before the accident" (for example, by bringing meals for the children and picking them up when Ms. Valancius was busy at work or school).

Ms. Valancius testified that she began physiotherapy shortly after the accident and improved with this treatment. She stated that, within a couple of weeks of the accident, she began to drive again, to go to work and to pick up her kids. Ms. Valancius acknowledged that there was more housework to be done in her new house because it was much bigger than the apartment in which she lived at the time of the accident. Ms. Valancius continued to go to night school following the accident. She stated that the carpal tunnel syndrome she had developed when she was pregnant with her second child (approximately eighteen months before the accident) resurfaced approximately six to eight months after the accident and that this was aggravated upon going to school and by lifting her older son and pushing a stroller. Ms. Valancius said she stopped physiotherapy in May 2003, apparently because Aviva declined to pay for any further treatment.

Ms. Valancius had returned to full duties at her pharmacy job by August 2003, where she was required to stand for six hours per day (with some sitting and breaks during the day). She said she did not return to her bingo job as it was either too far to drive or she was afraid to drive at night. When asked what she could not do between the time she stopped physiotherapy and the end of 2003, she stated that her mother and husband helped with vacuuming because she had problems standing a lot since she was dizzy. She said that from May 2003 to July 2004, her mother helped her whenever she could, since her condition was getting worse. She also stated that her mother helped with her children when she was not at home. Ms. Valancius testified that her condition continued to worsen from July 2004 to the end of 2004.

Ms. Valancius' mother, Ms. Rasciauskas, testified that, before the accident, her daughter did all of the caregiving and housekeeping. However, she also said that her daughter needed help around the house because she was busy with work and school, because she was tired and because the kids were active. Ms. Rasciauskas also stated that she was at her daughter's house three to four times per week, helping with the children (including bathing and dressing the baby and driving the older one to swimming and music lessons after school) and staying with them on weekends, when Ms. Valancius and her husband went out or when one of the children got sick. Ms. Rasciauskas testified that, before the accident, Ms. Valancius and her husband would say to her, "what would we do without you, if you did not live close to us."

Ms. Rasciauskas stated that Ms. Valancius' husband had two jobs, was very busy and did not do much around the house before the accident. However, she also said that he assisted with various household tasks (for approximately two hours per day), including helping to get the kids ready for school, taking them to lessons, changing the baby's diapers, bathing the children, washing dishes, cooking, vacuuming, cleaning and doing the laundry. Ms. Rasciauskas testified that Mr. Valancius did more around the house after the accident and, in fact, quit one of his two jobs in order to help his wife around the house.

Ms. Rasciauskas testified that, after the accident, she began to go to her daughter's house every day, helping with caregiving and housekeeping, because her daughter was in pain. She said that by six months post-accident, her daughter was better, but that she still went to her daughter's house approximately three to four hours per day (longer on Saturdays and Sundays). She said that, by approximately a year post-accident, her daughter could do more, but that she was tired after coming back from work and that she (Ms. Rasciauskas) would, therefore, help with caregiving and housekeeping tasks. Ms. Rasciauskas stated that she has gone to her daughter's house every day until the present time. She testified that, after the accident, her daughter continued to need help around the house because of her part-time job, because she was going to school and because the kids were active. Ms. Rasciauskas also said that she had to help because her daughter moved into a bigger house after the accident, which required more work.

Mr. Valancius testified that his wife did everything around the house before the accident because he was working a "double shift" (at a bar and for a delivery service) and had no time "even to do [his] own bills." He said that he only cleaned the floor and changed his children's diapers a few times before the accident. He testified that Ms. Rasciauskas lived in the same building as they did, and that she visited every day before the accident to see her grandsons and to play with them, but not to change diapers or to change their clothes. He testified that, although they were a very busy family before the accident, he did not think they needed Ms. Rasciauskas' help at that time. However, he said that, before the accident, Ms. Rasciauskas helped to drive the children to various activities (swimming and music lessons) about three to four times per week. He said that Ms. Rasciauskas did not do any of the housekeeping before the accident, but he also said that she "often" brought meals to the house, about "once every two weeks." He also said that he could not say how long Ms. Rasciauskas was at his home each day before the accident or whether she did any of the caregiving or housekeeping, because he was working.

Mr. Valancius testified that, after the accident, he quit his delivery job to spend more time with his family. He also said that the delivery business declined after the accident (since the Christmas season was over) and he, therefore, spent more time at home. He also stated that he could be at home to help his wife, who was in pain. He stated that, for almost a year following the accident, he "did everything," and that it was only later that his mother-in-law got involved. He also said that in the first six months following the accident, he "did all the work." However, he also said that, for approximately half a year following the accident, Ms. Rasciauskas "did help" and that she came over to the house three to four times a week for about one to two hours per day to help.

However, he said that he "did most things" or "everything" and that Ms. Rasciauskas "just visited" or "was supervising" or helped "when [he] was at work."

Mr. Valancius testified that, approximately half a year after the accident, since he had to work more at the bar (because he had quit his other job and was making less money), he asked his mother-in-law to help more. He said that she came over for at least three hours each day for the next year, and that she did "everything," including cooking, washing clothes, cleaning and washing dishes. However, Mr. Valancius questioned the accuracy of invoices submitted to the Insurer showing that Ms. Rasciauskas helped less six months after the accident. He did not know whether Ms. Rasciauskas had been paid for her caregiving and housekeeping assistance, and confirmed that she was still providing assistance at this time. Mr. Valancius testified that, by April 2004, his wife was driving everywhere, had started socializing with family and friends and had started doing caregiving activities. Mr. Valancius conceded that his wife needed her mother's help after the accident because of her busy schedule and because the new and larger house required a lot more work.

In a disability certificate dated January 17, 2003, Ms. Valancius' family doctor, Dr. P. Talwalkar, reported that Ms. Valancius suffered a substantial inability to engage in her pre-accident caregiving and housekeeping activities, noting that she required the help of her mother for these activities. Dr. Talwalkar repeated these findings in a disability certificate dated January 4, 2005, noting that Ms. Valancius' mother "helps out" with these activities. In a further disability certificate dated December 28, 2004, Dr. J. Super, a chiropractor at Prime Health Recovery Centre, reported that Ms. Valancius suffered a substantial inability to do her pre-accident household activities on the basis that "childcare activities involving lifting and bending are provocative" and that she still had "difficulty with household chores involving lifting, carrying, and bending, such as laundry, cleaning, vacuuming, and general household work, all of which are provocative."

On January 25, 2003, Ms. Valancius underwent an in-home assessment regarding her caregiving and housekeeping needs. The assessor, Ms. Galeotalanza, a kinesiologist, recommended that Ms. Valancius receive fifty hours a week in childcare assistance and 10 hours a week in housekeeping assistance, as well as some assistive devices. Ms. Galeotalanza recommended that these recommendations be reassessed after four weeks.

On April 3, 2003, Ms. Valancius underwent a further in-home assessment, by Ms. A. Shaw, an occupational therapist. Ms. Shaw reported Ms. Valancius as stating that, by the time of the assessment, she was "helping with the laundry, ironing, dusting, bathroom sinks, sweeping, mopping, making her bed, washing dishes, making meals, taking out small bags of garbage and accompanies her family on grocery shopping trips" but that "her mother and husband [were] completing the majority of the above and all other housekeeping tasks." Ms. Valancius also stated that she was "able to complete most child care tasks but has her mother complete most of them for her when she is present." Ms. Valancius stated that her mother "comes to her home daily for 3-5 hours to assist with childcare and housekeeping tasks." Ms. Shaw concluded that Ms. Valancius was "unable to participate in her heavier pre-accident housekeeping and childcare tasks due to her lack of knowledge about proper body-mechanics, adaptive and energy conservation techniques for daily tasks." Ms. Shaw recommended "one education session" and the provision of a "tub scrub" and reported that Ms. Valancius "should then have the ability to safely return to all of her pre-accident housekeeping and childcare tasks." Ms. Shaw concluded that Ms. Valancius did not require any further housekeeping, childcare or transportation assistance.

Ms. Valancius received the "education session" on May 21, 2003, after which the occupational therapist, Ms. W. Stanger, reported that Ms. Valancius "demonstrate[d] adequate upper and lower extremity strength, as well as range of motion and the sufficient understanding of the information discussed with her and the equipment provided to her during the treatment session to manage her essential daily in-home tasks."

Ms. Valancius underwent a Designated Assessment Centre ("DAC") assessment in relation to her caregiving benefits on July 23 and August 13, 2003. The medical assessor, Dr. D. Dos Santos, reported Ms. Valancius as saying that "she had dizziness, nausea and vomiting after the accident, but these symptoms are not present now" and that "she has experienced marked improvement with the headaches." Dr. Dos Santos also noted Ms. Valancius as saying that her symptoms of neck and low back pain "usually comes on with lifting" but "are not present too often now, and overall she has experienced significant improvement." Ms. Valancius stated that she "experiences fatigue daily." Dr. Dos Santos reported Ms. Valancius as stating that "she is able to perform all essential caregiving tasks, but does occasional [sic] require assistance with lifting her son in and out of the crib and driving her children to activities."

The DAC ergonomist/kinesiologist, Ms. C. Martin, reported Ms. Valancius as saying that she was "currently performing a majority of the pre-accident housekeeping and caregiving tasks...[but] her mother, spouse, and older son occasionally provide assistance." Ms. Valancius stated that "she performs all of the pre-accident housekeeping and caregiving tasks, with the exception of carrying the laundry basket, vacuum cleaner, and two-year old son, performing large grocery trip[s], as well as driving her children prolonged distances, to activities." However, Ms. Valancius also said that she was able to "lift and carry her [younger] son" and to "push and pull the stroller, grocery cart, and vacuum." She also testified that she could do the laundry at that point, but might have to take smaller loads. Ms. Valancius was noted as saying that "her mother and spouse assist with the housekeeping and caregiving tasks." Ms. Martin concluded that, based on Ms. Valancius' demonstrated physical and functional abilities, it was her opinion that Ms. Valancius did not demonstrate a substantial inability to complete her pre-accident caregiving tasks.

Ms. Valancius underwent a physiatry assessment by Dr. F. Lipson on March 25, 2004, where Ms. Valancius was reported as saying that she was "doing all her pre-accident functions and activities at this time" and that "her only complaint [was] that she experiences tightness in her neck and her lower back." Ms. Valancius testified that she did not know and could not remember if this was true. Dr. Lipson reported and testified that Ms. Valancius had no evidence of carpal tunnel syndrome at the time of the examination. Dr. Lipson reported that Ms. Valancius took "the occasional Tylenol" and testified that she controlled any pain with "a minor analgesic." Dr. Lipson concluded that Ms. Valancius was not substantially disabled from her pre-accident caregiving and housekeeping duties. At the hearing, Dr. Lipson acknowledged that he did not specifically know what Ms. Valancius' pre-accident caregiving and housekeeping tasks were and that he had not observed Ms. Valancius performing any of her actual household duties during the examination.

On April 15, 2004, Ms. Valancius underwent a psychological assessment by Dr. D. Prendergast. Dr. Prendergast reported, in part, as follows:

She stated she has returned to her normal life, including her self-care and housework responsibilities. Nonetheless, her mother assists her but this is primarily because she has two children and as such her mother's assistance in this regard is not due to the accident per se....She said she took about two weeks off after the accident but otherwise returned to her normal life at that time.

She also reported she has returned to her normal socializing as well as her responsibilities as a mother and wife. She said she could now play and care for her children and enjoys them tremendously....

At this time she reported she has recovered ninety percent in terms of her pain experience from the accident....She said possibly this [occasional] pain [upon lifting her children] will never go away but this is something she can live with and is not concerned about it in any substantive fashion....

She stated that in her opinion she returned to her normal life at least six months ago.

Ms. Valancius testified that she did not know if Dr. Prendergast's report of her statements was true, that she never said she was completely fine and that she "maybe said she could do more, but maybe less." Ms. Valancius also testified that "maybe the day [she] saw the doctors, [she] was fine and said [she] was fine, but maybe the next day [she] was worse."

Ms. Valancius underwent another psychological assessment by Dr. C. Notarfonzo on April 23, 2004, who reported, in part, as follows:

Ms. Valancius...reports that she is performing all of the housekeeping and caregiving activities that she performed prior to her accident....Her mother provides assistance with "a lot of things" including food preparation and childcare. She notes that her mother provided assistance prior to the accident but not as much as she does now.

Dr. Notarfonzo concluded that Ms. Valancius did not suffer any psychological impairment that rendered her substantially unable to perform her pre-accident caregiving or housekeeping activities.

(iii) Findings

I find that after June 25, 2003 (the date Aviva terminated benefits) Ms. Valancius did not, as a result of the accident, suffer a substantial inability to perform her pre-accident caregiving and housekeeping activities. I further find that the caregiving and housekeeping expenses she incurred at that time, were not reasonable and necessary.

I accept that Ms. Valancius did a variety of household tasks prior to the accident. However, I also find that she received significant assistance in both caregiving and housekeeping from her mother and husband, as well as from her babysitter. While all three family members began their testimony by saying that Ms. Valancius did all of the caregiving and housekeeping prior to the accident, they significantly qualified this by identifying the various types of assistance she received from the others.

For example, Ms. Valancius stated that her mother, husband and babysitter assisted her when she was busy, and that her mother helped her all of the time (which included preparing meals and picking up the children). Ms. Rasciauskas said that her daughter needed help with childcare and housework because of her busy schedule, and that her daughter and son-in-law were extremely grateful for her assistance, which included taking care of the children a minimum of three to four times per week. While Mr. Valancius stated that he was too busy to help out around the house and that he did not feel that he or his wife needed Ms. Rasciauskas' help before the accident, he acknowledged (as did his wife) the assistance Ms. Rasciauskas provided, as well as the fact that he could not comment on the extent of her assistance because of his own busy schedule. Further, while Mr. Valancius emphasized his wife's household activities and downplayed both his own and his mother-in-law's assistance around the house, consistent with his wife's testimony on the matter, Ms. Rasciauskas indicated that Mr. Valancius assisted with various caregiving and housekeeping tasks prior to the accident. I, therefore, find that Ms. Valancius received significant caregiving and housekeeping assistance before the accident.

I accept that Ms. Valancius continued to experience some physical and psychological symptoms following the accident. However, as set out below, I find that she returned to most of her pre-accident caregiving and housekeeping activities shortly after the accident. I further find that most of the additional household assistance she required following the accident did not arise as a result of the accident. I, therefore, find that she was not, as a result of the accident, substantially disabled from performing her pre-accident caregiving and housekeeping activities.

While Ms. Valancius testified that her condition continued to deteriorate from at least May 2003, she also stated that she returned to her work, night school, driving and picking up her children within a couple of weeks of the accident. While she testified that her condition worsened in the latter half of 2003, she only identified one activity in which her mother and husband assisted her at this time, namely, vacuuming. She also said that she returned to full duties as a pharmacy assistant in August 2003, which, despite her apparent difficulty with dizziness, required her to stand for six hours per day, with only occasional opportunities to sit and rest during the day. Ms. Valancius stated that her mother helped with her children when she was not at home, but this was the case before the accident. Ms. Valancius also suggested that she required additional housekeeping assistance, not as a result of the accident, but because she had moved into a larger home shortly after the accident. She also testified that she only had difficulty lifting her older son and pushing a stroller (as well as doing school work) following the accident, not that she was unable or substantially unable to do these things. And the difficulty she experienced was not as a result of the accident, but due to her pre-existing carpal tunnel syndrome having resurfaced.

I do not accept Ms. Rasciauskas' evidence that, for approximately a year post-accident, she went to her daughter's house every day for three to four hours per day (with more on the weekends) to help with caregiving and housekeeping. The invoices Ms. Valancius submitted to Aviva from June to December 2003 show an average of one hour of housekeeping and one hour of caregiving per day, including Saturdays and Sundays. The invoices submitted from January to December 2004 show a lessening of the overall weekly average of caregiving and housekeeping assistance, but more importantly, assistance on only two to four days per week. Contrary to Ms. Rasciauskas' evidence, Mr. Valancius testified that Ms. Rasciauskas only began to provide significant assistance six months post-accident (providing three to four hours of caregiving and housekeeping per day for the next year). The invoices also show significantly less assistance than this and a significant reduction in the frequency Ms. Rasciauskas visited her daughter's home. Therefore, while Mr. Valancius' evidence was somewhat inconsistent regarding the extent of Ms. Rasciauskas' assistance following the accident, I find that, consistent with his wife's evidence, it establishes that Ms. Rasciauskas did not assist with caregiving and housekeeping for a minimum of three to four hours per day for approximately a year post-accident.

I note that Mr. Valancius' increased role at the house following the accident was primarily the result of the decline in the delivery business, as well as his eventual need to work more at the bar because he had quit his delivery job. I do not find that he returned to the house and/or provided additional assistance there because of his wife's condition following the accident.

I find significant that, when asked what she could not do between the time she stopped physiotherapy (May 2003) and the end of 2003, Ms. Valancius only said that her mother and husband helped with vacuuming because she had problems with dizziness. Ms. Valancius attempted to suggest that she only stopped physiotherapy because Aviva had refused to fund further treatment. However, she acknowledged that Aviva had approved the relevant treatment plans submitted at that time. And despite her suggestion that her condition worsened without further treatment, Ms. Valancius returned to full-time duties as a pharmacy assistant in August 2003. I, therefore, find that Ms. Valancius' condition and ability to do household tasks had significantly improved by at least May 2003.

I also find significant that both Ms. Rasciauskas and Mr. Valancius acknowledged that Ms. Valancius' continued need for caregiving and housekeeping assistance following the accident was due to her job and school schedule, as well as the fact that she had moved into a larger home.

I find that the medical evidence in this case significantly undermines Ms. Valancius' claim that, from June 2003 to December 2004, she required a minimum of two hours of caregiving and housekeeping assistance a day as a result of the accident. While Dr. Talwalkar and Dr. Super suggested that Ms. Valancius was substantially disabled from performing her pre-accident household activities, this was at least in part on the basis of Ms. Valancius' simple comments to Dr. Talwalkar that her mother "helped out" with daily activities, and to Dr. Super that she had "difficulty" doing her household activities because these were "provocative." Further, by April 2003, Ms. Valancius was reporting that she was capable of and was, in fact, doing a wide variety of household activities, but that she had the assistance of both her husband and mother. And contrary to her testimony that her condition worsened after May 2003, she reported to the DAC in the summer of 2003 that she was doing the majority of her pre-accident household tasks.

Contrary to Mr. Valancius' evidence that from approximately June 2003 to June 2004, his mother-in-law was assisting with all types of caregiving and housekeeping for at least three hours per day, by the spring of 2004 Ms. Valancius was reporting (to Drs. Lipson, Prendergast and Notarfonzo) that she was performing all of her pre-accident caregiving and housekeeping activities. While Ms. Valancius told Dr. Notarfonzo that her mother provided more assistance than before the accident, she told Dr. Prendergast that her mother's assistance was not related to the accident and that she had returned to her normal life at least six months previously. I find this consistent with the various non-accident-related reasons noted above for Ms. Valancius' need for continued and increased household assistance, as well as with Ms. Rasciauskas' evidence and the invoices submitted to Aviva that Ms. Valancius' condition and need for caregiving and housekeeping assistance significantly improved towards the end of 2003.

I find significant that, when questioned, Ms. Valancius did not deny the accuracy of the doctors' reports. She simply said that she was never completely fine, the doctors did not know what was inside her, she did not know, she could not remember and that the reports may or may not have been true. As indicated earlier, I accept that Ms. Valancius had lingering physical and psychological symptoms following the accident. However, I find that the medical reports accurately reflect her condition at the time of the examinations, and accurately record her statements as to her progress and current ability to perform her pre-accident caregiving and housekeeping activities.

I, therefore, find that, based on a comparison of her pre- and post-accident household activities, Ms. Valancius did not, as a result of the accident, suffer a substantial inability to perform her pre-accident caregiving and housekeeping activities from June 25, 2003 to December 26, 2004. Related to this conclusion, I find that the caregiving and housekeeping expenses she incurred were not reasonable and necessary.

Ms. Valancius' entitlement to benefits for medical treatment

(i) The Applicable Law

Pursuant to section 14 of the Schedule, Ms. Valancius would be entitled to benefits for reasonable and necessary expenses that do not exceed the rates established by the applicable Guidelines and incurred as a result of the accident for medical, chiropractic, psychological and physiotherapy services. As set out in the arbitration decision of Sabino and Pilot Insurance Company (FSCO A04-001740, September 29, 2005):

In evaluating the reasonableness and necessity of treatment and services under section 14, arbitrators have considered the following factors: whether the rehabilitative goals have been met, the subjective benefit of the treatment to the person being treated and whether the treatment relieves pain.³

(ii) New Age Recovery's account for physical therapy

Ms. Valancius attended New Age Recovery and Wellness Centre from December 30, 2002 to May 20, 2003 where she underwent various types of physical therapy. New Age Recovery submitted four treatment plans to Aviva for this treatment. The first plan, dated December 30, 2002, was for massage therapy two times per week for eight weeks (at $66 per session), at an estimated cost of $1,056. The second plan, also dated December 30, 2002, was for twenty four sessions of active and passive therapy over six to eight weeks (at a maximum of $140 per session, with chiropractic treatment not being performed on every visit), at an estimated cost of $3,360. The third plan, dated March 11, 2003, was for twelve sessions of active and passive therapy (at a maximum of $140 per session), at an estimated cost of $1,680. The final treatment plan, dated March 25, 2003, was for massage therapy two times per week for four weeks (at $66 per session), at an estimated cost of $528. The total cost of the treatment plans was $6,624. Aviva approved all four plans.

Over the course of Ms. Valancius' treatment, New Age Recovery submitted invoices, initially totalling $8,593. However, in a letter dated May 1, 2003, New Age Recovery adjusted the first four invoices (on the basis that only a maximum of $140 should have been charged per treatment session for chiropractic, active and passive treatment), resulting in a total account of $8,298. Of this amount, Aviva paid $6,808, leaving a balance of $1,490.

The following chart sets out New Age Recovery's invoices, the amounts paid by Aviva, the difference between these two, and the items and amounts claimed by Ms. Valancius as outstanding (the latter totalling only $1,405):

INVOICE	AMOUNT PAID	BALANCE	ITEMS CLAIMED AS UNPAID
5586 (Dec/02) $1,030	$610	$420	$250 for an Initial Assessment Report; $130 of $200 for an "Initial Assessment (Massage)"; $20 of $170 for the preparation of the first two treatment plans; $55 of $195 in treatments; $20 for transportation
5693 (Jan/03) $2,096	$1,846	$250	$230 in treatments $220 for transportation
6370 (Feb/03) $1,582	$1,342	$250	$10 in treatments $140 for transportation
6924 (Mar/03) $1,498	$1,138	$360	$10 for the preparation of a treatment plan $100 for transportation
7477 (Apr/03) $1,194	$1,074	$120	$120 for transportation
8280 (May/03) $898	$798	$100	$100 for transportation
TOTAL - $8,298	$6,808	$1,490	$1,405

By letter dated May 2, 2003, Aviva advised New Age Recovery of its approach to the payment of the first four invoices. Regarding the first invoice, Aviva maintained that the cost of the initial assessment report ought to have been included in the cost of the initial chiropractic and kinesiology assessment, that only the agreed maximum of $140 should be paid for the December 31st treatment session, that $75 was considered reasonable for the preparation of each treatment plan and that transportation was not paid as Ms. Valancius "was responsible for requesting transportation directly from [Aviva]." The log notes of Aviva's adjuster at the time, Ms. A. Zade, indicate that on January 29 and 30, 2003, she advised New Age Recovery and Ms. Valancius of the need to submit a specific request for transportation expenses, and that on February 6, 2003, Aviva received a completed OCF-3, but that there was "no indication of a need for transportation." The log notes for April 24, 2003 indicate that transportation expenses were not paid "as we have never received anything from the client requesting it."

Regarding the second invoice, Aviva indicated that the amounts charged for treatment exceeded the $140 maximum and that Aviva and New Age Recovery had agreed that chiropractic treatment "would not take place every session" and would only be paid at $20 per treatment session. On the third invoice, Aviva pointed out that the invoice was "over by $30.00" and repeated its position regarding the frequency and cost of chiropractic treatment. For the fourth invoice, Aviva repeated its position on treatment and transportation expenses.

Ms. E. Livshitz, from New Age Recovery's accounts receivable department, testified that Aviva did not pay for transportation because it was not included in the relevant treatment plans. Ms. Livshitz said that this transportation was not specified apparently because they did not know how long Ms. Valancius would not be driving, and that, in any event, the treatment plans were only stated to be estimates of the relevant costs. Ms. Livshitz confirmed that Aviva had only agreed to pay for a maximum of $140 per treatment session (in accordance with the applicable Professional Fee Guidelines), but noted that New Age Recovery only charged a maximum of $140 per treatment session. Ms. Livopshitz also confirmed that Aviva's approval of the relevant treatment plans included the caution that "transportation to and from treatment sessions in your own vehicle is covered except for the first 50 kilometres round trip."

As noted above, Ms. Valancius testified that she began driving within a couple of weeks of the accident. Ms. N. Galeotalanza, the kinesiologist who conducted an in-home assessment a month after the accident, reported Ms. Valancius as saying that she was "driving herself when required," although Ms. Galeotalanza recommended continued transportation assistance "as the client reported feeling very nervous when driving and she demonstrated limited neck/shoulder range of motion." Ms. A. Shaw, the occupational therapist who conducted an in-home and functional assessment on March 26, 2003, reported that "the client does not require transportation assistance as she is driving and has the ability to access public transit."

I find that Ms. Valancius is not entitled to the amounts claimed for transportation. Despite Ms. Galeotalanza's report that Ms. Valancius felt nervous about driving and had limited neck and shoulder range of motion, Ms. Valancius had, in fact, begun to drive (to go to work and to pick up her children) within a couple of weeks of the accident. New Age Recovery nevertheless claimed the most for transportation expenses at this time. I find significant that, despite being notified of the need to specifically request transportation from Aviva, neither Ms. Valancius nor New Age Recovery did this. I find, in particular, that if New Age Recovery had felt that this was an important aspect of Ms. Valancius' treatment, they would have set this out in their treatment plans. I note, as well, that, after the initial period of treatment, the amounts claimed for transportation remained relatively constant despite Ms. Valancius' evidence that her condition improved with therapy. I, therefore, find that the provision of transportation services was not a reasonable and necessary expense.

Regarding the remaining disputed items from the first four treatment plans, I find as follows. Aviva paid the first and fourth invoices inconsistently. Without additional evidence on the matter, I find that the discrepancies should be resolved in favour of Ms. Valancius. Specifically, in the first invoice, Aviva denied the cost of an initial assessment report on the basis that it ought to have been included in the claim for the initial chiropractic and kinesiology assessment, but in the fourth invoice, Aviva paid the claims for both the chiropractic reassessment and the chiropractic reassessment report. Similarly, in the first invoice, Aviva paid only $75 of the $85 claimed for each of two treatment plans, but in the fourth invoice, paid the full $85 for both treatment plans. Finally, in the first invoice, Aviva paid only $70 of a claimed $200 for an initial massage assessment, but in the fourth invoice, paid the full $100 claimed for a massage reassessment. Aviva did not provide any explanation for these discrepancies, and I find that Ms. Valancius is entitled to the outstanding amounts claimed for these services, namely, $250, $20 and $130, respectively.

Ms. Valancius claimed that Aviva had failed to pay $10 of $85 of one of the two treatment plans in the fourth invoice. However, Aviva's notations on the invoice and subsequent payment establish that they accepted and paid the full $85 for both treatment plans. I, therefore, deny Ms. Valancius' claim for this particular item.

Finally, regarding the outstanding amounts for treatment in the first three invoices (namely, $55, $230 and $10, respectively), I find that the first amount exceeded the maximum agreed to by New Age Recovery for each treatment session (namely, $140). The second exceeded the maximum by $200, leaving a total balance of $30 that ought to have been paid for three sessions on January 22, 24 and 28, 2003 that did not exceed the maximum per treatment session. Again, Aviva did not explain why it paid only $12 for the interactive chiropractic assessment in the first invoice and $20 for the same assessment in the remaining invoices; nor do I see any evidence of the agreement referred to by Aviva's claims representative to the effect that only $20 would be charged for chiropractic treatment. The third amount is $10, but Aviva, in fact, failed to pay $110 in treatment costs, in part on an inadvertent miscalculation of the costs for the February 26, 2003 treatment session ($60 paid instead of the $90 charged for therapeutic exercise) and partly due to the alleged, but unsubstantiated, agreement concerning the $20 charge for interactive chiropractic assessments. I find that Ms. Valancius is entitled to the full $110 amount particularly given that the total cost of the relevant treatment sessions did not exceed the $140 maximum. I, therefore, find that Ms. Valancius is entitled to the outstanding balances of $30 and $110, respectively, for the second and third invoices.

I, therefore, find that Ms. Valancius is entitled to a total of $540 arising from New Age Recovery's account for physical therapy.

(iii) Dr. Light's treatment plan for psychological treatment

On February 15, 2004, Dr. E. Light, a psychologist, reported that Ms. Valancius had suffered an "adjustment disorder with mixed anxiety and depressed mood" and a "pain disorder associated with both psychological factors and general medical condition" as a result of the accident. Dr. Light reported that Ms. Valancius could not "perform the essentials of her daily activities, including her household chores and being effective at her job." Dr. Light completed a Treatment Plan on February 17, 2004 in which he recommended twelve sessions of psychotherapy (at a cost of $1,577) to return Ms. Valancius to her pre-accident activities.

Aviva denied this treatment plan and referred the matter to a DAC. As noted above, Dr. Prendergast conducted a psychological assessment on April 15, 2004 to determine whether Dr. Light's treatment plan was reasonable and necessary. Dr. Prendergast reported, in part, as follows:

...Upon presentation, she indicated she largely understood the nature and purpose of this assessment and then also went on to spontaneously offer that she did not see herself as having any serious or significant psychological problems and she did not feel she needed psychotherapy as recommended by Dr. Light. She went on to report she went to see Dr. Light only because her lawyer recommended she go for a "check up". She said even at that time she did not think she needed to see such a person but nonetheless acquiesced to her lawyer[']s wishes....When the specifics of Dr. Light's report were made evident to her, she said she did not agree with these findings, stating she did not see her concerns subsequent to the accident as being significant at this time and felt she was emotionally fine and was functioning extremely well since her accident.

...As noted above, she also acknowledged she thinks about how the accident could have been worse or about having a further life-threatening accident and at this point the accident has left her with a less secure sense of her life. However, she emphasized this is not disrupting her emotionally or functionally in any manner at this time....She said she took about two weeks off after the accident but otherwise returned to her normal life at that time.

...Again, as indicated she said she has returned to her normal life with normal relationships, including her relationship with her husband, her children as well as socializing again with her friends....She reported that she is a happy person who is enjoying life and has maintained a sense of humour.

She stated that in her opinion she returned to her normal life at least six months ago.

In a fashion consistent with her self-report, Ms. Valancius did not impress as having any heightened degree of distress, either in the form of depression, anxiety or agitation at any time during the course of this assessment....She spoke openly of her history and her concerns and emphasized the one psychological residual impact of this accident is that she is more aware of the dangers of driving. As such, she said she is definitely more vigilant in a vehicle but this is not affecting her emotionally or functionally in any manner.

Based on the above...it was my considered opinion at this time that Ms. Valancius was not experiencing any diagnosable psychological problems from her motor vehicle accident....[and that] the Treatment Plan of Dr. Light dated February 17, 2004 was neither reasonable nor necessary at the time it was submitted and remains neither reasonable nor necessary.

As noted above, Ms. Valancius underwent an insurer psychological assessment by Dr. Notarfonzo on April 23, 2004. Dr. Notarfonzo reported Ms. Valancius as saying that her lawyer had referred her to a psychologist "two to three months ago" and that the recommended treatment was not pursued "as she did not feel that she needed it." As with Dr. Prendergast, Dr. Notarfonzo found that Ms. Valancius did not suffer a psychological impairment as a result of the accident and did not require any psychological treatment.

Ms. Valancius testified that she was very distraught in the weeks following the accident and that she is currently "more sensitive," is "crying a lot" and is "happy to be alive." In relation to Dr. Notarfonzo's report, Ms. Valancius confirmed that her lawyers had referred her to a psychologist and that she did not need psychological care. Ms. Valancius' mother, Ms. Rasciauskas, testified that she did not know if her daughter "got completely better" and that she is now "different" and "not the same girl." Ms. Valancius' husband testified that shortly after the accident, his wife was distraught. He further said that, at home, Ms. Valancius was different than with her friends and that he did not think his wife would know if there was a change in her after the accident.

I find that Dr. Light's treatment plan for psychological treatment was not reasonable and necessary. I find that Dr. Light's assessment of Ms. Valancius (as suffering from significant psychological problems and as being incapable of performing her household and employment tasks) was outweighed by Ms. Valancius' own view of her emotional and physical state, as reflected both in her reports to Drs. Prendergast and Notarfonzo and in her testimony at the hearing.

As noted earlier, while I accept that Ms. Valancius has experienced lingering psychological symptoms as a result of the accident, I do not find that these amounted to the disabling adjustment/pain disorder requiring psychotherapy assessed by Dr. Light. Ms. Valancius was clear that she only went to Dr. Light because her lawyers referred her to him, and that she did not feel that she required either a psychological assessment or psychological treatment. I find that Dr. Light's assessment was significantly undermined by Ms. Valancius' subsequent reports to, and testing by, Drs. Prendergast and Notarfonzo (within two months of Dr. Light's assessment), as well as by Dr. Lipson's findings a month after Dr. Light's report concerning the nature and extent of Ms. Valancius' physical condition. I find particularly significant Ms. Valancius' comments to Dr. Prendergast disputing Dr. Light's findings and maintaining that, despite some continuing concerns regarding the nature of the accident, she was functioning well emotionally, socially and physically, and had been for some time.

I, therefore, find, on a balance of probabilities, that Dr. Light's treatment plan for psychotherapy was not reasonable and necessary.

(iv) Prime Health Recovery's Treatment Plans

On December 28, 2004, Dr. J. Super, a chiropractor at Prime Health Recovery, examined Ms. Valancius and provided the following "diagnostic impression":

1. Chronic traumatic strain/sprain of the cervical, thoracic and lumbosacral paraspinal muscles, ligaments and joints.

2. Myofascitis.

3. Sprain/strain of the left knee.

4. Post-traumatic cervical headache.

Dr. Super found that Ms. Valancius had "significant limitations and range of motion restrictions, which interfere with her working ability, and her activities of daily living." Dr. Super recommended that Ms. Valancius undergo a psychological assessment "to evaluate posttraumatic stress." Dr. Super completed a treatment plan on December 28, 2004 for his initial assessment, report and a recommended course of physical therapy for an initial period of six weeks, at a total cost of $2,370. Prime Health Recovery submitted two further treatment plans, dated February 22 and April 4, 2005, for additional therapy at a cost of $1,820 and $1,292, respectively.

On January 4, 2005, Ms. Valancius' family physician, Dr. Talwalkar, reported in a disability certificate that Ms. Valancius continued to suffer from a substantial inability to perform her pre-accident caregiving and housekeeping activities. Dr. Talwalkar testified that Ms. Valancius required physiotherapy at that time since she still had neck and back pain. However, he also said that he could not recall if he referred her for physiotherapy and that he did not refer her to Prime Health Recovery.

Ms. Valancius underwent a medical and rehabilitation DAC assessment on March 23, 2005 in respect of Prime Health Recovery's December 28, 2004 and February 22, 2005 treatment plans. The principal assessor, Dr. J. Pikula, a chiropractor, reported Ms. Valancius' complaints at the time as ongoing neck pain (relieved by "performing exercises"), upper thoracic pain (relieved by "performing exercises, laying down or changing positions") and low back pain (relieved by "performing exercises, lying down, massage therapy, and a change in position"). Dr. Pikula concluded that Ms. Valancius' "current musculoskeletal assessment did not identify any significant neurological or orthopaedic findings that would require or justify any further passive treatment at this time which is more than two years post accident." Dr. Pikula recommended that Ms. Valancius "be provided with one educational session to review a stretching and strengthening program that she can perform on her own at home."

The other DAC assessor, Ms. E. Cooper, a registered massage therapist, reported Ms. Valancius as saying that "following her massage interventions at Prime Health Recovery, she generally has a headache at the end of treatment and sometimes feels worse rather than better, within an hour or two after the treatment." Ms. Cooper recommended that, instead of massage therapy, Ms. Valancius "return to an active gym programme with the first two visits supervised by a qualified health practitioner to monitor techniques for an appropriate back and neck strengthening program."

Aviva denied the April 4, 2005 treatment plan on the basis of the March 23, 2005 DAC findings.

Ms. Valancius testified that her condition progressively worsened between late 2003 and late 2004. She said that by December 2004, she was feeling worse, with headaches, neck stiffness and back pain. She said that she needed more than "what [she] was doing at home" and that physiotherapy and especially massage made her feel better, although her pain is not completely gone. Mr. Valancius testified that, when his wife was in pain, he had to give her massages and that she felt better when she started going to physiotherapy again.

I find that Dr. Super's treatment plans for physical therapy were not reasonable and necessary. I find significant that, despite Dr. Talwalkar's January 4, 2005 disability certificate concerning Ms. Valancius' ongoing disability and his testimony that Ms. Valancius required physiotherapy at that time, he could not recall whether he referred her to physiotherapy and did not refer her to Dr. Super's clinic. I find it likely that, had Ms. Valancius been in need of treatment at that time, he would have referred her to the appropriate clinic, just as he had done when Ms. Valancius first visited him after the accident.

Dr. Super indicated that the goals of his treatment plans were pain reduction, increased strength and range of motion, and a return to the activities of normal living and to pre-accident work activities. I do not find that these goals were either furthered by the subsequent treatment or reasonably required in light of the improvement of Ms. Valancius' physical condition and functional ability.

While I have accepted that Ms. Valancius experienced lingering physical symptoms after the accident, I have also found that, by at least June 2003, Ms. Valancius was capable of performing the essential tasks of her pre-accident household and employment duties. I note that the second of Dr. Super's three treatment plans does not identify Ms. Valancius' return to pre-accident work activities as a treatment goal.

As discussed earlier, contrary to Ms. Valancius' testimony that her condition worsened between late 2003 and late 2004, the medical evidence establishes that her condition was improving from at least the middle of 2003 to the spring of 2004 (at which point she reported significant emotional and physical improvement to three medical assessors). The evidence of Ms. Rasciauskas and Mr. Valancius, as well as the caregiving and housekeeping invoices submitted to Aviva, also establish that Ms. Valancius' accident-related symptoms (and associated need for household assistance) were, in fact, improving throughout 2004.

Given Ms. Valancius' report to Dr. Pikula that her symptoms of pain were relieved by exercises she was doing at home, I do not accept her testimony to the effect that she needed more than what she was doing at home. Further, while Ms. Valancius told Dr. Pikula that her pain was relieved by massage therapy, she told Ms. Cooper that her massage interventions actually gave her headaches and that she sometimes felt worse following treatment.

In all of the circumstances, therefore, I find that Dr. Super's treatment plans were not reasonable and necessary.

Ms. Valancius' Entitlement to a Special Award

Pursuant to section 282(10) of the Insurance Act, Ms. Valancius would be entitled to a special award if Aviva had "unreasonably withheld or delayed payments." While I have found a small amount owing to Ms. Valancius, I see no basis to conclude that Aviva unreasonably withheld or delayed payments. Ms. Valancius' only submission regarding a special award was that Aviva had spent more on medical examinations than on the benefits actually paid. Whether or not this is the case, it does not, in my view, support a finding that Aviva acted unreasonably in denying the small amounts I have found owing, particularly in light of the fact that Ms. Valancius was not entitled to the vast majority of benefits claimed. In the circumstances, I am not prepared to order a special award.

EXPENSES

The parties did not address the matter of expenses at the hearing. They are encouraged to resolve this issue on their own. If required, they may make submissions on expenses in accordance with the process set out in Rule 79 of the Dispute Resolution Practice Code.

September 28, 2006

Eban Bayefsky Arbitrator

Date

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2006 ONFSCDRS 156

FSCO A05-000172

BETWEEN:

LORETA VALANCIUS

Applicant

and

AVIVA CANADA INC.

Insurer

ARBITRATION ORDER

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

1. Ms. Valancius is not entitled to weekly caregiver benefits from June 25, 2003 to February 8, 2004 or from April 5 to December 26, 2004.

2. Ms. Valancius is not entitled to housekeeping and home maintenance benefits from June 25, 2003 to February 8, 2004 or from April 5 to December 26, 2004.

3. Of the medical benefits claimed, Aviva shall pay Ms. Valancius $540 of the balance of treatment provided by New Age Recovery between December 30, 2002 and May 20, 2003.

4. Aviva is not liable to pay a special award.

5. Aviva shall pay Ms. Valancius interest on the $540 found owing for the treatment at New Age Recovery.

September 28, 2006

Eban Bayefsky Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2See also, for example, Mercier v. Royal & SunAlliance Insurance Company of Canada (2004), 2004 CanLII 5551 (ON CA), 189 O.A.C. 1(Ont. C.A.) and Maitland and State Farm Mutual Automobile Insurance Company (FSCO A05-000307, May 9, 2006).
3. 3See also, for example, Violi and General Accident Assurance Company of Canada, (FSCO A98-000670, August 20, 1999), upheld on appeal, and Bocas and Wawanesa Mutual Insurance Company, (FSCO A01-000839, December 3, 2002).