Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2006 ONFSCDRS 70
FSCO A05-000494
BETWEEN:
DONNA KIEFFER
Applicant
and
ECONOMICAL MUTUAL INSURANCE COMPANY
Insurer
DECISION ON A PRELIMINARY ISSUE
Before:
Richard Feldman
Heard:
January 3, 4 and 26, 2006, in Kitchener
Appearances:
Andrew Davidson, solicitor for Ms. Kieffer
Helen D. K. Friedman, solicitor for Economical Mutual Insurance Company
Issues:
The Applicant, Donna Kieffer, was injured in a motor vehicle accident on July 4, 2004. She applied for and received statutory accident benefits from Economical Mutual Insurance Company ("Economical"), payable under the Schedule1 Disputes arose between the parties concerning Ms. Kieffer's entitlement to income replacement benefits and certain medical benefits. The parties were unable to resolve their disputes through mediation and Ms. Kieffer applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The preliminary issue, as identified in the Notice of Hearing of Preliminary Issue, is:
- Does section 5(2)(e) of the Schedule preclude Ms. Kieffer from receiving income replacement benefits for more than 16 weeks?
During the preliminary issue hearing, I heard testimony from the Applicant, Dr. Scott Garner, Dr. Stephen Menich and Dr. John Heitzner, and submissions from counsel for both parties.
Result:
- Section 5(2)(e) of the Schedule does not preclude Ms. Kieffer from receiving income replacement benefits for more than 16 weeks.
EVIDENCE AND ANALYSIS:
Background:
On July 4, 2004, Ms. Kieffer was driving east along Highway 8 when a trailer that had been attached to another vehicle came loose, flew through the air and landed on the hood of her vehicle. The impact smashed out the windshield and side window of the Applicant's vehicle and injured Ms. Kieffer.
As a result of this accident, Ms. Kieffer was diagnosed by various medical professionals as suffering Grade II Whiplash-Associated Disorders (hereinafter referred to as "WAD II"); she does not take issue with this diagnosis. This whiplash injury was accompanied by cervicogenic headaches, neck pain, low back pain, anxiety and loss of sleep.
Ms. Kieffer also applied for, and received weekly income replacement benefits of $131.10. The weekly income replacement benefits were terminated on October 24, 2004 (16 weeks after the accident). In terminating Ms. Kieffer's income replacement benefits, Economical relied upon section 5(2)(e) of the Schedule, taking the position that since she suffered a WAD II injury, Economical was not required to pay an income replacement benefit for any period longer than 16 weeks after the accident.
The Law:
For whiplash-type injuries, Ontario has adopted the classification scheme proposed by the Quebec Task Force in its 1995 report on the prevention, diagnosis and treatment of whiplash-associated disorders. A person with a WAD II injury will present with neck complaints and musculoskeletal signs (including decreased range of motion and point tenderness). Common symptoms that accompany whiplash associated disorders include: deafness, dizziness, tinnitus, headache, memory loss, dysphagia and temporo-mandibular joint pain.
If a person is diagnosed as having whiplash-associated disorders, this may affect the type and timing of treatment the person receives and the person's entitlement under the Schedule to other specified benefits (such as the duration of income replacement benefits). Section 5(2)(e) of the Schedule, reads as follows:
"5 (2) The insurer is not required to pay an income replacement benefit . . .
(e) for any period longer than 16 weeks after the accident, in the case of an insured person whose impairment comes within the Grade II Whiplash Guideline, if the accident occurred after April 14, 2004."
"Impairment" is defined in section 2 of the Schedule as a loss or abnormality of a psychological, physiological or anatomical structure or function.
The Grade II Whiplash Guideline (also known as the "Pre-approved Framework") is intended to "set out what goods and services may be provided without insurer approval to an insured person who has sustained a Whiplash Associated Disorder Grade II, with or without back pain, and the cost of such service payable by the insured person's insurer."3 It is a guide for diagnosing WAD II injuries and describes a short course4 of treatment to which a person is automatically entitled if their impairment comes within the Guideline.
Section 2 of the Grade II Whiplash Guideline defines the impairments that come within the Guideline. In essence, the Grade II Whiplash Guideline is meant to cover a WAD II injury that is of sufficient severity that it requires the physical treatment interventions provided under this Guideline. Complaints of non-radicular back symptoms associated with the WAD II do not exclude the impairment from the Guideline. Other common symptoms (including shoulder pain, referred arm pain that is not from radiculopathy, dizziness, tinnitus, headache, difficulties with hearing and memory acuity, dysphagia, and temporomandibular joint pain)