Neutral Citation: 2007 ONFSCDRS 159

FSCO A06-000408

BETWEEN:

SOPHIA SUN Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: Joyce Miller

Heard: May 22, 23 and 24, 2007 at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Robert N. Franklin for Ms. Sun Seth Kornblum for Wawanesa Mutual Insurance Company

Issues:

The Applicant, Sophia Sun, was injured in a motor vehicle accident on July 9, 2005. She applied for and received statutory accident benefits from Wawanesa Mutual Insurance Company (“Wawanesa”), payable under the Schedule.¹ Wawanesa terminated weekly income replacement benefits on October 29, 2005 and denied payment of a psychological assessment and housekeeping expenses. The parties were unable to resolve their disputes through mediation, and Ms. Sun 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. Sun entitled to a weekly income replacement benefit in the amount of $307.79 pursuant to section 4 of the Schedule from October 30, 2005 and ongoing?
Is Ms. Sun entitled to the cost of a psychological assessment in the amount of $1,914.60 pursuant to section 24 of the Schedule?
Is Ms. Sun entitled to housekeeping and home maintenance expenses in the amount of $596.10 for the period of January 1, 2006 to March 26, 2006, pursuant to section 22 of the Schedule?
Is Wawanesa liable to pay a special award pursuant to subsection 282(10) of the Insurance Act?
Is either party entitled to be paid their expenses pursuant to section 282(11) of the Insurance Act?
Is Ms. Sun entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?

Result:

Ms. Sun is entitled to an income replacement benefit in the amount of $307.79 pursuant to section 4 of the Schedule from October 30, 2005 and ongoing with interest pursuant to section 46 of the Schedule.
Ms. Sun is entitled to interest on Dr. Perlmutter’s psychological assessment in the amount of $1,914.60 from December 14, 2005 pursuant to section 46 of the Schedule.
Ms. Sun is entitled to her housekeeping expenses in the amount of $596.10 for the period of January 1, 2006 to March 26, 2006, pursuant to section 22 of the Schedule, with interest pursuant to section 46 of the Schedule.
Ms. Sun is entitled to a special award pursuant to subsection 282(10) of the Insurance Act in an amount to be determined.
The issue of expenses is deferred until I issue my decision on the amount of the special award.

BACKGROUND

Ms. Sun who is 36 years old emigrated from Cambodia in 2003. She does not speak or read English. An interpreter assisted her at the hearing.

Ms. Sun testified that on July 9, 2005, she was a passenger in a friend’s car that was stopped at a traffic light. She stated that she was bent over taking off her socks when the car was hit from the rear. She stated that the impact caused her to jolt back and hit her head on the headrest. Immediately after the impact she felt pain, confusion and shock. She stated she also experienced chest pain and found it hard to breathe and felt very nervous.

Ms. Sun testified that when the ambulance came, she was put on a stretcher and her neck was collared. She was taken to the hospital where she was x-rayed. She could not recall if she was given any medication, but may have been given a prescription. A friend drove her home from the hospital.

Ms. Sun testified that the next day, which was Sunday, she had pain over her entire body. She stated that the worst pain was in her lower back. Along with pain radiating down the full length of her back, she had pain along her hip as well as chest pain. She said that she was still in shock from the accident. She was very nervous and had difficulty sleeping. She said if she closed her eyes, she remembered the accident and had a great deal of fear. She also had nightmares.

Ms. Sun did not go to work on Monday. As she did not have a family doctor, she went to a walk‑in clinic. She saw a Dr. Kainth who told her to stay off work for the next three weeks. He prescribed Tylenol for her pain and recommended physiotherapy.

On July 18, 2005, Ms. Sun saw Dr. Alex Alexander, who became her regular family doctor. Dr. Alexander filled out her initial disability certificate. The certificate notes that Dr. Alexander diagnosed Ms. Sun with a neck injury WAD II, lumbar-sacral strain, tension headaches and anxiety. The certificate indicates that Ms. Sun was disabled from employment, that she was taking active physiotherapy four times a week, as well as Tylenol 2 (for pain) and Celebex (an anti inflammatory).

Ms. Sun testified that by the end of October 2005, when Wawanesa terminated her income replacement benefits, she had not improved very much. She stated that the pain in her lower back was worse. She said she could not return to work because of her body pain, her inability to sleep, her nightmares occurring three or four times a week, and because she was depressed.

At the time of the accident, Ms. Sun was working for a company, Tenatronics, which makes cable products for automobiles. Ms. Sun worked on the assembly line where she rotated every two hours between four work stations.

Her job involved, in part, crimping and soldering cables. Ninety-five percent of her job was sitting. She said it was a fast paced job. She stated that the individual cables she worked on were not heavy. However, after finishing working on 250 cables, she had to lift the box they were placed in and carry it approximately 10 feet. The filled box was quite heavy. It weighed approximately 40 to 50 pounds.

Ms. Sun testified that at the present time she is in a lot of pain, which includes her lower back, neck, hip area, feet and ankles. She stated that she has headaches and she cannot sleep very well because of the pain. As well, if she sits longer than 10 minutes her back pain increases.

Ms. Sun testified that she cries a lot. She is easily irritated and becomes angry and short-tempered with friends, something she did not do before the accident. She stated that she continues not to be able to sleep well because of the pain and also because of nightmares. As well, she has problems with her memory and concentration. She stated that she is very unhappy that she cannot work because of her pain and is depressed because of this. She constantly worries about the future.

Wawanesa submits that Ms. Sun is not a credible witness and in addition, that she did not sustain any injuries outside of the WAD II neck injury and accordingly, she is not entitled to any further accident benefits.

CREDIBILITY

Before dealing with the substantive issues, I will first deal with the issue of credibility raised by Wawanesa.

Wawanesa concedes that as per the OHIP summary, since her car accident, Ms. Sun has seen Dr. Alexander many times, at least 19 times recorded in the OHIP summary which ends on October 31, 2006. Nevertheless, Wawanesa asks that I should find Ms. Sun not to be a credible witness because she could not recall Dr. Alexander’s name at the hearing. Although Wawanesa also concedes that Ms. Sun began work at Tentatronics in 2004, again Wawanesa asks that I find Ms. Sun not to be a credible witness because she could not recall when she started work at Tentatronics.

In addition, Wawanesa points out that one of the documents in the employment file notes that Ms. Sun got two days bereavement leave because of the death of her father. However, in her testimony, Ms. Sun stated that her father is not deceased. Wawanesa submits that this contradiction is evidence of Ms. Sun’s lack of credibility which impugns her testimony regarding her claim for accident benefits.

I disagree with Wawanesa’s allegations on credibility. For the following reasons I find that Ms. Sun’s testimony was credible and reliable.

In assessing credibility there are a number of factors that an adjudicator must take into consideration. These include: the demeanour of the witness; whether there are internal inconsistencies in the testimony; whether the witness’ testimony has been contradicted by other evidence; and whether the testimony is plausible.

In addition, where there are inconsistencies and contradictions in the evidence, the adjudicator must decide when weighing and balancing the evidence, whether these inconsistencies and contradictions impugn the substantial and material elements of the claim being made, or are merely minor in nature.

In this case, I do not find that there are any inconsistencies and contradictions that would impugn the substantial and material elements of Ms. Sun’s claim

The fact that Ms. Sun could not remember the name of her family doctor or the date she started work is consistent with her testimony that since the accident she has had memory and concentration problems. Although the employer’s file shows that Ms. Sun had two days bereavement leave credited to her, there is no other evidence to support this fact. It is possible that this was recorded in error. I note this because the same supervisor who allegedly filled out her leave form also filled out a form indicating, wrongly, that Ms. Sun only worked approximately four hours a day: two hours of sitting and two hours of standing, which is clearly an error, when there is objective evidence to substantiate that Ms. Sun worked a 40-hour week at her job.

I find that Ms. Sun appeared to be forthright and truthful in her testimony. Her demeanor and presentation were consistent with her evidence and the documentation concerning her injuries. She appeared to be genuinely uncomfortable sitting for long periods of time. She stood up a number of times to relieve her discomfort.

I find that where there were minor misunderstandings in her testimony, they could be directly attributed to her lack of knowing English and the difficulties inherent in having to provide her testimony through an interpreter.

Accordingly, for all of these reasons I find that Ms. Sun was a credible witness.

EVIDENCE AND ANALYSIS:

Issue 1: Is Ms. Sun entitled to an income replacement benefit?

Ms. Sun claims an income replacement benefit in the amount of $307.79 per week from October 30, 2005 and ongoing. Wawanesa terminated Ms. Sun’s income replacement benefit on the basis that Ms. Sun had suffered a WAD II injury as a result of the accident and accordingly was not entitled to an income replacement benefit for more than 16 weeks.

Wawanesa presented a novel argument, wherein it submitted that where an applicant is diagnosed with a WAD II and is later diagnosed with an injury that is a direct result of the car accident, but appears only after 16 weeks (e.g., a fractured hairline of the neck is discovered post 16 weeks or the development of chronic pain), then the applicant is not entitled to any further income replacement benefits post 16 weeks even where that injury is directly the result of the car accident and substantially disables the person from working at their pre-accident job.

Wawanesa points out that subsection 5(2) paragraph (e) provides that:

The insurer is not required to pay an income replacement benefit, 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.

Wawanesa submits that paragraph (e) can be distinguished from subsection 5(2) paragraph (b) which extends the income replacement benefit from 104 weeks, with a change in the test from substantially disabled to a complete inability to engage in any employment. Wawanesa submits that there is no such change in the test in paragraph (e). Accordingly, Wawanesa submits that the legislators did not intend to extend the income replacement benefit to any injury that is diagnosed after the initial 16 weeks of a WAD II diagnosis. In short, Wawanesa submits that no income replacement benefit can be paid post 16 weeks no matter how significant an injury an applicant suffers as a direct result of a car accident, if the injury is not recorded within 16 weeks of the accident.

I disagree. Aside from the fact that Wawanesa could not provide any authority for its claim, I find that if the legislators had intended to make such a radical change to the Schedule, it would clearly state that an impairment that has arisen as a direct result of an accident, but not diagnosed within 16 weeks, is barred from receiving an income replacement benefit. It did not do so.

In the decision of Kieffer and Economical Mutual Insurance Company,² Arbitrator Feldman made the following findings which I agree with:

A cursory reading of s. 5(2)(e) of the Schedule might lead one to assume that every person who suffers a WAD II injury and makes a claim for income replacement benefits will be subject to the 16-week limitation set out in that section. If that had been the intention, s. 5(2)(e) could have simply stated that any person who suffers a WAD II injury cannot claim income replacement benefits for any period longer than 16 weeks after the accident. This is not how the section is currently phrased.

As the section is currently worded, the question is not merely whether the person has suffered a WAD II injury but whether the person’s impairment “comes within the Grade II Whiplash Guideline.” By incorporating the entire Grade II Whiplash Guideline by reference, section 5(2)(e) is adopting the scheme set out in the Guideline and that scheme is full of exceptions and exemptions.

Both the Applicant and Insurer acknowledge that section 3 of the Grade II Whiplash Guideline sets out exceptions. For instance, section 3 provides that the impairment of a person with a WAD II does not come within the Grade II Whiplash Guideline if there are specific pre-existing occupational, functional or medical circumstances that significantly distinguish the insured person’s needs from that of others with similar impairments that come within the Guideline and constitute compelling reasons why other proposed goods or services are preferable to those provided for under the Guideline.

Although the Applicant acknowledges that section 3 of the Guideline is not applicable in this particular case, she argues that section 3 is not the only place exceptions can be found. I agree.

By my reading of the Grade II Whiplash Guideline as a whole (with particular emphasis upon section 2), a person who suffers a WAD II injury can be excluded from the Grade II Whiplash Guideline if:

the insured person’s complaints include radicular back symptoms;
the insured person has other significant impairments (distinct from the WAD II) arising from the same accident; or
the insured person has additional symptoms associated with the WAD II that require separate treatment from that provided under the Guideline.

This list is meant to be illustrative rather than exhaustive; there may well be other exclusions. Therefore, where the insured person has apparently suffered a WAD II injury as a result of an accident that occurred after April 14, 2004 and the person is claiming income replacement benefits, the applicability of section 5(2)(e) of the Schedule may well turn not upon the diagnosis of the impairment but upon the question of whether or not that impairment comes within the Grade II Whiplash Guideline. Each case must be carefully determined upon its own facts.

On the facts of this case, I find, for the following reasons, Ms. Sun has proven on a balance of probabilities that she suffered, along with other injuries, a psychological impairment as a result of the car accident. Accordingly, for the following reasons I find that Ms. Sun is entitled to income replacement benefit from October 30, 2005 and ongoing

The evidence is very clear that prior to the accident Ms. Sun was in good health. She did not have a family doctor. As well, there is no recording in the OHIP summary that she had sought any medical treatment for any reason before the car accident.

The fact that Ms. Sun was collared at the scene of the accident and taken to the hospital by ambulance can be seen as a measure of the seriousness of the impact of the car in the accident.

Almost immediately after the accident, on the recommendation of her doctor, Ms. Sun began physiotherapy. Wawanesa paid for this treatment. On August 29, 2005, Ms. Sun submitted a treatment plan to Wawanesa. Dr. Marc Booth, a chiropractor who filled out the treatment plan, stated that further treatment was required to resolve her cervical and lumbar strain.

Wawanesa denied the treatment plan and sent it to a DAC to be assessed. The DAC, in its report dated January 5, 2006, found that the August 29, 2005 treatment plan, which was consumed, was reasonable and necessary, but that no further treatment was required.

On October 19, 2005, Ms. Sun applied to Wawanesa for approval for a psychological assessment by Dr. M. Perlmutter. In the OCF-22 form Dr. Perlmutter states that “The purpose of the psychological assessment is to determine the nature of and the extent to which the client may be suffering from psychological or emotional difficulties as a direct consequence of the motor vehicle accident, and if indicated, to make recommendations for treatments.”

Wawanesa denied the application for a psychological assessment and sent the matter to an Insurer’s Examination for a paper review.

Without providing cogent supportive evidence, the evaluating psychologist, Dr. E. MacNiven, stated that Ms. Sun’s initial anxiety after the accident was normal. He further stated that since the chiropractor made no mention of psychological barriers to her recovery and Ms. Sun’s family doctor did not indicate any need for a referral for psychological consultation, he therefore concluded that Ms. Sun’s anxiety was light and not severe. He further stated, without commenting on Dr. Perlmutter’s reason for the assessment, namely, that Ms. Sun may be suffering from psychological and emotional difficulties as a direct consequence of the car accident, that there was no medical documentation to support a psychological assessment. Accordingly, he rejected the OCF-22.

Notwithstanding the rejection, Ms. Sun underwent an assessment with Dr. Perlmutter. In his report dated December 14, 2005, under “Summary and Conclusions,” Dr. Perlmutter made the following findings:

Ms. Sun currently suffers from anxiety and depressive symptoms and post-traumatic stress disorder, which were evident in the clinical interview as well as her psychometric tests. Her emotional distress was confirmed in the BAI, the BDI-II, the TSI and the RCL. Ms. Sun identified 19 rehabilitation barriers (RB). She prioritized the five most significant, beginning with the greatest impediment being the pain in her chest, shoulders, arms and back. This was followed by headaches, physical restrictions in bending, lifting and reaching, difficulty sleeping and lack of energy or feeling fatigued.

Ms. Sun reported feeling a severe impairment in relationships with friends and family and participation in social activities. She also reported an extreme impairment in household chores, participation in sports/hobbies and regular employment.

… [Ms. Sun] would like the opportunity to learn about how to deal with her accident-related impairments through therapy. She is experiencing a very high level of emotional distress and is willing to come for therapy in order to deal with her accident-related impairments.

It is our opinion that the accident on July 9, 2005, caused Ms. Sun emotional distress and led to ongoing pain difficulties, which resulted in impaired functioning with regards to her day-to-day activities. It is our opinion that Ms. Sun’s current state is a direct consequence of the accident of July 9, 2005. Based on evidence presented in the assessment, it is our opinion that she would not be suffering from her current emotional and psychological symptoms without the accident in question. Her reports of her pre-accident functioning suggest that she was not suffering from any major psychological or emotional difficulties prior to the accident. Additionally, she reported that her post accident activity levels have been severely compromised. Furthermore, her presentation is consistent with what is commonly observed in people who have had similar accidents.

In his treatment plan, OCF 18, Dr. Perlmutter identified in Part 7 Ms. Sun’s “Injury and Sequela Information” was as follows:

Adjustment Disorder-Mixed Anxiety and Depressive Reaction
Specific (Isolated) Phobia (Severe Passenger Anxiety
Acute Pain - headaches, back pain, neck pain, shoulder pain, arm pain, palm and finger pain, leg pain and buttocks pain
Other Sleep Problems
Irritability and Anger
Problems Related to Employment
Post-traumatic Stress Disorder

In Part 8(c), Dr. Perlmutter responded that the “impairment” was not in the Pre-approved Framework (PAF) Guideline. In Part 9(a), Dr. Perlmutter responded that the “impairments from the injuries identified in Part 7” affect Ms. Sun’s ability to carry out her tasks of employment and her activities of normal life.

In response to 9(b), which asks to “describe the activities limited by the impairment and their impacts on the applicant’s ability to function,” Dr. Perlmutter responded:

Since the accident, Ms. Sun has been suffering from headaches and pain in her back, neck, shoulders, arms, palms and fingers, legs and buttocks. She has been unable to engage in her household such as cooking, cleaning and laundry. She has been paying her friend to help her and she has received some money from the insurance company to pay for this expense. Since the accident, she stated that she cries more easily and is more easily angered and irritated. She tends to lose her patience easily and withdraws when she is upset. She has severe driving and passenger anxiety and becomes nervous, tense and worried when she is in a car. She sweats, her heart races, she experiences hyper arousal, and she is overly alert in the car. Since the accident, she has been having problems with her memory and concentration. She experiences increased mental fatigue. She worries about being able to return to work, her recovery, and her future. Ms. Sun has been experiencing nightmares and difficulties sleeping. The pain keeps her from falling asleep and wakes her up many times during the night, even though she takes sleeping pills. She reports that her appetite has decreased since the accident. Her energy is lower and she feels tired most of the time. She has flashbacks and intrusive thoughts of the accident and reminders of the accident still bother her, make her heart race, and make her sweat. Ms. Sun has suffered both physical and psychological impairments that have greatly affected the quality of her life.

Wawanesa denied Ms. Sun’s treatment plan. The treatment plan was sent to a DAC to be evaluated.

The DAC report on March 27, 2006 concluded that the treatment plan was “reasonable and necessary.” In his conclusions Dr. Leonard Goldsmith, stated:

In December, 2005, Ms. Sun underwent a psychological assessment by Dr. Mel Perlmutter. Dr. Perlmutter diagnosed a Pain Disorder, Adjustment Disorder, and Post-Traumatic Stress Disorder; and he recommended 14 hours of psychotherapy to assist Ms. Sun in managing her psychological distress. A Cambodian interpreter would be required for the sessions. There are no Cambodian-speaking psychologists in Ontario.

I am essentially in agreement with Dr. Perlmutter’s diagnoses and with his recommendations for treatment. Ms. Sun appears to be highly motivated to return to work and to overcome her psychological complaints. The Treatment Plan (OCF-18) dated December 14, 2005 is deemed to be reasonable and necessary.

For reasons that are not clear Ms. Sun did not receive the results of this DAC report until her representative³ wrote to Wawanesa on September 11, 2006 asking when they can receive a copy of the DAC report as required by section 38 of the Schedule.

In a letter dated November 23, 2006 to Mr. Franklin, Wawanesa stated that it had forwarded on April 11, 2006 a copy of the report to Ms. Sun along with an Explanation of Benefits Payable (OCF 9). On the same day, Wawanesa alleges that it faxed to Back to Health a copy of the report and mailed a copy to her representative, Injury Claims Specialists Inc. A copy of this alleged OCF 9 or confirmation of fax sent was not presented into evidence by Wawanesa.

In fact, the OCF 9 presented into evidence indicates that an OCF 9 was faxed to Ms. Sun’s representative on June 8, 2006 advising that the DAC had found Dr. Perlmutter’s treatment not to be reasonable or necessary. The form states:

As per our previous OCF 9s dated Dec 30/05 and Jan 30/06, the above invoice [for Dr. Perlmutter’s assessment]is NOT payable since it was the DAC’s opinion that the proposed psychological assessment proposed on the OCF 22 dated Oct 19/05 was not reasonable and necessary.

In its letter of November 23, 2006 to Mr. Franklin, Wawanesa also stated that:

With respect to the issue of transportation to and from psychological treatment sessions. Please be advised that we agree to consider expenses for public transportation only and we agree to make advance payment of same upon receipt of an invoice from you, only if you agree to provide us with a copy of your attendance sheet at the end of each month of treatment.

In this letter Wawanesa further stated that:

While we acknowledge your client’s complaint that she remains substantially disabled from performing the essential tasks of her employment due to a psychological impairment, to date, we have not received a Disability Certificate (OCF 3), we are unable to consider this claim. If it remains your position that your client is entitled to this benefit, we welcome you to submit the appropriate forms pursuant to the SABS for our consideration.

On March 5, 2007, Dr. Alexander provided an OCF 3 Disability Certificate wherein he states that as a result of her car accident, Ms. Sun is substantially unable to perform the essential tasks of her employment, and that she suffers a substantial inability to perform the housekeeping and home maintenance services that she normally performed before the accident.

After Wawanesa received Dr. Alexander’s Disability Certificate, it did not reconsider her claim. Instead, Wawanesa sent Ms. Sun for an Insurer’s Examination with Dr. Paul Robinson, a psychologist. Ms. Sun saw Dr. Robinson on April 17, 2007 and completed the necessary testing by May 3, 2007.

In his conclusion Dr. Robinson stated:

During my evaluation of Ms. Sun, she did not display any obvious indication of manipulation, resistance, evasiveness, or embellishment. While a moderate tendency to overreport psychological/emotional concerns was indicated on the MCMI-III, such a response style was not indicated on the other procedures that include a validity measure. Thus, a valid assessment of this woman’s psychological functioning, in relation to the motor vehicle accident of July 9, 2005, was attained. The results of the present evaluation indicate an individual who is experiencing a mixed, anxious and depressive symptomatology, in the context of an ongoing pain focus, as well as symptomatology consistent with a post-traumatic stress response. There also is an indication of a dependent personality style, such that she may not easily initiate or maintain patterns of behaviour and functioning that would contribute to a timely recovery process. Thus, this woman appears to be quite entrenched in an experience of chronic pain, passivity, posttraumatic stress, and anxious/depressive symptomatology. This appears to be impacting her in many spheres of her life.

In response to the Insurer’s question of whether Ms. Sun suffers from a substantial inability to perform the essential tasks of her pre-accident employment as a result of the accident, Dr. Robinson responded, in part, as follows:

… Based on the present psychological evaluation, it is my distinct impression that genuine psychological/emotional factors are of primary importance in understanding this woman’s indicated extensive impairment in functioning. Disruptive symptomatology at least includes poor sleep, fatigue, decreased energy, low mood, vulnerability to cognitive confusion, limited/ineffective stress management strategies, low stress tolerance, low mood, and anxious symptomatology. This is occurring in the context of a now chronic sensitivity and reactivity to many and varied physical problems and related pain, as well as a generally passive lifestyle day-to-day.

My understanding of the essential tasks of this woman’s pre-accident employment is based on the worksite assessment dated October 27, 2005. Speaking strictly from a psychological perspective, this woman is manifesting a substantial inability to perform the essential tasks of her pre-accident employment, as a result of the subject motor vehicle accident.

In addition, to the psychological assessment and Dr. Perlmutter’s diagnosis that Ms. Sun suffered a psychological impairment as a result of the accident, a report by Dr. Langer, an orthopedic surgeon, on January 17, 2006, diagnosed Ms. Sun as suffering from “chronic pain syndrome. In his conclusion, Dr. Langer stated:

[Ms. Sun’s] progress is guarded, at best, as symptoms often last indefinitely. It is my view that as a result of the accident, Ms. Sun does have a substantial impairment for returning to her vocation or any job at this point of time.

It is my view that she should have an assessment at a pain management clinic and treatments, if deemed essential.

It is also my view that housekeeping/home maintenance assistance should be provided on an ongoing basis.

I would emphasize that Ms. Sun requires the pain management assessment as soon as possible, for the longer her complaints last untreated, the more engrained they become and the more resistant to resolution.

An active course of exercises in a gym workout facility would be in order. Massage therapy and chiropractic treatments are helpful for symptomatic relief.

The main focus, in my view should be the pain management, however.

FINDINGS:

As noted above, Wawanesa terminated Ms. Sun’s income replacement benefit on October 29, 2005, on the basis that Ms. Sun did not sustain any injuries outside of the WAD II neck injury. However, Wawanesa did not provide any medical evidence to support its position. In contrast, I find, as noted above, that Ms. Sun has provided reliable medical evidence, which is consistent with her credible testimony, that as a result of the accident she suffers from a psychological impairment and chronic pain syndrome.

Accordingly, I find that the cogent medical evidence presented by Ms. Sun, which includes, in part, Wawanesa’s Insurer’s Examination and a DAC report, fully supports her position, that as a result of the car accident on July 9, 2005, she suffers from a substantial inability to perform the essential tasks of her employment.

I give little weight to Wawanesa’s argument that Ms. Sun failed to mitigate her claim by not taking psychological treatment after Wawanesa notified her representative on November 23, 2006 it would pay Ms. Sun’s public transportation expense to attend treatment. For reasons that are discussed in more detail below, under the issue of special award, I find that Ms. Sun was thwarted from the beginning in her desire to get treatment and get her life back together after the accident. Moreover, I note that Wawanesa did not comply with the requirements of subsection 55(4) that requires an insurer to give notice to an insured that the insurer intends to stop paying an income replacement benefit if the insured does not participate in such reasonable rehabilitation that would permit the insured to engage in employment.

Accordingly, for all of these reasons, I find that as a result of Ms. Sun’s accident-related injuries, which include her chronic pain, headaches, sleep deprivation, depression, memory and concentration problems, she is disabled from performing the essential tasks of employment as an assembly line worker. Accordingly, I find that Ms. Sun is entitled to a weekly income replacement benefit of $307.79 pursuant to section 4 of the Schedule from October 30, 2005 and ongoing.

Issue 2: Is Ms. Sun entitled to an examination expense, for a Psychological Assessment conducted by Dr. Perlmutter, pursuant to section 24 of the Schedule?

Ms. Sun claims $1,914.60 for a psychological assessment conducted by Dr. Perlmutter. Ms. Sun submitted that it was reasonable in the circumstances of the facts in this case, which includes the DAC’s approval of Dr. Perlmutter’s treatment plan, for her to have had the psychological assessment.

After Ms. Sun provided her submissions on this issue, Wawanesa submitted in its closing submissions that it had in fact paid the invoice for the psychological assessment the day before. Accordingly, Wawanesa submitted that the payment of the psychological assessment was no longer an issue in the arbitration.

Ms. Sun did not accept Wawanesa’s unilateral withdrawal of this issue, not only because she had not received any formal confirmation of the payment of the invoice, but that the issue cannot be unilaterally withdrawn without dealing with the remaining issues of interest and special award.

I agree with Ms. Sun’s submission that the section 24 expense cannot be unilaterally withdrawn without dealing with the issues of interest and special award. I note that although Wawanesa refused to pay for the assessment and got, what I consider to be a weak confirmation from a paper review by Dr. MacNiven, Dr. Perlmutter’s treatment plan was eventually found to be reasonable and necessary by a DAC. Wawanesa did not present any evidence to controvert this finding. Accordingly, I find that Dr. Perlmutter’s psychological assessment was reasonable and necessary and that Wawanesa should have paid it in a timely manner. Accordingly, I find that pursuant to section 46 of the Schedule, Wawanesa shall pay Ms. Sun interest and a special award on the amount of $1,914.60 from December 14, 2005 until the date of payment, May 23, 2007. (Reasons for the special award are given below)

Issue 3: Is Ms. Sun entitled to receive a weekly housekeeping and home maintenance benefit pursuant to section 22 of the Schedule?

Ms. Sun claims $596.10 for housekeeping for the period of January 1, 2006 to March 26, 2006. Wawanesa denied this claim relying on an In-Home Occupational Therapy Functional Assessment conducted on January 3, 2006 by Elizabeth McLean. In her report, Ms. McLean questions Ms. Sun’s credibility on her reports of pain when carrying out routine household tasks – such as bed making, laundry, sweeping and washing the floor. In her conclusions, Ms. McLean concluded that “Using a variety of assistive devices, the client demonstrates the ability to independently perform most of her pre-accident activities inside her home.” [Emphasis added]

In her request for housekeeping benefits, Ms. Sun is not asking to be paid for all of her housekeeping duties but only the ones she cannot do. The amount that Ms. Sun is claiming is quite modest and is consistent with her request to be reimbursed for her expenses for some of her housekeeping duties that she was not able to do. I found Ms. Sun’s testimony to be credible that because of pain she is unable to do her pre-accident housework.

In support of her claim Ms. Sun provided an In-Home Assessment conducted on October 20, 2005, by Dr. D. Morton, a chiropractor, who made the following findings:

Ms. Sun should be provided with housekeeping assistance, including ironing, dusting, grocery shopping, floor care, meal preparation, bathroom cleaning and laundry tasks for at 7.00 hours a week to ensure that her essential nutritional and hygiene requirements are being met. Providing Ms. Sun with this level of assistance should allow her to: (1) reduce demands on anatomical structures that have been injured and reduce the likelihood of exacerbation of symptoms and further injury; and (2) focus her energies on her rehabilitation program.

Dr. Robinson, who examined her in April 2007, stated Ms. Sun could do her housework if she paced herself. However, there is nothing in Dr. Robinson’s report to indicate that he was referring to Ms. Sun’s need for housekeeping for the period in dispute (January to March 2006). I note that Dr. Perlmutter in his report of December 14, 2005 and Dr. Langer in his report of January 17, 2006 state that she is disabled from doing her housework.

In weighing and balancing the evidence I prefer Ms. Sun’s credible testimony and her supporting medical documentation that she required assistance with her housekeeping. Given my findings above with respect to Ms. Sun’s physical and psychological injuries as a result of the accident, I find that the modest amount of $596.10 is reasonable in the circumstances of this case. I prefer the much more even handed and detailed report of Dr. Morton over that of Ms. McLean, who nevertheless allowed for the fact that Ms. Sun could not do all of her pre-accident housework.

Accordingly, for these reasons, I find that pursuant to section 22 of the Schedule, Wawanesa shall pay Ms. Sun a housekeeping benefit of $596.10 for the period of January 1, 2006 to March 26, 2006 with interest pursuant to section 46 of the Schedule.

Issue 4: Is Ms. Sun entitled to a Special Award?

Ms. Sun claims a special award pursuant to subsection 282(10) of the Insurance Act.

The Law:

Subsection 282(10) of the Insurance Act provides that:

If the arbitrator finds that an insurer has unreasonably withheld or delayed payments, the arbitrator, in addition to awarding the benefits and interest to which an insured person is entitled under the Statutory Accident Benefits Schedule, shall award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.

Succinctly, pursuant to subsection 282(10), an arbitrator must grant a special award, up to 50 per cent of the benefit awarded, once he or she finds that an insurer has acted unreasonably in withholding or delaying payment.

In Plowright and Wellington Insurance Company (OIC A-003985, October 29, 1993), Arbitrator Palmer made the following comments, which I agree with, on what can be considered to be unreasonable behaviour on the part of an insurer:

“Unreasonable” behaviour by an Insurer in withholding or delaying payments can be seen as behaviour which was excessive, imprudent, stubborn, inflexible, unyielding or immoderate.

In a recent decision, Melchiorre and Wawanesa Mutual Insurance Company,⁴ dealing with the issue of special award, Arbitrator Feldman made the following comments with which I agree:

It is now well settled law that an insurer owes a duty of good faith towards an insured person. In the case of accident benefit claims, an insured person is not necessarily the insurer’s client. By the definition contained in section 2 of the Schedule, an “insured person” includes (in respect of accident in Ontario) a person who is involved in an accident involving the insured automobile. Thus, an insurer owes a duty of good faith to any insured person who makes a claim for accident benefits.

This duty of good faith includes a duty to treat all insured persons in a fair manner. For example (and this is not meant to represent an exhaustive list), this duty requires an insurer to:

Conduct a reasonable investigation of information presented to it;⁵
Approach the claim with an “open mind” and assess it fairly;⁶ and
Be aware of the current state of the law (i.e., understand and apply the law correctly to the facts of the particular case).⁷

In my view, this duty to act in a reasonable and fair manner in responding to a claim for accident benefits places a responsibility upon an insurer to (amongst other things):

Understand the legal “tests” or “criteria” that apply in the particular case so that the insurer can ask the right questions and identify the information it requires in order to properly assess the claim;
Approach the claim with an open mind, treating the insured person in a fair manner and not as a potential adversary;
Carefully consider all of the available information, giving appropriate weight to that information in a fair and even-handed manner;
identify what additional information may exist that would assist in assessing the claim and notify the insured of any additional information the insurer reasonably requires to assess the claim;
ensure that the person (or persons) responsible for assessing the claim for accident benefits make their own decision, free from undue influence by others who may not owe the same duty of care to the insured; and
reassess the validity of the claim as new information is received.

SUBMISSIONS:

Ms. Sun submits that Wawanesa consistently ignored cogent evidence, including a DAC and its own Insurer’s Examination, that supported her medical evidence, which included disability certificates, and medical reports, that her injuries fell outside of the WAD II guidelines. Ms. Sun submits that Wawanesa’s behaviour was unreasonable and, accordingly, she should be entitled to a special award.

Wawanesa, in contrast, submits that it has behaved reasonably; that it properly terminated Ms. Sun’s income replacement benefit at the 16-week mark and that Ms. Sun failed to establish that she is entitled to a special award.

FINDINGS:

For the following reasons I find that Ms. Sun is entitled to a special award.

As I stated in the case of Hernandez and Zurich Insurance Company⁸:

Terminating an applicant’s income replacement benefits is a very serious matter with potentially serious consequences. An insurer contemplating the termination of income replacement benefits, or maintaining a denial, must act reasonably and consider all of the documentation before it. An insurer cannot pick and choose information that favours its own position while ignoring relevant information that favours the applicant. [Emphasis added]

In this case, I find that Wawanesa’s decision to terminate Ms. Sun’s income replacement benefit on October 29, 2005 on the basis that she suffered a WAD II injury and was not entitled to any further income replacement benefits after 16 weeks was unreasonable. I find that, from the time Wawanesa received the OCF-22 (dated October 19, 2005) requesting a psychological assessment until this arbitration, Wawanesa closed its mind and took an unreasonable, stubborn and inflexible position by turning a blind eye and continuing to ignore any cogent medical information presented by Ms. Sun that would support her claim for benefits, which include her claim for income replacement benefit, cost of a psychological examination and housekeeping expenses for three months. For example:

Dr. Perlmutter’s assessment dated December 14, 2005 wherein he stated that Ms. Sun’s impairments from the accident affect Ms. Sun’s ability to carry out her tasks of employment and her activities of normal life;
the DAC report dated March 27, 2006 which confirmed that Dr. Perlmutter’s treatment plan was reasonable and necessary;
Dr. Alexander’s OCF-3 Disability Certificate dated March 5, 2007 wherein he stated that Ms. Sun is substantially unable to perform the essential tasks of her employment and her housekeeping and home maintenance that she normally performed; and
Wawanesa’s own Insurer’s Examination Report dated May 14, 2007, which concluded that Ms. Sun was substantially disabled from performing her pre-accident employment as a result of the car accident.

This medical evidence, whether taken individually or as whole, should have led Wawanesa to re‑evaluate its position. It did not.

Without providing supporting evidence, Wawanesa stated in its letter to Mr. Franklin dated November 23, 2006 that it had sent Ms. Sun an OCF 9 (Explanation of Benefits Payable) and a copy of the DAC report on April 11, 2006. Contrary to this claim the evidence shows⁹ that on June 8, 2006, Wawanesa sent Ms. Sun’s representative an OCF 9 wherein it states that the DAC found Dr. Perlmutter’s treatment plan was not reasonable and necessary.

This, in fact, was not the DAC’s conclusion. Significantly, the DAC report was not attached to the OCF 9. It was only provided when it was requested by Ms. Sun’s representative in September 2006.

I give little weight to Wawanesa’s submission that Ms. Sun did not mitigate her claim when in a letter to her representative in November 2003, it offered to pay her public transportation for treatment and she did not take Wawanesa up on this offer.

Aside from the fact that Wawanesa did not advise Ms. Sun directly about the offer to pay transportation, Ms. Sun submits that she had no reason to believe that Wawanesa would ever assist her. This is confirmed by the evidence which shows that instead of trying to help Ms. Sun in her recovery from the car accident in a reasonable fashion, Wawanesa seemed to have only placed hurdles in her way. These hurdles include:

denying Ms. Sun’s August 29, 2006 chiropractic treatment plan, which was later approved by a DAC as being reasonable and necessary;
denying Ms. Sun’s request for a psychological assessment, which it eventually paid on the second day of the arbitration hearing;
denying Ms. Sun’s psychological treatment plan which was later accepted by a DAC as being reasonable and necessary;
improperly advising Ms. Sun’s representative that the DAC found Dr. Perlmutter’s treatment plan not to be reasonable and necessary and then not properly advising Ms. Sun of the DAC report in her favour until requested by her counsel five months later;
insisting Ms. Sun provide a disability certificate before it would consider reinstating her benefit despite cogent medical evidence that she was substantially disabled from the essential tasks of her employment;
choosing to ignore the March 5, 2007 disability certificate which confirmed Ms. Sun was disabled from the essential tasks of her employment; and
requiring Ms. Sun to attend an Insurer’s Medical Examination and then, ignoring the conclusion of its own Insurer’s Examination report that she was “manifesting a substantial inability to perform the essential tasks of her pre-accident employment, as a result of the subject motor vehicle accident.”

Taking into consideration all of the facts noted above, I find that Wawanesa maintained a closed mind in assessing Ms. Sun’s claim. I find that Wawanesa’s behaviour in ignoring cogent, reliable medical evidence in favour of Ms. Sun’s claim to have been unreasonable, in that it was excessive, stubborn, inflexible and unyielding.

Accordingly, I find that, pursuant to subsection 282(10) of the Insurance Act, Ms. Sun is entitled to a special award on the basis that Wawanesa unreasonable terminated and continued to withhold payment for her income replacement benefit, housekeeping, and expenses for a psychological assessment.

The Amount of the Special Award

Neither party provided any submissions at the hearing with respect to the issue of the quantum of the special award. Before deciding this issue, I find it is only fair to give the parties an opportunity to do so. Accordingly, I am requesting that the parties provide me with written submissions as to both the appropriate amount and the calculation of the special award in accordance with the principles set out in the Persofsy decision¹⁰ and any other relevant cases.

On receipt of my decision, Ms. Sun has 30 days to serve on Wawanesa her written submissions on the issue of the amount of and the calculation of the special award. On receipt of Ms. Sun’s submissions, Wawanesa shall have 30 days to respond to her submissions. Ms. Sun shall then have 10 days to reply to the material filed by Wawanesa.

EXPENSES

If the parties cannot agree on the issue of expenses, they will be given an opportunity to speak to me on this issue following the release of my decision on the amount of the special award.

August 16, 2007

Joyce Miller Arbitrator

Date

Financial Services Commission of Ontario