Financial Services Commission of Ontario Commission des services financiers de l’Ontario

Neutral Citation: 2007 ONFSCDRS 182

FSCO A05-002463

BETWEEN:

NICOLE TYRELL Applicant

and

RBC GENERAL INSURANCE COMPANY Insurer

Before: Richard Feldman Heard: April 23 and 25, 2007, at the offices of the Financial Services Commission of Ontario in Toronto Written submissions were received on June 15, 22 and 29, 2007

Appearances: Samiya Ahmad, student-at-law appeared for Ms. Tyrell on April 23 and 25, 2007 and Alon Rooz made written submissions on behalf of Ms. Tyrell Tricia McAvoy represented RBC General Insurance Company

Background:

The Applicant, Nicole Tyrell, was injured in a motor vehicle accident on December 19, 2004. At the time, she was 28 years old, had one son, D’Shawn Tyrell, aged 7 and was 7½ months pregnant with her daughter, Journie Kerr (who was subsequently born on January 13, 2005). As a result of the accident, Ms. Tyrell suffered soft-tissue injuries and was diagnosed with a low back strain/sprain and post-traumatic headaches. She also complained of pain in her right shoulder and of pain and numbness radiating down into her right arm.

Ms. Tyrell applied for and received statutory accident benefits from RBC General Insurance Company (“RBC”), payable under the Schedule.¹ Disputes arose between the parties concerning the Applicant’s entitlement to certain accident benefits. The parties were unable to resolve their disputes through mediation, and Ms. Tyrell applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Issues:

The issues in this hearing are:

Pursuant to section 13 of the Schedule, is Ms. Tyrell entitled to receive caregiver benefits in the total amount of $1,000 for the services provided by Suzzette McCormack from May 23, 2005 through June 19, 2005?
Pursuant to section 14 of the Schedule, is Ms. Tyrell entitled to receive a medical benefit in the outstanding amount of $6,114.00 for treatment provided by Prime Health Recovery Centre during the period December 19, 2004 through July 25, 2005?
Pursuant to section 22 of the Schedule, is Ms. Tyrell entitled to payments for housekeeping and home maintenance services in the amount of $100 per week for the services provided by Nadine Smith and Suzzette McCormack during the period April 20, 2005 through July 17, 2005?
Pursuant to section 47 of the Schedule, is RBC entitled to repayment of caregiver benefits it paid to Ms. Tyrell?
Is Ms. Tyrell entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?
Is RBC entitled to interest on repayment of benefits pursuant to section 47(6) of the Schedule?
Is RBC liable to pay Ms. Tyrell’s expenses in respect of the arbitration under section 282(11) of the Insurance Act?
Is Ms. Tyrell liable to pay RBC’s expenses in respect of the arbitration under section 282(11) of the Insurance Act?

At the commencement of the hearing, Ms. Tyrell (through her representative) indicated that she was withdrawing her request for a special award against RBC.

Result:

Ms. Tyrell’s claims for accident benefits are denied.
RBC is entitled to repayment of caregiver benefits in the amount of $600.00, plus interest thereon in accordance with section 47(6) of the Schedule.
The decision on expenses is deferred.

PROCEDURAL MATTERS:

The hearing of this application commenced on April 23, 2007. I heard brief opening statements from the parties. Ms. Tyrell testified. I was then advised that, although Ms. Tyrell had intended to call as a witness a medical professional from Prime Health Recovery Centre (Dr. Super), he had recently indicated that he would not be attending. He had not been served with a summons to attend. The hearing was adjourned to April 25, 2007. At that time, the Applicant had still not been able to arrange to have a representative from Prime Health Recovery Centre testify before me and she requested a further adjournment. Over the objection of the Insurer, the hearing was adjourned to June 22, 2007 and the new date was made peremptory upon the Applicant.

Subsequently, I was advised that the Applicant would not be calling any further witnesses and that the Insurer would also not be calling any witnesses. The parties agreed to file their closing arguments by way of written submissions. Thus, there was no need for the hearing to reconvene on June 22, 2007. Written submissions on behalf of the Applicant were delivered by Alon Rooz rather than by Samiya Ahmad (who had appeared at the hearing on behalf of the Applicant) as Ms. Ahmad was no longer working with the firm of Mazin Rooz Mazin by that point in time. All written submissions from the parties were received by the end of June 2007.

EVIDENCE AND ANALYSIS:

Caregiver Benefits and Repayment of Caregiver Benefits

(a) Caregiver Benefits

The Applicant claimed caregiver benefits in the amount of $300 per week for the services of Nadine Smith and Suzzette McCormack in caring for both of her children after the accident. The Insurer paid caregiver benefits up to May 22, 2005 but has refused to pay the following amounts claimed by the Applicant for caregiver services allegedly provided by Suzzette McCormack:

	PERIOD	AMOUNT CLAIMED
(i)	May 23, 2005 through May 29, 2005	$ 300
(ii)	May 30, 2005 through June 4, 2005	$ 300
(iii)	June 5, 2005 through June 11, 2005	$ 300
(iv)	June 12, 2005 through June 19, 2005	$ 100
	TOTAL	$ 1,000

Pursuant to section 13 of the Schedule, the Applicant is entitled to receive caregiver benefits if she can prove on a balance of probabilities that, at the relevant time, she suffered a substantial inability to engage in the caregiving activities in which she engaged at the time of the accident. At the hearing, Ms. Tyrell’s representative made it clear that a claim for caregiver services was only being advanced with respect to services related to the care of Ms. Tyrell’s son.

RBC takes the position that Ms. Tyrell is not entitled to any caregiver benefits after May 7, 2005 because, by that point in time, she no longer suffered a substantial inability to engage in the caregiving activities in which she engaged at the time of the accident. RBC is also claiming repayment of the caregiver benefits it paid for the period of May 8, 2005 through May 22, 2005 (a total of $600). Finally, RBC is seeking repayment of $50 per week for 10 weeks (February 28, 2005 through May 8, 2005) as RBC is now taking the position that it ought only to have paid $250 per week in caregiver benefits (instead of $300 per week) and that it paid the extra $50 per week in error.

I find that Ms. Tyrell has failed to prove that, after May 7, 2005, she suffered a substantial inability to engage in the caregiving activities in which she engaged at the time of the accident.

In early March 2005, an in-home assessment was conducted by Dr. Dimitrios Lianos (chiropractor) and Dr. Lianos suggested in the resulting report that Ms. Tyrell required caregiving assistance. This appears to be the last document in which a medical professional specifically states that Ms. Tyrell required assistance with caregiving.

Ms. Tyrell did submit to the Insurer a Disability Certificate (through Prime Health) on May 5, 2005 in which Dr. Super states that Ms. Tyrell suffers a substantial inability to engage in the caregiving activities in which she engaged at the time of the accident (Ex. 2, Tab D14), but this Disability Certificate was signed by Dr. Super on January 31, 2005 (and was previously submitted to the Insurer on or about February 11, 2005).² Although Mr. Rooz, in his submissions, suggests that this Disability Certificate does relate to the Applicant’s condition as of May 2005 and that Dr. Super simply made an error with respect to the date when he signed the form, no evidence was presented at the hearing before me to support this assertion and, on this issue, I draw a negative inference from the failure of the Applicant to call Dr. Super as a witness. I find that this Disability Certificate only provides an opinion with respect to the Applicant’s condition as of January 2005. I further note that, in January 2005, Dr. Super expected Ms. Tyrell to require no more than 9 to 12 weeks of assistance with her caregiving duties (i.e., up to April 2005).

A Functional Abilities Evaluation (FAE) was conducted on March 31, 2005 by Tara McKay. Although Ms. McKay did not have available to her the report of Dr. Lianos, she states at page 10 of her report that Ms. Tyrell reported being able independently to: bathe the children, dress them, feed them, supervise them, groom them, do laundry and prepare meals. Based upon her assessment of Ms. Tyrell and upon the information provided by Ms. Tyrell, Ms. McKay concluded that, from a functional perspective, Ms. Tyrell did meet requirements for her caregiving responsibilities of her two children and that no functional shortfalls were demonstrated.

Also on March 31, 2005, RBC had an orthopaedic assessment conducted by Dr. Weinberg. Dr. Weinberg states that, although Ms. Tyrell complained of some residual symptoms, on the basis of his examination of her, it appeared to Dr. Weinberg that “she has recovered well from a functional standpoint.” He concluded that, from an orthopaedic standpoint, at the time of his assessment of her, Ms. Tyrell did not suffer a substantial inability to perform the essential tasks of her caregiving.

On the basis of these assessments, RBC wrote to the Applicant on April 20, 2005 and advised her that, effective May 8, 2005, RBC would be stopping the weekly caregiver benefits. Ms. Tyrell challenged this decision and a multidisciplinary disability assessment at a designated assessment centre (“DAC”) was arranged for dates in early June 2005. In the interim, RBC continued to pay caregiver expenses that were submitted to it by the Applicant (a total of $600).

The DAC (Downsview Assessment Centre) conducted its own Functional Abilities Evaluation. Although Ms. Tyrell complained of some residual symptoms, she again confirmed that she was able to perform all necessary caregiving tasks. Based upon the abilities demonstrated by Ms. Tyrell during this Functional Abilities Evaluation and upon the information provided by her, it was concluded that, she “does not suffer a substantial inability to perform her essential caregiving demands, as a result of the December 19, 2004, motor vehicle accident.”³

The overwhelming weight of the medical evidence, therefore, indicates that RBC was justified in terminating caregiver benefits as of May 8, 2005 on the basis that, by that point in time, Ms. Tyrell did not suffer a substantial inability to engage in the caregiving activities in which she engaged at the time of the accident. Ms. Tyrell’s testimony before me was not sufficiently detailed or compelling to overcome these medical opinions. Ms. Tyrell also admitted on cross-examination that the invoices submitted to RBC may have overstated the amount of caregiver services actually provided to her by Ms. McCormack and that most of the assistance she received was related to caring for Ms. Tyrell’s infant daughter and was not related to caring for her 7‑year-old son, who was largely independent. Suzzette McCormack was not called as a witness.

For all of these reasons, the Applicant’s claim for caregiver services after May 8, 2005 is denied.

(b) Repayment of Caregiver Benefits

Pursuant to section 47(1)(d) of the Schedule, where an insurer continues to pay caregiver benefits after a notice of termination has been given but pending an assessment of the applicant’s entitlement to such benefits at a DAC, if it is ultimately determined that the insurer was entitled to terminate payment when it gave its notice, the insurer can claim repayment of the disputed benefits that it paid pending the DAC assessment. In this case, RBC paid $600 in caregiver benefits to Ms. Tyrell for the period from May 8 through May 22, 2005 (pending a DAC assessment) and RBC has claimed repayment of this amount. I have found that RBC was entitled to terminate caregiver benefits as of May 8, 2005. Consequently, Ms. Tyrell will be ordered to repay to RBC the $600 she received, together with interest thereon in accordance with section 47(6) of the Schedule.

According to the Report of the Mediator dated August 11, 2005, RBC’s claim for repayment of this $600 was the only claim for repayment raised by the Insurer at the mediation. It appears from the documents placed into evidence at this hearing that RBC did not make a claim for repayment of any caregiver benefits paid for the period prior to May 8, 2005 until RBC delivered its Response to Ms. Tyrell’s application on or about November 28, 2005.

This additional (or expanded) claim for repayment was clearly raised by RBC during the pre‑hearing conference⁴ and there is no indication that the Applicant objected to this issue proceeding to arbitration. Ms. Tyrell also raised no such objection during the hearing before me. In closing submissions, however, her counsel objected on the basis of section 281(2) of the Insurance Act, which states:

No person may … refer the issues in dispute to an arbitrator under section 282 … unless mediation was sought [and] mediation failed …

Thus, counsel for the Applicant contends that the Commission lacks jurisdiction to determine RBC’s claim for repayment of any caregiver benefits paid for the period up to May 8, 2005.

Despite section 281(2) of the Insurance Act, however, there are a number of cases that indicate that issues, especially claims for repayment, can be included in arbitration even if not specifically dealt with at mediation if the claim naturally and consequentially flows from issues that were raised at mediation.⁵ I find that the claim for repayment of caregiver benefits paid prior to May 8, 2005 naturally and consequentially flows from RBC’s other claim for repayment of caregiver benefits and from the Applicant’s claim for caregiver benefits and I find that I do have jurisdiction to decide this issue.

It appears from the documents filed⁶ that RBC paid caregiver benefits of $2,500 for the 10-week period from December 19, 2004 through February 27, 2005. RBC then paid $300 per week in caregiver benefits for 12 weeks ($3,600) from February 28, 2005 through May 22, 2005. This includes payments for two weeks after the notice of termination took effect (on May 8, 2005) but prior to the DAC assessment.

RBC is taking the position that for the period from February 28, 2005 through May 8, 2005 (10 weeks), it ought only to have paid $250 per week. RBC is claiming repayment of $500 for this period ($50 per week for 10 weeks).

RBC is not claiming that the amounts in question were paid as a result of willful misrepresentation or fraud. Therefore, pursuant to subsections 47(1), (2) and (3) of the Schedule, the onus is upon RBC to prove, on a balance of probabilities, that the benefit in question was paid as a result of an error and that RBC gave Ms. Tyrell proper “notice of the amount that is required to be repaid” within 12 months after the payment was made. RBC has failed to meet this onus.

RBC chose not to call any witnesses so I am left only with the documents that have been filed. There is no evidence as to the circumstances surrounding RBC’s decision to pay $300 per week in caregiver benefits for the period February 28, 2005 through May 22, 2005 so there is no basis for finding that this was paid in error.

In any event, RBC has failed to prove that it gave Ms. Tyrell proper notice of this claim for repayment within 12 months of the payments being made. It appears from the documentation filed⁷ that all caregiver benefits that were paid to the Applicant were paid by May 31, 2005. There is no evidence that RBC made this claim for repayment until it delivered its Response on or about November 28, 2005. If the information contained in this Response were sufficient, it would be within the time permitted by section 47(3) of the Schedule. I find, however, that the information contained in the Response is not sufficient and does not comply with the requirements of section 47(2) of the Schedule.

Pursuant to section 47(2) of the Schedule, an insurer must “give the person notice of the amount that is required to be repaid.” I interpret this to mean that either the total amount that the insurer is claiming must be specified or, at the very least, it must be easily calculable from the information contained within the notice itself.

In this case, RBC’s Response states that the amount being claimed (for repayment) is “$300 per week May 8 to 22, 2005 and overpayment in weekly amount.” The explanation given in the Response is as follows:

The insurer paid benefits pending a Disability DAC which concluded that the claimant was not entitled to further benefits. The insurer claims a repayment. In addition, the weekly benefits were overpaid, as the claimant is only entitled to benefits to a maximum of $250 per week. (emphasis added)

In an earlier section of the Response (under the heading “Caregiver Benefits”), RBC states that benefits were paid until May 22, 2005, that the maximum weekly amount payable is $250 and that RBC “seeks a repayment of all amounts paid over the weekly maximum.”

There was sufficient information contained in the Response about the repayment claim being advanced for the period May 8 to May 22, 2005 to permit the Applicant to determine the amount being claimed ($300 per week for two weeks) and, therefore, this constituted “notice of the amount that is required to be repaid” in accordance with the notice requirements of section 47(2) of the Schedule.

The Response does not contain sufficient information about the other amounts being claimed by RBC. RBC does not clearly state the period of the alleged overpayments (i.e., the relevant dates), the number of weeks, the total amount being claimed or how that total was (or could be) calculated. There is no way from the Response itself to ascertain the amount RBC was claiming. This failure to comply with the requirements of section 47(2) of the Schedule is fatal to RBC’s claim for repayment.

RBC attempted to clarify its claim for repayment at the pre-hearing conference but there are three problems with this. First, the pre-hearing letter still does not specify the total amount being claimed for repayment and it appears that the information listed in item 4 on page 2 of the pre‑ hearing letter is incorrect in that it seems to suggest that RBC paid $300 per week in caregiver benefits from December 26, 2004 to May 7, 2005. Second, the pre-hearing letter from the Commission does not constitute a notice given by RBC to the Applicant. Third, the pre-hearing conference took place on July 6, 2006, more than 12 months after the payments in question were made. For these reasons, RBC’s claim cannot be saved by the pre-hearing letter of July 6, 2006.

For all of the reasons stated above, this part of RBC’s claim for repayment is dismissed.

Housekeeping and Home Maintenance

The Applicant claimed expenses related to housekeeping and home maintenance for the services of Nadine Smith and Suzzette McCormack. Ultimately, the Insurer paid the maximum amount of $100 per week for such services up to April 20, 2005 but has refused to pay any amount for such services after that date. The Applicant is claiming $100 per week for 12 weeks from April 20, 2005 through July 17, 2005, for a total claim of $1,200.

Pursuant to section 22 of the Schedule, the Insurer must pay for reasonable and necessary additional expenses incurred by or on behalf of the Applicant as a result of an accident for housekeeping and home maintenance services if, as a result of the accident, the Applicant sustains an impairment that results in a substantial inability to perform the housekeeping and home maintenance services that she normally performed before the accident.

RBC takes the position that Ms. Tyrell is not entitled to any payments for housekeeping services after April 20, 2005 because, by that point in time, she no longer suffered a substantial inability to perform the housekeeping and home maintenance services that she normally performed before the accident.

I find that Ms. Tyrell has failed to prove that, after April 20, 2005, she suffered a substantial inability to perform the housekeeping and home maintenance services that she normally performed before the accident.

In early March 2005, an in-home assessment was conducted by Dr. Dimitrios Lianos (chiropractor) and Dr. Lianos suggested in the resulting report that Ms. Tyrell required housekeeping assistance. This appears to be the last document in which a medical professional specifically states that Ms. Tyrell requires assistance with housekeeping.

Ms. Tyrell did submit to the Insurer a Disability Certificate (through Prime Health) on May 5, 2005 in which Dr. Super states that Ms. Tyrell suffers a substantial inability to perform the housekeeping and home maintenance services that she normally performed before the accident (Ex. 2, Tab D14), but this Disability Certificate was signed by Dr. Super on January 31, 2005 (and was previously submitted to the Insurer on or about February 11, 2005).⁸ Although Mr. Rooz, in his submissions, suggests that this Disability Certificate does relate to the Applicant’s condition as of May 2005 and that Dr. Super simply made an error with respect to the date when he signed the form, no evidence was presented at the hearing before me to support this assertion and, on this issue, I draw a negative inference from the failure of the Applicant to call Dr. Super as a witness. I find that this Disability Certificate only provides an opinion with respect to the Applicant’s condition as of January 2005. I further note that, in January 2005, Dr. Super expected Ms. Tyrell to require no more than 9 to 12 weeks of assistance with her housekeeping duties (i.e., up to some time in April 2005).

A Functional Abilities Evaluation (FAE) was conducted on March 31, 2005 by Tara McKay. Although Ms. McKay did not have available to her the report of Dr. Lianos, she states at page 9 of her report⁹ that Ms. Tyrell reported being able independently to: cook, wash dishes, clean the bathroom, dust, vacuum, mop/sweep, make the beds, change the linens, do laundry, shop for groceries and remove garbage. In short, Ms. Tyrell reported being independent with respect to all of her normal pre-accident daily activities. Based upon her assessment of Ms. Tyrell and upon the information provided by Ms. Tyrell, Ms. McKay concluded that, from a functional perspective, Ms. Tyrell had no shortfalls for activities of daily living, including housekeeping and home maintenance requirements.

As previously discussed in these reasons (under the heading “Caregiver Benefits and Repayment of Caregiver Benefits”), a multidisciplinary disability assessment was conducted at a designated assessment centre (“DAC”) in early June 2005. The DAC (Downsview Assessment Centre) conducted its own Functional Abilities Evaluation. Although not specifically asked to evaluate her ability to perform housekeeping and home maintenance tasks, the assessors noted that Ms. Tyrell reported to them that she had “resumed all of her housekeeping and home maintenance tasks”¹⁰ and that she “continues to perform her daily housekeeping and caregiving duties, as needed”.¹¹

The preponderance of the medical evidence, therefore, indicates that RBC was justified in terminating housekeeping benefits as of April 20, 2005 on the basis that, by that point in time, Ms. Tyrell did not suffer a substantial inability to perform the housekeeping and home maintenance services that she normally performed before the accident. Ms. Tyrell’s testimony before me was not sufficiently detailed or compelling to overcome these medical opinions. Ms. Tyrell also admitted on cross-examination that the invoices submitted to RBC may have overstated the duration and scope of the services actually provided to her by Ms. Smith and by Ms. McCormack, neither of whom were called as witnesses.

For all of these reasons, the Applicant’s claim for expenses related to housekeeping and home maintenance services after April 20, 2005 is denied.

Medical and Rehabilitation Benefits

As a result of the December 19, 2004 accident, Ms. Tyrell suffered soft-tissue injuries and was diagnosed with a low back strain/sprain and post-traumatic headaches. She also complained of pain in her right shoulder and of pain and numbness radiating down into her right arm. Ms. Tyrell testified that she continued to suffer from intermittent headaches and back pain, although she admitted that the frequency and severity of the pain has been greatly reduced over time.

Ms. Tyrell received treatment at Prime Health Recovery Centre (“Prime Health”) during the period January 31, 2005 through July 21, 2005. The Applicant claims $6,114.00 as the amount allegedly outstanding for treatment provided to her by Prime Health.

Pursuant to section 14 of the Schedule, the Insurer must pay for all reasonable and necessary medical expenses incurred by or on behalf of the Applicant as a result of the accident.

Prime Health delivered the following three proposed treatment plans to RBC:

	Date	From	Amount
1	January 31, 2005	Dr. John Super	$2,472.00
2	April 1, 2005	Dr. Larry Feldman	$2,012.00
3	June 1, 2005	Dr. John Super	$1,232.00
		TOTAL	$5,716.00

Prime Health delivered six invoices to RBC in relation to the Applicant (for the period January 31, 2005 through July 21, 2005) in the total amount of $8,097.00. It is extremely difficult to match the treatment referred to in the invoices to that recommended in the treatment plans as the quantity (i.e., number of sessions), nature and cost of the various types of treatment billed by Prime Health is not identical to that recommended in the three treatment plans it submitted to RBC. It appears that at least some of the treatment being recommended in the second and third plans had already been provided to Ms. Tyrell by the time the plans were submitted to RBC; it also appears that some of the amounts invoiced by Prime Health relate to treatment for which no plan was submitted.¹²

All three treatment plans were referred to a designated assessment centre (“DAC”) for consideration.

The onus is upon the Applicant to establish that the treatment at issue was reasonable and necessary. The evidence presented by the Applicant on this issue is not persuasive. She filed the Treatment Plans themselves and the reports from the medical professionals who were recommending the treatment in question. The Applicant did not call either Dr. Super or Dr. Feldman to testify before me nor did she seek to cross-examine the medical professionals who wrote the med/rehab DAC reports that found the proposed treatment not to be reasonable and necessary. The Applicant’s testimony as to the need for, and benefit from, the disputed treatment was vague and of little assistance in trying to assess the relative weight to give to these conflicting medical opinions.

The first treatment plan was partially approved by the Med/Rehab DAC dated April 6, 2005. Most of the proposed treatment was found to be reasonable and necessary. However, the DAC did not agree that Ms. Tyrell required certain assistive devices, found that the amount of passive therapy recommended by Dr. Super was a bit excessive and concluded that Ms. Tyrell did not require as much facility-based exercise as recommended in the treatment plan (as a home-exercise regimen would suffice). In accordance with the findings of the DAC, RBC agreed to pay for the cost of the services that were found by the DAC to be reasonable and necessary (i.e., up to $1,682.00). The Applicant has failed to prove, on a balance of probabilities, that the treatment that was denied was reasonable and necessary and that RBC ought to have paid for it, notwithstanding the conclusion of the med/rehab DAC.

In the summary of this Med/Rehab DAC report, it states that, after consumption of the approved treatment, the Applicant is encouraged to continue exercising on an independent basis and that the assessment team has “no further recommendations at this time” (Ex. 1, Tab 3, p. 173). No further passive therapy was recommended by the DAC assessment team.

In early March 2005, Ms. Tyrell continued to complain of intermittent, but severe, headaches and pain in her neck and lower back. She acknowledged that the situation was gradually improving over time.

On April 1, 2005, Dr. Super of Prime Health prepared a follow-up progress report in which he indicated that Ms. Tyrell’s headaches had largely resolved but that she experienced occasional fatigue and intermittent pain in her neck, low back and right arm that was aggravated by certain activities. Dr. Super stated that the past treatment at Prime Health had increased Ms. Tyrell’s functionality and endurance and had decreased her pain. Dr. Super therefore recommended that the treatment (that had been proposed in the first treatment plan and that had largely been approved) continue.

By April 2005, however, Ms. Tyrell demonstrated that she could perform all of her housekeeping and caregiving activities and had no functional deficits. Therefore, the purpose of further facility-based treatment would presumably relate primarily to pain relief. Ms. Tyrell advised various assessors that the frequency of her intermittent headaches and back pain had reduced and that the pain could be alleviated by rest, pain medication (such as Tylenol or Advil) or by stretching and doing her home exercises (which were also improving her strength and endurance). Consequently, the med/rehab DAC assessors concluded that no further facility-based treatment (such as the extensive program of massage, chiropractic treatment, physiotherapy and acupuncture recommended by Prime Health) was reasonable and necessary and the second and third treatment plans that had been submitted by Prime Health were denied. Based upon the limited evidence I have before me in support of this claim, I find that the Applicant has failed to prove, on a balance of probabilities, that the treatment recommended in the second and third treatment plans was reasonable and necessary.

For the foregoing reasons, Ms. Tyrell’s claim for medical benefits is dismissed.

EXPENSES:

The parties have not yet made any submissions with respect to the issue of the expenses related to this Application. If the parties cannot agree on the issue of entitlement or amount, they may now make submissions on both issues in accordance with Rule 79 of the Code.

September 27, 2007

Richard Feldman Arbitrator