Celeste De Lorenzi v. Wawanesa Mutual Insurance Company, 2008 ONFSCDRS 177

Financial Services Commission of Ontario

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

Neutral Citation: 2008 ONFSCDRS 177

FSCO A05-002712

BETWEEN:

CELESTE DE LORENZI

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Susan Sapin

Heard: September 17, 18, 19 and 20, 2007, in Thunder Bay, and September 28 via teleconference from the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Bruce Latimer for Ms. De Lorenzi Chantal Brochu for Wawanesa Mutual Insurance Company

Issues:

The Applicant, Celeste De Lorenzi, was injured in a motor vehicle accident on March 28, 1994. She applied for and received statutory accident benefits from Wawanesa Mutual Insurance Company (“Wawanesa”), payable under the Schedule.¹ In May of 2004, Wawanesa refused to pay certain ongoing transportation and home maintenance expenses and later refused a claim for acupuncture treatment submitted in November 2005. The parties were unable to resolve their disputes through mediation, and Ms. De Lorenzi 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:

1. Under section 55 of the Schedule, is Ms. De Lorenzi entitled to:

(a) $4,477.84 for housekeeping services from September 30, 2005 to July 12, 2006;

(b) Ongoing housekeeping;

(c) $7,679.64 for exterior home maintenance services, excluding snow removal, from May 18, 2004 to July 12, 2006;

(d) Ongoing home maintenance including snow removal as required?

2. Is Ms. De Lorenzi entitled to expenses of $3,653.50 for taxi fares from May 17, 2004 to July 15, 2005, and $1,309.20 from July 18, 2005 to June 23, 2006, ($4,962.20 in total) as a medical benefit under either subsections 36(1)(g) or (h) of the Schedule, or as a rehabilitation benefit under subsections 40(1)(b), 40(4)(a), (b) and (c), and 40(5)(a), (d) and (e) of the Schedule?

3. Is Ms. De Lorenzi entitled to a medical benefit of $2,220.25 for acupuncture treatment as per a Treatment Plan dated November 2, 2005 under section 36 of the Schedule?

4. Is Ms. De Lorenzi entitled to interest on any overdue payments under section 68 of the Schedule?

5. Is Ms. De Lorenzi entitled to a special award under subsection 282(10) of the Insurance Act on the basis that Wawanesa unreasonably withheld or delayed payments?

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

Result:

1. Under section 55 of the Schedule, Ms. De Lorenizi is entitled to:

(a) $4,477.84 for housekeeping services as claimed from September 30, 2005 to July 12, 2006;

(b) Ms. De Lorenzi is entitled to ongoing housekeeping assistance of six hours per week plus two hours per week for reasonable lawn cutting and routine garden maintenance as required at $19.00 per hour.

(c) Ms. De Lorenzi is entitled to expenses of $7,679.64 for exterior home maintenance services, as claimed from May 18, 2004 to July 12, 2006;

(d) Ms. De Lorenzi is entitled to reasonable ongoing home maintenance expenses including snow removal.

2. Ms. De Lorenzi is entitled to transportation expenses of $4,962.20 under subsections 36(1)(g) and(h) and subsections 40(1)(b), 40(4)(a), (b) and (c), and 40(5)(a), (d) and (e) of the Schedule.

3. Ms. De Lorenzi is entitled to a medical benefit of $2,220.25 for acupuncture treatment as per a Treatment Plan dated November 2, 2005 under section 36 of the Schedule.

4. Ms. De Lorenzi is entitled to interest on any overdue payments under section 68 of the Schedule.

5. Ms. De Lorenzi is entitled to a special award of $18,000.

6. Ms. De Lorenzi is entitled to her expenses of the arbitration proceeding under section 282(11) of the Insurance Act.

EVIDENCE AND ANALYSIS:

Introduction

Ms. De Lorenzi’s entitlement to housekeeping and home maintenance expenses, transportation expenses and treatment depends on whether she meets the criteria set out in the respective sections of the Schedule. Determination of entitlement is complicated by a significant pre-existing medical history and differing accounts of Ms. De Lorenzi’s pre-accident activities, particularly the extent to which she engaged, or was able to engage, in homemaking activities before the accident. As the eligibility criteria differ depending on the type of benefit claimed, each will be dealt with separately.

Background

Ms. De Lorenzi immigrated to Thunder Bay from Italy in 1965 at the age of eighteen. Widowed in 1979 at 33 with two daughters and a son, all under the age of ten, she found her first job outside the home as a housekeeper in a hospital, and then as a sales clerk/cashier in a bakery, where she worked for ten years at minimum wage.

By the time of the motor vehicle accident on March 28, 1994, Ms. De Lorenzi was already suffering from the debilitating effects of long-standing seronegative arthritis and fibromyalgia since at least the mid-1980’s, and a previous motor vehicle accident that occurred on April 4, 1991.² Dr. Jean Maskey, Ms. De Lorenzi’s family doctor from 1985 to 1996, described her condition as “an arthritis, which affects most of the joints of her neck, back, shoulders, elbows, hands, hips, knees and feet.” ³

On Dr. Maskey’s advice, Ms. De Lorenzi stopped work at the bakery because of her medical condition in January 1992, and applied for Canada Pension Plan (CPP) disability benefits, which she began receiving in June 1992.

Notwithstanding this history, Ms. De Lorenzi maintained she was able to look after herself and her home before the March 1994 accident, albeit with difficulty and assistance, recovering sufficiently by late 1993 from the effects of the 1991 accident to again look for work. The March 1994 accident intervened, however, and, in her words, “finished her off.” She believes that as a result of this accident, she required assistance with self-care, housekeeping and exterior home maintenance, lost her driver’s license, and has needed various forms of therapy including acupuncture to cope with chronic pain and maintain function.

For ten years, Wawanesa accepted Ms. De Lorenzi’s claims and paid for the attendant care, housekeeping, home maintenance and treatment expenses she submitted, and for taxis to take her to and from medical appointments, grocery shopping, the bank, her hairdresser, and various other destinations. Then, in late April 2004, Wawanesa retained an independent adjuster, Ted Jones of E.R. Jones, to undertake a complete review of Ms. De Lorenzi’s accident benefits claim. Of particular concern were the taxi expenses, which by 2004 had increased from an average of $100 a week to over $4,000 a month for May and June 2004.⁴

Mr. Jones wrote to Ms. De Lorenzi in May 2004, to advise her that a rehabilitation consultant would review the “present status” of her recovery and her claims for housekeeping services and attendant care. He explained that her monthly taxi expenses were excessive and unreasonable, and that from that point on, Wawanesa would only pay up to $100 per week towards taxi fare, and only for trips to medical appointments, treatment, or counseling sessions.

In June, Mr. Jones refused to pay a $747 invoice for exterior home maintenance, stating that gardening and yard maintenance were not “reasonable rehabilitation expenses.” In July, he told Ms. De Lorenzi that Wawanesa would no longer pay for lawn cutting, gardening and snow removal because an April 6, 1994 note in her file indicated that she did not attend to those activities prior to the accident.

Wawanesa eventually arranged for in-home assessments of Ms. De Lorenzi’s attendant care, housekeeping and home maintenance needs six months later, in December 2004, by Ms. Mary Beth Goetz, a registered nurse. As a result, Ms. De Lorenzi’s housekeeping benefit was reduced from about ten hours a week (actually, 1 hr 45 minutes per day) to 2 hours per week.⁵ A Designated Assessment Centre (DAC) assessment in November 2005, conducted by Marcus Walser, a physiotherapist, concluded that a Treatment Plan for acupuncture submitted November 2, 2005 was not reasonable or necessary. Ms. De Lorenzi has not received any treatment since that time.

Ms. De Lorenzi disputes Ms. Goetz’ and Mr. Walser’s assessments, and maintains that Wawanesa’s abrupt and drastic reduction of her benefits for housekeeping, transportation and treatment ten years after the accident merits a special award.

For its part, Wawanesa does not dispute that Ms. De Lorenzi is disabled by arthritis and fibromyalgia, or that she sustained a whiplash injury in the 1994 accident which aggravated her pre-existing condition, and now suffers from chronic pain. Nor does it dispute that she requires more than the 2 hours per week of housekeeping assistance recommended by Mary Beth Goetz in her December 2004 report, based on her degree of impairment. Furthermore, Wawanesa did not directly address the issue of causation at the hearing and presented little independent evidence to challenge Ms. De Lorenzi’s evidence that the 1994 accident materially or significantly contributed to her post-accident symptoms and impairments.

Rather, Wawanesa’s position is that Ms. De Lorenzi is not, nor has she been since the accident, eligible for housekeeping and home maintenance benefits because it submits that, to be eligible under the criteria set out in the Schedule, Ms. De Lorenzi must have performed all her own housekeeping and home maintenance chores before the accident, which it alleges she did not. It further alleges that she did not lose her driver’s license as a result of the accident, and takes the position that it is therefore not required to pay for any transportation expenses incurred because Ms. De Lorenzi cannot drive, other than for medical appointments and treatment; again, the reason being that she does not meet the eligibility criteria specified by the Schedule.

Entitlement to Housekeeping and Home Maintenance Expenses

Section 55 sets out the criteria for entitlement to housekeeping and home maintenance expenses under the Schedule:

55. If an insured person sustains an impairment as a result of an accident, the insurer shall pay for additional expenses reasonably incurred by or on behalf of the insured person as a result of the accident for housekeeping and home maintenance services. O. Reg. 776/93, s. 55

Wawanesa submits that FSCO arbitrators have interpreted the term “additional expenses reasonably incurred” to mean that an insured person who is unable to carry out housekeeping tasks due to accident-related impairments would be entitled to housekeeping benefits only if she had performed her own housekeeping tasks before the accident. To be entitled to benefits, then, Ms. De Lorenzi must prove, on a balance of probabilities, that she engaged in the housekeeping activities before the accident for which she now claims expenses from Wawanesa, and that the accident was a significant contributing factor to any impairments which have prevented her from engaging in housekeeping since the accident. I find that Ms. De Lorenzi succeeds on both counts, for the reasons set out below.

(a) Pre-accident housekeeping

Wawanesa’s position is that Ms. De Lorenzi did not engage in housekeeping or home maintenance before the accident, other than laundry, vacuuming, dusting, and light snow removal, for which it provides Ms. De Lorenzi with two hours per week of assistance. Wawanesa submitted that I should not accept Ms. De Lorenzi’s evidence that she did more than minimal housekeeping prior to the accident, because her memory is poor and her testimony differed from descriptions of her pre-accident housekeeping activities she gave treating doctors and Andy Connell, Wawanesa’s adjuster, shortly after the accident.

i) Testimony of Ms. De Lorenzi

Ms. De Lorenzi was adamant, however, that prior to the accident, she prepared all her own meals, washed her own dishes, did her own laundry, vacuuming, dusting, ironing and grocery shopping, cleaned the bathroom, made her bed and was able to dress herself. She described herself as a very fussy person and an extremely meticulous housekeeper, a self-assessment endorsed by her daughter Maria Gauvin, and acknowledged by Mary Beth Goetz and Karen Pontello, the two in-home assessors who visited her home. She cleaned her home every single day herself because no one could clean it to her standards. She readily agreed that she had difficulty “on and off” with housework before the 1994 accident due to pain and restricted mobility from her arthritis and fibromyalgia, particularly after the 1991 accident, but maintained that she always attempted to do what she could on her own, and was able to accomplish tasks by taking her time and pacing herself. As she stated, “no one was pushing me.”

Ms. De Lorenzi testified that she also cut her own lawn with an electric lawnmower once a week, shovelled snow in the winter, maintained a small vegetable patch and flower border, and even painted the stucco exterior of her single-storey home in 1991 after her first motor vehicle accident. She had difficulty with these chores but proceeded slowly, stopping to rest as needed. Often they would exhaust her. Her son helped occasionally with snow shovelling “if he was around” before he left for university, and her daughter Maria would help out with heavier housecleaning (washing floors and bathtub) when she came to visit every ten days from Armstrong, 250 kilometres north of Thunder Bay, where she lived from 1991 to 1996. Ms. De Lorenzi denied ever having any paid professional housekeeping of any kind, because, as stated above, she preferred to do her own cleaning as no one (including her daughter, apparently) was up to her standards, and, as a person on a fixed, and limited, income, she simply could not afford it. I find this testimony compelling in light of her personality, life history, and the observations of others.

ii) Testimony of Maria Gauvin

Ms. De Lorenzi’s testimony was corroborated by that of her 37-year old daughter, Maria Gauvin. Ms. Gauvin, an Educational Assistant, has lived in Nipigon, about an hour and a quarter’s drive northeast of Thunder Bay, since her marriage in October 1996. Of the three children, she lives the closest to her mother and sees her about once a week in summer and once a month in winter, when driving is more difficult. She described her mother as a “picky” and “obsessive” housekeeper who would, for example, move the kitchen stove daily to clean behind it and wash her floors by hand, on her knees, before the accident. She painted her basement floor, tended her garden, flower beds and a cemetery plot, mowed the lawn, and in winter shovelled the driveway and her end of the back lane.

Ms. Gauvin moved to Armstrong in 1991, shortly after Ms. De Lorenzi’s first (April 1991) motor vehicle accident. She took the bus home every ten days and stayed for four days, mostly at her grandmother’s, four blocks from Ms. De Lorenzi’s house, because, as she explained, her grandmother was more needy at that time. Ms. De Lorenzi would drive her daughter to and from the bus station in her car.

Ms. Gauvin testified that after the 1991 accident, her mother “slowed down a bit but not much,” and became “more homebodyish.” Although she continued to carry out her chores indoors and out, she was often exhausted and sore afterwards, and would sleep all afternoon or all of the following day. Ms. Gauvin would come and help her mother around the house by cleaning the floor and tub in the bathroom and carrying laundry downstairs to the basement laundry room, although her mother actually did the laundry herself. Ms. Gauvin would also run errands such as shopping for clothes and personal items for her mother. Her mother still preferred though, to do the housekeeping herself.

Ms. Gauvin denied that her brother helped with heavier snow in winter, as he had moved away by then, and stated that a Chinese student, ‘Lee,’ who lived in the basement, would help out and might shovel snow once in a while, although this appeared to be more frustrating than helpful to her mother, and sometimes he shopped for groceries or cooked Chinese food. She could not recall that Lee ever mowed the lawn. Her mother mostly drove to the grocery store herself, making two trips to carry the bags, and prepared her own meals.

Ms. Gauvin testified that she noticed a significant decline in her mother after the 1994 accident. She stated that during the four-day periods when she was back in Thunder Bay, she would do the groceries, laundry, vacuuming, running of errands and mowing, and her future husband would help with outside work. Ms. Gauvin’s testimony was not seriously challenged or contradicted on cross-examination or by other evidence.

iii) Evidence relied on by Wawanesa

Reports of Dr. Maskey and others

Wawanesa disputed the testimony of Ms. De Lorenzi and her daughter and alleged that the former had more help before the accident, and more regularly than she claimed, and that this would disentitle her to anything more than two hours of housekeeping and home maintenance benefits under section 55. Wawanesa relied particularly on medical reports prepared by Dr. Maskey, and other documents dating from before and shortly after the accident, to the effect that Ms. De Lorenzi was unable to do much housekeeping at all before the accident and that she had help from others, in particular:

• Ms. De Lorenzi’s application for CPP benefits dated June 15, 1992, where she replied to a question about whether and when she had to give up activities such as hobbies, sports, or volunteer work: “In the past 8 years, unable to enjoy any activities outside of work and housework;”⁶

• Dr. Maskey’s June 15, 1992 report to Health and Welfare Canada in support of the CPP application explaining that Ms. De Lorenzi’s prognosis was guarded due to “multiple arthralgias severely affecting ability to care for herself and house due to pain and fatigue” aggravated by her motor vehicle accident of April 4, 1991. ⁷

• Dr. Maskey’s clinical note of Ms. De Lorenzi’s visit on June 15, 1992, that she was able to do small amounts around the house, but could not vacuum, dust, or do the lawn.

• Dr. Maskey’s February 16, 1993 report to Ms. De Lorenzi’s private disability insurer: “Her level of activity is . . . very severely limited by her joint and muscle pain, and thus I am not able to advise her to work at lighter modified duties since she is unable to persist at doing any one activity for more than 20 minutes at a time. She is barely able to do more in her house than even light dusting. She has a student who lives with her, who helps her with all heavy housework, cooking, shovelling, vacuuming, and anything of that nature. . . With regard to daily activities, she is unable to do any of her own housework as I have mentioned above . . . ⁸

• A note in a report from Dr. Dale McCarthy, a consulting rheumatologist, to Dr. Maskey dated February 22, 1993 that Ms. De Lorenzi stopped work a year previous as she found standing aggravated the symptoms in her legs and she had difficulty manipulating the cash register. “Since she has been at home, she has found her symptoms are less. She is able to pace herself better and takes a rest in the afternoon. She has a student living in the house who is able to do the heavy chores such as snow removal and floor cleaning. She usually orders her groceries and has them delivered rather than going shopping herself.⁹

• Dr. Maskey’s November 27, 1995 report to Mr. Latimer: “She had a student from November of 1992 until June of 1994, who did all of her housework, cooking and cleaning in exchange for free rent. He also did the heavy work outside, such as shovelling. She had a friend who helped and a daughter who helped, but she did not want to feel like a burden on them. She now has to pay for help for all of these things, and was unable to afford it. . . She can barely cook meals . . . if she manages to do one slight bit of housework, such as dusting, she is tired for the rest of the day. She is unable to go downstairs to do her laundry as her back hurts and she is tired after she has gone down and up 2 or 3 times.¹⁰

When confronted with Dr. Maskey’s reports on cross-examination, Ms. De Lorenzi emphatically denied that “Lee” or any student tenant helped with heavy housework, vacuuming, shovelling or grass cutting. As far as she was concerned, “Lee” was not capable: apparently, he was unable to even change a flat tire until she showed him how. He was gone from 9:00 a.m. to 2:00 p.m. every day and worked in a pizzeria in the evenings. He occasionally cooked Chinese food, picked up groceries a few times, and occasionally did the dishes. Ms. De Lorenzi testified that what she said to Dr. Maskey was nothing more than that she had a tenant and if she needed help he was there. In any event there was no tenant in the basement apartment at the time of the accident.¹¹

A note in a report of Dr. John Remus, an orthopaedic surgeon, dated October 17, 1995, a month earlier than Dr. Maskey’s November 1995 report, would appear to support Ms. De Lorenzi’s claim that she did more housekeeping before the 1994 accident than recorded by Dr. Maskey. Dr. Remus noted that Ms. De Lorenzi told him she “went on Long Term Disability Benefits after her 1991 accident but that she was essentially independent and able to look after herself.”¹²

In her initial report on January 29, 1997, Ina Graham, a rehabilitation consultant retained by Wawanesa, recorded that Ms. De Lorenzi vacuumed, swept and washed her floors prior to the 1994 accident as well as cleaned the bathroom, did laundry, gardened, mowed the lawn, shovelled snow, and drove daily (including, among other errands and recreational activities, getting her hair and nails done in a salon.) ¹³

With respect to the discrete factual issue of what housekeeping and home maintenance tasks Ms. De Lorenzi actually engaged in before the 1994 accident, I prefer the first-hand testimony of Ms. De Lorenzi and her daughter, supported by Dr. Remus and Ina Graham, over the reports of Dr. Maskey, despite the fact that Dr. Maskey saw Ms. De Lorenzi frequently over a number of years, for several reasons.

Firstly, it is clear from her reports that, as Ms. De Lorenzi’s family doctor, Dr. Maskey was an effective advocate for her patient. I accept Ms. De Lorenzi’s evidence that she was very reluctant to apply for CPP disability benefits because she felt she was too young, (she was only in her mid-forties at the time), she enjoyed working for the opportunity to get out of the house and socialize, and it was only on Dr. Maskey’s assurance that she could return to work if and when she felt better that she agreed to apply for CPP benefits. I find Dr. Maskey advocated successfully for what she believed to be in the best interests of her patient at the time, the securing of CPP and private disability benefits because she felt Ms. De Lorenzi should not work. Fibromyalgia is a condition resulting in “good days” and “bad days” for patients, a factor clearly reflected in numerous medical reports, including Dr. Maskey’s,¹⁴ and in the testimony of Ms. De Lorenzi and her daughter. I find it plausible and reasonable that Dr. Maskey would have described Ms. De Lorenzi’s genuine disability to disability insurers at its worst, in her effort to accurately describe Ms. De Lorenzi’s as a person suffering from a medical condition that rendered her competitively unemployable, about which there is no dispute.

Secondly, Ms. De Lorenzi testified that by late 1993, she herself felt that her medication helped her ‘a lot’ and her condition had improved to the point that she felt able to once again look for work, and was anxious to do so. She stated that at that time she was actually “better than she [Dr. Maskey] thought.” This evidence is supported by Dr. Maskey’s report to Andy Connell on August 25, 1994,¹⁵ six months after the accident, where she pointed out that Ms. De Lorenzi, who frequently sought medical attention, did not seek any medical attention in the three months between December 20, 1993, when her only complaint was of wrist pain, and March 30, 1994, when she saw Dr. Maskey’s locum regarding her car accident two days before. This is also consistent with Dr. McCarthy’s opinion, above, that Ms. De Lorenzi’s condition improved after she stopped working. I find this evidence sufficient to refute Wawanesa’s suggestion that Ms. De Lorenzi’s assessment of her pre-accident capabilities amounted to wishful thinking.

Thirdly, as Dr. Maskey herself stated to Mr. Latimer in her November 27, 1995 letter to him, Ms. De Lorenzi’s case was (and is) quite complicated, and Dr. Maskey had little time to devote to reviewing what would have been at that time over ten years of medical history and to preparing a report. Her review resulted in a typed 17-page, single-spaced report; and, although it is thorough, detailed, and clear and accurate with respect to medical examination and diagnosis, I am not persuaded that her recording of the actual housekeeping details would necessarily be definitive for any particular period of time. Dr. Maskey’s opinion that certain tasks would be difficult and painful for Ms. De Lorenzi, and at times she was capable of only minimal tasks, does not necessarily mean she would not be able to complete her housekeeping with pacing. There are many references in the medical history, as well as the testimony of Ms. De Lorenzi and her daughter, that Ms. De Lorenzi became quite adept at pacing herself in order to keep her home to the meticulous standards she demanded of herself, and paying the price in fatigue.

Finally, Ms. De Lorenzi’s own response on the June 15, 1992 CPP application, above, that in the past eight years she was unable to enjoy any activities outside of work and housework, would tend to indicate that her activities were in fact restricted to work and housework at the time, and little else; not that she didn’t do any housework during that period. This too is consistent with her pattern of conserving her energies and pacing herself.

Evidence of Andy Connell

Wawanesa also relied on a report prepared by Andy Connell, the adjuster responsible for Ms. De Lorenzi’s claim from 1994 until it was taken over by Ted Jones in 2004,¹⁶ to support its position that Ms. De Lorenzi did minimal housekeeping prior to the accident.

Mr. Connell testified at the hearing. He interviewed Ms. De Lorenzi on April 6, 1994, nine days after the accident, and filled out a nine-page question-and-answer standard form “Accident/ Injury Report” describing, among other things, the extent of “normal daily (essential) tasks” the insured person was able to carry out before and after the accident. At that time, Ms. De Lorenzi was staying at her sister’s, who was recovering from hip surgery. The form lists specific activities such as preparing meals, washing dishes, doing laundry, etc. with a blank space for the person filling out the form to list the activities performed before the accident. After each task, in the space after the words “Ability to perform task post loss,” Mr. Connell wrote down the activities Ms. De Lorenzi told him she could still do after the accident.

Mr. Connell recorded that, prior to the accident, Ms. De Lorenzi did her own grocery shopping daily using her car, prepared all her meals, washed dishes, did 2-3 small loads of laundry per week, dusted every second day, vacuumed bare floors, carpet and furniture once a week, ironed as needed, made her beds daily and shovelled light snow in winter. Her son did the heavy shovelling and her daughter came over once a week to “help out” with cleaning the bathrooms and washing floors. Regarding “Sweeping/Dust Mopping;” Mr. Connell recorded that Ms. De Lorenzi “has not done any of these tasks lately.” It is not clear whether that meant before or after the accident, or at her sister’s or her own home.

Up to that point, with respect to ‘indoor’ housekeeping at least, Mr. Connell’s report is consistent with the evidence Ms. De Lorenzi and her daughter gave at the hearing.

The report is less helpful regarding outdoor maintenance. With respect to “mowing the lawn,” Mr. Connell wrote “Ins doesn’t do this activity.” After “Ability to perform task post loss”, Mr. Connell wrote “Usually hires a student.” Under “heavy” and “light” gardening, Mr. Connell wrote “no garden.” Under the heading “Tools and Equipment used by the Claimant in satisfying normal daily tasks”, Mr. Connell checked off “Lawnmower – Manual Electric.” (Mr. Connell’s insistence under cross-examination that his listing of the lawnmower as “Equipment used by the Claimant in satisfying daily tasks” did not mean she actually used it, despite the plain meaning of the heading, did not inspire confidence in the accuracy of his recording of information, or his interpretation of it.)

When asked about this report on cross-examination, Ms. De Lorenzi denied ever hiring a student to mow the lawn except for when she was getting the house ready for her daughter’s wedding in 1996 and Mr. Connell agreed to pay for a student. She said she would not have told Mr. Connell she hired a student to cut her lawn before the accident because she did not; she could not afford it. She maintained she had difficulty mowing but “worked my way around.” With respect to snow removal, she testified that she looked after it herself, including the heavy shovelling. Although her son would “help out if he were around,” he was in university and worked evenings and weekends. Both Ms. De Lorenzi and her daughter testified that Ms. De Lorenzi put in two small flower beds every year; in fact, a note in Dr. Maskey’s records for June 2, 1995 attributes a rash Ms. De Lorenzi complained of, to her being out “gardening, planting geraniums and begonias.”¹⁷

Mr. Connell’s testimony did little to assist Wawanesa’s case. Although he handled Ms. De Lorenzi’s claim for 10 years from 1994 to 2004 and stated he was responsible for making decisions about which benefits to pay, his evidence was that he did not feel he had the ability or competence to deal with a Bill 164 claim as he had very little training and few files, and he did not tell his supervisors that he did not know what he was doing. He stated he probably paid for things he should not have, such as mowing the lawn, because he believed the test for entitlement was inability to carry out the task, not whether the insured person had done the task prior to the accident. In any event, he paid the expenses Ms. De Lorenzi submitted for housekeeping, lawn cutting, snow removal and exterior home maintenance such as painting, for ten years, in the belief she was entitled to these benefits.

Mr. Connell conceded that based on his own report, Ms. De Lorenzi was “quite active” before the accident, and that she was an honest, though difficult and demanding client. He agreed that he was not aware at the time he completed the report or in the ten years after, that her pre-accident level of activity was anything other than what she told him.

I find on the evidence before me that Ms. De Lorenzi has established, on a balance of probabilities, that she was primarily responsible for and managed her own housekeeping and home maintenance chores before the accident, that she did not rely on regular assistance, and that she did not at any time pay anyone to carry out her chores for her. I further find the fact she had help on and off is not enough to take her out of the scope of section 55 such as to disentitle her to benefits for housekeeping and home maintenance.

b) Causation and entitlement to housekeeping and home maintenance benefits

There is no real dispute that Ms. De Lorenzi’s current impairments prevent her from engaging in most housekeeping tasks. Ms. Goetz, the registered nurse who assessed her post-accident housekeeping needs on behalf of Wawanesa, agreed on cross-examination that Ms. De Lorenzi’s impairments were such that she required the eight hours per week of assistance recommended by Ms. Pontello, the occupational therapist who conducted in-home assessments of attendant care and housekeeping needs on Ms. De Lorenzi’s behalf.

Ms. Pontello found that Ms. De Lorenzi had “significant impairments in the areas of strength, range of motion, mobility (including balance) and physical tolerance, due to pain and dizziness such that she is unable to engage in sustained repetitive and resistive activities that place her in flexed positions in her neck, trunk, shoulders and legs. Because of this, she does not have the ability to squat, crouch, reach, bend forward and kneel, and cannot pull, tug or carry items. . . . She cannot mop, vacuum, clean windows and curtains or pull out furniture.” This evidence is consistent with the testimony of both Ms. De Lorenzi and her daughter.

Wawanesa’s theory of the case, however, is that Ms. De Lorenzi’s medical condition and physical impairments before and after the March 1994 accident were sufficiently similar that it is unlikely she would have been able to carry out the housekeeping tasks she claimed before the accident.

To the extent this was intended as an attack on Ms. De Lorenzi’s credibility, it did not succeed, as noted above. However, as Wawanesa’s theory also raises the issue of causation, however indirectly, it must be addressed.

In addition to the reports of Dr. Maskey already mentioned above and refuted by Ms. De Lorenzi, Wawanesa relied on Dr. Maskey’s February 16, 1993 report, where she described Ms. De Lorenzi’s extensive morning stiffness, due to pain and limited range of motion in her neck, back, shoulders, elbows, hands, hips, knees and feet, as evidence that her pre- and post-accident medical condition and impairments were the same. The report states that Ms. De Lorenzi would wake at six or seven in the morning with joint pain and stiffness that would take two to three hours to lessen sufficiently for her to be able to take a hot bath, which provided some relief and would allow her to manoeuvre slowly for the next four or five hours, and that the morning stiffness was present despite the use of heat, anti-inflammatories and muscle relaxants. As a result, Ms. De Lorenzi was “barely able to do more in her house than even light dusting.”

According to Wawanesa, this description was little different from the account Ms. De Lorenzi gave at the hearing, of her pain, function and morning routine from the date of the accident until the present.

Ms. De Lorenzi agreed that Dr. Maskey’s description of her pre-accident morning routine was accurate, but, as noted above, she maintained she was worse off after the 1994 accident. She stated that in 1993, she did not have a homemaker or any professional housekeeping assistance, and although she had a difficult time to get going in the morning, she took her own medication, made her own coffee, and could still feel her feet when walking. She managed to get around her chores by pacing herself. Since the 1994 accident, she has trouble feeling her feet on the ground, is far more unsteady on her feet, and suffers from confusion, dizziness and near-constant headaches. The homemaker phones her at 7:45 a.m. to let her know she is coming and to give her the extra 15-20 minutes she needs just to get out of bed to answer the door. Activities requiring standing, such as preparing meals, are “torture.” In fact, she no longer prepares meals, relying instead on prepared frozen foods or her homemaker. She spends most of the day on the couch. The medication prescribed by her current family doctor, Dr. D. B. Coulson, does not seem to provide much relief.

As noted above, Ms. De Lorenzi’s daughter testified that she noted a significant decline in her mother’s activity level after 1994, and took on more of the household chores herself as a result. I accept the evidence of Ms. De Lorenzi and her daughter that Ms. De Lorenzi’s symptoms were worse after the accident, and that her activity was reduced as a result.

Medical and other information in evidence also supports the conclusion that, on a balance of probabilities, it is more likely than not that soft tissue injuries sustained in the 1994 accident in question aggravated Ms. De Lorenzi’s pre-existing fibromyalgia and arthritis and led to increased symptoms, including headache and impaired function, and eventually developed into a full-blown chronic pain condition, accompanied by depression, which has proved difficult to manage.

There is no dispute that Ms. De Lorenzi suffered whiplash injuries in the accident. In August 1994, Dr. Maskey reported to Andy Connell that the significant jarring of the soft tissues of her neck, back, arms and shoulders in the accident aggravated her pre-existing joint pain and stiffness in these areas, to the extent that she had almost no lateral rotation bilaterally of the lumbar spine and significant restriction in movement in her neck. Although Dr. Maskey stated it was “very difficult to know what to attribute to her prior underlying condition and what is new following the accident,” she felt Ms. De Lorenzi was worse following the 1994 accident.¹⁸

In February 1995, it was noted by the treating physiotherapist that Ms. De Lorenzi was still suffering objective findings consistent with a flexion-extension injury of the upper spine and muscles resulting in muscle tightness, restricted ROM (range of motion) of the neck and pain, and that her pre-existing arthritic condition would affect her recovery phase.¹⁹

Ms. De Lorenzi’s complaint of constant headaches that were “not like this before the accident” was documented.²⁰

In November 1995, Dr. Maskey reported that all her patient’s symptoms including stiffness, dizziness, headache and numbness of the upper extremities were worse since the accident, a finding confirmed by the treating physiotherapist who contacted the doctor with concerns that physiotherapy was not helping her soft tissue neck injuries.²¹

Dr. Janine Johnston, neurologist, felt Ms. De Lorenzi’s dizziness was due to a musculoskeletal problem due in part to degenerative cervical changes, and not related to any heart ailment. She was unable to attribute this solely to the motor vehicle accident, but agreed that it might be a combination of both the degenerative changes and the motor vehicle accidents. She felt it likely that the “present problem may well have occurred regardless of the motor vehicle accident.” ²² As noted elsewhere, the accident need not be the only or the most significant of several causes of an impairment for causation to be established. The last part of Dr. Johnston’s opinion, speculative as it is, does not persuade me that the accident was not a material factor in Ms. De Lorenzi’s disabling dizziness.

In July 1998, Dr. Corinna Chung, the family doctor who took over from Dr. Maskey in December 1996 after the latter left Thunder Bay, was unable to say for certain whether Ms. De Lorenzi’s ongoing symptoms were caused by the accident, confident only that there was a correlation with the accident and the onset of the symptoms. Dr. Chung referred Ms. De Lorenzi to a number of specialists, clearly hoping to receive from them further elucidation of the cause of the symptoms.²³ Although Dr. Chung was unable to offer an opinion on causation from a medical point of view, I found her observation about the correlation of accident and symptoms consistent with the preponderance of evidence in this case which, taken together, I find sufficient to support a finding of legal causation.

More helpful was the opinion provided a year later by Dr. Geoffrey J. Lloyd, an orthopaedic surgeon, that fibromyalgia is not a progressive condition, and generalized osteoarthritis progresses slowly, from a symptomatic perspective. Dr. Lloyd believed it improbable that Ms. De Lorenzi’s pre-existing condition would have deteriorated to the point that she would have had to leave work had the accidents not intervened and caused an increase and aggravation of symptoms, and caused new ones such as difficulty with balance, sensory aberration with feet and considerably worse headaches, (daily, constant, vice-like). I find it equally improbable that Ms. De Lorenzi’s housekeeping abilities would have declined so significantly had it not been for her accidents, the last one in particular.

Wawanesa did not tender any reliable, independent medical opinion with respect to causation in this hearing, apart from that of Ms. Goetz, which I do not accept for reasons set out below. As Wawanesa paid housekeeping benefits for 10 years, I find it was deemed to have accepted that Ms. De Lorenzi required the benefits as a result of the accident. As such, I find the failure to obtain a proper opinion on causation in time for this arbitration fatal to any position taken by Wawanesa on this point. Irene Rocco, the rehabilitation consultant Mr. Jones hired to assist with the assessment and facilitation of Ms. De Lorenzi’s rehabilitation needs in July 2004 after he took over the file, advised him in her first report that “it is unknown as to whether all of the symptoms/medical conditions Ms. De Lorenzi is reporting are MVA related.”²⁴ By August 2004, Ms. Rocco advised Mr. Jones that “medical clarification was required to determine what reported current symptoms are MVA related and which are pre-accident and/or the natural progression of pre-accident medical conditions.”²⁵ Ms. Rocco closed her file on January 5, 2005 without ever obtaining a medical opinion on causation.

In conclusion, I find, on the evidence as a whole, that Ms. De Lorenzi has established, on a balance of probabilities, that the 1994 motor vehicle accident was a significant cause of her current impairments and functional limitations. I find she sustained whiplash injuries in the accident which aggravated her underlying condition, and that she developed a chronic pain condition as a result. Medical evidence also indicates that Ms. De Lorenzi’s condition has not responded to the treatment she received, and has become entrenched, if not intractable.

c) What amount of housekeeping assistance is reasonable?

As mentioned, Wawanesa presently pays for two hours of housekeeping per week, for vacuuming, laundry, ironing and light snow removal, based on an in-home assessment conducted for Wawanesa by Mary Beth Goetz, a Registered Nurse, on December 9, 2004. Ms. De Lorenzi feels she needs, at the very least, the six hours per week for housekeeping and two hours per week for exterior upkeep (including snow removal and lawn care) recommended by Karen Pontello, an Occupational Therapist, in an in-home assessment conducted on behalf of Ms. De Lorenzi on October 17, 2005.²⁶ Both Ms. Pontello and Ms. Goetz testified at the hearing.

i) Evidence of Karen Pontello

Ms. Pontello reviewed Ms. De Lorenzi’s medical history, tested her range of motion and observed her engaging in various household tasks. As noted above, she assessed and described her functional impairments in detail and concluded Ms. De Lorenzi had very limited housekeeping abilities as a result. Her evidence was consistent with the testimony of both Ms. De Lorenzi and her daughter.

Ms. Pontello testified that she felt six hours of weekly housekeeping help was sufficient to keep Ms. De Lorenzi’s house clean, though not perhaps to the immaculate standards Ms. De Lorenzi would prefer. Her recommendations, based on a three-bedroom carpeted bungalow with a living room, formal dining room, one bathroom (glass doors), an eat-in kitchen and an attached garage, were as follows:

Activity

Min/Week

a) Bathroom Cleaning

30

b) Kitchen Cleaning

60

c) Grocery Shopping Support

60

d) Vacuuming, Washing Floors, Waxing as needed

60

e) Dusting

30

f) Windows/Washing Curtains

30

g) Laundry and Ironing

90

Total Hours Per Week

6 hours

Ms. Pontello recommended a further two hours per week for lawn and garden maintenance, and assistance with snow removal and outdoor upkeep and repair “as needed.”

ii) Evidence of Mary Beth Goetz

After reviewing a number of pre- and post-accident medical, treatment and other reports and interviewing and observing Ms. De Lorenzi in her own home, Ms. Goetz concluded that Ms. De Lorenzi was only entitled to two hours of housekeeping per week, and only for vacuuming, laundry, ironing, and light snow removal, for the following reasons:

. . . based on Mrs. De Lorenzi’s pre-accident medical history of seronegative arthritis, significant cervical spondylosis, degenerative disc disease with degenerative spurring and disc space narrowing at C5/6 and C6/7 as well as fibromyalgia (or myofascial pain) and the designation of a ‘permanent disability’ through Canada Pension prior to her MVA of March 28, 1994, it is difficult to assume that the soft tissue injuries that resulted from her MVA of 10 years ago are the sole or even a major contributing factor to her current condition. It seems more appropriate that her reported pain and difficulty completing tasks is due to the natural progression of her pre-accident conditions.

However, as she sustained a “cervical whiplash injury” and chronic pain can result from this type of injury, it is this consultant’s recommendation that she be provided with two hours of housekeeping per week for assistance with vacuuming, laundry, ironing. In addition, that light snow removal services only be provided (a task that Ms. De Lorenzi reported that she completed within the ‘Accident/Injury Report’ signed by Mrs. De Lorenzi on June 4, 1994 – 10 weeks post MVA). It appears that Mrs. De Lorenzi has become accustom [sic] to her housekeeper completing all tasks, however regular exercise and active movement of her joints (completing housekeeping tasks) will assist in maintaining her ability to function.

There are a number of things wrong with Ms. Goetz’ opinion. For one thing, in apportioning entitlement to housekeeping benefits on the basis that the accident was not “the sole or even a major contributing factor to her current condition,” Ms. Goetz applied the wrong legal test. It is settled law that the correct legal test for entitlement to accident benefits, is that the accident must have significantly or materially contributed to the insured person’s impairments. Unlike in the tort system, there is no flexibility under the Schedule to adjust or apportion the amount of benefits to reflect the extent to which a car accident may have contributed to injury.²⁷

Secondly, there is no requirement that the accident must be the more significant of two significant contributing factors.²⁸ Once it is determined that the accident significantly contributed to an insured person’s impairment with respect to housekeeping, the insured person is entitled to all, not a pro-rated portion, of housekeeping expenses, provided any other preconditions for entitlement are met.

Thirdly, I reject Ms. Goetz’ opinion that Ms. De Lorenzi’s pain and difficulty completing tasks are ‘more appropriately’ due to the natural progression of her pre-accident condition, because I do not accept that Ms. Goetz, despite her certification as a Rehabilitation Registered Nurse, is qualified to provide either what amounts to a prognosis of an individual’s medical condition, on the basis of a home visit that did not include a physical examination or a complete demonstration by Ms. De Lorenzi of what she could actually do. Granted, Ms. De Lorenzi refused to demonstrate certain activities, claiming she could not do them because of pain, but the point is, Ms. Goetz did not have an opportunity to examine or assess Ms. De Lorenzi’s function as thoroughly as did others, such as her own treating practitioners or, for that matter, Ms. Pontello or Dr. Lloyd, both of whom provided more thorough, balanced and objective evaluations. As noted above, Irene Rocco, herself a qualified rehabilitation professional, did not offer an opinion on causation and recommended a medical opinion to obtain clarification.

With respect to prognosis and the effects of the progression of osteoarthritis in general and Ms. De Lorenzi’s condition in particular, I prefer the opinion of Dr. Geoffrey J. Lloyd, noted above, that fibromyalgia is not a progressive condition, and generalized osteoarthritis progresses slowly. As Dr. Lloyd is an orthopaedic surgeon who examined Ms. De Lorenzi and reviewed her extensive file, I find he is more qualified to provide this type of opinion.

Fourthly, I discount Ms. Goetz’ opinion that Ms. De Lorenzi was only entitled to two hours of housekeeping to the extent it was based on her factual assumptions (based in turn on hearsay evidence) that this was the amount of housekeeping Ms. De Lorenzi actually did before the accident. Having had the benefit of more and better evidence than was available to Ms. Goetz, evidence which survived the test of skillful cross-examination, I have found her assumptions to be wrong.

Finally, Ms. Goetz agreed on cross-examination that Ms. De Lorenzi’s impairments prevented her from engaging in housekeeping, lawn cutting and snow shovelling, and although at first she stated the eight hours of assistance allocated by Ms. Pontello was excessive, particularly for the housekeeping, she eventually conceded it was reasonable for “everything all together.”

In conclusion, I prefer the evidence of Ms. Pontello over that of Ms. Goetz. Ms. Pontello’s report and testimony were more thorough, comprehensive and detailed than that of Ms. Goetz and demonstrated a more in-depth application of professional judgment. Unlike Ms. Goetz, Ms. Pontello examined Ms. De Lorenzi, observed her in relevant housekeeping activities, and made fewer assumptions. I find her evidence more objective and reliable. Given the essential agreement between these two assessors that Ms. De Lorenzi required housekeeping assistance because of her impairments and that six hours for that and two hours per week for outdoor maintenance including routine lawn and garden care and snow removal was reasonable, I find Ms. De Lorenzi is entitled to eight hours per week for housekeeping and home maintenance, at an hourly rate of $19.²⁹

(d) Exterior Home Maintenance

Ms. De Lorenzi claims $7,679.64 in incurred exterior home maintenance expenses, excluding snow removal, from May 18, 2004 to July 12, 2006, and claims ongoing entitlement to these services as well as to snow removal, pursuant to section 55. These are not rehabilitation expenses.

The services include cutting and aerating the lawn, rotortilling, watering and weeding the garden and flowerbeds, pruning and cleaning up, raking and leaf blowing, and cleaning eavestroughs and windows. Also included in this claim is $2,300 for painting the exterior of the house, denied by Wawanesa on the basis that it did not consider this to be “reasonable rehabilitation.”³⁰

Ms. De Lorenzi testified that prior to the accident she was responsible for all of these tasks and in fact painted the exterior of her home herself in 1991 after her first accident. Her daughter testified that it was not unusual for her to find her mother at the top of a ladder. Ms. De Lorenzi was vigorously cross-examined on the issue of how much exterior home maintenance she did prior to the accident. Despite some confusion about the function of a bobcat, and with the possible exception of rotortilling the garden (with a rotortiller; Ms. De Lorenzi testified that, to the extent she turned over her garden, she did so with a spade), I accept Ms. De Lorenzi’s evidence that, for the most part, she did carry out the types of exterior home maintenance tasks before the accident for which she has paid Sun Rise Exterior Maintenance to do since. Although it is difficult to determine Sun Rise’s rates from the information provided, (lawn cutting for example, where the charge appears to vary), I note that Wawanesa paid for these types of services for ten years and I heard no evidence that what was charged was unreasonable. Wawanesa’s refusal to pay the expenses on the basis that they were not “reasonable rehabilitation” is itself unreasonable. I find that Ms. De Lorenzi is entitled to be paid the $7,679.64 that she claims under section 55 of the Schedule.³¹

In future, if there is an issue of what is reasonable regarding rates or the amount of exterior home maintenance or yardwork required, Ms. De Lorenzi might wish to obtain quotes from different companies, setting out the details of what work will be done and at what price. Also, usually, as people age, depending on their physical abilities, they tend to scale back their gardening commensurate with their abilities, rather than take on new or ambitious projects themselves. One would expect, therefore, that the amount of gardening and yardwork might decrease over time (eg. smaller vegetable and flower gardens for example, requiring less work), and this is a factor the parties might want to keep in mind regarding any future claims for exterior home or yard maintenance.

c) The law

In Kats and AXA Insurance (Canada),³² Arbitrator Palmer explained the intent of section 55 of the Schedule:

It is my sense of the language of section 55 and its placement within Part 13 that housekeeping and home maintenance services formerly provided by an insured person are to be replaced, where an insured person sustains an impairment as a result of an accident and additional expense is reasonably incurred. However, if you as an able-bodied person, or otherwise, each winter before the accident paid to have your driveway and walks shoveled, the Insurer will not now pay solely because you are not personally unable to perform the work. Only additional expenses are payable and only where reasonably incurred. The section also seems to contemplate that the services required may change over time, demanding no static test, such as housekeeping services required “at the time of the accident.

Wawanesa relied on this decision and others³³ to support an argument that Ms. De Lorenzi was not entitled to benefits according to these principles, because she did not perform all of her own housekeeping and home maintenance prior to the accident. As I have found that Ms. De Lorenzi did in fact perform most of her own chores, this jurisprudence does not operate to exclude her. Furthermore, I further find that the fact that Ms. De Lorenzi may have had occasional help from family members with housekeeping before the accident if it happened to be available, is not sufficient to disentitle her from benefits under section 55. The example given by Arbitrator Palmer, of an insured person who regularly paid for a particular home maintenance activity before the accident,³⁴ is different from the case before me – Ms. De Lorenzi never paid for housekeeping or home maintenance, and did not receive help on a regular, extended basis. Arbitrator Palmer’s example of a paid housekeeper is consistent with the overall purpose and scheme of Bill 164, which essentially represented a trade-off between expanded statutory accident benefits and restricted recovery in tort. The remedial intent of that particular no-fault regime did not change, however, and as such a liberal interpretation is preferred over the more narrow one put forward by Wawanesa. It would be inconsistent with the remedial intent of the legislation to exclude someone in Ms. De Lorenzi’s circumstances (i.e. someone who had help on and off from family members before the accident) from entitlement.

This is particularly so, in light of the passage quoted above, that section 55, unlike succeeding versions of the no-fault Schedule, does not impose a static test (such as housekeeping services required “at the time of the accident”), but contemplates that the services required may change over time; in other words, insurers would have to pay for a person’s changing needs after the accident, so long as they were reasonable and related to the accident. This might include, for example, the insured person moving from an apartment to a house, or vice versa, or even the comings and goings of family members or others who might have pitched in, as families do, before the accident. Again, I do not believe it was the intent of the legislature to exclude this type of circumstance.

Another important factor to consider is that, unlike the succeeding version, the Schedule at issue did not limit housekeeping expenses to two years, but provided for lifetime entitlement, if required, with periodic reassessment of an insured person’s impairments. However, under section 287 of the Insurance Act, once an order for ongoing benefits has been issued, an insurer cannot reduce benefits on the basis of a reassessment, without first applying for a variation or appeal of the order:³⁵

Protection of benefits

287. An insurer shall not, after an order of the Director or of an arbitrator appointed by the Director, reduce benefits to an insured person on the basis of an alleged change of circumstances, alleged new evidence or an alleged error, unless the insured person agrees or unless the Director or an arbitrator so orders in a variation or appeal proceeding under section 283 or 284. 1990, c.2, s. 65, part. [Bill 59 s.42]

Transportation Expenses

Entitlement under section 36 of the Schedule, “Supplementary Medical Benefits”

I understand Wawanesa’s position with respect to Ms. De Lorenzi’s claims for taxi expenses to be that it concedes it is required to pay for reasonable expenses incurred by Ms. De Lorenzi for transportation to and from medical appointments and treatment sessions under subsection 36(1) of the Schedule because they are related to impairments sustained in the accident, and it continues to pay for taxi trips for these purposes, up to a limit of $100 per week. In taking this position, I find Wawanesa concedes Ms. De Lorenzi suffers from accident-related impairments that continue to require medical management and treatment; in other words, it concedes causation on this point.

Entitlement under “Rehabilitation Benefits,” section 40 of the Schedule

With respect to Ms. De Lorenzi’s claims for transportation expenses as a rehabilitation measure under section 40, which provides for reasonable measures to “reduce or eliminate the effects of any disability resulting from the impairment,” I understand Wawanesa’s position to be:

• Ms. De Lorenzi’s inability to drive does not result from an accident-related impairment, but from pre-existing dizziness and an unrelated heart condition and as such, transportation expenses of a non-medical nature are not compensable;

• In the alternative, the transportation expenses claimed for trips to grocery stores, hairdressers, malls, parks and Ms. De Lorenzi’s lawyer’s office, among others, do not have the “rehabilitation nexus” or purpose contemplated under section 40, and so are not compensable, even though Wawanesa paid for this type of expense in the past and continues to pay for a once-a-week trip to the grocery store;

• Even if compensable as rehabilitation measures, the expenses are not necessary or reasonable.

a) Causation

The Ministry of Transportation suspended Ms. De Lorenzi’s driving license in October 1995 after Dr. Maskey wrote them that she had advised her patient not to drive due to her dizziness. She stated, “[she] has pain diffusely over her neck and back, and no objective signs of any immediately treatable cause for her dizziness.”

Wawanesa maintains Ms. De Lorenzi’s dizziness and inability to drive is due to ischemic heart disease. Ms. De Lorenzi testified she could not drive because, as well as dizziness, she could not turn her head or neck due to pain and stiffness, and she felt it was not safe to drive. In December 1994, she told Gina Zorati, a rehabilitation consultant and occupational therapist appointed by Wawanesa, that she had difficulty looking from side to side and used her mirrors most often. She also told Dr. Maskey in 1995 that she was scared to drive because her eyes felt heavy; a year later she told Dr. B.K Kim, a physiatrist, that constant headaches sometimes prevented her from keeping her eyes open.³⁶ She continued to complain of neck pain for the next several years.³⁷ As noted above, her worsened headaches after the accident are well documented.

Dr. Maskey’s notes and reports indicate that in the late summer and fall of 1995, she felt that Ms. De Lorenzi’s headaches and “possibly her dizziness” were due to her myofascial pain. It was also at this time, as previously noted, that Ms. De Lorenzi’s physiotherapists were concerned that Ms. De Lorenzi’s neck pain due to accident-related soft tissue injuries, was getting worse and not responding to treatment.

In 1996, Dr. Janine Johnston, neurologist, felt Ms. De Lorenzi’s dizziness was due to a musculoskeletal problem due in part to degenerative cervical changes, and not related to any heart ailment.³⁸ Dr. Pramila Rao, a physiatrist who treated Ms. De Lorenzi for a while, was of the impression that her dizziness “may in fact be at least in part due to vertebral vascular insufficiency given the extensive degenerative changes that she has in the cervical spine,” with the other possibility being a minor head injury sustained in the accident.³⁹ This second possibility does not appear to have been pursued by anyone.

Apparently, heart disease was suspected and diagnosed some time later.⁴⁰ Dr. T. Czolpinski, a cardiologist, noted in a report dated June 22, 2004, that Ms. De Lorenzi had been a patient of his since 2001 and that she suffered from severe cardiac disease, which limited her physical activity. However, there is no opinion from Dr. Czolpinski, or any other cardiologist, attributing dizziness or inability to drive to heart disease.

I accept Ms. De Lorenzi’s testimony that her inability to turn her neck and head due to head and shoulder pain, as well as dizziness and severe headaches, left her unable to drive. I find on the medical evidence available, that dizziness became problematic after the accident and was more likely than not caused by the physical condition of her neck, i.e. significant degenerative disease aggravated by soft tissue injuries sustained in the accident; injuries that did not respond to conventional treatment and which did not appear to heal. On a balance of probabilities therefore, I find the accident and its sequelae contributed significantly to the loss of Ms. De Lorenzi’s driver’s license and her resulting inability to drive.

b) Is Ms. De Lorenzi entitled to transportation expenses as a rehabilitation benefit under subsections 40(1)(b), 40(4)(a), (b) and (c), or 40(5)(a), (d) or (e) of the Schedule?

The relevant subsections of section 40 provide for benefits as follows:

40. (1) If an insured person sustains an impairment as a result of an accident, the insurer shall pay for reasonable measures,

(a) to reduce or eliminate the effects of any disability resulting from the impairment; and

(b) to facilitate the insured person’s reintegration into his or her family, the labour market and the rest of society. O. Reg. 776/93, s. 40 (1).

(4) The payments required by subsection (1) for the purpose of facilitating the insured person’s reintegration into his or her family and the rest of society include payment for social rehabilitation measures that are reasonably necessary to,

(a) return the insured person as much as possible to the family and social situations in which he or she lived before the accident;

(b) assist the insured person to adjust to family and social situations as a result of the accident; and

(c) maintain the insured person’s level of function within the home and family. O. Reg. 776/93, s. 40 (4).

(5) The payments required under this section include payment of all reasonable expenses incurred by or on behalf of the insured person as a result of the accident for a purpose referred to in clause (1) (a) or (b) for,

(a) social rehabilitation, including life skills training, family counselling, social rehabilitation counselling, financial counselling, home renovations and home devices to accommodate the needs of the insured person, vehicles, vehicle modifications to accommodate the needs of the insured person, and communications aids for the insured person’s home;

(d) transportation for the insured person to and from counselling sessions, training sessions and assessments, including transportation for an aide or attendant;

(e) other goods and services that the insured person requires. O. Reg. 776/93, s. 40 (5).

(6) Transportation expenses under clause (5) (d) in respect of an insured person’s automobile are limited to expenses for fuel, oil, maintenance, tires and parking. O. Reg. 776/93, s. 40 (6).

Section 1 of the Schedule defines “impairment” as “a loss or abnormality of psychological, physiological or anatomical structure or function.” Having found Ms. De Lorenzi lost the ability to drive as a result of impairments sustained in the accident, I find she would be entitled to rehabilitation measures that would reduce or eliminate the effects of any disability resulting from the impairment and facilitate her reintegration into her family and the rest of society as provided for in subsections 40(1)(a) and (b). This, provided such measures met the objectives set out in subsection 40(4) and were included in the types of expenses contemplated by subsection 40(5).

Since June 2004, Wawanesa has limited Ms. De Lorenzi’s taxi claims to $100 per week for trips to and from medical appointments and one trip per week for groceries.

In addition to this amount, Ms. De Lorenzi claims $3,570 for taxi expenses incurred between May 2004 and May 2005 and $1,392 from June 2005 to June 2006, the claims ranging from $55.50 to $664.70 per month. They work out to an average of $297.50 per month for the first year claimed and $116.00 per month the second year.⁴¹

The itemized list provided indicates these expenses were for taxi trips to grocery and other food stores (bakeries, delis, etc.), retail stores and malls, the bank, lawyer’s office, court house and Marina Park, a lakefront park in Thunder Bay. It is fair to say most of the trips appear to be for shopping. There do not appear to be any taxi expenses claimed for hairdressing appointments, family visits or outings or other types of social activities, regular or intermittent.

The issue to be determined is whether the types of expenses claimed meet the test of having a “rehabilitation nexus,” and, if so, whether they are reasonable in terms of type, cost and frequency. I have no difficulty finding that, for Ms. De Lorenzi, these expenses are an important part of her rehabilitation, and that for the most part, they are reasonable, for the reasons set out below.

Ms. De Lorenzi testified that for the last several years she has been unable to walk even half a block, and that she cannot take public transportation because she has trouble walking to the bus stop, standing and waiting for one, and actually riding in a bus because the vibrations shake her whole spine and are painful. She became quite tearful when describing the effects of Wawanesa’s May 2004 reduction of taxi expenses: “I lost my freedom, I feel like I am in prison, I want to go out, I don’t want to stay home, it isolated me in my home, I don’t see anyone, I don’t go anywhere, just groceries.” She felt her physical condition worsened, and stated she felt better and was happier and more active when she was able to get out. There is no dispute that Ms. De Lorenzi drove her own car daily before the accident.⁴²

There is ample evidence from treatment providers and assessors to corroborate Ms. De Lorenzi’s testimony and support her claim that her daily taxi outings provide an important rehabilitation function.

As early as 1996, Dr. B.K. Kim, a physiatrist, diagnosed both her chronic pain condition and predicted the consequences of Ms. De Lorenzi’s lost ability to drive:

. . . it appears from the history she may be simply suffering from the two car accidents resulting in muscular pain syndrome of a chronic nature. She is receiving disability and support payments, and disability as a lifestyle has become obvious now. Also she was a driver and stopped driving and that has limited her function and social activities in a significant way, and that may compound her symptom complex as well. ⁴³

Virtually all health professionals involved with Ms. De Lorenzi since the accident have been at pains to emphasize that because of the nature of her medical condition, she needs to use her joints and muscles on a daily basis, in normal and ordinary ways, to reduce the effects of the accident injuries and to maintain what function she has. For example, Dr. D.B. Coulson, her current family doctor, felt that getting out and about in the community was essential to Ms. De Lorenzi’s mental and physical well-being, without which she was at risk of becoming a “hermit.” However, he did not see public transportation as a realistic alternative to taxis, given her arthritis. From an occupational therapy point of view, Ms. Pontello felt that taxi outings for shopping, errands, hairdressing appointments and socializing with family and friends were important in helping her remain as active, functional and productive as possible in her normal daily life. As an occupational therapist, whose profession it is to assist injured persons to maximize their function, Ms. Pontello’s opinion is particularly valuable. Marcus Walser, the physiotherapist who conducted an IE for Wawanesa, also testified that he supported Ms. De Lorenzi getting out into the community to increase her activity level, and that she required transportation to do so, only qualifying that by pointing out that to be able to shop at a mall, for example, she also needed to be able to function normally around the home, without which, the rehabilitative goal of getting her out and about would not be met.

It is clear from the evidence that in addition to daily pain, Ms. De Lorenzi suffers from the mental confusion, depressed mood and anxiety that are part and parcel of her chronic pain condition, and that she has increasingly required constant encouragement to remain active despite her pain. It is equally clear, that due to a combination of the above, unsuccessful attempts at rehabilitation, the lack of any ongoing treatment, and a gradual decline in activity, Ms. De Lorenzi has become deconditioned and increasingly isolated in her home, particularly since 2004.

Despite the above, Ms. De Lorenzi has expressed a strong interest and determination to get out into the community the way she did before the accident. So much so that she testified she went significantly into debt to pay for taxis herself after Wawanesa refused her claims.

The jurisprudence regarding the intent of section 40 is fairly straightforward. As stated in Zettler and Pilot Insurance Company,⁴⁴ the purpose of section 40 is to provide broad coverage for an insured person’s rehabilitation, the general aim being to reduce or eliminate the disability and facilitate reintegration into society, requiring the insurer to provide for measures that are reasonably necessary to “return the person as much as possible to the family and social situations in which he or she lived before the accident.” Arbitrator Sampliner found that this language emphasized the insurer’s obligation to “fund all reasonable measures which reduce or eliminate the insured’s disability, not simply offer partial accommodation.” Citing Plows and Jevco Insurance Company (OIC A-000175, OIC A-000588, OIC A-003502, July 25, 1994), he pointed out that “economics does not necessarily determine whether a measure is ‘reasonable.’”

As stated by Arbitrator Blackman in DesRoches and Economical Mutual Insurance Company (FSCO A97-000312 and A97-000814, November 10, 1999), the intent of section 40 is to “. . . make the insured person as functional as possible [emphasis in the original]” (as opposed to replacing functions once performed by the insured person).⁴⁵

I note that the stated purposes of section 40 include returning the person to her pre-accident social situations and maintaining her level of function within the home (subsections 40(4)(a) and (c)). Subsection 40(5) goes on to state that payments to this end include payments of all reasonable expenses incurred for “social rehabilitation,” which goes so far as to include home renovations and “vehicles and vehicle modifications to accommodate the needs of the insured person . . .”

The meaning is plain that if an insured person’s transportation needs change as a result of the accident, they will be provided for if required to increase function and promote social rehabilitation, and that expenses need not be limited only to transportation to and from the training or counselling sessions and assessments listed in subsection 40(5)(d).

Given that Ms. De Lorenzi was relatively active and independent before the accident and cannot drive or take public transportation since, I find that a reasonable transportation allowance for taxis, which permits her to maintain her function and independence is well within the scope of section 40. The fact that she may be left with an impairment or disability that will not improve over time despite rehabilitative measures, does not relieve the insurer from its obligation to provide them; the very meaning of the word “rehabilitation” in its largest sense is “the action of re-establishing (a person) in a former standing . . .” (Oxford English Dictionary 1971), or, more recently, to “restore (a person) to effectiveness or normal life by training, etc., esp. after imprisonment, injury or illness.” (Canadian Oxford Dictionary, 2001). By including home and vehicle modifications within section 40, the legislature clearly contemplated that some rehabilitative measures would be permanent. I find this would include transportation assistance as a service “that the insured person requires” under subsection 40(5)(e).

What however, is reasonable? The examples in the case law illustrate how far an insurer can be expected to go in making an insured person as functional as possible. In Zettler, the insurer was required to buy Mr. Zettler, a farmer, a brand new $67,605.80 tractor versus a much cheaper retrofit; in Liberty Mutual Insurance Company and Harper (FSCO P98-00003, August 14, 1998), Delegate Draper reversed the arbitrator’s decision ordering the modification of two vehicles and ordered instead that the insurer purchase a new four-wheel drive vehicle.

On a more modest scale, taxi expenses for trips to grocery stores and social outings were found to be within the scope of section 40 for a woman who had developed a phobia towards driving and public transportation, because taxis were “conducive to encouraging her to get out and reintegrate into her family and social environment.”⁴⁶ And in Bibby and Pilot Insurance Company (OIC A-009742, December 22, 1995), taxi expenses for trips to the grocery store, church, and monthly meetings were found to be reasonable for a woman who lost her driver’s license as a result of accident-related blackouts, and who could not take the bus because it travelled over a rough road which aggravated her injuries.⁴⁷

None of the cases cited by Wawanesa support any part of its position that Ms. De Lorenzi would not be entitled to transportation expenses under the Schedule. As noted above, most of Ms. De Lorenzi’s taxi trips were to a mall, grocery stores, bakeries, delis, retail stores, the bank, court house and Marina Park; i.e. shopping trips, errands, and recreation. I find all of these trips meet the rehabilitation goals of increasing Ms. De Lorenzi’s activity level and productivity and assist her to maintain her physical and mental function, well-being and independence, as recommended by numerous treatment providers and assessors. They are compatible with the social rehabilitation goals expressed in section 40. I find Ms. De Lorenzi is entitled to the expenses of $4,962.20 she claims for 2004 and 2005.

Wawanesa took the position that it should not have to pay for Ms. De Lorenzi’s trips to her lawyer’s office, as these could not have a “rehabilitation nexus.” It relied on a previous arbitration decision, (Grout)⁴⁸, which held that parking and mileage to visit a lawyer’s office was not payable because they were not medical or rehabilitation expenses. I agree with this in principle, but find in Ms. De Lorenzi’s case, it is the running of errands as an activity (preferably, daily) that of itself promotes independence and productivity, and falls within the rehabilitation goals recommended by treatment providers and assessors within the broad scope of section 40.

Although not included in the issues in dispute for arbitration, the taxi expenses of $4,377.30 and $4,910.60 incurred by Ms. De Lorenzi for May and June 2004, which prompted Wawanesa’s reduction of benefits, were discussed at the hearing, and the parties jointly requested some general guidance about what transportation expenses, past and future, might be considered reasonable in Ms. De Lorenzi’s circumstances.

It is difficult to offer anything more by way of guidelines than reasonableness and common sense. Taxi expenses of $4,000 to $5,000 a month are excessive by any standard, and even Ms. De Lorenzi agrees many of the individual trips she took in those two months were not reasonable. Some she cannot remember or explain. However, those two months do seem to have been an aberration. Ms. De Lorenzi appears to have been distressed, agitated and restless. She felt compelled to get out of the house, and things got seriously out of hand as a result. It would seem that those circumstances are unlikely to recur.

On the other hand, Wawanesa’s imposed weekly limit of $100 (more or less) and only for certain items, clearly falls short of what Ms. De Lorenzi would be entitled to under section 40 and what she requires to rehabilitate her to her former independent lifestyle. Any arbitrary limit, really, would be inconsistent with the purpose of section 40, and I would suggest one only as a measure to help determine what is within the bounds of reasonableness and common sense. In which case, I would suggest that the $100 weekly amount (or $400 a month), plus the combined monthly average incurred from May 2004 to May 2005 to May 2006,⁴⁹ (about $205), for a maximum of about $600 per month, would be reasonable, in view of the fact that Ms. De Lorenzi went out and about in her car daily before the accident.

Other trips I would consider reasonable (and this list is not exhaustive):

• weekly or biweekly visits to a hair salon to have her hair and nails done, to the extent these services are not included in attendant care, because, as recorded by Ina Graham, this was part of Ms. De Lorenzi’s weekly routine before the accident, and Ms. Pontello identified difficulty with styling hair and nail care;

• to restaurants for a meal, or to comparable places (delis, etc.) to pick up prepared foods, as Ms. De Lorenzi has difficulty preparing meals and meal preparation is not included in the housekeeping or attendant care services she receives;

• to the bank, as Ms. De Lorenzi receives her various monthly incomes by cheque;

• to Marina Park, which seem to be Ms. De Lorenzi’s sole remaining recreational outing.

Some days, more than one trip per day might be reasonable depending on the circumstances. However, the requirement of reasonableness and common sense applies to Ms. De Lorenzi as well. Keeping in mind her need to pace her activities, she may need to combine errands to avoid multiple trips in one day or excessive expenses. Or, conversely, if one extended trip would be too tiring, smaller trips spread out over several days might work best. Although for short errands it might make sense to ask a taxi driver to wait, the expense of doing this for extended trips, such as to grocery stores, the hairdresser, Marina Park, restaurants etc. would be unreasonably expensive, and she may have to make other arrangements or explore other options, such as asking the taxi company to send a taxi to pick her up at a certain time and place. Asking a taxi driver to help her shop for groceries while leaving the meter running would not be reasonable given that Ms. De Lorenzi could make use of in-store shopping assistance or even take her homemaker with her to shop for groceries. In the winter in particular, Ms. De Lorenzi may need or want to have groceries delivered as she did occasionally in the past. Ms. De Lorenzi may need to give up spontaneity in favour of planning ahead in the interests of reasonableness.

Acupuncture treatment

Wawanesa maintains that acupuncture is not reasonable or necessary because it is not an appropriate form of treatment for Ms. De Lorenzi’s chronic pain condition.

Ms. Jacqueline Long, an acupuncturist trained in Chinese medicine, submitted a Treatment Plan dated November 2, 2005 for 24 one-hour sessions of acupuncture, acupressure, stretching and exercise to treat and manage Ms. De Lorenzi’s neck and shoulder pain, with the goal of decreasing the pain and increasing mobility. Ms. Long identified the following impairments:

Severe neck and shoulder pain

Low back and leg pain

Headache, anxiety and depression

Numbness of tongue, face, nose, eye and lips (WAD III)

Insomnia

Ms. De Lorenzi had been receiving acupuncture and “other alternate treatment” from Ms. Long’s clinic periodically since October 2002. Ms. Long identified barriers to recovery as anxiety, which impaired function and judgment, and depression, which compromised motivation. To overcome these barriers, she recommended “a very skillful, experienced and compassionate psychiatrist.”

Wawanesa denied this treatment plan and it was referred to a DAC for an independent medical rehabilitation assessment to determine if the treatment was reasonable and necessary, as required under the Schedule. The assessment was conducted by Marcus Walser, a physiotherapist by training with expertise in acupuncture on November 30, 2005.⁵⁰ Mr. Walser concluded that acupuncture was not reasonable or necessary, and that what Ms. De Lorenzi required was treatment that focused on a chronic pain approach, that would assist her to overcome her self-limiting behaviours and assist her to increase her activity level (including self care activities and some components of homemaking activities) and use her joints in as normal a fashion as possible in order to regain her functional range.

Mr. Walser’s assessment consisted of a thorough review of Ms. Long’s notes, records and previous treatment plans, Ms. De Lorenzi’s extensive medical history, and a full clinical assessment including an interview and a comprehensive physical examination.⁵¹

Of all the medical evidence presented at the hearing, I found Mr. Walser’s to be the most thoughtful, comprehensive, objective, accurate and helpful, both to me, and to Ms. De Lorenzi herself. Mr. Walser is a well qualified physiotherapist with training and expertise in acupuncture, and fourteen years of practice that include treating patients suffering from chronic pain as a result of motor vehicle accidents. He was aware of Ms. De Lorenzi’s pre-existing musculo-skeletal problems including seronegative arthritis and fibromyalgia, but confirmed that she suffered from significant chronic pain and myofascial pain problems, including cervicogenic headaches and bilateral TMJ and facial pain, as a result of two WAD II injuries sustained in her motor vehicle accidents. He noted that the chronic pain problems, developed since the accidents, appeared to have significantly restricted her activity levels.

However, Mr. Walser concluded the acupuncture treatment was not reasonable or necessary for a number of reasons, one of the most important being that he did not feel it was the most appropriate treatment for the chronic pain condition that Ms. De Lorenzi had developed. Mr. Walser acknowledged that Ms. De Lorenzi reported short-term pain relief lasting about a day and a boost of energy that helped her increase her activity temporarily, and agreed that pain relief in and of itself could be an acceptable and compensable treatment goal. He also agreed that any increase in normal mobility activities was desirable.

However, Mr. Walser felt the acupuncture treatment did not meet the test of reasonableness

because Ms. De Lorenzi told him that although it provided short-term pain relief, she insisted she was getting worse overall with time. This is consistent with Ms. De Lorenzi’s testimony at the hearing. Mr. Walser found no evidence that acupuncture led to any change in her functional status or overall quality of life or provided progressively increasing relief. He pointed out that Ms. Long’s treatment plans between November 2002 and November 2005 did not show any progress from one treatment plan to the next. In fact, under Part 10 B s.2, that part of the Treatment Plan that asks the treatment provider “If this is a subsequent Treatment Plan, what was the applicant’s improvement at the end of the previous plan based on your evaluation method” is not filled out in any of Ms. Long’s Treatment Plans. This meant that it was not possible to assess change over time. He also noted that Ms. Long’s narrative reports contain very little objective data to support comments that progress was being made, and that some objective measures, such as bilateral shoulder range of motion, did not change over time.

Unfortunately, Ms. Long also reported that overall aggravating factors seemed to be activity, and being up for too long, such as when preparing meals, for example. This would seem to run counter to the recommendations of most assessors and treatment providers, who have consistently recommended that Ms. De Lorenzi increase her activities.

To determine the effects of the acupuncture treatment, Mr. Walser felt he had to rely on his own objective findings and what Ms. De Lorenzi told him. He found that what Ms. De Lorenzi told him she could do, and the range of motion she demonstrated while being examined, were inconsistent with what he observed informally. These inconsistencies caused him to doubt the accuracy of his physical examination, leading him to conclude that he could not ascertain that further treatment of the same kind, of which there had already been a significant amount, was going to provide change.

Mr. Walser explained that from a physiotherapy point of view, the goals of passive pain relief measures, including acupuncture, were to effect change over time, such as increasing pain relief over time, or decreasing frequency of treatment, with the ultimate goal to get the client independent of treatment. With a “chronic client,” you would want to improve quality of life, and would not continue a treatment that did not meet this goal. He felt this was not happening with Ms. De Lorenzi because she told him she was getting worse. In his view, it was Ms. De Lorenzi’s chronic pain problem that was getting worse, and not her actual musculoskeletal impairments, and the acupuncture treatment was not addressing her chronic pain. He did not believe it was assisting her to overcome her self-limiting pain behaviours and did not find evidence to conclude it was assisting her to increase her activity level. I find Ms. Long herself recognized this and recommended psychological counseling in addition to her acupuncture programme.

I do not find Mr. Walser’s conclusion to be unreasonable, based as it was on a very thorough and comprehensive review of Ms. De Lorenzi’s circumstances, nor do I find it was unreasonable for Wawanesa to rely on his assessment in maintaining its denial of the treatment.

Mr. Walser concluded, as have others, and I agree, given the entrenched and long-standing chronicity of Ms. De Lorenzi’s symptoms, that the most appropriate treatment for Ms. De Lorenzi would be a comprehensive chronic pain programme. Mr. Walser had in mind a six-week OHIP funded programme at St. Joseph’s Hospital in Thunder Bay.

The difficulty is that although Ms. De Lorenzi eventually agreed to participate in some counseling in October 2004,⁵² she refused to participate in this programme when it was recommended to her and there are several instances in the past where she either discontinued or refused treatment because she claimed it was too painful or too difficult.⁵³

Given the chronicity of Ms. De Lorenzi’s symptoms, the entrenched, and, apparently, worsening nature of her chronic pain condition, the past experience of unhelpful and ineffective treatments, her current deconditioned state and her own fixed view of her predicament and needs, it would seem that what Ms. De Lorenzi requires at this time is the one approach that has yet to be tried, i.e. a multi-disciplinary chronic pain programme that would include psychological treatment, re-education and therapies to decrease pain and increase range of motion, endurance and function. This conceivably might require something more, and of longer duration, than the particular programme Mr. Walser had in mind, assuming Ms. De Lorenzi is even up to such a programme at this time.

However, the fact remains that Ms. De Lorenzi has not participated in a chronic pain programme of this kind to date, and I do not find it reasonable that she should be left without any pain relief simply because the acupuncture treatment she wanted does not adequately address her entire condition. On that basis, I find the treatment recommended in Ms. Long’s Treatment Plan was reasonable and necessary, and continues to be until Ms. De Lorenzi has had an opportunity to complete a more comprehensive chronic pain programme.

Special Award

After the testimony of Andy Connell and Ted Jones at the hearing, counsel for Ms. De Lorenzi submitted that there were sufficient grounds to consider whether Wawanesa’s handling of Ms. De Lorenzi’s claims merited a special award. Accordingly, I directed the parties to provide further submissions on that issue.

Ms. De Lorenzi submitted that Wawanesa’s abrupt reduction of transportation expenses for taxis ten years after the accident and without consideration or assessment of her needs was unreasonable in light of the benefits available for rehabilitation under section 40 of the Schedule, and caused her considerable emotional and financial hardship. She further submitted that it was unreasonable for Wawanesa to rely solely on the flawed assessment of Ms. Goetz to reduce her housekeeping assistance from ten to two hours per week. Finally, Ms. De Lorenzi submits that Wawanesa failed to consider pain relief as a legitimate goal of treatment in denying her acupuncture therapy, leaving her without any means to deal with her daily chronic pain and contributing to her general decline.

For its part, Wawanesa argued that Mr. Jones acted properly when he took over the file. He conducted a detailed file review, reviewed the legislation, sought legal advice, and concluded that Wawanesa had been paying benefits for which it had no obligation to pay. Wawanesa submits that it acted appropriately in reducing transportation expenses by way of its May 11, 2004 letter and advising Ms. De Lorenzi of her right to dispute the reduction. It argues that the medical evidence about whether Ms. De Lorenzi’s inability to drive was caused by the accident is not as straightforward as she claims, it was unable to obtain clarification of that issue, and the type of transportation expenses she claims have not been considered reasonable by previous arbitrators.

Subection 282(10) of the Insurance Act states that an arbitrator shall award a lump sum of up to 50 per cent of the amount to which the person is entitled (including section 68 and special award interest) if he or she finds that the insurer has “unreasonably withheld or delayed payments.” The insurer’s conduct is assessed in relation to the specific benefit denied, as is the amount of the award.

It is well settled law that an insurer owes a duty of good faith towards insured persons and must treat them fairly; as reiterated by Arbitrator Feldman in Melchiorre and Wawanesa Mutual Insurance Company, (FSCO A05-000491 and A05-000492, December 22, 2006), and confirmed on appeal (FSCO P07-00014, April 25, 2008), this duty requires insurers to, among other things, conduct a reasonable investigation of information presented to it, approach the claim with an “open mind,” assess it fairly 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).

Arbitrator Feldman further elaborated what was expected of an insurer in meeting this good faith standard:

• To 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;

• To approach the claim with an open mind, treating the insured person in a fair manner and not as a potential adversary;

• To carefully consider all of the available information, giving appropriate weight to that information in a fair and even-handed manner;

• To 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.

I agree with these criteria and find that Wawanesa fell short of them in Ms. De Lorenzi’s case.

A file review conducted by Andy Connell two years after the accident indicates that Wawanesa had Ms. De Lorenzi’s complete pre- and post-accident medical history up to that point. Nothing in that history appears to have suggested to Mr. Connell that causation or ongoing entitlement to benefits were in doubt. Wawanesa continued to pay benefits for eight years after that. Mr. Connell’s explanation for this was that he was not competent to deal with a Bill 164 claim as he had little training and few files, that he did not understand the entitlement tests for housekeeping, home maintenance and transportation expenses and that he probably paid for things he should not have as a result. Mr. Jones’ note of a conversation he had with Mr. Connell about the taxi expenses states: “He indicated . . . over time, the insured became more and more dependent upon taxi service and the accounts were paid, in an effort to maintain harmony.”⁵⁴

This hardly meets the minimum standards for adjusting a file in good faith. It is further compounded by the fact that the documentary evidence filed indicates Mr. Connell’s supervisor, Joe Hughes, who did not testify at the hearing, was copied on a number of key documents from the beginning of Ms. De Lorenzi’s claim.⁵⁵ If Mr. Connell did not understand the legal tests and criteria for entitlement or was not aware of Wawanesa’s obligations under the Schedule, Mr. Hughes, as his supervisor and, presumably, a senior and experienced employee of the company, certainly ought to have been. However, at no time in the ten years that Mr. Connell adjusted the file until Mr. Jones took over in 2004, did any of Mr. Connell’s investigations or communications with health care or treatment providers appear to indicate to anyone at Wawanesa that Ms. De Lorenzi might not be entitled to any of the benefits for which it was paying, or that Wawanesa should exercise its right to obtain independent assessments to determine continued entitlement. Although it is true that Wawanesa’s apparently inadvertent conduct over ten years was to Ms. De Lorenzi’s benefit in that no benefits were refused or delayed during that period, this does not excuse Wawanesa’s subsequent and improper denial of transportation expenses.

The adjusting of the file did not improve after Mr. Jones took it over. Mr. Jones is an independent adjuster with 35 years’ experience. Mr. Jones testified that he was instructed by Leo Busch, the Senior Claims Superintendent who replaced Joe Hughes, to review the Bill 164 coverages and to make recommendations for the future. Wawanesa was understandably concerned about the increase in transportation expenses to over $4,000 per month in May and June of 2004, with individual taxi trips of $300 and $400 each (some of which Ms. De Lorenzi was unable to explain at the hearing). Mr. Jones reviewed Mr. Connell’s file, which included “significant medical and rehabilitation reports” as well as Mr. Connell’s notes. Mr. Jones discussed the file with Mr. Busch, who also instructed him to obtain legal advice.

Mr. Jones testified that after reviewing section 40 of the Schedule and obtaining legal advice from Greg Birston, a lawyer in Thunder Bay, he concluded Wawanesa had no obligation to pay for any transportation expenses other than to and from medical or “medical/rehabilitation appointments” under subsection 40(5)(d).

If that is true, then Mr. Jones was wrong. However, I did not find his testimony about Wawanesa’s abrupt change in policy to be convincing, as it appears to be contradicted by a note Mr. Jones made after his meeting with Mr. Birston on May 10, 2004, to the effect that taxi expenses were payable under subsection 36(1)(g) of the Schedule and subsection 40(5)(e) – “other goods and services,” if “reasonable.”

As well, an earlier note to Mr. Jones about the taxi expenses date stamped April 29, 2004 from an unknown author reads:

Initially we were paying for trips to and from dr. and for getting groceries, etc, and the trips have escalated to trips everywhere. Cost per month range from 3,000 – 7,000. Initially when I spoke to Joe Hughes on this one, way back when, we were providing coverage under other goods and services, and I guess that would be the $69.00 question as to what is our legal obligation under the auto policy for payments continuing as such.⁵⁶

I find Mr. Jones, and Wawanesa, were aware all along there was an obligation to consider reasonable taxi expenses under the “other goods and services” provision of subsection 40(5)(e), and they paid for taxis on that basis. I find they were unwilling to keep an open mind or fairly try to determine what was reasonable under that subsection, particularly after the expenses escalated in May and June 2004. Instead, they chose to take a hard line and treat Ms. De Lorenzi in an adversarial manner by arbitrarily limiting her claims to $100 per week for medical visits and one trip for groceries, and simply leaving her to dispute it. I further find Mr. Jones misled Ms. De Lorenzi in his May 11, 2004 letter to her when he advised her that she was only entitled to transportation expenses under subsections 36(1)(g) and 40(5)(d), and failed to mention entitlement under subsection 40(5)(e), “other goods and services.”

Mr. Jones testified that although he understood Wawanesa had changed its policy regarding the transportation expenses, he did not discuss with either Mr. Connell or Mr. Busch why they had paid in the past, nor did he consider the implications of a change in policy or its effect on Ms. De Lorenzi despite knowing she had become dependent on taxis,⁵⁷ he simply implemented the policy change because Wawanesa instructed him to. Although he testified that the $100 weekly cap was not a fixed limit but an attempt to control costs, and he did not strictly adhere to this limit (for example, allowing trips to Zellers because although it is not a grocery store, it sells groceries), this is hardly mitigating. For one thing, that is not what he told Ms. De Lorenzi; and, for another, the limited exceptions to the $100 cap fall far short of Wawanesa’s potential obligations under subsection 40(5)(e). Mr. Jones eventually conceded he should have considered the rehabilitation implications and discussed Ms. De Lorenzi’s needs with her before reducing her benefits.

I note that although Wawanesa, through Mr. Jones, retained Irene Rocco of Independent Rehabilitation Management Inc. in July 2004 specifically to assess and facilitate Ms. De Lorenzi’s rehabilitation needs, and although Ms. De Lorenzi emphasized to Ms. Rocco her need for transportation and the considerable stress and hardship to her of the reduced benefits and consequent confinement to her home, transportation needs were never assessed or addressed. Ms. De Lorenzi did agree to, and Ms. Rocco did attempt to arrange, a Functional Capacity Assessment, but as a medical release could not be obtained from Dr. Czolpinsky (no reason provided), no further steps to obtain a medical release were taken, and no assessment ever took place. There is no evidence transportation needs were to be included in this assessment in any event. Given the importance of transportation services to Ms. De Lorenzi, they should have been.

Finally, I find Wawanesa’s real intentions are revealed in a handwritten note dated June 8, 2004 in Mr. Jones’ file, which reads, “Do a F.C.A., an indept. Medical, reject all except HSK, Atten[dant] Care, No on all other,” plainly indicating Wawanesa’s intention to reduce Ms. De Lorenzi’s transportation and exterior home maintenance benefits in advance of any assessments, even as it advised her it would review her needs.

In conclusion, I find Wawanesa acted arbitrarily in deciding to abruptly change its policy and reduce Ms. De Lorenzi’s transportation benefit without properly considering its obligations or the effect on her of its actions, and in so doing failed to adjust the file with an open mind and in good faith. To further claim it was unaware of its legal obligations under the Schedule for ten years, is neither believable nor acceptable. Although not so egregious as to attract a maximum special award, I find Wawanesa’s conduct in handling the transportation expenses deserves a substantial award.

According to Liberty Mutual Insurance Company and Persofsky, ⁵⁸ before an arbitrator fixes the amount of a special award, she must first determine the maximum amount payable under subsection 282(10). Although the method outlined seems straightforward, the mathematics have proved complicated. As a result, many arbitrators leave the calculation of the maximum award payable to the parties. As I do not wish to prolong the final decision in this matter, and as I am not awarding the maximum in this case, I have instead estimated the maximum amounts of the special award payable in relation to each benefit, following the method set out in Persofsky, and fixed the aware in relation to the maximum. If the parties disagree that these estimates of the maximum amount are reasonable, I am prepared to hear submissions supported by detailed calculations on that point.

The total amount of transportation expenses claimed owing is $4,962.20. For the sake of estimating the maximum special award with simplicity and reasonable accuracy, I arbitrarily chose July 15, 2005 as the date from which the 2% per month compounded interest under section 68 of the Schedule should run, with October 31, 2008 as the end date. To the sum resulting from the capital and section 68 interest, the 2% compounded “special award” interest was calculated and added. The total maximum works out to somewhere between $20,000 - $24,000, of which 50%, or about $10,000 to $12,000 would be the maximum special award I could make.

I fix the special award at $7,000, which I find substantial and proportionate to Wawanesa’s conduct, which, although seriously deficient, was not egregious.

Wawanesa’s conduct with regard to the reduction of exterior home maintenance expenses deserves a special award for similar reasons. It paid the expenses submitted by Ms. De Lorenzi for ten years, presumably under section 55, and then, after a “review” of the information it had in its own files for the same ten years, it concluded she was not entitled. Worse, Mr. Jones gave Ms. De Lorenzi the wrong reason when he told her Wawanesa would no longer pay the benefit because “they do not feel the gardening and yard maintenance are reasonable rehabilitation expenses.” ⁵⁹ Finally, the services were terminated without benefit of an assessment, despite the fact that in the same letter, Mr. Jones told Ms. De Lorenzi Wawanesa had retained a consultant to assess her s. 55 needs. This conduct does not meet the minimum standards of good faith, or even of competence in file adjusting, expected of any first party insurer, and caused Ms. De Lorenzi, a physically and emotionally vulnerable person, considerable stress and financial hardship. Wawanesa’s conduct was not egregious enough for a maximum special award but certainly merits a substantial one.

Along the same principles outlined above, starting with home maintenance expenses of $7,679.64 incurred between May 18, 2004 and July 12, 2006, to which I found Ms. De Lorenzi entitled, and assuming a maximum special award in the $20,000 to $24,000 range, I fix the special award at $7,000.

With respect to housekeeping expenses, it was evident from Mr. Jones’ testimony that he simply chose to rely on Ms. Goetz’ in-home assessment and ignore Ms. Pontello’s, without making any effort to analyse or compare the two, despite testifying that it was his role to make recommendations to Wawanesa about what benefits should be paid. He was not able to explain at the hearing why he chose to rely on Ms. Goetz’ report or why he did not accept Ms. Pontello’s recommendations. It became evident in his cross-examination that someone else at Wawanesa was making the decisions about what to pay, and Mr. Jones was merely the messenger. There was no evidence about who that was, or on what basis the decisions were made. Nor was there any evidence that anyone at Wawanesa reviewed the decision to terminate housekeeping benefits in light of new information such as Ms. Pontello’s. This lack of accountability at the hearing left Wawanesa unable to persuade me that it acted in good faith towards Ms. De Lorenzi in adjusting her housekeeping claims. I further find that, although insurers are entitled to rely on the opinions of expert assessors in determining entitlement to benefits, I find, as set out above, that Ms. Goetz’ opinion in this case was too flawed to be reliable. As Wawanesa did follow the rules and reduced Ms. De Lorenzi’s benefits after an assessment, I find a special award at the lower end of the range would fit the circumstances overall. The overdue amount is $4,477.84; assuming it is owing from July 12, 2006 to October 31, 2008, a reasonable estimate of the maximum special award would be in the range of $14,000 to $15,000; I fix the special award for this benefit at $2,500.

As for the denial of acupuncture treatment, I find Wawanesa was entitled to rely on Mr. Walser’s excellent report, even though I disagree with the outcome. However, the focus of a special award is the insurer’s conduct, not the end result. At the hearing, Mr. Jones was not able to articulate his or Wawanesa’s reasons for relying on the report or rejecting other medical evidence about Ms. De Lorenzi’s pain complaints. I find this lack of transparency in adjusting her file entitles Ms. De Lorenzi to a special award. The amount owing for the treatment plan is $2,220. Considering Ms. De Lorenzi’s complex past history of treatment, not all of which was helpful, as a mitigating factor, and a maximum award estimated at a minimum of $10,000, I would award an amount at the lower end of the scale, and fix it at $1,500.

The total special award in relation to all benefits is $18,000.

EXPENSES:

As Ms. De Lorenzi has been entirely successful in her claim, she is entitled to her reasonable expenses of this arbitration proceeding under subsection 282(11) of the Insurance Act. I note that counsel for Ms. De Lorenzi prepared his case in an extraordinarily efficient and cost-effective manner, aided by both parties’ agreement to rely on a joint brief and their cooperation during the hearing.

If the parties are unable to agree on the amount of expenses, either party may request a hearing in accordance with Rule 79 of the Dispute Resolution Practice Code.

November 4, 2008

Susan Sapin Arbitrator

Date

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

Neutral Citation: 2008 ONFSCDRS 177

FSCO A05-002712

BETWEEN:

CELESTE DE LORENZI

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

ARBITRATION ORDER

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

Wawanesa shall pay to Ms. De Lorenzi:

1. a) Housekeeping expenses of $4,477.84;

b) Ongoing housekeeping assistance of six hours per week plus two hours per week for reasonable lawn cutting and routine garden maintenance as required at $19.00 per hour;

c) Exterior home maintenance expenses of $7,679.64; and

d) Reasonable ongoing home maintenance expenses including snow removal,

under section 55 of the Schedule.

2. Transportation expenses of $4,962.20 under subsections 36(1)(g) and (h) and subsections 40(5)(d) and (e) of the Schedule.

3. A medical benefit of $2,220.25 for acupuncture treatment under section 36 of the Schedule.

4. Interest on any overdue payments under section 68 of the Schedule.

5. A special award of $18,000 under subsection 282(10) of the Insurance Act.

6. Her expenses of the arbitration proceeding under subsection 282(11) of the Insurance Act.

November 4, 2008

Susan Sapin Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule - Accidents after December 31, 1993 and before November 1, 1996, Ontario Regulation 776/93, as amended.
2. 2According to Dr. Jean Maskey, her family doctor since 1985. (November 27, 1995 report, Compendium), Tab 4
3. 3See also report of Dr. Dale McCarthy, orthopaedic surgeon, February 22, 1993, Exhibit 2, Tab 57, p. 17; and report of Dr. Jean Maskey, February 16, 1993, Exhibit 2, Tab 57, p. 53
4. 4Invoices from Roach’s Taxi for May and June 2004, Exhibit 3, Tabs E1 and E4. These expenses are not included as issues in dispute in this arbitration proceeding.
5. 5Attendant care is not in dispute in this proceeding. Although the benefit was reduced from 14 hours a week (2 hours a day) to 22 minutes per week as a result of Ms. Goetz’ assessment, a subsequent in-home Designated Assessment Centre (DAC) assessment conducted by Karen Pontello, an occupational therapist, in June 2005 determined Ms. De Lorenzi needed 19.25 hours of attendant care per week. Wawanesa reinstated the benefit and continues to pay this amount.
6. 6Questionnaire, Disability Benefits, Canada Pension Plan, Exhibit 3, Tab C
7. 7Medical Report, Exhibit 3, Tab C3
8. 8Exhibit 2, Tab A57 p. 54
9. 9Exhibit 2, Tab A57 p. 17
10. 10Exhibit 1, Tab A15 at p. 12
11. 11Exhibit 3, Tab 1, p. 1, notes of Andy Connell, adjuster, April 6, 1994
12. 12Compendium Tab 3.
13. 13Exhibit 1, Tab A17, p. 5
14. 14See report of November 27, 1995: “Some days, with the seronegative arthritis, she was unable to get out of bed, and on other days she was able to function much better.”
15. 15Compendium, Tab 2.
16. 16Exhibit 3, Tab B1
17. 17Exhibit 4, Tab B5,
18. 18Report to Andy Connell dated August 25, 1994, Exhibit 1, Tab A6
19. 19February 21, 1995 report of Thunder Bay Physiotherapy Associates
20. 20Rehabilitation Assessment Progress Report of D. B. Hanson and Associates, February 20, 1995, Exhibit 1, Tab A7. See also report of Dr. Pramila Rao, physiatrist, October 12, 1995, documenting pain in upper back, chest and neck, and headaches that intensified after the accident. Exhibit 1, Tab A13
21. 21Report of November 27, 1995, Exhibit 1, Tab A15 at p. 9
22. 22August 12, 1996, Exhibit 1, Tab B19
23. 23Exhibit 1, Tab B29
24. 24Initial Task Assessment, July21, 2004, Exhibit 7, Tab 1
25. 25Progress Report 1, August 23, 2004, Exhibit 7, Tab 2
26. 26Her report, dated October 31, 2005 is found in Exhibit 2 at Tab 48.
27. 27Worku and Co-operators General Insurance Company (OIC A-002172, August 29, 1996)
28. 28Pinhasov and Guarantee Company of North America (FSCO P01-00054, September 4, 2002)
29. 29Mr. Jones’ July 21, 2005 letter to Ms. De Lorenzi advises that this was the hourly rate suggested by Comcare. Exhibit 4, Tab H2.
30. 30Exhibit 4, Tab F1
31. 31Note that unlike in succeeding versions of the Schedule, there is no set maximum payable under s. 55.
32. 32(OIC A97-000194, December 22, 1997)
33. 33Martin v. Liberty Mutual Insurance Company (OIC A96-001158, April 15, 1998); DesRoches v. Economical Mutual Insurance Co. (FSCO A97-000312 and A97-000814, November 10, 1999)
34. 34As was also the case in Martin v. Liberty Mutual Insurance Company (OIC A96-001158, April 15, 1998)
35. 35Nelson and Liberty Mutual Insurance Company (FSCO A00-000253, November 8, 2001); approved in Pamela Simpson and Allstate Insurance Company of Canada (FSCO P01-00057, June 6, 2003) appeal
36. 36October 29, 1996 report of Dr. B.K. Kim, Exhibit 1, Tab 22
37. 37July 31, 1998 report of Dr. C. Chung, Exhibit 1, Tab A29
38. 38August 12, 1996, Exhibit 1, Tab B19
39. 39Report of Dr. Rao, January 12, 1996.
40. 40CPP review for June 1, 1996 to January 22, 1999 identifies ischemic heart disease as a new medical problem since CPP was granted.
41. 41Not included in the present arbitration are invoices from Roach’s Taxi for $4,377.30 for the month of May, 2004, and $4,910.60 for June, 2004. Exhibit 3, Tab E.
42. 42As noted by Andy Connell on p.5 of the questionnaire he filled out shortly after the accident (Exhibit 3, Tab B) and testimony of Ms. De Lorenzi and her daughter.
43. 43Report of Dr. B.K. Kim, October 29, 1996, Compendium Tab B8 (Transportation.)
44. 44(OIC A97-000674, March 31, 1998)
45. 45At p.23
46. 46B.H. and Citadel General Assurance Company (FSCO A99-000273, November 9, 2000), at p.19
47. 47Although this case was decided under section 6(1)(f) of the precursor to the Schedule at issue in this case, the intent and language are sufficiently similar to impose like obligations.
48. 48Grout and Pilot Insurance Company (OIC A-004805, May 4, 1995)
49. 49As calculated in the Compendium of the Applicant, Transportation Expenses, Tab A. The combined average over the two years would be ($297.50 + $116) / 2, or about $205 per month.
50. 50Exhibit 2, Tab 51
51. 51An indication of Mr. Walser’s thoroughness was Ms. De Lorenzi’s testimony that he “nearly killed her and she was sick for three days afterwards.”
52. 52As per Progress Report 3 of Irene Rocco, Exhibit 7, Tab 5
53. 53(For example, she told Irene Rocco in July 2004 that she did not feel the Chronic Pain Program or Arthritis Day Program thought St. Joseph’s Hospital would be appropriate because she would not have the physical tolerance to attend a daily programme.
54. 54Exhibit 6, Tab E1, Report dated May 11, 2004
55. 55For example, numerous medical reports in Exhibit 1, as well as reports to Mr. Connell of rehabilitation consultants retained by Wawanesa, such as Ina Graham (Lindsey Morden) and Eleanor Gardiner (D.B. Hanson and Associates)
56. 56Exhibit 6, Tab C1
57. 57See note 51
58. 58Liberty Mutual Insurance Company and Persofsky (FSCO P00-00041, January 31, 2003)
59. 59Letter dated June 28, 2008 from Mr. Jones to Ms. De Lorenzi, Exhibit 3, tab D3