D.F. v. Wawanesa Mutual Insurance Company, 2008 ONFSCDRS 98

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2008 ONFSCDRS 98

FSCO A05-000779

BETWEEN:

D.F.

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Fred Sampliner

Heard: September 24, 26, 27, November 19, 20, 23, 2007

The parties made written submissions

Appearances: D.F. represented herself

Ian D. Kirby represented Wawanesa Mutual Insurance Company

The Applicant, D.F., was injured in a motor vehicle accident on October 13, 2002. She applied for and received statutory accident benefits from Wawanesa Mutual Insurance Company (“Wawanesa”), payable under the Schedule.¹ Wawanesa denied D.F.’s claims for various medical/rehabilitation benefits, housekeeping expenses and attendant care benefits. The parties did not resolve their disputes through mediation, and D.F. applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

Is D.F. entitled to payments, under Part V of the Schedule, for her psychological counselling, transportation to psychological counselling, dance classes/workshops, services from a wellness resort, a personal trainer, home exercise equipment and exercise classes, a film production workshop, photography services, organic food and a professional organizer?
Is D.F. is entitled to reimbursement for housekeeping expenses under section 22 of the Schedule?
Is D.F. entitled to payment for attendant care benefits under section 16 of the Schedule?
Is D.F. entitled to interest on any overdue payments under subsection 46(2) of the Schedule?
Is D.F. entitled to a special award under subsection 282(10) of the Insurance Act?
Is either D.F. or Wawanesa entitled to their respective expenses of the arbitration under subsection 282(11) of the Insurance Act?

Result:

D.F. is not entitled to payment for the various medical and rehabilitation benefits claimed under Part V of the Schedule.
D.F. is not entitled to reimbursement for housekeeping expenses under section 22 of the Schedule.
D.F. is not entitled to payment for any attendant care benefits under section 16 of the Schedule.
D.F. is not entitled to interest on overdue payments under subsection 46(2) of the Schedule.
D.F. is not entitled to a special award under subsection 282(10) of the Insurance Act.
The parties claims for their expenses of the arbitration under subsection 282(11) of the Insurance Act are deferred.

EVIDENCE AND ANALYSIS:

The Hearing Process and D.F.’s Bias Motion/Adjournment Request:

D.F. maintains that my directions, rulings and attempts to maintain order in the hearing excluded her from the process. She was admittedly anxious and confused from the outset.

I understood D.F., a layperson without representation, would not be knowledgeable or comfortable at a hearing. Consequently, I explained the hearing process in plain language during the opening of the process, and allowed her additional time to make her submissions and significant latitude in questioning witnesses. Along with relaxing the rules of evidence, I explained D.F.’s burden of proof, how she might present her case, and granted her frequent breaks to review her materials and regain her composure.

I attempted to minimize the delay and confusion caused by D.F.’s frequent interruptions, emotional outbursts and irrelevant comments. The hearing process would have been more chaotic if I had not exercised my control of the proceedings in accordance with the Statutory Powers Procedure Act. I reject D.F.’s argument that my attempts to order the hearing process excluded her.

D.F. maintains that I demonstrated partiality to Wawanesa by granting counsel’s request for a one-day adjournment. At the hearing outset, Wawanesa’s counsel stated he was required to attend an important last-minute scheduled meeting of the Judicial Appointments Committee on which he sits. I granted this request.

D.F. submits I granted the adjournment to curry favour for a judicial appointment. I am not currently and have never been a judicial candidate, and reject her argument. I find that the single day adjournment did not significantly delay the presentation of the parties’ evidence.

I refused D.F.’s motion for an order that Wawanesa provide her a copy of the hearing transcript from her previous arbitration with this Insurer. She stated that filing the transcript would save hearing time.

However, I am of the view that the marginal relevance of oral evidence respecting different claims in the previous arbitration has to be weighed with the significant cost and delay in preparation of the transcript. More importantly, she did not claim that either the witnesses or documentary evidence from that proceeding were unavailable for this arbitration.

D.F. also argues I erred in overruling her objection to the introduction of medical reports from her past health care practitioners and consultants. D.F. claims these reports are protected by solicitor/client privilege. I explained to her that the reports are relevant medical evidence prepared by her physicians, and not a product of her lawyer that may be excluded through solicitor/client privilege.

The parties had five days to present their evidence through introduction of documents, examining and cross-examining witnesses. D.F. admits she was distraught during this hearing, but her misunderstanding, lack of knowledge about evidentiary rules and legal process does not serve as a factual basis to support her claim she was either excluded from meaningful participation in the hearing process or that a reasonable person would apprehend I showed bias towards Wawanesa in this matter. I dismiss D.F.’s bias claim.

The Accident and Injury:

D.F. was operating an automobile stopped at a traffic signal on October 12, 2002 when it was rear-ended by another car and pushed into the vehicle in front her. D.F. briefly explained the mechanics of this accident, but did not set out the details of her injuries.

The best evidence of the day’s events are contained in the report of Dr. Brian Alpert (Insurer’s medical examiner) at Riverfront Medical Evaluations (“Riverfront”) and the emergency records of the hospital she attended shortly after the accident. Dr. Alpert’s March 2003 records indicate D.F. told him she did not strike her body on anything during the accident, felt no immediate pain, did not lose consciousness or sustain bruises and lacerations from the impact. D.F. was nauseated, got out of her vehicle on her own and was taken by ambulance to the hospital emergency room. The hospital’s records indicate D.F. sustained a whiplash injury and was discharged home.

D.F.’s testimony that she attended massage and cranial sacral treatments approximately twice a week during the period between December 2002 and February 2003 is not contradicted. On this undisputed evidence, I find that D.F. sustained a mild neck/shoulder whiplash injury as a result of the October 12, 2002 accident, and attended massage and cranial sacral treatment for three months.

D.F.’s Evidence:

D.F.’s agitation during her evidence produced a disjointed and sometimes confused story.

She focused much of her evidence on Wawanesa’s adjustment of her claims, but her layout of her life’s events since 1999 is generally consistent with other sources. The contemporaneous notes and reports of health practitioners indicate her self-portrayal of her physical and psychological condition arising from this accident is not reliable.

Pre-Accident Health:

D.F. testified that the accident significantly exacerbated her pre-existing health problems. Two previous incidents caused D.F. both physical and psychological problems. In 1999 she suffered a head injury when a box fell on her at a Canadian Tire store, and she sustained physical injuries with post-traumatic stress in a 2000 incident with the Toronto police. Dr. Alina Kaminska, a psychologist, reported that in 2000 D.F. suffered communication and memory problems, personality changes, depressed mood, diminished motivation, increased anxiety and emotional lability resulting from the box falling on her in 1999 at Canadian Tire.

D.F. stated she was confused, hurt and unable to independently maintain herself as a result of these events until January 2002. Thereafter, D.F. maintains she felt physically better, emotionally positive, and was working part-time as a massage therapist. She admits suffering depression at the time of the car accident, but the emotional stress and anxiety had improved from the time of her earlier incidents.

D.F.’s evidence is that she had a fairly normal independent life at the time of the accident; exercising, attending dance classes and working at her massage therapy business again. She showed me promotional photographs of herself and a cheque for payment of an acting role in May 2002 to validate her career activities.

D.F.’s testimony that she made a significant recovery from the previous incidents is supported by evidence from her former boyfriend, M.P., who testified that he and D.F. dated for approximately three years beginning in July 2002. I understood from him they lived together for about eight months continuously post-accident, and that she moved into his family’s home in January 2003.

M.P. said D.F. was quite cheery and functional during the period they dated before the accident. She did her own housework, maintained a neat and clean appearance, even helping him put together a shelf unit at his apartment.

M.P. testified that before the accident D.F. attended dance classes but did not teach. She ran her massage business and was helping research a documentary film. The details M.P. provided gives credence to D.F.’s testimony that she had regained a more functional state before the accident.

D.F.’s tax records likewise support her position. Her net 2001 business loss of $7,482 is consistent with D.F.’s statement she was unable to run her business affairs after the police incident. The year of the accident, D.F.’s net business income of $3,627 shows that she had resumed part-time work.

D.F.’s renewed work and personal activity is accompanied by evidence she continued to experience serious emotional problems before the automobile accident. Dr. Lorne Switzman, a psychologist, reported in June 2001 that her family caused her obsessive, narcissistic behavior. He concluded her depression on returning to live at her parents’ home and reduction of her artistic activities increased her anger, obsessive behavior and control needs.

The May 2002 report of Dr. Iman Mohamed, D.F.’s family physician, indicates she was not coping very well about six months before the accident. He diagnosed chronic pain syndrome with a partial disability, and recommended that D.F.’s anxiety and depression needed long-term management. D.F. declined her physician’s recommendation for prescription anti-depressant medication.

Neither of these health care professionals testified, but D.F.’s treating neurologist gave evidence at the hearing about her significant physical symptoms during the three years prior to the car accident. Dr. Otto Veidlinger, a neurologist, first saw D.F. in August 1999 on referral from her family physician, the purpose being to examine her neck/shoulder pain after the box fell on her at a Canadian Tire store. She complained of severe headaches, dizziness, left-sided neck and shoulder pain, numbness and tingling down her left arm.

Dr. Veidlinger concluded that D.F. had a pinched or irritated nerve root in her neck at the C5/C6 level with osteoarthritis. Her symptoms improved following therapy. Dr. Veidlinger explained that in 2000 and 2001 follow-up visits she reported dancing and working part-time, while remaining agitated, depressed and suffering erratic sleep.

Dr. Veidlinger’s notes about D.F.’s activities substantiates her evidence that she was able to practice dance, act, manage part-time work in her small massage business, and have a decent social life at the time of the accident. Relying on Dr. Veidlinger, M.P.’s testimony, D.F.’s tax records, the reports of Drs. Mohamed and Switzman and D.F.’s evidence, I find that she suffered from neck and shoulder pain, depression and anxiety/stress, and erratic sleep at the time of the automobile accident, but she was practicing dance, acting, managing a small amount of part-time work and enjoying social life.

Post-Accident Health and Causation:

D.F. must establish on a balance of probabilities that the accident significantly contributed to her physical and/or psychological problems. She testified that the accident exacerbated her previous soft tissue injuries, and she became more depressed, with consequent weight gain. D.F. identified her inability to raise her arms overhead as a significant physical loss of function from this accident, including combing out her hair.

M.P. testified that he thought D.F. was exhausted and more depressed after the automobile accident. Her overall activity level dropped and he affirmed her weight gain. His specific statements that D.F. was not doing much housecleaning and had trouble lifting her arms overhead to shower supports D.F.’s evidence.

Both M.P. and D.F. testified she auditioned and performed in commercial productions after the accident. Her resumption of her acting career is mentioned in Wawanesa’s March 2003 examination by Riverfront, in March 2003.

Dr. Brian Alpert reported that D.F. reduced her massage therapy work to accommodate her ongoing symptoms, but she had progressed with therapy and was not taking pain medication. Dr. Alpert found no discernable physical restrictions or need for further therapy.

In the fall of 2003, D.F. reported to Wawanesa’s occupational therapist. She was working part-time in massage and film while continuing to have neck and shoulder pain. At this point, D.F. was not receiving treatment or medication, and the examiner similarly found her movements unrestricted.

Dr. Veidlinger saw D.F. again in January 2004, and reported to Dr. Mohamed that nothing significant had changed with her physical condition. He opined her cognitive problems related to stress.

Dr. Veidlinger clearly attributes D.F.’s physical problems to previous incidents in a June 2005 report:

I saw her most recently on May 19, 2005. She had increased pain over the right side. She still went to work teaching dancing. Her neck was very stiff and she could not turn it and had to move her whole body as one. The pain was very severe. There was also a jarring pain over the right side of the neck which felt swollen. She was taking Robaxacet and Tylenol Extra Strength. Her muscles were tight and hard when they were checked by her physicians.

As you see, this patient does have evidence of degenerative disc disease and some left foraminal stenosis touching the nerve root. This has not changed over the years. However, she has remained quite symptomatic. She is very anxious to lead as normal life with normal activities as possible [sic] but had this continuing disability. There was an initial injury aggravated by a further encounter with the police which I understand is another matter. It is difficult to make a prognosis at this time; however, since her problems started back in 1999 it is now 6 years and she has had continuing symptoms and is unlikely to improve after this long period of time.

Dr. Veidlinger has viewed the changes in D.F.’s physical condition over time. His opinion is not contradicted by another expert, and I find his evidence persuasive. I rely on Dr. Veidlinger respecting the causation of D.F.’s physical symptoms and function, and on Dr. Alpert’s finding that she recovered from her physical injuries from the accident by March 2003.

D.F.’s psychological condition is more complicated due to her emotional reaction to the two pre-accident incidents. She began counselling for stress and anxiety relating to the 2001 police incident, in July 2002. Dr. James Rennie, a general practitioner, stated in his December 2004 report that D.F.’s stress and flashbacks markedly decreased following 3 months of meetings with him. His opinion is that D.F.’s intense fears were re-ignited by the 2002 car accident, although without flashbacks from her experience with the police.

Dr. Rennie’s lack of certification as a psychologist reduces the weight of his opinion. Moreover, he does not state the accident was a significant contributing factor to D.F.’s psychological condition and does not support his conclusion through psychological test results. I give Dr. Rennie’s opinion little weight.

D.F. relies on the October 2007 report of Dr. G. Fiati, a clinical psychologist. She indicates D.F.’s anxiety, flashbacks, neck, shoulder and back pain had abated considerably before the accident, but could be aggravated by stress. Rating D.F.’s anxiety as severe and her post-traumatic stress moderate to severe, Dr. Fiati writes:

She felt that she experienced a tremendous set back after this accident. Her current difficulties with cognitive and emotional functioning could be attributed to the fall out of the accident. The symptoms described are consistent with pain dysfunction, anxiety disorder, cognitive impairment and a moderate to severe level of post-traumatic stress. (my emphasis)

By using the word “could”, Dr. Fiati does not provide an opinion that the accident is a significant contributing factor to her psychological condition. She did not testify to explain her opinion further, and I conclude Dr. Fiati’s evidence does not support D.F.’s position.

Dr. Mavis Himes, another consulting psychologist, interviewed D.F. in November 2006, and reported that the series of unfortunate events made it difficult to isolate the sequelae from the car accident. Her opinion that the accident materially contributed to a weight gain because of her increased depression, anxiety and inactivity is consistent with D.F.’s and M.P.’s evidence.

The health care evidence is that D.F. sustained minor soft tissue injuries. She had moderate or severe anxiety, depression and post-traumatic stress before and after the automobile accident. Drs. Fiati, Veidlinger and Rennie point to the car accident as triggering a reaction, but do not state it materially or significantly contributed to her physical or psychological condition.

I rely on D.F.’s evidence she worked part-time after the accident, taught line dancing at a retirement home, participated in dance classes and completed acting jobs. Her evidence clearly undermines Dr. Himes’ statement that D.F.’s depression/anxiety measurably increased post-accident based on her weight gain.

The strength of D.F.’s medical opinion is critical to the causation issue as she was admittedly not fully functional before the accident.² D.F.’s activities before the accident are quite similar to her activities after the accident, and this is, in my view, not a situation where the event overwhelmed her as a vulnerable person.³

D.F. may very well believe that the accident caused her to significantly deteriorate, but I base my decision on the lack of compelling medical evidence and that D.F. did most of the same activities before and after the accident. I find, on a balance of probabilities, that the accident did not cause or significantly contribute to D.F.’s psychological or physical condition, and that she is not entitled to her claimed accident benefits under the Schedule.

However, if I am wrong about causation, I would decide D.F.’s claims as follows:

Counselling:

I would be disposed to find D.F.’s counselling reasonable and necessary, based on the reports of the Fast Track DAC psychologist, D.F.’s counsellor and examining psychologist. Dr. Constantine Zakzanis at the Designated Assessment Centre noted that it is possible D.F.’s symptoms impact her cognitive function. His document review confirming D.F.’s symptoms together with Dr. Fiati’s, Dr. Himes’ and Dr. Rennie’s personal dealings with her continuing anxiety and stress problems and their counselling recommendations are not refuted by other evidence. Dr. Rennie’s report together with D.F.’s testimony that the counselling was beneficial supports that this therapy is a reasonable and necessary medical and rehabilitation expense under Part V of the Schedule.

By consent, D.F.’s counselling claim was added to the arbitration on the first day of the hearing. However, she offered no treatment plan setting out the number of sessions or cost estimate. In the absence of a treatment plan, I would decline to make a specific order.

Travel to Counselling:

D.F. submitted that the receipts in evidence from various public transit authorities support her $425 claim for transportation expenses to counselling appointments with Dr. Rennie between November 2002 and June 2006. The problem is that D.F. did not submit Dr. Rennie’s treatment records or his counselling appointment dates to correspond with the transit receipts, and verify her travel to these appointments.

Part V of the Schedule obligates Wawanesa to pay D.F.’s reasonable and necessary transportation expenses to her health care appointments in accordance with the Transportation Expenses Guideline, but her expense claim is unsupported by evidence linking her transit receipts to Dr. Rennie’s counselling. I would deny her $425 claim for these expenses on that basis.

The parties agreed to join D.F.’s claim for her post-June 2006 transportation expenses to Dr. Rennie’s counselling into this arbitration. Again, there is no evidence of D.F.’s appointment dates with Dr. Rennie after June 2006, and I would deny her travel expenses to Dr. Rennie from June 2006 to the commencement of the hearing.

Attendant Care Benefits/Hair Care:

If the accident were determined to be a significant contributing factor in D.F.’s condition, Wawanesa is responsible to pay for D.F.’s reasonable and necessary attendant care expenses under section 16 of the Schedule. D.F.’s claim for $464 monthly attendant care from January 2003 to October 13, 2004 is supported by M.P.’s evidence but not by a health care expert.

M.P. and D.F. gave evidence that she was fatigued and unable to comb out or wash/maintain her hair due to limitations moving her hands overhead after the accident. A month after the accident, Ms. Jennifer Saunders (Wawanesa’s occupational therapist) reported D.F. had “difficulty” washing and combing out her hair, with no other significant problems respecting home or personal care activities. She did not recommend payment of attendant care benefits. I would rely on the only Form I submitted by a health professional for attendant care benefits, in finding that D.F. would not be entitled to attendant care benefits under section 16 of the Schedule.

D.F. also claims $100 for professional hair care on February 15, 2006, plus $90 for each continuing appointment. This qualifies under attendant care benefits, and I would deny this claim for the same reasons as above.

Housekeeping Benefits:

D.F. must establish, on a balance of probabilities, that she suffered a substantial inability conducting her pre-accident housekeeping duties as a result of her accident injuries. Her claim for reimbursement of housekeeping expenses under section 22 of the Schedule is quantified in the prehearing letter as $58.38 per month until October 2003. I understand this period represents the time she and M.P. lived together after the accident.

D.F. did not submit receipts showing payments to M.P. for his housekeeping work or provide any documentary evidence or testimony to explain how she arrived at the amount of $58.38 per month. Moreover, D.F.’s and M.P.’s evidence that she was not able to vacuum, perform kitchen duties, laundry/bedding and other house cleaning chores is contradicted by Ms. Saunders and later by Dr. Brian Alpert.

Ms. Saunders visited D.F. at home a month after the accident, reporting she had partially resumed laundry, bed making and garbage removal, and had fully resumed kitchen duties and grocery shopping. Four months later Dr. Alpert, reported D.F. performed all household duties.

I accept that the health care reports are more accurate than D.F.’s and M.P.’s recollections at the hearing because her statements at that time constitute a record that is contemporaneous with the events. I would find that D.F. did not suffer a substantial inability performing her pre-accident housekeeping tasks as a result of her accident injuries.

D.F. did not introduce evidence to establish the housekeeping time spent by M.P. on different tasks, an hourly rate or the total amount claimed. I would not award D.F. housekeeping expenses under section 22 of the Schedule.

Nutritional Counselling/Organic Food and Supplements:

D.F. claims $15,030 a year for these items based on a recommendation from Mr. Anthony Pasquale, a nutritional consultant and personal trainer. I allowed him to testify even though he is not a qualified health care expert, but explained his testimony is given appropriate weight.

Mr. Pasquale did not explain why organic food would reduce D.F.’s stress any better than non-organic food or introduce any scientific studies to support his views. He also admitted that his $700 monthly estimate for D.F.’s organic food is not specific to her diet or reduce the expense for her food budget prior to the accident. I reject Mr. Pasquale’s opinion.

There is no evidence that organic food is a medication under subsection 14(2)(c) of the Schedule, nor was I provided with evidence that organic food is “other goods and services of a medical nature” under subsection 14(2)(h) of the Schedule. With no credible expert supporting evidence, I would find that D.F. is not entitled to organic food under Part V of the Schedule.

D.F.’s family physician referred her to Dr. Robert Zeman for a nutritional consultation, and his laboratory tests in October 2006 showed D.F. had vitamin D deficiency and elevated hormone levels. No health care opinion or comparative laboratory evidence about D.F.’s pre-accident blood chemistry was submitted and I would not be prepared to find that vitamin supplements are reasonable and necessary medical expenses arising form this accident under section 14 of the Schedule.

Vocational and Fitness Classes/Training, Photography:

D.F. admits she wrote out treatment plan forms claiming dance workshops/classes ($2,616), a professional organizer ($2,800), film workshops/industry events/vocational training ($4,500 and $1,200), a Briars Resort Wellness Retreat ($2,000), a personal trainer ($1,500) for two weeks, funding for a Bowflex home gym ($3,950), and professional photographs of herself ($525). D.F. took the treatment plans to Dr. Veidlinger, who signed them.

Dr. Veidlinger’s January 2007 report indicates he thought these items would help D.F. feel physically and psychologically better because these would motivate her, and increase her mobility and strength. However, Dr. Veidlinger admits he did not recall seeing written documents describing the programs or items on D.F.’s request list when she asked for his signature. Dr. Veidlinger testified that her requests “sounded reasonable”, admitting he lacked specific knowledge about the programs or items.

I am not prepared to accept that the treatment plans for these items were authored by a qualified health professional based on D.F.’s admission she wrote both and Dr. Veidlinger’s neutral endorsement. In addition, there is no documentation about the trainers, course names, content or documents substantiating costs. For example, the Bowflex home gym description does not contain cost figures from the retailer or manufacturer. I would find that none of the above claims are reasonable and necessary rehabilitation expenses arising from this accident under section 15 of the Schedule.

D.F. submitted no health care evidence, estimates or receipts supporting her $525 claim for photographic headshots of herself. I would find that D.F.’s $525 claim for her photographs is not a reasonable and necessary rehabilitation expense of this accident under section 15 of the Schedule.

Special Award:

An insured person may be entitled to a special award under subsection 282(10) of the Insurance Act if it is found that the insurer unreasonably delayed or denied payment of accident benefits under the Schedule. However, D.F. has not recovered on any of her claims in this arbitration and there is no basis for a special award. Even if D.F. had established causation, I would not be prepared to make a special award under subsection 282(10) of the Insurance Act.

EXPENSES:

I have reviewed the criteria in the Expense Regulation, and am inclined to order D.F. to pay some or all of Wawanesa’s expenses of this arbitration. She was entirely unsuccessful, raised no novel issues and I find that D.F. unnecessarily prolonged the proceedings.

Wawanesa should make written submissions on entitlement and the amount of its expenses within twenty days of this decision. D.F. has twenty days from that filing to respond on expenses. I will make an award of expenses after receiving the parties submissions under subsection 282(11) of the Insurance Act.

June 20, 2008

Fred Sampliner

Arbitrator

Date