Financial Services Commission of Ontario

Neutral Citation: 2009 ONFSCDRS 29

FSCO A07-000160

BETWEEN:

S. H. Applicant

and

DOMINION OF CANADA GENERAL INSURANCE COMPANY Insurer

REASONS FOR DECISION

Clarification and Correction made on pages 2, 35 and Order regarding interest, in accordance with the Dispute Resolution Practice Code and section 21.1 of the Statutory Powers Procedure Act.

Before: Susan Sapin

Heard: January 7, 8, 9, 10 and 23, February 13 and 14 and March 28, 2008 in Stoney Creek, Hamilton and Burlington, Ontario.

Appearances: Mrs. H represented herself. Joan Takahashi for Dominion of Canada General Insurance Company

Issues:

The Applicant, S.H., was injured in a motor vehicle accident on January 6, 2006. She applied for and received various statutory accident benefits from Dominion of Canada General Insurance Company ("Dominion"), payable under the Schedule.¹ Dominion refused to pay attendant care or non-earner benefits. The parties were unable to resolve their disputes through mediation, and Mrs. H applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended. This decision has been anonymized at the request of the Applicant

The issues in this hearing are:

1. Is Mrs. H entitled to attendant care benefits of $1,520² per month, or: a. $1,908³ per month from January 6, 2006 to March 2007; and b. $1,349.98 per month from March 2007 to January 6, 2008; for services provided by her husband under s.16 of the Schedule?

2. Is Mrs. H entitled to a non-earner benefit of $185 per week from December 15, 2006 and ongoing under s.12 of the Schedule?

3. Is Mrs. H entitled to visitor's expenses of $80 per week for her son's visits to her during her treatment and recovery, under s. 21 of the Schedule?

4. Is Mrs. H entitled to interest on overdue benefits under s. 46(2) of the Schedule?

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

Result:

1. Mrs. H is entitled to an attendant care benefit of $5,325.80 from January 6, 2006 to March 31, 2006 and $546.85 from January 1, 2007 to January 6, 2008.

2. Mrs. H is not entitled to a non-earner benefit.

3. Mrs. H is not entitled to visitor's expenses.

4. Mrs. H is entitled to interest, on total overdue benefits of $5,872.65, under s. 46(2) of the Schedule, from September 10, 2007 until the date of payment, at the rate of 2 per cent per month compounded monthly.

5. Each party shall bear its own expenses of this arbitration proceeding.

EVIDENCE AND ANALYSIS:

Introduction

Mr. and Mrs. H were driving up University Avenue in downtown Toronto on January 6, 2006 when a car came out of a side street and hit their vehicle on the driver's side. Mrs. H, in the passenger seat, felt immediate pain, but the couple was reluctant to languish in the emergency department of a hospital and drove home instead. Their family doctor was on vacation, so they went the next day to the Accident Injury Management ("AIM") Clinic and began chiropractic, physiotherapy and massage treatment.

Mrs. H claimed that she suffered pain, depression, nightmares, crying spells and anxiety, including a phobia about being a passenger in a vehicle, as a result of the accident, and was unable to function as she had before. She sought psychological treatment for these symptoms from Dr. R. Kaplan, for which Dominion paid. Mrs. H maintained that she required 24-hour attendant care from her husband after the accident, with help from her son. Mrs. H also claimed a non-earner benefit on the basis that accident-related impairments rendered her completely unable to live a normal life.

Mrs. H claimed attendant care of $1,908 per month from January 6, 2006 to March 2007 and $1,349.98 from March 2007 to January 6, 2008.⁴ These amounts are based on two "Assessment of Attendant Care Needs" forms ("Form 1")⁵ prepared in August 2007, eighteen months after the accident, by Martha Bauer, an occupational therapist Mrs. H hired after two previous assessors determined in February and April 2006 that she did not require attendant care because of the accident.

From January 6, 2006 to March 2007, Mrs. H claimed attendant care as follows:

Level 1 - Routine Personal Care - $11.23/hour

• Dressing and Undressing for medical appointments (5): 25 min/wk
• Face and hair washing: 14 min/wk
• Preparing and serving meals (30 min/day x 7 days): 210 min/wk
• Assisting from a sitting position (5 min/day 8 x wk): 40 min/wk
• Total: 289 min/wk
• $232.59/mo.

Level 2 - Basic Supervisory functions - $7.75/hour

• "comfort, safety and security" (6 hrs x 7 days)⁶: 2,520 min/wk
• $1,399.65/mo.

Level 3 - Complex Health Care and Hygiene functions - $17.98/hour

• Assists applicant with prescribed exercise/stretching program (30 min/day x 7 days): 210 min/wk
• Bathes and drives client (2 min/day x 2 days): 4 min/wk
• Total: 214 min/wk
• $275.75/mo.

Total Monthly Attendant Care Expenses: $1,908.00/mo.

Mrs. H was 62 years old and lived alone at the time of the accident. The right side of her body remains paralysed due to a stroke she suffered in June 2003. The attendant care claimed in this proceeding is in addition to daily personal support services (bathing, dressing, meal preparation and light housekeeping) she has received from the Hamilton Community Care Access Centre ("CCAC"), an organization that provides access to government-funded home and community services, since her stroke.

By far the largest component of attendant care claimed between January 6, 2006 and March 2007, is the six hours a day allotted under the category "ensures comfort, safety and security." At the hearing, Ms. Bauer explained that she allotted this amount, which comprises over 80% of the total claim, to account for Mr. H staying overnight in the apartment, because Mrs. H was anxious about being left alone, and that this fear was based on her level of chronic pain and perceived disability, which Ms. Bauer attributed to the accident.

The $1,349.98 per month claimed from March 2007 to January 6, 2008 differs from the $1,908 claimed for the first period. It reflects decreased amounts for meal preparation (0 instead of 30 minutes per day) and "comfort and security" (3 hours per day instead of 6), but includes time related to attendance at a pool therapy programme that began in January 2007 (dressing and undressing, hair styling, assisting with exercises, bathing and drying, wheelchair maintenance).

There is no dispute that Mrs. H suffered WAD II soft tissue injuries to her neck, back and right shoulder in the January 2006 accident; as noted, Dominion paid for soft tissue therapy and psychological treatment of these injuries. Dominion also paid housekeeping expenses for services performed by Mr. H. It should be noted that Dominion also paid for treatment, including psychological treatment as well as housekeeping and attendant care expenses, for almost two years after a previous car accident that occurred on October 18, 2003, four months after Mrs. H's stroke. Although Mr. H described the 2003 accident as the more serious of the two, Mrs. H's injuries were similar (right shoulder, neck and back pain and headaches).⁷

However, Dominion refused to pay for any attendant care after the 2006 accident, on the basis that none was required as a result of the accident. Dominion's position was that Mrs. H's physical and psychological impairments were due to several pre-existing factors: the June 2003 stroke; arthritis and chronic pain dating from the early 1980's; the effects of the 2003 accident; and pre-existing, longstanding psychological impairments. Dominion further argued that in any event, Mrs. H did not require attendant care, and did not qualify for a non-earner benefit, because the pain and emotional distress she suffered after the 2006 accident did not significantly affect her already limited ability to function or carry out her daily activities. And, specifically, Dominion alleged that Mrs. H did not require attendant care to attend medical appointments, treatment sessions, or her pool therapy programme after the 2006 accident because, contrary to her assertions, she was able to dress and undress without assistance.

For the reasons set out below, I found there was sufficient objective evidence to support Mrs. H's claims for attendant care up to the end of March 2006 on the basis that pain from soft tissue injuries sustained in the accident, as well as increased psychological distress, exacerbated her pre-existing physical and psychological condition, resulting in a reduced ability to function. After March 2006, however, I find Mrs. H returned to her pre-accident level of functioning in all respects, managing as she had before with her limited physical capabilities and chronic psychological symptoms.

I also found the evidence supported Mrs. H's claim that she required assistance with the dressing and undressing components of certain treatment sessions and her pool programme. Although this impairment was due to her stroke, and not the accident, if treatment was necessary because of the accident and approved by Dominion, Mrs. H was entitled under s. 16 of the Schedule to reasonable attendant care if it was necessary for her to fully participate in her treatment.

I found no evidence to support Mrs. H's claim that she was completely unable to live a normal life as a result of the accident.

Causation and Credibility

Mrs. H suffered from significant and longstanding chronic pain and a paranoid personality disorder before the accident, which included symptoms of depression, anxiety, and difficulty coping with chronic pain and physical limitations. This history is significant for two main reasons. Firstly, eighty per cent of Mrs. H's attendant care claim, in the form of her husband's presence overnight, was based on post-accident psychological symptoms that were very similar to those from which she has suffered for many years, certainly well before the accident. Although the evidence suggested these symptoms were exacerbated immediately after the accident, Mr. H did not stay with Mrs. H overnight after March 2006, when he moved back to his own apartment, and Mrs. H continued to exhibit the same symptoms after her discharge from psychological treatment in November 2006, as she had before the accident. Consequently, there was no evidence to suggest the accident was a material contributing factor to her expressed attendant care needs after March 2006.

Secondly, it was evident at the hearing that the numerous credibility issues associated with Mrs. H's evidence, and her behaviour throughout the arbitration proceeding, were due in large part to her psychological disability. I find her psychological difficulties also affected her perception of her disability and entitlement to benefits.

Mrs. H's life has been full of challenges. Born in Korea in 1943, she left in 1962 to pursue a degree in art history at Columbia University in New York, after which she lived in Los Angeles, Paris, Switzerland and the Bahamas. She met and married her husband, a Swedish citizen, in Canada in 1975. The couple lived in Sweden and Canada and eventually settled in Canada in 1998. They have two sons, now adults. The eldest is estranged from the family. Mrs. H's father died in Korea in 2001 and her mother shortly after in 2002. Mrs. H has worked as a bank teller and as a translator. Although English is not Mrs. H's mother tongue, I found that she was able to read, write and speak it very well, certainly well enough to vigorously pursue her claims in this arbitration proceeding.⁸

Since at least 2000,⁹ Mrs. H has received a monthly allowance under the Ontario Disability Support Programme (ODSP), on the basis that she is unable to work due to painful arthritis and a chronic and untreatable paranoid personality disorder that resulted in "chronic, severe social/ marital/emotional/financial and legal problems" which severely impacted her ability to function and which would not improve.¹⁰ Dr. Dobson endorsed the symptoms as poor judgment ("difficulties anticipating impact of one's behaviour on self and others"), and lack of insight, including difficulty in understanding one's own mental health problems. Symptoms also included moderate difficulty with behavioural control and emotions (affect, mood, anxiety and other emotions, associated psychological disturbances, panic phobia), perception and thinking. Dr. Dobson also noted that Mrs. H was very argumentative, behaviour which was evident throughout the eight days of hearing.

Mrs. H was very reluctant to discuss these psychological difficulties, insisting they were not relevant to the issues in dispute in this proceeding. However, I found this evidence relevant to her claim that the 2006 accident caused her increased psychological suffering and impairment. It was also helpful in explaining why Mrs. H refused to disclose relevant medical information to Dominion, and had to be ordered to do so by the pre-hearing arbitrator, and why she did not disclose information to medical health practitioners and assessors, including those working on her behalf, that would have been helpful to them in providing her with the treatment, assistance and services she required, or to provide reliable opinions on her behalf.

Dominion submitted that this behaviour, as well as Mrs. H's documented attempts to solicit favourable opinions from medical professionals (discussed below), exclude evidence¹¹ and testimony at the hearing, and her attempt to dissuade two witnesses¹² subpoenaed by Dominion from testifying, indicated that Mrs. H deliberately attempted to manipulate evidence to suit her case, and that she was not a credible witness. There were certainly many examples of Mrs. H's often inappropriate interactions with health care providers, and her frequent, repeated objections, interruptions, outbursts and insulting remarks and asides directed to insurer's counsel and witnesses at the hearing, particularly when she did not agree with the evidence presented, were problematic. She did not seem able to control these outbursts, although she was contrite and apologetic afterwards. Although I find Mrs. H's serious pre-existing psychological disorder explains much of her behaviour throughout the arbitration proceeding, it does not excuse it, and her actions undermined the reliability of much, but not all, of the evidence she presented on her own behalf.

Entitlement to attendant care benefits

To be entitled to attendant care, Mrs. H must first establish, on a balance of probabilities, that she suffered an impairment as a result of the January 6, 2006 motor vehicle accident. "Impairment" means "a loss or abnormality of a psychological, physiological or anatomical structure or function."¹³ The accident need not be the sole cause of the lost ability to function, but must have significantly or materially contributed to it. Mrs. H must further establish not only that the care claimed is necessary because of the accident, but that it is also reasonable.

The right-sided paralysis caused by Mrs. H's 2003 stroke severely reduced her ability to function, and these physical limitations must be considered in order to determine what further limitations resulted from the soft tissue injuries sustained in the accident. Mrs. H also claimed attendant care because of psychological impairments; these also were significant before the accident, and are dealt with elsewhere in this decision.

Physical effects of the stroke

Mrs. H has lived alone in a two-bedroom apartment in Hamilton since 2000, when her husband moved into an apartment with the couple's adult son in London, Ontario. Despite extensive therapy after her stroke in June 2003, Mrs. H was left with minimal voluntary function in her right arm, only able to use it as an assist. She was able to walk independently using a single cane, and her right foot "dropped" in mid swing, rendering her unsteady on her feet.¹⁴

The evidence is quite clear that Mrs. H was not able to manage on her own after the stroke. Occupational therapists from CCAC assessed her needs once she returned home after approximately seven weeks of hospital rehabilitation.¹⁵ The first assessment indicated Mrs. H was at risk of falling and that she required assistance with bathing, showering, dressing and grooming. Initially, this was provided, one hour a day five mornings a week, with assistance for light meal preparation and housekeeping if there was any time left. Mrs. H testified that after she came home from the hospital in August, her son came to stay with her and provided "total attendant care" for several months. CCAC increased personal support services to Mrs. H by an extra two hours on the weekend in November 2004 to assist with laundry.

The services were provided by personal support workers employed by Bayshore Health Services, whose records were obtained by subpoena because Mrs. H refused to produce them, despite the pre-hearing arbitrator twice ordering her to do so.¹⁶ CCAC provided Mrs. H with a cane, and later with a manual wheelchair for longer distances, and eventually, at her insistence, a power wheelchair. CCAC recommended Mrs. H look into a grocery delivery service.

The evidence of Mr. and Mrs. H and the CCAC/Bayshore records indicated that after her stroke, Mrs. H was unable to do housework, shop independently for groceries, or prepare anything other than light meals for herself. At that time, Mr. H worked as a long haul trucker. He would stop by to visit his wife at her Hamilton apartment on his way home to London, usually on Wednesdays and Sundays. During these visits, Mr. H would do the bulk of the housework, take his wife grocery shopping, or do the shopping himself, and prepare meals for her to re-heat on her own later. Mrs. H could open cans with a one-handed opener and re-heat food. She could do light dusting, tidying, wipe the counter and do her own dishes. She took taxis or had her husband or friends transport her as required to shop, do her banking and attend medical appointments, church or social outings. She could get in and out of vehicles independently. Mr. H also often took Mrs. H along with him on his trips to the U.S. rather than leave her alone in her apartment, where she would otherwise spend a lot of time in bed. During their trips, Mr. H provided all of her attendant care needs such as bathing, grooming and dressing.

After her stroke, Mrs. H was able to move around her apartment independently, transfer safely on and off her bed with the use of a "stackpole," and transfer safely from the toilet, chairs and sofas. She was not able to walk long distances even with her cane, hence the need for the manual wheelchair. However, she was not able to manage the manual wheelchair on her own and needed someone to push it, fold it and load it into vehicles. She managed to obtain a power wheelchair from CCAC, but was then afraid to use it.¹⁷

It was evident at the hearing that Mrs. H believed she required the power wheelchair because of the accident. In fact, a note from Dr. Dobson in December 2006 supporting the request indicated she was unable to propel the manual wheelchair due to arthritis and carpal tunnel syndrome in her left hand; pre-existing impairments unrelated to the accident.¹⁸ Although Mrs. H conceded on cross-examination that she suffered arthritis in her fingers, feet, right knee and low back (intermittently) since a previous car accident in 1981, she flatly denied she had ever been diagnosed with severely disabling chronic muscle and joint pain before the accident. When confronted with a note to the contrary from Dr. Dobson dated August 4, 1999,¹⁹ and the notes of Dr. F. Bianchi, a rheumatologist who treated her various aches and pains over many years, Mrs. H did not remember the visit to Dr. Dobson and could not explain his note or Dr. Bianchi's. ²⁰

Mrs. H testified that after the accident, her physical limitations increased due to pain and headaches from her soft tissue injuries; for example, she could not lift her paralysed right leg into a vehicle because of back pain, and therefore needed help from her husband to get into and out of a vehicle. Similarly, she could not bend at the waist to wash her face at the sink or reach the back of her hair to wash or style it properly due to pain. She needed help to get up off the sofa. She could not stand long enough (30 minutes) due to pain to re-heat or to prepare simple meals. She stated she needed her husband to take her to medical appointments and treatment sessions to help her undress and dress as required, and get up onto or off examination/treatment tables. As of January 2007, she needed her husband's help to be able to participate in the pool therapy programme at the YMCA.

Mrs. H also maintained she required attendant care for psychological reasons, and testified that she needed her husband to stay with her at night because she suffered from depression and anxiety after the accident, a driving phobia, and nightmares that woke her up in the middle of the night. As noted, this component accounted for over 80% of Mrs. H's claim between January 2006 and March 2007.²¹ Mrs. H also stated she needed her husband to encourage her to complete her at-home exercise programme and to make sure she could complete the exercises safely.

Although Mrs. H admitted to some pre-existing pain from motor vehicle accidents in 1981 and 2003, she believed her back pain and headaches were greater after the 2006 accident, and the crying fits and nightmares were new symptoms. Her husband agreed, citing as examples that Mrs. H would cry with frustration when she could not do something she could do before (getting off the couch by herself for example); that she would cry in public, something she would never have done before; and that she would waken with nightmares and require his presence and reassurance at night for some time after the accident. Mr. H testified that he helped his wife get safely onto her bed to do her exercises, but that his role was mostly to remind and encourage her to do them. He was adamant that she was not able to manage the dressing and undressing required to participate in the pool programme, and she could not safely manage the programme without him.

I accept the evidence of Mrs. and Mr. H that she required increased attendant care after the accident because what were, for her, normal pre-accident activities (washing her face at the sink, fixing her own hair to her liking, preparing light meals or re-heating meals previously cooked by her husband, getting into and out of vehicles independently and attending medical and treatment appointments, shopping and banking, etc.) were rendered more difficult because of pain, fatigue and reduced endurance from her accident injuries. I accept this evidence despite Mrs. H's previous history of disabling pain, the effects of her stroke, and Dominion's reservations about Mrs. H's credibility because I find it is supported by the medical evidence. However, I only accept that Mrs. H required the full amount of attendant care claimed, $1,908 per month, for three months after the accident, or until March 31, 2006. After that, I find she continued to require attendant care only to attend pool therapy.

There are two main reasons for this. Firstly, Mr. H testified that he moved back to his own apartment in London in March 2006. He could not have attended to Mrs. H's needs on a daily basis, or stayed overnight, as claimed in the Form 1, after that point. If Mr. H was not there every evening to make sure Mrs. H did her exercises, to help her get ready for bed and to be there overnight to ensure her psychological comfort and security, then it is difficult to see how the overnight attendant care he provided, for which 6 hours a day was allotted, was necessary or reasonable after that point, even on an intermittent basis.

Mrs. H attempted to argue that an increase in personal support services by CCAC of one hour every evening, seven days a week, in July 2006, after Mr. H had moved back to London, was because she required extra help due to accident-related impairments. However, CCAC records indicate the extra hour was added after Mrs. H fell and burned herself carrying a bowl of hot soup. Mrs. H has been unsteady on her feet and prone to falling since her stroke and this propensity remained unchanged after the accident. CCAC records also indicate Mrs. H expressed a need for personal care services in the evenings as early as January 2004.²² Bayshore and CCAC records, corroborated by witnesses, indicated Mrs. H frequently cancelled the support worker services, even after July 2006, sometimes because the time was not convenient, but often because Bayshore was unable to send her the Filipina workers she preferred.²³ This leads me to conclude that Mrs. H's attendant care needs after March 2006 did not result from the accident, and, regardless, did not appear to have been as necessary as she claimed.

The second reason I do not find attendant care was reasonable or necessary after March 2006, is that the medical evidence presented establishes, at best, a need for the services claimed (grooming, meal preparation, mobility, overnight care for psychological reasons) only up to that point, despite ongoing symptoms. After that, Mrs. H returned to her pre-existing level of functioning, and the accident was no longer a significant contributing factor to her ongoing symptoms and impairments.

Medical evidence – physical impairment

Dr. Anthony Magliocco, a chiropractor and part-owner of the AIM clinic, testified on behalf of Mrs. H at the hearing. He examined and assessed Mrs. H after the 2006 accident, conducted a full exam in March 2007, and oversaw her treatment.²⁴ She was discharged from physiotherapy on August 30, 2006 but continued to receive acupuncture and massage, and in January 2007 began a pool therapy programme on his recommendation.

On a Disability Certificate dated March 1, 2007, Dr. Magliocco indicated Mrs. H met the test for a non-earner benefit²⁵ and that she required housekeeping assistance, on the basis that she still had difficulty with repetitive movements of the cervical and lumbar spine, twisting and bending, and prolonged standing and sitting. However, he also indicated on the form that he did not know of any pre-accident disease, condition or injury that affected Mrs. H's ability to perform her activities of normal living or her housekeeping. He testified that he was not aware of what she was able to do before the accident, and did not ask. He was aware her husband was helping her with her activities of daily living after the accident. Although Dr. Magliocco agreed with Mrs. H that her pre-existing stroke was definitely a factor prolonging her recovery from her accident injuries, he was unable to say how long her recovery should take, pointing out that every individual is different.

I accept Dr. Magliocco's evidence that Mrs. H's function (in terms of range of motion and tolerances) was diminished after the accident due to pain from her soft tissue injuries. However, as Dr. Magliocco was unable to compare Mrs. H's pre- and post-accident abilities, in particular regarding attendant care needs, his evidence was not helpful in determining whether Mrs. H's injuries affected her attendant care needs or entitlement to a non-earner benefit after the accident.

Dr. Demetrios Sahlas, a consulting neurologist with a subspecialty in stroke, and Director of the Stroke Prevention Clinic at Sunnybrook Hospital, also testified on behalf of Mrs. H. Mrs. H first consulted him on May 3, 2004, to get his opinion about whether anything could have been done to lessen the affects of her stroke, and to obtain advice about stroke prevention. He referred her to the Centre for Stroke Recovery to participate in experimental approaches to rehabilitation.

Dr. Sahlas saw Mrs. H about every four months between May 2004 and December 2006. His reports refer only in passing to Mrs. H's 2006 accident; as Dr. Sahlas explained, his primary focus was helping her deal with the effects of her stroke. There are references to new and increased pain complaints, including "icepick headaches" after the accident however, and Dr. Sahlas testified that there were no prominent pain issues to address prior to the accident. This is not consistent with the evidence that Mrs. H suffered a more serious accident in October 2003, six months prior to her first visit to Dr. Sahlas; however, as he stated, his primary concern was her stroke and its effects. This focus lessens the value of his opinion that her pain symptoms were new and worse after the 2006 accident.

Furthermore, due to lack of information, Dr. Sahlas was not in a position to comment on Mrs. H's ability to function. He noted that Mr. H would assist her with preparing to be examined and in getting on and off the examining table. He did not document in his notes whether Mrs. H needed more help in general after the accident than before, and he was unable to state that she would be incapable of light housework after the accident.

As with Dr. Magliocco's evidence, Dr. Sahlas' evidence was not helpful in determining if or to what extent Mrs. H's attendant care needs resulted from the accident as opposed to the stroke. Dr. Sahlas' evidence corroborated Mrs. H's own evidence that she had increased pain complaints after the accident, but this is not sufficient to independently establish that she suffered a loss of function or required increased attendant care as a result.

Mrs. H also submitted a report prepared for her family doctor by Dr. John Turnbull, a neurologist she consulted on April 26, 2006. In this report, Dr. Turnbull, noting the January 2006 accident and that the main purpose for Mrs. H's visit seemed to be to obtain "some type of letter obliging the insurance company to pay for attendant care and housekeeping," stated:

She feels she needs daily attendant care and daily housekeeping. However I gather the insurance company has said that most of her problems are related to the stroke, and not to the car accidents. She agrees with this, but wanted me to say that the car accidents were more problematic in her because of her old stroke, which kept her from protecting herself at the time of the injury. Although this makes some sense, I am unaware of any information to support this . . . ²⁶

This letter speaks for itself and is not helpful to Mrs. H's claims.²⁷

Dr. William Dobson, Mrs. H's family doctor, did not testify at the hearing. His clinical notes and records, assessments and letters were entered into evidence. Her first visit to him was two weeks after the accident on January 23, 2006. He prepared a Disability Certificate that day indicating she required assistance with housekeeping and was having difficulty with self care due to back pain.

A letter dated April 7, 2006 from Dr. Dobson addressed "To whom it may concern" stated Mrs. H still suffered from headaches, neck pain and back pain from the 2006 accident, as well as a driving phobia, due to the fact that this was her second motor vehicle accident (the first being the October 2003 accident). There is no mention of functional abilities.

In a second Disability Certificate dated July 18, 2006, Dr. Dobson indicated Mrs. H met the test for a non-earner benefit, with the explanation (not entirely legible) that the accident injuries made it "much more difficult to function" and to engage in household activities in light of the pre-existing disability imposed by the stroke, and would make it more difficult for her to recover quickly. Unlike the first Disability Certificate, this second one did not refer to any need for assistance with self care due to the accident. A note dated August 11, 2006 mentioned the stroke and headaches, neck, shoulder and back pain from the 2006 accident and stated "she is presently unable to do housework due to her injuries and needs assistance looking after home." Again, there is no mention of personal care.

A further note dated October 20, 2006, again addressed "To whom it may concern" attributed chronic headaches, neck and shoulder pain to "two motor vehicle accidents" and noted that Mrs. H also had some memory and cognitive deficiencies secondary to her stroke. Dr. Dobson stated she needed assistance with housekeeping, shopping, banking, cooking and transportation, that she also suffered a lot of emotional distress due to her physical limitations and injuries, and that her condition was unlikely to improve.²⁸

The difficulty with Dr. Dobson's notes is that there is no evidence that Mrs. H was ever able to "engage in household activities" after her stroke, other than light housekeeping in the form of dusting, wiping counters and tidying, or much of her own personal care, for which CCAC, and often her husband, have provided assistance since the stroke. Dr. Dobson's advice, therefore, that the accident injuries made it more difficult to engage in "household activities" in general, is simply not true. At best, I can accept that, on a balance of probabilities, Mrs. H's accident injuries would make it more difficult for her to accomplish the little housekeeping that she could do before the accident.

Another difficulty with Dr. Dobson's October 20, 2006 note attributing Mrs. H's chronic pain to the 2003 and 2006 motor vehicle accidents, is that it is not consistent with a previous note he provided on her behalf on August 4, 1999, where he stated she suffered severely disabling chronic joint and muscle pain at that time.²⁹ It also contradicts a previous medical opinion he provided supporting Mrs. H's application for benefits from the ODSP (discussed below). I reject Dr. Dobson's evidence to the extent it purports to attribute Mrs. H's ongoing chronic pain and inability to do housework to the 2006 accident.

I find that Dr. Dobson's evidence, at best, establishes no more than that the pain and emotional distress accompanying the accident injuries, superimposed on the stroke-related impairments, exacerbated Mrs. H's physical and psychological condition for a limited period of time after the accident, slowing her recovery and affecting her already severely limited ability to function. Comparing the Disability Certificates and reports, and taking them at face value, in the absence of any other evidence, the best one could conclude from Dr. Dobson's evidence is that up until the end of March 2006, Mrs. H still required assistance with self care, because of the accident, and some attendant care would be reasonable.

Medical evidence – psychological impairment

As discussed previously, eighty percent of Mrs. H's claim for attendant care from January 6, 2006 to March 2007 is based on psychological impairments Ms. Bauer believed were the result of the accident. Ms. Bauer based her opinion in part on the reports of Dr. Kaplan and Beverley Gordon, licensed social worker (MSW), from whom Mrs. H received psychological treatment from July to October 2006.

Dr. Kaplan also treated Mrs. H for anxiety, depression, coping with chronic pain and passenger anxiety after her previous motor vehicle accident in October 2003, up until January 27, 2005. Dr. Kaplan reported that at that point, less than a year before the 2006 accident, Mrs. H still suffered moderate anxiety and depression, but that "despite these unresolved MVA related impairments . . . we feel that [Mrs. H] coped very well following her discharge from the clinic."³⁰

Dr. Kaplan first assessed Mrs. H after the 2006 accident several months later in June. Mrs. H told him she was depressed, anxious about the effects of her stroke, fearful riding as a passenger, and had recurring accident-related nightmares – symptoms she also complained of after the 2003 accident. Regarding functional limitations, Dr. Kaplan noted, "[Ms. H] reported that the effects of the stroke have virtually disabled her from attending to many areas of her daily functioning. She reported that prior to the MVA on January 6, 2006, she was able to use a can opener, warm up can food. Presently she reported that since the 3rd MVA she is not able to do these light duties as a result of increased pain and depression. She reported that presently she depends on her husband and son to help her with activities of daily living." ³¹

Dr. Kaplan administered a number of objective psychometric tests, many of which were not valid due to Mrs. H's inconsistent responses. Dr. Kaplan did not explain why this was the case and does not appear to have been aware that Mrs. H was in receipt of ODSP benefits for a psychological disorder that included depression and anxiety. Dr. Kaplan concluded Mrs. H suffered moderate depression and anxiety, post-traumatic passenger anxiety, fear of a second stroke, and indications of "psychosocial distress in response to pain." This latter appears to be based on her verbal report that "she is finding it increasingly difficult to cope with the emotional effects of her pain in particular her headaches." Dr. Kaplan concluded:

In summary we feel that [Ms. H] coped very well following her discharge from the clinic over a year ago. We also feel that she was already vulnerable given that she was involved in a previous MVA. This would suggest that she would find it more difficult to cope with her pain as a result of the 3rd MVA and is prone to more profound emotional distress. Combining her verbal reports and her results obtained on psychometric measures there are indications of moderate depression, generalized anxiety, specific fears and difficulties adjusting to her reduced ability to function. We feel that her present psychological impairments are a direct result of the 3rd MVA of January 6, 2006. ³² [emphasis added]

Although I find Dr. Kaplan's conclusion that Mrs. H was vulnerable to increased psychological distress after the accident reasonable, I reject his conclusion that all of her presenting psychological impairments, i.e. "moderate depression, generalized anxiety, specific fears and difficulties adjusting to her reduced ability to function", in June 2006 resulted from the accident. Mrs. H's pre-existing psychological symptoms, including anxiety, depression and chronic pain, which were significant and longstanding well before the accident, and of which Dr. Kaplan appeared to be unaware, suggest otherwise. Furthermore, Dr. Kaplan recorded that Mrs. H told him that "prior to the MVA she had a stroke but did not have to deal with chronic pain in addition to the stroke,"³³ which is simply not true. Mrs. H has suffered chronic pain for years. Given that Dr. Kaplan noted that Mrs. H was "virtually disabled" from the effects of her stroke, and that she had difficulty accepting her functional limitations, it is inexplicable that he would not factor the stroke, and her difficulty adjusting to its effects, into his conclusion about the origin of her presenting psychological impairments.

Dr. Kaplan's conclusion that Mrs. H "coped very well" after treatment for the 2003 accident despite unresolved "MVA" complaints of moderate anxiety and depression, is very similar to his conclusion that there was significant improvement in Mrs. H's reported anxiety, stress and depression upon her discharge from therapy in October 2006.³⁴ Once again though, there was no improvement in her ability to deal with chronic pain and reduced function: ". . . she continues to have difficulty accepting her lifestyle alterations and discomfort as a result of her chronic pain."³⁵ The November 30, 2006 discharge report confirmed "there were still reports of unresolved chronic pain and psychosocial distress in response to her chronic pain."³⁶

This was nothing new. Given that there does not appear to have ever been any time over the last fifteen years at least when Mrs. H has not suffered from anxiety and depression, or had difficulty coping with chronic pain and physical limitations, judging by the evidence of her many visits to doctors and hospitals over the years, I find these symptoms to be significant, longstanding and ongoing features of her life. In that context, what Dr. Kaplan describes a "cop[ing] very well" can only mean living with those symptoms. I find these symptoms were temporarily exacerbated by events such as the 2003 and 2006 motor vehicle accidents, but the fact remains, they are the "baseline" of what is, for Mrs. H, her normal life, and the level to which she eventually returns after each event.

For these reasons, I do not accept Dr. Kaplan's conclusion that all of Mrs. H's psychological difficulties after the 2006 accident resulted from it. I find that at best, due to her pre-existing vulnerability to emotional distress, the accident may have significantly exacerbated her symptoms for a time. In any event, I find her symptoms did not require overnight attendant care from her husband after the end of March 2006, as claimed in the Form 1, because she managed without Mr. H at night after he returned to London.

In support of its position that Mrs. H did not suffer any psychological impairment as a result of the accident, Dominion relied on the evidence of Dr. David Prendergast, a psychologist who conducted an insurer's examination in October 2006. Dr. Prendergast noted that Mrs. H did not demonstrate any emotional distress at the time he saw her, and that she invalidated two psychometric tests designed to measure pain responses and assess mood, such that the only valid conclusion that could be drawn was that she tended to choose "extreme" responses, which suggested a tendency to exaggerate her symptoms. Dr. Prendergast noted that Mrs. H told him she was largely independent in housekeeping tasks prior to the 2006 accident, which, as we know, is not true. Dr. Prendergast found no compelling, clinically valid evidence that Mrs. H was experiencing any diagnosable psychological condition, or any impairment, as a result of the accident, and concluded that she did not meet the eligibility test for a non-earner benefit. As noted above, Mrs. H was discharged from psychological treatment shortly after in October 2006 after "significant improvement." I find Dr. Prendergast's assessment of Mrs. H to be valid, insightful and consistent with other medical evidence provided, and I accept his opinion that Mrs. H did not suffer any accident-related psychological impairment.

In-home assessments

Mrs. H relied particularly on the evidence of Martha Bauer, the occupational therapist she hired to complete the Form 1 on her behalf, to support her claims for attendant care. I was unable to give much weight to Ms. Bauer's report or testimony for several reasons.

For one, Ms. Bauer assessed Mrs. H and completed her report eighteen months after the accident, and so had to rely heavily on written reports by other health care providers in that period, as well as Mrs. H's subjective report. This alone would make her assessment and report less reliable than the two contemporaneous assessments conducted by Julie Entwistle on February 21, 2006 and Joseph Trambulo on April 17, 2006, six and fourteen weeks after the accident, respectively. These reports are discussed below.

More importantly, Mrs. H did not provide Ms. Bauer with relevant information, such as the reports of the insurer's examinations conducted on behalf of Dominion in October 2006, which determined Mrs. H did not suffer any impairments as a result of the 2006 accident. Ms. Bauer testified that she twice asked Mrs. H for these reports, and explained to her it was important she review them to be able to prepare a balanced assessment. Furthermore, Mrs. H only provided Ms. Bauer with two of Bayshore's daily charting sheets, one for December 2005 and one for June 2007, and none for the 18 months after the accident. Ms. Bauer had no information about Mrs. H's pre-existing psychological condition and very limited information about pre-existing physical symptoms. She was unaware, for example, that Mrs. H suffered chronic pain before the accident. Ms. Bauer did not contact any of Mrs. H's health care providers to verify information provided by Mrs. H.

Also, Ms. Bauer relied on a number of assumptions that were wrong. For example, she noted in her report that, "In fact, her husband had to quit his job in order to be able to assist her with these activities."³⁷ (The activities being attending medical appointments, transportation, providing encouragement and "cueing," meal preparation and clean-up, and getting ready for bed at night.) Ms. Bauer testified that Mrs. H told her this. In fact, Mr. H lost his trucking job in 2005 when the company went bankrupt and, except for one unsuccessful attempt after the 2006 accident, he has been unable to work again due to injuries he sustained in the 2006 accident. Not only was Ms. Bauer's information incorrect, but, given Mrs. H's obvious attempts to manipulate Ms. Bauer's opinion, I find Mrs. H intentionally misled Ms. Bauer when she told her Mr. H quit his job to look after her. Regardless, Ms. Bauer's attempt on cross-examination to downplay the importance of this information once it was pointed out to her that it was untrue, was entirely unconvincing and undermined her credibility as an impartial assessor.

Ms. Bauer also stated in her report that the extra hour of care provided every evening by CCAC from July 7, 2006 was due to the accident. This is what Mrs. H believed, and still believed at the time of the hearing, and that is what she told Ms. Bauer. However, this belief has no basis in fact. CCAC records indicate the extra hour in the evening was added because Mrs. H fell while carrying a bowl of hot soup. As mentioned above, CCAC noted Mrs. H was unsteady on her feet and at risk of falling because of her stroke when they first assessed her in August 2003. Records of a visit by Mrs. H to Hamilton Health Sciences Centre on June 14, 2004 also noted her tendency to fall due to her right foot drop.³⁸

Ms. Bauer testified that she allotted six hours of attendant care per day because of Mrs. H's anxiety about being left alone, and that this fear was based on Mrs. H's level of chronic pain and perceived disability, a phenomenon she had observed in other clients. Ms. Bauer attributed this to the accident. She was not aware Mr. and Mrs. H were separated before the accident and that Mrs. H lived alone, and admitted this might change her opinion about Mrs. H's attendant care needs. However, she was unwilling to admit that Mrs. H's stroke or marital separation might be factors in her perceived disability and anxiety about being left alone. This further undermined the impartiality of her opinion. As discussed below, Mrs. H's distress about her separation from Mr. H and her anxiety about being left alone were significant issues before the accident.

I accept Ms. Bauer's quantification of the type and amount of attendant care as reasonable and necessary because of the accident up until the end of March 2006, on the basis that her accident injuries exacerbated her pre-accident impairments (including her psychological impairments), because this is consistent with the evidence of Mrs. H's medical practitioners, discussed above. Ms. Bauer's report is too flawed to be reliable on its own merits beyond that, and no other evidence supports her recommendations, except those for pool therapy.

With respect to transportation and assistance for medical treatment and appointments after March 2006, Mr. H testified that he and his wife attended at AIM together for treatment because they both required treatment as a result of the accident, and attending together was more practical and convenient for them. However, Mr. H testified that dressing and undressing were not necessary for the AIM visits. Mr. H also admitted that Mrs. H went "a number of times" by herself to acupuncture treatment by taxi later on. I do not find therefore that attendant care for treatment visits to AIM or for acupuncture was necessary or reasonable after March 2006.

In support of its position that no attendant care was required because of the accident, Dominion relied on the evidence of Julie Entwistle, an occupational therapist who conducted an in-home assessment of Mrs. H's needs on February 21, 2006, and Joseph Trambulo, a physiotherapist who conducted a second assessment on behalf of Mrs. H, on April 17, 2006, about six weeks later. These assessors testified at the hearing. I found them both to be well-qualified and experienced assessors despite their different educational backgrounds. Although their reports, as far as they went, were objective and based on accurate observation and evaluation, and their testimony at the hearing was helpful, I did not find all of their conclusions to be reasonable, based on the evidence as a whole.

The information obtained by Ms. Entwistle in particular, about Mrs. H's pre-accident activities, was detailed and accurate. On observation and examination, Ms. Entwistle determined Mrs. H had the range of motion and physical tolerance to continue to carry out her activities as before. She reached this conclusion even after taking into account that Mrs. H had only "trace" mobility in her right side due to the stroke, that she had limited (but functional) range of motion and moderate strength in her left side, and that she rated her pain as "9/10 on a bad day (10=excruciating pain), and 7/10 when medicated." Ms. Entwistle did not recommend assistance with light meal preparation and housekeeping "as ongoing function at home will only help to improve the client's tolerance for activity . . . and ongoing participation in cleaning will help promote her recovery."

I do not find this to be a realistic or reasonable recommendation, given Mrs. H's age, previous medical conditions, and the opinions of Mrs. H's treating health care providers, Dr. Magliocco and Dr. Dobson, that Mrs. H experienced difficulty with her daily activities and had a longer recovery after the accident due to pain from her accident injuries. Even Mr. Trambulo, who assessed Mrs. H almost two months after Ms. Entwistle, allowed that her accident injuries "likely contributed some decrease in her functional tolerances surrounding performance of her housekeeping and ADL ["activities of daily living"] tasks.

Ms. Entwistle testified that she concluded Mrs. H's reported pain did not affect her functional abilities because she did not observe Mrs. H to be in pain when she assessed her; in effect, she ignored her pain complaints. Mrs. H's answer to this, corroborated by her husband, is that Mrs. H is a stoic person and does not show pain outwardly to others. I accept this explanation.

Ms. Entwistle was not aware at the time of her assessment that Mrs. H claimed she required transportation to medical appointments and treatment and help to dress while there, because Mrs. H did not tell her this. This renders her assessment somewhat incomplete on that aspect of attendant care. Ms. Entwistle stated that had she known, she would have addressed those needs, called the physiotherapy clinic to confirm her needs, and reviewed the dressing training Mrs. H would have received as part of her stroke rehabilitation. Ms. Entwistle expressed the opinion at the hearing that, with the proper occupational therapy training and assistive devices, Mrs. H should be able to dress and undress herself, and could minimize the need to do so for medical appointments or treatment sessions by wearing suitable clothing. Mr. Trambulo shared that opinion. I reject this opinion as it is based on hindsight and conjecture, and prefer the evidence of CCAC, which has been providing assistance with grooming, dressing and light housekeeping to Mrs. H since her stroke, on the basis of its own regular OT assessments.

As Ms. Entwistle's assessment took place before Dr. Kaplan's first psychological assessment in July 2006 and subsequent treatment, I find that Ms. Entwistle perhaps did not appreciate the extent to which Mrs. H's psychological difficulties (anxiety, depression, passenger phobia, difficulty coping with chronic pain and functional limitations) both pre-and post-accident, affected her motivation, pain perception and daily functioning in the eight weeks after the accident. I find it would not be reasonable to conclude that Mrs. H had recovered sufficiently from her soft tissue injuries eight weeks after the accident to the extent that her function was not affected. I further find it would not be reasonable to simply dismiss Mrs. H's subjective pain reports and expressed need for attendant care without an appreciation of her psychological condition and her difficulties coping with chronic pain.³⁹

Joseph Trambulo determined Mrs. H did not require any additional attendant care because of the accident, because her functional limitations were due to her stroke. He specifically asked her to demonstrate putting on and removing a t-shirt and jacket. He observed her to have difficulty with this task due to her stroke-related impairment, but not to any musculoskeletal difficulties arising from the accident. He felt she needed cueing and coaching to complete the task on her own. It was Mr. Trambulo's opinion that with proper instruction from an OT, assistive devices such as a reacher, and some practice, Mrs. H should be able to dress herself. He expressed surprise, as did Ms. Entwistle, that Mrs. H did not appear to have received this type of instruction and training in the course of her stroke rehabilitation programme, which both he and Ms. Entwistle understood to be part of this type of programme, where the goal would be to make the person as independent as possible by modifying tasks and providing assistive devices.

Although Mr. Trambulo did not feel that Mrs. H required ongoing assistance, he recommended 4 one-hour sessions of In-Home Occupational Therapy Intervention to "reinforce independence in the performance of her activities of daily living especially with upper, lower body dressing, and the proper use of the assistive devices previously provided, and education on safety around the home." In my view, this suggests Mrs. H was not independent, for whatever reason, when Mr. Trambulo saw her on April 17, 2006.

Mr. Trambulo`s opinion, viewed in light of the opinions of Dr. Dobson and Dr. Magliocco and the testimony of Mr. and Mrs. H, is not inconsistent with my finding that pain and distress affected Mrs. H's ability to function after the accident, up until the end of March 2006, and that attendant care, including dressing to the extent it was necessary, was reasonable during this period.

Dr. Benjamin Clark, a physiatrist who examined Mrs. H for an insurer's examination ("IE") on behalf of Dominion in October 2006, also felt Mrs. H should be capable of independent dressing. The purpose of Dr. Clark's assessment was to determine whether Mrs. H qualified for a non-earner benefit, which in turn required an opinion about whether she suffered an impairment as a result of the accident.

Dr. Clark testified at the hearing. He concluded from his review of documents provided and his examination of Mrs. H that she "possibly" sustained minor soft tissue injuries to her right upper trapezius and lumbar spine but had fully recovered, and did not suffer a complete inability to carry on a normal life as a direct result of the accident. I accept his opinion that Mrs. H had recovered to her pre-accident condition by the time he saw her and that she did not meet the non-earner test. However, I found Dr. Clark's characterisation of Mrs. H's soft tissue injuries as "minor" to be at odds with the opinions of Dr. Magliocco and Dr. Dobson, which were based on several visits over time and were contemporaneous with the accident. I also find Dr. Clark ignored Mrs. H's reported pain complaints and failed to address the effects of new soft tissue injuries in someone already suffering from a stroke and previous disabling chronic pain. I find these factors undermined his opinion that Mrs. H was able to manage dressing herself.

Dr. Clark testified that, based on his examination of Mrs. H and his experience as a rehabilitation doctor, he felt she could use her right hand as an assist for light functional tasks, and she was capable, although with difficulty, of dressing and undressing herself, including getting into and out of a bathing suit. He felt she had been capable of this as early as June 30, 2003, based on a note documenting an assessment conducted by an OT and a physiotherapist on that date, at Oakville-Trafalgar Hospital, where Mrs. H received rehabilitation after her stroke.⁴⁰ The note states Mrs. H was able, with minimal assistance but with direction, to "thread" her right upper extremity (into a sleeve, presumably), and that she was "independent to pull skirt over head with set-up" and was "independent to button using left upper extremity." She also required "supervision for clothing management." Dr. Clark testified that Mrs. H should have been capable of even more after recovery and rehabilitation. The one-page "Physiotherapy Discharge Summary" by the same OT and physiotherapist dated August 8, 2003⁴¹ does not mention dressing, but, unlike the first report, there is no heading on the discharge summary particularly for dressing.

I do not agree that even someone with the experience and qualifications of Dr. Clark could confidently conclude from such sparse and cryptic information that Mrs. H could fully manage dressing and undressing without assistance. (There is no mention, for example, of socks, pantyhose, pants or swimsuits.) I note the very brief second August 8, 2003 note also stated that Mrs. H was anxious and "very focussed on hand recovery," that she had little regard for her right upper extremity weakness and that she treated her arm "roughly at times." This would suggest there were at least some ongoing issues involving her right hand and arm at that time.

Dr. Clark testified that he observed Mrs. H to use her right hand to assist with zipping up her jacket, and stated he tested sufficient strength in her right arm for her to be able to do this. Dr. Sahlas, presented with this example on cross-examination, reluctantly agreed it was possible, but difficult.

Despite the fact that Dominion's medical witnesses all agreed Mrs. H "should" be able to dress herself and she could minimize the dressing requirements for medical and treatment appointments by choosing looser clothing that would be easier to manage, the evidence as a whole does not bear this out. Despite extensive rehabilitation after her stroke, I find it significant that Mrs. H was nevertheless found to need, (by CCAC, a credible source), and has received, assistance with dressing since that time. That Mrs. H has long suffered from painful arthritis in her hands (and her feet, too) requiring medication is mentioned several times in the extensive pre-accident medical records.⁴² It is also evident from the records of Dr. Dobson, as well as other health care providers and the testimony of Mr. H, that Mrs. H becomes easily frustrated and agitated when things do not go her way.⁴³ These factors are more persuasive than the opinions of those professionals who only saw her briefly several years later. I find, on a balance of probabilities, that it was unlikely Mrs. H was able to routinely fully dress/undress herself without considerable difficulty and assistance after the stroke; it is reasonable that she would have found it even more difficult for a time after both the 2003 and 2006 accidents due to pain and restricted mobility resulting from her soft tissue injuries. That is not to say that she could not manage some of the simpler components of dressing after the stroke, or, eventually, after the 2006 accident; donning a loose-fitting jacket for example, or even zipping a jacket. However, on the whole, I find it unlikely she would have been able to manage the full routine on her own.

On a balance of probabilities, the evidence of Dominion's witnesses did not persuade me that Mrs. H did not require attendant care from her husband between January 6 and March 31, 2006, or assistance to participate in the pool programme afterwards. The opinion of Dr. David Prendergast, the psychologist who concluded an IE for Dominion on October 24, 2006, that Mrs. H did not suffer a psychological impairment as a result of the accident, is discussed below.

Other significant pre-accident factors

As noted above, Mrs. H suffered from significant chronic pain and psychological difficulties well before the accident. The evidence indicates there were additional significant pre-accident factors as well, such as the psychological impact of the stroke, Mrs. H's inability to cope with her physical limitations, her unrealistic expectations for recovery from the stroke, and her dependence on her husband. Despite Mrs. H's efforts to prove otherwise, I find the evidence indicates these factors, and not the 2006 accident, contributed significantly to her impairments after March 2006.

Mrs. H is a highly intelligent and proud person, and capable in many ways. Understandably, she does not agree with Dr. Dobson's assessment of her psychological disability; a characteristic inherent in the condition itself. To support her assertion that her pre-existing psychological condition was irrelevant to the psychological difficulties she claims she developed after the accident, she presented a letter from Dr. Dobson dated January 17, 2008, after the commencement of the hearing, stating:

To whom it may concern:

[Mrs. H] was treated by Dr. Ron Kaplan⁴⁴ for post traumatic stress disorder which involved phobias that she developed concerning riding in a car after being in two car accidents. One in 2003 and again in 2006. This emotional-psychological problem is separate from her long term pre-existing psychological disorder that was mentioned in [a] letter that I wrote for her in April 1998. ⁴⁵

I was not persuaded by this letter. Given Dr. Dobson's comprehensive report to ODSP and the reports of Dr. Kaplan and Beverley Gordon, the licensed social worker who provided psychological treatment after the 2006 accident,⁴⁶ I find there was more at issue than accident-related depression, anxiety and phobia about riding in a car after the 2006 accident; specifically, ongoing difficulty dealing with chronic pain and physical limitations and dependency issues, all of which pre-date the accident. Consequently, I was not persuaded that Mrs. H's post accident stress disorder was separate from her pre-existing psychological condition or that the latter was irrelevant to her claims against Dominion. Furthermore, Mrs. H testified quite openly that she has for years regularly asked Dr. Dobson, as her family doctor, to provide her with letters to assist her in claiming various types of benefits, and I find this January 17, 2008 letter, to be yet another example.⁴⁷

Mrs. H's stroke has had a significant psychological impact on her life. Very unfortunately for Mrs. H, her stroke went undiagnosed when she attended the hospital emergency department on June 21, 2003. She believes that had she received the proper intervention at the time she presented at the hospital emergency department, the physical damage might have been less severe.⁴⁸ Her family doctor recognized that she had had a stroke when she saw him a day later and referred her to a hospital stroke rehabilitation programme in Oakville-Trafalgar Hospital, where she received rehabilitation, occupational and physical therapy. Two months after her discharge she participated in an outpatient stroke rehabilitation programme at Chedoke-McMaster Hospital, receiving therapy three times per week until January 2004.⁴⁹ She received further physiotherapy twice a week and occupational therapy once a week at St. Peter's Hospital in Hamilton beginning in March 2004 and then participated in an experimental programme at Sunnybrook Hospital.

According to Dr. M. Lang, who assessed her on July 28, 2004, Mrs. H "certainly had more therapy than most," although Mrs. H herself did not believe this to be the case. Despite the amount of therapy, Mrs. H was left with minimal voluntary function on her right side. Apparently Dr. Lang was at pains to explain to Mrs. H that "the majority of recovery from these things [i.e., the stroke] is in the first month or two and physiotherapy is used to increase the function that has returned, not to actually cause any increase in regeneration or cognitive control of the limb." He related that he had a ". . . very frank discussion with her about the prognosis for her motor function. I do not expect her to see any improvement, regardless of whether or not she receives further therapy on that arm." Dr. Lang also noted that Mrs. H lived alone and received assistance from CCAC for ADLs [Activities of Daily Living] and bathing, and that her husband and son "often visit to assist her with daily care." I find Dr. Lang's report significant in that it illustrates Mrs. H's apparent unwillingness to accept that the impairment from her stroke would not improve. This is an example, pre-dating the accident, of Mrs. H's difficulty coping with her physical limitations, a symptom Dr. Kaplan also identified in 2006, but attributed to the accident.

A further example is a note from Dr. Dobson to an OT, requesting splinting and exercise instruction for Mrs. H, which states, "[Mrs. H] has severe psychiatric problems and has not been able to accept the disability from her CVA (cerebrovascular accident)."⁵⁰

Another significant feature of her pre-accident life was Mrs. H's dependence on her husband. As noted, Mrs. H received considerable attendant care and housekeeping assistance from her husband (and son) after the 2003 accident. A January 30, 2004 CCAC assessment stated that when Mr. H returned from his 5-6 day long-haul trips to the U.S.A. he would assist Mrs. H with personal care, prepare meals for the week, do the housework, shop for groceries and other household items, pick up medication and take her to appointments, much as he did after the stroke and after the 2006 accident. The report also notes "client . . . wishing for spouse to change jobs so that he can be at home more often in the evenings to help assist with personal care."⁵¹ After the 2003 accident, Dominion paid for Mr. H to do his wife's housekeeping, for almost two years.⁵² Mrs. H did not disclose this to CCAC. CCAC does not provide housekeeping services and referred Mrs. H to the homemaking services provided by the City of Hamilton. Mrs. H was not able to obtain the City services, however, because, unlike the CCAC services, they were based on financial need, and Mrs. H declined a financial assessment by the City.⁵³ I conclude from this evidence that Mrs. H preferred to have Mr. H do her housekeeping for her, paid for by Dominion.

An assessment of Mrs. H's attendant care needs conducted by a Designated Assessment Centre ("Attendant Care DAC")⁵⁴ on September 13, 2004, a year after the 2003 accident, determined she did not require attendant care as a result of that accident. In this report, the assessor took particular note of Mrs. H's dependence on her family, quoting from a Psychological Progress Report of Dr. Kaplan's which noted a "dramatic increase in her reported symptoms of anxiety" after her son and husband moved back to London (after initially providing "much care and support"), . . ."leaving her on her own in Hamilton frequently. . . Re-testing showed increased distress in response to pain." Dr. Kaplan felt there were a number of possible explanations for this:

These may include an effort to magnify her distress, to present in a worse state that [sic] she actually is. Alternatively it could be a cry for further help . . . She reports constant worries about her limited functioning and her increased dependence on others for help with personal care and domestic chores. She feels that with more attendance [sic] care being made available to her this would have a significant impact on her mental state and would reduce some of the stresses and fears that is [sic] causing her depression. Her impairments are also entrenched hence progress remains guarded.⁵⁵

This belief, that attendant care from her husband would alleviate her psychological symptoms, is the same belief Mrs. H communicated to Julie Entwistle and Martha Bauer, when she insisted to them she needed "24-hour" attendant care after the 2006 accident.

Mr. H attended the hearing every day with his wife and demonstrated extraordinary patience despite her very difficult behaviour. Although their relationship appears amicable, and Mr. H has provided Mrs. H with considerable assistance and support over the years, the evidence indicates that they continue to live apart because of significant and longstanding marital discord, a fact that Mrs. H has considerable difficulty accepting.

A report to Dr. Dobson from Dr. John Hall, a psychiatrist, on June 22, 2000,⁵⁶ relates that at that time, Mrs. H had undergone several years of marital difficulty and prolonged separation from her husband:

In view of the prolonged period of separation from her husband, I did not feel that it would be possible for her to resume a relationship with her husband, and [sic] should try to resume a life of her own. She responded that she could not do this and reiterated that she would like to recover the relationship with her husband and two sons. . . ."

Dr. Hall concluded "I found the situation quite impossible, and [her] attitude quite unreasonable and unrealistic."

Both Mr. and Mrs. H denied when cross-examined that Mr. H moved out in 2000 because of marital difficulties, proffering instead the explanation that Mr. H moved in with his son to assist him with his studies. Neither would acknowledge at the hearing that there was anything unusual about this living arrangement. A similar situation occurred during an insurer's examination ("IE") conducted by Dr. Prendergast, a psychologist, when he interviewed Mrs. H in October 2006 as part of a multidisciplinary assessment. In his report, Dr. Prendergast commented,

It was only through persistent inquiry as to the unusualness of this relationship (that a husband would leave his wife simply to look after a son who was an adult but who did not, in her opinion, have any type of mental or physical impairment) she eventually stated that her husband and she were separated due to some marital issues. . . She eventually acknowledged that there was some significant marital discord . . . Nonetheless, she went on to report that she and her husband continued to have an amicable relationship despite their separation.⁵⁷

I find these examples, together with Mrs. H's insistence that she required 24-hour attendant care from Mr. H after the accident, and her apparent inability to acknowledge the real reason they live apart, indicate that Mrs. H's expressed need for attendant care reflected her continuing, significant and longstanding emotional dependence on her husband, and as such did not result from the 2006 accident.

In conclusion, based on the evidence tendered by Mrs. H on her own behalf, I find that the 2006 accident significantly exacerbated her pre-existing physical and psychological impairments, such that attendant care was reasonable and necessary up to the end of March 2006, at which point she returned to her pre-accident level of function.

Mrs. H, therefore, is entitled to attendant care for the period January 6 to March 31, 2006, a period of 12 ½ weeks. Based on the calculations of Martha Bauer, this amounts to $5,325.80.

With respect to the one-year pool membership at the YMCA starting in January 2007, recommended by AIM and approved by Dominion, I find it was reasonable and necessary for Mr. H to transport his wife to and from the pool sessions, help her get into and out of her bathing suit, assure her safety in the pool, and help her shower and dress afterwards. I accept the testimony of Mr. and Mrs. H and do not believe, despite the testimony of Dominion's witnesses, that Mrs. H would be able to wriggle in and out of a wet bathing suit on her own. This is because of the limitations imposed by her stroke, not the accident; but, as Dominion approved the pool membership and I find Mrs. H could not participate without her husband, I find his assistance was reasonable and necessary as a result of the accident as provided for under s. 16 of the Schedule.

However, Mr. and Mrs. H's evidence was vague, and I was not persuaded that they actually attended the pool five days a week in the year between January 2007 and January 2008, as they claim. The most that could reasonably be concluded from their evidence, reluctantly conceded by Mr. H, was that they went about 20 times in total.

I find Mrs. H is entitled to attendant care of $546.85 based on Ms. Bauer's Form 1, calculated as follows:

• Level 3 – bathe and dry: 5 minutes per visit x 20 visits x $17.98/hr = $29.97
• Level 3 – assist with exercises: 75 minutes x 20 visits x $17.98/hr = $449.50
• Level 1 – dressing: 8 minutes per visit x 20 visits x $11.23/hr = $29.95
• Level 1 – style hair: 10 minutes x 20 visits x $11.23/hr = $37.43

Total: $546.85

Interest

Subsection 39(4) of the Schedule provides that an insurer shall begin paying attendant care benefits within 10 business days after receiving the Form 1. After that point, the benefits are 'overdue' and interest is payable under s. 46(2). Ms. Bauer completed both Form 1s on behalf of Mrs. H on August 24, 2007. Rule 7.3(b) states that documents sent by mail are considered to have been served on the fifth day after the post office stamps the mailed document. As I was presented with no evidence of when Ms. Bauer mailed the Form 1s to Dominion, or when Dominion received them, I find the date Dominion received them to be August 29, 2007, and the date Dominion is required to pay the attendant care benefits to be Monday, September 10, 2007. (As 10 days after August 29 falls on a Saturday, the next business day is September 10, as set out in Rule 8.1). Interest runs from September 10, 2007 and shall be calculated from that date until the date the overdue benefit is paid, in accordance with s. 46(2) of the Schedule; i.e., 2 per cent per month compounded monthly.

Non-earner benefit

Dominion paid Mrs. H an initial weekly non-earner benefit of $185 for 23 weeks from July 6, 2006 until December 14, 2006, when the benefit was terminated after the series of multidisciplinary IEs in October 2006, discussed above, determined Mrs. H did not meet the test to qualify for a non-earner benefit under the Schedule. There was nothing in the IEs to indicate their conclusions were wrong.

To qualify for a non-earner benefit, Mrs. H must establish, on a balance of probabilities, that she sustained an impairment as a result of the January 6, 2006 accident, and that she suffered a complete inability to carry on a normal life as a result of that accident. Subsection 2(4) of the Schedule explains that,

for the purpose of this Regulation, a person suffers a complete inability to carry on a normal life as a result of an accident if, and only if, as a result of the accident, the person sustains an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident."

Apart from the Disability Certificates of Dr. Dobson and Dr. Magliocco, there was absolutely no medical evidence to suggest Mrs. H qualified for a non-earner benefit. As discussed above, these Disability Certificates were not helpful because they did not compare Mrs. H's activities before and after the accident. The testimony of Mr. and Mrs. H confirmed their life changed little after the 2006 accident; they continued to live apart; Mrs. H continued to attend medical appointments and treatment sessions, either with Mr. H or on her own by taxi; she continued to go shopping with her husband and sometimes her son, including family shopping trips to Buffalo; she continued to do her own banking; she spent time at home on the computer managing several lawsuits; and she and her husband went on vacation together. She continued to pursue these activities despite suffering anxiety, depression and difficulty coping with chronic pain and functional limitations, much as she had before the accident, and, indeed, much as she had over the last twenty years. There was no basis to conclude Mrs. H is entitled to a non-earner benefit.

Visitor's expenses

Mrs. H claimed her son visited her from London pretty much every weekend after the accident to help around the apartment, spend time with her and help her with her computer. She stated he either got a ride with her husband or took the bus, and she claimed expenses of $80 per visit.

No receipts were provided for these expenses, nor was there any convincing evidence to support these claims. The testimony of Mr. and Mrs. H about the alleged weekly to-ing and fro-ing between London and Hamilton of Mr. H and his son, and his activities during the visits, was vague, confusing, contradictory and logistically implausible, given the family only possesses one vehicle. Mrs. H's son did not testify, being apparently "fed up" with the insurance company, and not wanting anything to do with the arbitration proceeding, according to Mr. H.

As no reliable or convincing evidence was presented to establish these expenses were incurred, this claim is dismissed.

One final matter requires mention. Mrs. H claimed that she suffered increased anxiety after the accident and high blood pressure which she felt put her at risk for a second stroke and which caused her to seek treatment at the hospital emergency department on several occasions. She attributed these symptoms directly to the actions of Paul Clouthier, Dominion's adjuster, who she claimed was difficult to deal with because he was late paying benefits and frequently requested her to attend medical assessments.

Although I am mindful that insurance companies can be difficult for insured persons to deal with at times, particularly when the person is in pain and needs assistance, I did not find any evidence that Mr. Clouthier's actions on behalf of Dominion were inappropriate or unreasonable. Mr. Clouthier testified at the hearing. He was completely candid about his difficulties dealing with Mrs. H, particularly the fact that she would telephone him several times a day; and his concerns that she was not following up with acupuncture treatment for which he had paid in advance.

I found Mr. Clouthier to be a forthright and down-to-earth individual sympathetic to Mrs. H's situation, who demonstrated a great deal of patience and forbearance towards her. He gave her the benefit of the doubt on a number of occasions. For example, he testified that he paid Mrs. H expenses for housekeeping performed by Mr. H after the accident, while at the same time paying housekeeping expenses to Mr. H on the basis that Mr. H could not perform his own housekeeping at his London apartment; in effect, allowing Mrs. H to "double-dip." Mr. Clouthier did not pursue repayment on behalf of Dominion, as he might well have. I find Mrs. H's insistence that Mr. Clouthier was responsible for her anxiety and high blood pressure after the accident is yet another manifestation of her own well-documented, underlying psychological difficulties.

EXPENSES:

Subsection 282(11) of the Insurance Act provides that an arbitrator may award, according to criteria prescribed by the regulations, to the insured person or the insurer, all or part of such expenses incurred in respect of an arbitration proceeding as may be prescribed in the regulations, to the maximum set out in the regulations. ⁵⁸

The criteria that an arbitrator must consider when deciding which party, if any, should be entitled to have its arbitration expenses paid by the other, are set out in the "Expense Regulation" and are as follows:⁵⁹

1. An arbitrator shall, under subsection 282 (11) of the Act, consider only the following criteria for the purposes of awarding all or part of the expenses incurred in respect of an arbitration proceeding:

   1. Each party's degree of success in the outcome of the proceeding.
   2. Any written offers to settle made in accordance with subsection (3).
   3. Whether novel issues are raised in the proceeding.
   4. The conduct of a party or a party's representative that tended to prolong, obstruct or hinder the proceeding, including a failure to comply with undertakings and orders.
   5. Whether any aspect of the proceeding was improper, vexatious or unnecessary.

2. Upon the request of the insurer or the insured person, the arbitrator shall, for the purposes of awarding expenses, take into account all written offers to settle, if any,

   (a) that were made after the conclusion of mediation and before the conclusion of the arbitration; and (b) that were made in accordance with the rules of practice and procedure applicable to the proceeding.

3. If the arbitrator is requested to take into account a written offer under subsection (3), the arbitrator shall have regard to the terms of the offer, the timing of the offer, the response to the offer and the result of the proceeding.

Considering these criteria; the conduct of both parties in the circumstances of this arbitration; Mrs. H's success, albeit modest, in these proceedings; the fact that Mrs. H was both unrepresented and hampered by a psychological disability making it difficult for her to control her behaviour; in the interests of avoiding further unnecessary expense to either side; and, finally, in the absence of any offer to settle, I find that each party should bear their own expenses of the arbitration proceeding.

I make this finding mindful of the fact that the proceedings were unduly prolonged by the conduct of both parties in this case. For her part, as discussed previously, Mrs. H refused to produce relevant information to Dominion prior to the commencement of the arbitration, despite being ordered to do so by the pre-hearing arbitrator. As a result, Dominion's representative had to subpoena records and witnesses during the hearing. With respect to the records of CCAC and Bayshore Health Services, for example, the relevance of these voluminous records had to be determined once they were obtained.

Considerable time and effort was taken to explain to Mrs. H what evidence was relevant and producible, and dealing with repeated objections by Mrs. H on the same points (the relevance and admissibility of the family doctors' clinical notes and records, for example, and other pre-accident information).

With respect to Dominion, although counsel was thorough and meticulous, her unrelenting efforts to attack Mrs. H's credibility were disproportionate to what was required to defend the matter considering the issues in dispute, and her prolonged, and often repetitive cross-examination was unnecessary, and counter-productive in the case of Mrs. H, in that it often succeeding only in provoking her. I find this conduct unnecessarily prolonged the hearing.

February 26, 2009

Susan Sapin Arbitrator

ARBITRATION ORDER

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

1. Mrs. H is entitled to attendant care benefits of $5,325.80 from January 6, 2006 to March 31, 2006; and $546.85 from January 1, 2007 to January 6, 2008.

2. Mrs. H is not entitled to a non-earner benefit.

3. Mrs. H is not entitled to visitor's expenses.

4. Dominion shall pay to Mrs. H interest on overdue benefits of $5,872.65 from September 10, 2007 until the date of payment, calculated at the rate of 2 per cent per month compounded monthly, pursuant to s. 46(2) of the Schedule.

5. Each party shall bear its own expenses of this arbitration proceeding.

February 26, 2009

Susan Sapin Arbitrator

Footnotes

1. 1The Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2The amount identified as item 2 in dispute in the pre-hearing letter dated April 26, 2007.
3. 3The amount identified in the Form 1 dated August 24, 2006 prepared by Martha Bauer, occupational therapist.
4. 4The total amount claimed is $40,211.80.
5. 5A standard form prescribed under the Schedule, required to be completed by a licensed health care professional qualified to do so, most often an occupational therapist.
6. 6The six hours allotted under basic supervisory functions – ensuring comfort and security, is to account for Mrs. H's husband staying with her overnight due to her increased anxiety and nightmares after the accident.
7. 7Testimony of Mr. H and Dr. A. Magliocco, the chiropractor who treated the couple at the AIM Clinic after both accidents. The reports of Dr. Ronald Kaplan, psychologist, of Kaplan and Kaplan Psychologists, also indicate Mrs. H's psychological symptoms after both accidents were the same.
8. 8Mrs. H declined the services of a Korean interpreter when offered.
9. 9The exact date is difficult to determine as Mrs. H was not forthcoming with this information and the documentary evidence is incomplete; however it is clear the benefit is longstanding.
10. 10As described by Mrs. H's family doctor, Dr. William Dobson, in a comprehensive application in support of the ODSP benefit in May 2001, clinical notes and records, Exhibit 6, discussed in more detail below.
11. 11There are numerous examples of Mrs. H's refusal to disclose or provide information she did not consider "relevant," the most notable being her failure to provide relevant medical reports to Martha Bauer, the occupational therapist who conducted an in-home assessment on her behalf, her failure to disclose to Dominion that she was in receipt of an ODSP disability benefit at the time of the accident, and her refusal to produce the records of Bayshore Health Services despite being ordered to do so.
12. 12Josephine O'Riordan, Programme Manager with CCAC, testified that Mrs. H called her and asked her to disregard the subpoena and not testify; Mrs. H acknowledged she contacted Young Tae Bae, her acupuncturist, and asked him not to testify.
13. 13As defined in ss. 2(1) of the Schedule
14. 14Report of Dr. Michael Lang, Halton Health Care Services, July 28, 2004, Exhibit 8, Tab A
15. 15CCAC records indicate numerous assessments and reassessments by occupational therapists from after the first assessment in August 2003 and ongoing; apparently, CCAC ordinarily conducts regular assessments of client's needs every six months.
16. 16Pre-hearing letters of Arbitrator J. Rogers dated April 26 and November 27, 2007. (Note: it was not readily apparent at the pre-hearing that the daily records of services provided were kept by Bayshore and not CCAC; hence the need for the second order to produce the Bayshore records themselves. The point however is that this was just one of many examples of Mrs. H's reluctance to produce relevant information to Dominion or to many health care providers.
17. 17Report of Martha Bauer
18. 18Dr. Dobson's note dated December 29, 2006, Exhibit 17, CCAC Records Part 2
19. 19Clinical notes and records of Dr. Dobson, Exhibit 8, Tab G
20. 20Clinical notes of Dr. Dobson, Exhibit 6. At the hearing, Mrs. H sought to exclude Dr. Bianchi's medical reports on the basis that they were "not relevant."
21. 21The psychological aspect of Mrs. H's claims is discussed below.
22. 22CCAC Home Care MDS Report, January 30, 2004, Exhibit 17
23. 23Testimony of Anna Di Cesare, CCAC Case Manager
24. 24Dr. Magliocco had also treated Mrs. H for two years after a previous motor vehicle accident that occurred on October 18, 2003, barely four months after her stroke.
25. 25In other words, answering "yes" to the question "Does the applicant suffer a complete inability to carry on a normal life?"
26. 26Exhibit 8, Tab B4
27. 27Mrs. H made a similar request to Dr. Turnbull after her previous accident in October 2003: letter to Dr. Dobson dated November 26, 2004, Exhibit 8, Tab B2.
28. 28Exhibit 1, Tab 9
29. 29Clinical notes of Dr. Dobson, Exhibit 8, Tab G
30. 30Psychological assessment report of Dr. R. Kaplan, June 27, 2006, Exhibit 1, p. 8
31. 31Psychological assessment report of Dr. R. Kaplan, June 27, 2006, Exhibit 1, p. 3. The previous two MVAs would be those in 1981 and 2003.
32. 32Psychological assessment report of Dr. R. Kaplan, June 27, 2006, Exhibit 1, p. 8
33. 33Psychological Discharge Report dated November 30, 2006, p. 29 of Exhibit 1
34. 34October 6, 2006 Progress Report and the November 30, 2006 Psychological Discharge Report, Exhibit 1
35. 35October 6, 2006 report, p. 3
36. 36November 30, 2006 report, p. 3
37. 37At pp 6 and 30
38. 38Report of Dr. Sharon Grad, Dr. Dobson's clinical notes and records, Exhibit 8, Tab G, pp 132-133
39. 39As noted by Dr. Kaplan
40. 40Contained in the (un-numbered) clinical notes and records of Dr. Sahlas, Exhibit 5, about half way through the package.
41. 41Exhibit 5
42. 42Exhibit 6
43. 43Examples of Mrs. H's aggressive and abusive behaviour to health care providers over the years are too numerous to mention; some can be found in the records of CCAC (Exhibit 15, entries for February 16, 2004, June 11,2005, August 4 and December 21, 2006); Dr. A. Magliocco's file includes a description of her inappropriate behaviour during treatment, 'yelling, insulting, etc.' that would not be tolerated – March 22, 2004 note in Exhibit 9
44. 44Dr. Kaplan is a principal of Kaplan and Kaplan, the clinic that provided Mrs. H with psychological treatment after the accidents. Treatment after the 2006 accident was provided by Beverley Gordon, a licensed social worker (MSW).
45. 45Exhibit 18
46. 46Discussed below; Beverley Gordon was the licensed social worker who provided the psychological treatment under the supervision of Dr. Kaplan.
47. 47As another example of Mrs. H's attempts to manipulate evidence, in a letter to Dr. Dobson dated November 26, 2004, Dr. J. Turnbull, a neurologist, recorded that Mrs. H asked him to "attest that many of her ongoing difficulties relate not to the stroke, but rather to the subsequent [October 2003] car accident." Exhibit 8, Tab B2. Mrs. H. made the same request to Dr. Turnbull after the 2006 accident. (letter of Dr. Turnbull dated April 26, 2006, Exhibit 8, tab B4).
48. 48This knowledge is a continuing source of distress to Mrs. H and she commenced lawsuits against the hospital and the physicians involved and filed complaints with the College of Physicians and Surgeons; some of these proceedings have since been dropped.
49. 49Consultation report of Dr. M. Lang, Halton Healthcare Services, July 28, 2004, Exhibit 8, Tab A
50. 50Undated handwritten note, Exhibit 8, tab G, p. 85.
51. 51CCAC Home Care MDS Report, January 30, 2004, Exhibit 17
52. 52Dr. Kaplan's report indicates she felt lonely after they left.
53. 53As per "Referral Form for Homemaking and Nursing Services" dated November 3, 2004, CCAC records Part Two, Exhibit 17.
54. 54Ontario March of Dimes DAC assessment, Exhibit 13, p. 12
55. 55Psychological Progress Report of Dr. Kaplan, July 27, 2004, Exhibit 18, p. 4
56. 56Exhibit 20
57. 57Psychological assessment report of Dr. Prendergast, October 24, 2006, Exhibit 8, tab E2, p.3
58. 581996, c. 21, s. 38 (4).
59. 59Excerpt from Regulation 664, R.R.O. 1990, made under the Insurance Act, as amended to O.Reg. 275/03 (Criteria for Awarding Expenses)