Neutral Citation: 2009 ONFSCDRS 76 FSCO A07-000011

BETWEEN:

JENNIFER KNECHTEL Applicant

and

ROYAL & SUNALLIANCE INSURANCE COMPANY OF CANADA Insurer

REASONS FOR DECISION

Before: Fred Sampliner Heard: May 5, 6, 7, 8, July 7, 8, 9, 10, 11, 14, 2008 in London, Ontario; October 22 and November 7, 2008 by teleconference. Appearances: Christos Nicolis for Ms. Knechtel Peter Kazdan for Royal & SunAlliance Insurance Company of Canada

Issues:

The Applicant, Jennifer Knechtel, was injured in a motor vehicle accident on May 8, 2002. She applied for and received statutory accident benefits from Royal & SunAlliance Insurance Company of Canada (“Royal”), payable under the Schedule.¹ After Royal denied Ms. Knechtel’s claims, the parties failed to resolve their disputes through mediation, and she applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

Is Ms. Knechtel entitled to ongoing payment of a $250 weekly caregiver benefit after September 10, 2004, under Part IV of the Schedule?
Is Ms. Knechtel entitled to ongoing payment of attendant care benefits from May 8, 2002, under section 16 of the Schedule?
Is Ms. Knechtel entitled to ongoing payment of $100 per week for housekeeping/home maintenance expenses from May 8, 2004, under section 22 of the Schedule?
Is Ms. Knechtel catastrophically impaired as a result of the May 8, 2002 accident, under section 2 of the Schedule?
Is Royal entitled to be repaid $1,495 in caregiver expenses from Ms. Knechtel, under section 47 of the Schedule?
Is Ms. Knechtel entitled to a special award under subsection 282(10) of the Insurance Act?
Is Ms. Knechtel entitled to interest on any overdue amounts under subsection 46(2) of the Schedule?
Is either party entitled to their expenses of the arbitration under subsection 282(11) of the Insurance Act?

The parties resolved the dispute about Ms. Knechtel’s claim for a mattress and reclining chair under Part V of the Schedule prior to the commencement of the hearing, and there are no other medical and rehabilitation claims in this arbitration, under Part V of the Schedule.

Result:

Ms. Knechtel is not entitled to payment of caregiver benefits after September 10, 2004, under Part IV of the Schedule.
Ms. Knechtel is entitled to payment of $182.19 per month for attendant care benefits from May 8, 2002 to May 8, 2004, under section 16 of the Schedule.
Ms. Knechtel is not entitled to payment of housekeeping/home maintenance expenses from May 8, 2004, under section 22 of the Schedule.
Ms. Knechtel does not suffer a catastrophic impairment as a result of the accident, under section 2 of the Schedule.
Royal is not entitled to a $1,495 repayment under section 47 of the Schedule.
Ms. Knechtel is not entitled to a special award under subsection 282(10) of the Insurance Act.
Ms. Knechtel is entitled to interest on the awarded attendant care benefits under subsection 46(2) of the Schedule.
The parties claims for expenses of the arbitration are deferred under subsection 282(11) of the Insurance Act.

EVIDENCE AND ANALYSIS:

The Accident:

Ms. Knechtel was a 26 year old full-time college student and homemaker/mother to her one year old son at the time of the May 8, 2002 accident. The automobile she operated was stopped at a signal light, and rear-ended at low speed by another car. Her vehicle’s bumper was slightly damaged by the impact, costing less than $500 to repair.

Ms. Knechtel was looking to the left at the time of the collision, and her neck and shoulder stiffened after the impact. She drove herself to the local Collision Reporting Centre feeling nauseous.

Ms. Knechtel’s family physician ordered x-rays and prescribed medication after the accident. Health care professionals have described her initial primary symptoms as a marked left twist to her neck (referred to as post-traumatic painful torticollis²), elevated left shoulder, severe left shoulder and neck/upper back pain, headaches and fatigue. Her symptoms expanded to include nausea, numbness/tingling, jaw pain, imbalance, left leg limp, chest pain, dizziness, difficulties eating, swallowing and breathing, plus vision problems.

Ms. Knechtel’s physicians and medical examiners noted Ms. Knechtel’s strikingly abnormal posture. It is undisputed that all scientific tests do not show objective evidence of a neurological or muscular/skeletal injury to account for her elevated left shoulder and twisted neck.

Royal funded Ms. Knechtel’s treatment after the accident. She has undergone physiotherapy, massage, heat treatment, cranial sacral therapy, pain counselling, aqua-fit classes and received various prescription medications. Her condition did not improve and in 2003 she began receiving Botox injections to her neck and shoulder region from a specialist in physical medicine. This treatment continued through the time of the hearing.

About three months after the accident, Ms. Knechtel and her common law spouse, Mr. Dale Hall, moved from a condominium to a single family bungalow in London, Ontario, where they have since lived together with their young son. A virtual multitude of health care professionals have assessed the causation, diagnosis and treatment of Ms. Knechtel’s condition over the last 7 years.

Pre-Accident History:

The evidence establishes that Ms. Knechtel suffered emotional difficulties before this accident. The 1998-2000 health care records from the University of Western Ontario clearly show Ms. Knechtel attended regular counselling sessions where she was often under stress, periodically depressed, suffered ongoing anger, periodic fatigue and sleep loss. There are notes of her financial difficulties, frustrations with family and interpersonal relationships. Ms. Knechtel did not complete her degree, and she left the university in the spring of 2000.

Before leaving university, Ms. Knechtel met and began dating Mr. Hall. She moved into his condominium, and worked as a part-time bakery clerk from May 2000 until November 2000. Ms. Knechtel’s claim that she also worked as a research assistant at the University and waitressed during that time is not substantiated by any employment records.

Ms. Knechtel became pregnant in September 2000. The records of her family physician establish she was upset by this unexpected event and overwhelmed by a false positive test result that the child might have an abnormality. Naturally Ms. Knechtel was relieved the test proved wrong, but her doctor’s records state she was sad, anxious and stressed just before the birth of her child.

Ms. Knechtel’s desire to resume her university studies following her son’s birth led her to obtain her family physician’s September 2001 opinion letter stating she could again handle a full course load. This document also states that Ms. Knechtel suffered anxiety and her ability to carry out her normal daily activities during pregnancy had been affected.

Ms. Knechtel enrolled her son in full-time daycare during August 2001, but she did not return to university that fall. Her family doctor’s records from August 2001 until the May 2002 accident recount continuing stress from money matters, family relationships, and her feeling she was not adequately supported.

Ms. Knechtel decided to enter the 2 year law clerk program at Fanshawe College in January 2002, where she achieved relatively good marks during her first semester. However, Mr. Hall moved out of the marital residence shortly before the May 2002 accident as a result of the couple’s deteriorating relationship, and Ms. Knechtel requested to withdraw from the law clerk program, nine days following the accident.

On the one hand, there is no medical evidence or opinion suggesting Ms. Knechtel had any physical disability at the time of the May 2002 accident. On the other hand, there is substantial evidence from the University’s health clinic notes and her family doctor’s records establishing that Ms. Knechtel was emotionally vulnerable and suffered periodic debilitating anxiety and depression from 1998 until the May 2002 accident.

The evidence is that Ms. Knechtel experienced both failures and successes during the snapshot year before the accident. I accept her family doctor’s evidence that she suffered significant debilitating psychological problems during and after her pregnancy, and as a result could not handle university studies before September 2001. The evidence that Ms. Knechtel did not enrol that fall in university and continued to suffer anxiety/stress supports my finding that she did not function well until January 2002.

However, from January 2002 to May 2002 Ms. Knechtel attended and successfully completed most of her college courses that semester, and was also able to perform childcare and housekeeping at the same time. Her ability to handle school, a youngster and household chores in the face of relationship difficulties, problems with her relatives and financial strains establishes, on balance, that she had regained her strength and ability to function. Therefore, I find that Ms. Knechtel did not suffer either a physical or psychological disability at the time of the accident, and consequently that she was fully functional with her school, home and childcare responsibilities.

Ms. Knechtel maintains that she was actively involved in a large number of sports and recreational activities before this accident. Her list includes skiing, water/knee/snow boarding, dance lessons, hiking and cave exploration, horseback riding, wood carving, golf and beach volleyball. Photographs show her snowboarding, swimming and horseback riding date from the late 1990’s.

The snowboard, swim and horseback riding photographs occur years before Ms. Knechtel became a mother, spouse and homemaker, not proximate to the relevant one year before the accident. I certainly accept that Ms. Knechtel was quite active while a student in the 1990’s, but there is little evidence to support she had the time to pursue these activities when she was a homemaker and parent in 2001 or 2002. Thus, I do not accept Ms. Knechtel’s claim that skiing, water/knee/snow boarding, dance lessons, hiking, cave exploring, horseback riding, wood carving, golf or beach volleyball were part of her normal life prior to the accident.

I accept Ms. Knechtel’s claim that she bowled, swam, jogged, biked, socialized, volunteered, drove, shopped, cleaned house, cooked, did yard work and shovelled snow before the accident. Not only did she report these specific activities to occupational therapists after the accident, but these appear to be more consistent with her life as a homemaker, mother and student before the accident. I further accept the uncontroverted evidence that she cared for her son, attended college classes and studied.

Mr. Hall’s Evidence:

Mr. Hall described his partner as outgoing, athletic, and active in the community and with friends before the accident. He denied in his evidence that Ms. Knechtel had any pre-accident physical or emotional and psychological issues.

Mr. Hall’s evidence that Ms. Knechtel had absolutely no pre-accident emotional or psychological problems flies in the face of their admitted relationship difficulties, their separation and the records of her family physician. I find that Mr. Hall is not credible and do not rely on his evidence.

Ms. Knechtel’s Evidence:

Ms. Knechtel testified that she gave up housework and was unable to perform most of her son’s care or attend college classes due to the severe pain from her injuries for the first two weeks after the accident. The constant pain made sitting, standing and sleeping difficult. She could not shower, wash and dress herself, shave, change diapers, feed her son, play with or dress him. Her evidence is that she did not go out of the house, and Mr. Hall took over her duties.

Ms. Knechtel stated she did little but attend therapy that summer, and in the fall tried to resume her studies at Fanshawe College. Her school records show she failed all subjects.

Ms. Knechtel’s evidence is that the pain, twisted neck/elevated left shoulder (torticollis) and resulting disability with school, self-care, child care, and housework did not significantly improve over time. She could not read, concentrate or maintain balance, and began using a walker at home.

Before Ms. Knechtel received her first Botox injections for her neck and shoulder problems in the last half of March 2003, Royal’s investigator observed and videotaped Ms. Knechtel. She stands unassisted on the front porch of her home on March 1, 2003. Her neck appears stiff, with a slight head tilt, but she bends over, picks up her small dog and walks into the house with the animal in her arms. The same day, Ms. Knechtel quite freely walks while shopping at a local delicatessen with her son and Mr. Hall for a considerable period. On the video, she openly gestures with both her arms and hands, easily picks out items and holds them using both arms and hands while manipulating her purse, and later carries a cafeteria tray with both hands.

More significant is the March 6 and 7, 2003 videotape. Ms. Knechtel walks unassisted carrying grocery bags in her left hand from her home to the car, and again carries the bags from the car to enter a building. She shows no visible head tilt or neck stiffness the next day as she holds two shopping bags in her left arm entering her son’s daycare. Next, she walks briskly out of a coffee shop to the car carrying a tray with three beverages. She uses both hands and arms without any apparent difficulty.

The contrast between the March 2003 surveillance and the report of Ms. Knechtel’s first attendance with the physical medicine and rehabilitation specialist is remarkable. On February 26, 2003, Ms. Knechtel complained to Dr. Thomas Miller that often she felt unable to hold her head upright, cold temperatures increased her neck muscle spasms, that she had trouble looking after her son and difficulty with daily activities. Dr. Miller reported she had a strikingly stiff (ankylosed) cervical spine, forwardly flexed about 10 degrees laterally rotated to the left and approximately 3 degrees of head tilt. Ms. Knechtel’s testimony that the first Botox injections helped to release her shoulder and neck, she “got straight”, contrasts sharply with Dr. Miller’s report that she had deteriorated further between the first March 2003 injections and her follow-up appointment in June 2003.

The surveillance a year later likewise contradicts Ms. Knechtel’s evidence and also her presentation to Dr. Miller. In March 2004, Dr. Miller records her ankylosed neck and markedly elevated shoulder when he injected 300 Botox units. While the April 28, 2004 surveillance video clearly shows a slight left head tilt and left limp walking to a local store from her home, Ms. Knechtel carries groceries on the return walk home using the left arm she claims is disabled. Moreover, the views of lifting both her arms overhead to put on her coat through the left and right sleeve while walking is not consistent with the painful ankylosed neck and frozen elevated shoulder that Dr. Miller reports.

Similarly significant, Ms. Knechtel performs yard cleanup on April 29, 2004 at her home by bending down to pick up debris for an extended period, using her left arm with a garden hoe while holding a garbage bag. On May 19, 2004, Ms. Knechtel shows absolutely no disability cleaning the inside of the family car with Mr. Hall in their driveway.

I do not accept Ms. Knechtel’s evidence characterizing the surveillance as demonstrating she suffers from neck, shoulder and left girdle disabilities from the accident. Instead, I find the comparison between surveillance and Dr. Miller’s notes of her presentation establish that Ms. Knechtel did not accurately portray her symptoms and disability when she appeared to health care professionals.

In her evidence, Ms. Knechtel denied she had any pre-accident emotional/psychological problems and maintained she had a good relationship with Mr. Hall at the time of the accident, even though it is undisputed they were separated. She further denied encountering pre-accident problems coping with university or with family relationships, stating that her own family physician’s records were incorrect. Ms. Knechtel could give no reasonable explanation why these records are inaccurate.

Ms. Knechtel’s blanket denials of emotional/psychological problems, interpersonal relationship difficulties or significant stress and anxiety during the year prior to the accident are simply unacceptable when compared to the significant contradictory documentation from reliable sources. This evidence together with her denial of and failure to explain the surveillance leads me to find that Ms. Knechtel’s evidence at the hearing about her accident-related symptoms, pain and disability are also unreliable. I do not rely on Ms. Knechtel’s evidence.

Causation:

Scientific tests have not found any evidence that Ms. Knechtel suffers from a neurological deficit or muscular and bone abnormality as a result of the accident. Her 2004 examination at the Toronto Western Hospital showed normal neck and shoulder muscles, with preserved power and muscle symmetry.

The Toronto Western Hospital’s diagnosis of post-traumatic painful torticollis is accompanied by a recommendation for Ms. Knechtel to continue receiving Botox injections, along with other medications. The clinician’s statement that psychology plays an important role in the etiology and maintenance of abnormal postures is based on a study at the Toronto Western Hospital.³

Dr. Miller rejects that psychological factors play a major role, accepting the accuracy of Ms. Knechtel’s constant pain, distorted neck and shoulder posture and her disabilities. His characterization that Ms. Knechtel’s symptoms emanate from physical injuries she sustained in the accident was followed through with Botox injections to the affected areas every 3 to 4 months. Ms. Knechtel reported that the increasing Botox dosages along with other strong pain and muscle medications were effective to partially alleviate her symptoms, but that the symptoms gradually returned between injections.

Dr. Miller acknowledged he could not tell whether Ms. Knechtel’s posture and movement was intentional, and testified he was puzzled she reported reduced pain following the Botox injections, but her neck remained tilted with very little movement. His opinion is that the accident caused Ms. Knechtel’s chronic pain, torticollis and disability, while acknowledging her response is unusual and exaggerated.

Dr. Miller is not a trained or experienced psychologist. There is a significant contradiction between his acceptance that Ms. Knechtel’s symptoms are exaggerated and his position that psychology plays little role, where the above research study holds otherwise. On this evidence, I do not accept Dr. Miller’s diagnosis that Ms. Knechtel’s condition is purely physical.

In his evidence, Dr. Miller does not address the significant discrepancies between Ms. Knechtel’s activities on surveillance and her appearance at his office. His failure to explain this disparity, together with the lack of scientific tests supporting she suffers from a physical condition, reduce the value of Dr. Miller’s opinion concerning the nature of her injuries and her disability from the accident. I give Dr. Miller’s opinion little weight.

Dr. Michel Lacerte is another physiatrist who conducted a disability assessment during the fall of 2004, and reported that Ms. Knechtel suffered significant physical impairments of her shoulder and neck as a result of the accident based on her records and presentation. He also does not consider the surveillance evidence, and I do not give much weight to Dr. Lacerte’s opinion.

Dr. Lacerte’s opinion is quite similar to the 2003 conclusion of Dr. Asha Bhardwaj, a physiatrist analyzing Ms. Knechtel’s disability level at a Designated Assessment Centre (“DAC”). Again, he and the rest of the assessment team did not review the surveillance or consider the role that psychology played in Ms. Knechtel’s problems. Thus, I give little weight to Dr. Bhardwaj and the opinion of the 2003 DAC team.

Dr. Rehan Dost, neurologist, was part of a health care team assigned by Royal to conduct a 2007 evaluation of Ms. Knechtel’s catastrophic impairment. His review of Ms. Knechtel’s examinations, tests and records did not indicate that her twisted neck is caused by neurologic pathology, noting that the increase in severity and spread of her symptoms was scientifically incompatible with a neurologically based injury. He points to the 2007 normal magnetic resonance imaging of Ms. Knechtel’s cervical spine and brain as reinforcement of his view that Ms. Knechtel did not have a structural abnormality.

Dr. Dost’s examination found a marked discrepancy between the passive tests on Ms. Knechtel’s joints, with very little movement, and her motions during casual observations. His testimony specifying that Ms. Knechtel’s finger movement resistance does not fit any known neurological pattern is not undermined by the opinion of any other neurology specialist.

Dr. Dost saw the 2003 to 2006 surveillance after he reviewed Ms. Knechtel’s previous medical data and performed his examination. The team’s physiatry examiner, Dr. Johnstone MacCallum, also observed the surveillance, and both of them agree Ms. Knechtel’s torticollis was dramatically reduced on the videos, sometimes showing virtually no disability moving her arms and hands.

Dr. Dost’s testimony that trauma induced paralysis does not significantly deteriorate over time or expand from the initially affected area is consistent with the evidence she did not sustain a nerve disturbance at the basal ganglia which could cause the type of paralysis she exhibits on medical examinations. Dr. Dost’s analysis is compelling and I accept it.

Dr. Dost’s testimony that no radiology images or other scientific tests indicate Ms. Knechtel sustained an orthopaedic or muscular injury is consistent with his view that her symptoms have a strong psychogenic overlay. Relying on Dr. Dost’s opinion, I find that Ms. Knechtel’s symptoms are not a result of physical injuries she sustained in the accident.

Royal retained Dr. Trevor Smith, psychologist, to conduct an evaluation of Ms. Knechtel’s mental status in 2003. He had done little psychological testing, and accepted Ms. Knechtel’s presentation. His lack of comprehensive psychological testing provides little support to his opinion, and it bears little weight.

Dr. Charles Nelson is a psychologist who first assessed Ms. Knechtel in 2004, and he went on to provide her with regular counselling that was funded by Royal. He diagnosed chronic pain and an adjustment disorder with mixed anxiety and depression.

Dr. Nelson testified Ms. Knechtel has continued to focus on the “justice issues” of her conflict with Royal, while his psychological tests indicate she is not particularly anxious or depressed. He reasons that she minimizes her reactions to the accident.

Dr. Nelson reported that Ms. Knechtel did not have any pre-accident emotional/psychological problems or disabled periods, based on information she provided at their meetings. At the hearing, Dr. Nelson was confronted with the events in her pre-accident records, and could not differentiate between her pre-accident and post-accident anger and resentment. He explained that Ms. Knechtel’s pre-accident stress is not unusual for her age and did not impede her recovery.

Dr. Nelson’s concession that Ms. Knechtel was not coping well with her life before the accident is not a significant contradiction. Common sense dictates the accident caused her additional stress, but this does not explain why he ignored the disparity between her surveillance activities and her condition at formal assessments. Again, I am of the view that Dr. Nelson’s failure to address the surveillance is a significant detractor to the value of his opinion, but his weight is balanced against the other psychological experts.

Dr. Cheryl Gillin-Garling is the clinical psychologist who interviewed Ms. Knechtel as part of a DAC disability evaluation in 2004. She reports that her psychological tests validly demonstrate a highly entrenched somatoform disorder, the physical manifestation being caused by psychological issues or conflicts.

Dr. Gillin-Garling emphasizes that Ms. Knechtel’s symptom magnification is not deliberate. She carefully constructs her theory through the historical reports and concludes that Ms. Knechtel’s emotional distress is relatively mild and does not greatly interfere with her function.

Dr. Gillin-Garling did not know about Ms. Knechtel’s pre-existing psychological/emotional difficulties, but she reviewed the existing surveillance along with the medical records. She accepted that Ms. Knechtel’s psychologically induced pain was real, but the results of the tests she conducted and the surveillance demonstrate that her emotional stress does not overload her or interfere with her apparent ability to function.

Dr. Ari Zaretsky, psychiatrist, interviewed Ms. Knechtel as part of Royal’s 2007 catastrophic impairment assessment with Dr. Dost. He reviewed the surveillance and Ms. Knechtel’s medical background, but did not conduct psychological testing. Dr. Zaretsky’s diagnosis that Ms. Knechtel suffers a somatoform disorder with moderate functional impairments bears general consistency with Dr. Gillin-Garling’s diagnosis and opinion about her functional ability.

Dr. Gillin-Garling’s psychological tests and her reasoning are persuasive evidence that the surveillance demonstrates a realistic portrait of Ms. Knechtel’s functional abilities. Her report directly addresses the videotaped physical activities that are dramatically different than Ms. Knechtel’s capabilities during medical examinations. I rely on Dr. Gillin-Garling’s opinion and the surveillance evidence in finding that Ms. Knechtel suffers from mild psychological/emotional distress and functional impairment (torticollis) as a result of the May 2002 accident.

Caregiver Benefits:

Royal paid Ms. Knechtel a $250 weekly caregiver benefit for the first 104 weeks after the accident, agreeing she suffered the requisite substantial inability in providing care for her young son. Royal does not agree that Ms. Knechtel meets the post-104 week test requiring she establish a complete inability to carry on a normal life as a result of her accident injuries under Part IV of the Schedule.

Ms. Knechtel claims she has been unable to socialize, participate in recreational activities and sports, attend and study for school, work, take care of her son or the household or generally enjoy life as a result of her accident injuries. I accept that a snapshot of Ms. Knechtel’s life during the year before the accident consists of child care, household duties, studying and attending school, shopping, socializing and recreation.

An occupational therapist attended at Ms. Knechtel’s home in June 2002 and reported she could prepare light meals, perform light housekeeping, and was otherwise independent with personal care. The December 2002 notes indicate Ms. Knechtel told the hospital outpatient nurse she took her son to daycare, went shopping, did some house work and laundry.

Ms. Knechtel’s statement to the nurse and the home assessor are consistent with the 2003/2004 video surveillance showing Ms. Knechtel shopping, carrying grocery bags, cleaning out the family car, manipulating her arms into her overcoat sleeves, using her hands to put her hair in a ponytail, repeatedly bending down to pick up yard debris, and taking her son to daycare. The surveillance activities and the assessment establishes that Ms. Knechtel can do the following: walk distances, shop and carry groceries, do light yard work, travel by car, perform light cleaning chores and laundry, prepare light meals, socialize and eat out at restaurants, take her son to day care and conduct all but minor personal care.

Ms. Knechtel’s post-accident school records reveal that she failed all her college courses after the accident, and there is nothing to dispute Ms. Knechtel’s positive motivation towards academic achievement. Her academic failure after the accident coupled with the fact she has not re-registered suggests that her emotional instability has continued to interfere with her ability to concentrate on her studies since the accident.

Dr. Gillin-Garling’s 2004 opinion that Ms. Knechtel was not emotionally overloaded applies to general activities, but her opinion does not specifically address higher level concentration skills required for college studies. I accept that Ms. Knechtel has been unable to resume her college studies since the accident as a result of her psychological/emotional condition from the accident.

The surveillance refutes Ms. Knechtel’s claim she suffers imbalance or other physical disabilities, and she admits participating regularly in aquafit classes. In my opinion, this establishes she is capable of activities that are similar to her pre-accident recreation.

Quite simply, there is no expert explanation directly addressing why Ms. Knechtel cannot physically drive an automobile, and there is no health care expert who has recommended revocation of her driving privileges.

Dr. Nelson posits that Ms. Knechtel has a driving phobia and there is no circumstantial evidence from surveillance or reports that she drives. This is consistent with Dr. Zaretsky’s opinion she suffers mild anxiety, and supports my accepting that Ms. Knechtel cannot drive a car.

Based on Dr. Gillin-Garling’s 2004 psychological opinion, the surveillance and her post-accident activities, I find that Ms. Knechtel had sufficiently recovered by the middle of 2004 to participate in volunteer work, recreation, light housecleaning and cooking, shopping, socializing, and light yard work.

A “complete inability” means substantially all activities, and activities the insured deems important to their life should be given more weight in the analysis.⁴ While it is certainly important that Ms. Knechtel has been unable to continue her college studies and drive due to her psychological or emotional difficulties, she socializes, shops, walks, performs light housekeeping, exercises in a pool, and performs most of the care for her son and herself. Therefore, I find that Ms. Knechtel does not suffer a complete inability to carry on a normal life, and she is not entitled to caregiver benefits under Part IV of the Schedule after September 10, 2004.

Attendant Care Benefits:

Ms. Knechtel amended her claim at the hearing, contending she is entitled to $1,016.81 per month in attendant care benefits since the motor vehicle accident. Section 16 of the Schedule allows her reimbursement for reasonable and necessary services of an aid or attendant respecting her accident impairments in the first 104 weeks after the accident, and afterwards she must establish under section 18 of the Schedule that she is catastrophically impaired according to the Guides to the Evaluation of Permanent Impairment (“Guides”).⁵ Ms. Knechtel contends she meets the required 55% whole person impairment (“WPI”) as a result of her accident injuries, and is therefore catastrophically impaired.

Ms. Knechtel applied in July 2002 for a small amount of attendant care help to travel to treatment appointments. From this evidence, I accept Royal’s position that Ms. Knechtel knew attendant care benefits were available.

However, I reject Royal’s position that her failure to promptly submit attendant care claims between 2002 and 2006 is fatal to her claim. The generally accepted principle is that first-party insurers should assess an insured’s needs and provide the appropriate benefits where the insurer has sufficient information. My endorsement of other adjudicators’ views that claims are not required on a standardized form in order to be considered as submitted follows the reasoning that process should not prevail over substance.⁶

There is ample evidence that Ms. Knechtel let Royal know about her personal care problems early on. She reported difficulties bathing, dressing and grooming in May 2002 to the Canadian Back Institute, and explained to Royal’s occupational therapist in 2002 that she needed help getting into a car, showering and styling her hair.

Contrary to Royal’s position, its assessors were reviewing Ms. Knechtel’s attendant care needs the first summer after the accident. In July 2002, Royal’s occupational therapist, Ms. Megan MacLeod, records Ms. Knechtel’s problems with hair styling, makeup and showering. Her recommendations for homemaking assistance, childcare, some devices, transportation assistance and continuing treatment, did not specifically recommend attendant care because she felt the personal care problems were relatively minor.

The next assessment of attendant care occurs in December 2005, when Ms. Barbara Thomasson, Royal’s occupational therapist, suggests she needs help dressing, bathing and grooming, meal preparation and walking. Ms. Thomasson initially recommended $891.42 of monthly attendant care services, but made a second recommendation of $182.19 a month in February 2006, which apparently limits the services to a small amount of assistance dressing, bathing and grooming.

Nothing in Ms. Thomasson’s records explains the disparity between her two attendant care recommendations, but the second one mimics the types of personal care services mentioned in Ms. MacLeod’s report. Ms. Thomasson’s second recommendation is supported by a third occupational therapist, Mr. Demetrios Kostadopoulos. He recommended to Royal that Ms. Knechtel needed $211.07 monthly for almost the same types of help and amounts as Ms. Thomasson made in February 2006.

A sharp contrast exists between the opinions of these three occupational therapists’ hired by Royal and the occupational therapist Ms. Knechtel retained to assess her attendant care needs. Ms. Nancy Robinson reported in March 2008 that Ms. Knechtel required $1,057.44 a month. There is no other credible circumstantial evidence or reliable reports in the health care evidence to support her view that Ms. Knechtel needed the two hours per day to supervise housekeeping, laundry, meal preparation and thirty minutes daily for assistance with feeding.

The consistency between Ms. MacLeod’s early notations of Ms. Knechtel’s minor problems (dressing, bathing and grooming) is supported by reports of Ms. Thomasson and Mr. Kostadopoulos. The value of these observations and opinions adequately counters that of Ms. Robinson. I use Ms. Thomasson’s figure for attendant care over Mr. Kostadopoulos because he did not differentiate between Ms. Knechtel’s needs before and after her second motor vehicle accident in January 2007.

To conclude on the attendant care issue, I find that Ms. Knechtel has established during the first 104 weeks following the accident that it was reasonable and necessary she receive minor assistance from her family to dress, bathe and groom as a result of her accident injuries. Relying on Ms. Thomasson’s February 2006 recommendation, I find that Ms. Knechtel is entitled to attendant care benefits in the amount of $182.19 a month from the accident date to May 8, 2004 under section 16 of the Schedule.

Catastrophic Impairment:

Ms. Knechtel can claim attendant care benefits or housekeeping and home maintenance expenses after 104 weeks if she suffers a catastrophic impairment⁷, as defined in the Guides. Her position that she suffers the requisite 55% or more WPI, as defined by section 2(1.1)(f) of the Schedule, rests on the evidence of Dr. Miller, her treating physiatrist, and Dr. Nelson, her psychologist.

Dr. Miller rated Ms. Knechtel’s physical impairments under Chapter 3 of the Guides, dealing with musculoskeletal impairments. His measurement for Ms. Knechtel’s loss of cervical motion equates with a 30% WPI. The loss respecting her left shoulder motions yield 13%. He adds 5% for her jaw closing problems, another 5% for digestive problems/dysphagia, 9% representing her left leg disability, 5% for loss of appearance, 2% for disequilibrium and 5% for her minor low back impairment. Dr. Miller’s combined value for Ms. Knechtel’s physical impairments under Chapter 3 of the Guides equals a 56% WPI.

For Royal, Dr. Dost rates Ms. Knechtel’s physical impairment at 33% WPI, using the Guides neurological chapter. He begins with Ms. Knechtel’s generally accepted diagnosis that the left twist to her neck, restrictions to her left arm, swallowing problems, and gait were due to neurological complications that originate psychogenically.

Dr. Dost assigned the maximum 14%, using the table containing both diagnosis ratings for uncontrolled spasmodic torticollis and dysphagia together. For loss of use in her non-dominant left arm, he gave the maximum 14% under the table, though Dr. Dost noted that Ms. Knechtel retained grasping ability and some finger dexterity. Ms. Knechtel’s report that she had trouble walking distances, managing stairs and different terrain led Dr. Dost to add 9% for the left leg impairment.

Dr. Dost’s diagnosis that Ms. Knechtel has a torticollis condition agrees with Dr. Miller’s diagnosis and his evidence at the hearing. He distinguished a dystonia from a torticollis condition. The former has a neurologic origin, manifested as a disturbance of the basal ganglia, while patients with post-traumatic torticollis do not show similar identifiable neurologic abnormality. Research identifies no clear relationship between psychological and physical factors in torticollis, but some sensory deficits indicate possible neurological involvement. Like Ms. Knechtel, the research study patients diagnosed with this movement disorder were involved in litigation and demonstrated inconsistent behaviour between tested formal observations and their movements when given anesthesia or casually observed.

Dr. Dost’s use of the Guides’ neurological chapter comports with the research speculating there may be an unknown neurological basis for post-traumatic torticollis, as a subgroup of idiopathic dystonia. The expert consensus that Ms. Knechtel’s diagnosis is post-traumatic torticollis drives me towards rating her impairments under the Guides’ neurology section that uses this diagnosis.

Dr. Miller’s concession that some percentages he assigned to rate Ms. Knechtel’s impairments under the musculoskeletal chapter double for the same torticollis condition under the neurology chapter⁸, coupled with his admission that Ms. Knechtel is his first assessment of a catastrophic impairment, reduces the weight of his opinion that it is appropriate to use the Guides’ musculoskeletal chapter. Based on Dr. Dost’s evidence and the torticollis research study, I accept that using the Guides’ neurological chapter is the appropriate method to rate Ms. Knechtel’s WPI. I further rely on Dr. Dost’s opinion in finding that Ms. Knechtel suffers a 33% WPI for her physical disabilities under the Guides.

The psychological opinions concerning Ms. Knechtel’s catastrophic impairment differ more dramatically than those on the physical side. Dr. Nelson holds that Ms. Knechtel suffers marked impairment of her daily activities due to chronic pain, specifically, her social functioning is variable and considerably impaired. His testing and regular counselling over 4 years led him to conclude she also has trouble with concentration and persistence.

Dr. Nelson placed Ms. Knechtel’s psychological impairments in a range of 15 to 25% WPI on the basis of her chronic pain and inability to adjust to life changes (adjustment disorder). His opinion that Ms. Knechtel suffers a catastrophic impairment rests on his assessment that she demonstrates the requisite Class 4 marked impairment in accordance with chapter 14 of the Guides, or alternatively, that the addition of her percentage mental/behavioural impairment to her physical impairment puts her over the 55% WPI requirement for a catastrophic impairment.

Class 4 mental/behavioural impairments occur where the person experiences significantly impeded useful functioning, according to the Guides. I have reason to be sceptical of Dr. Nelson’s opinion that Ms. Knechtel suffers “extreme and persistence challenges in conducting even basic ADLs”, stemming from comparison of his pessimistic summary appraisal with her own admissions she performs light housekeeping, simple meal preparation along with the surveillance of her shopping, cleaning the family car and views of her doing yard work.

Dr. Nelson’s opinion that Ms. Knechtel faces a severely curtailed range of social functioning since the accident runs contrary to psychological tests indicating mild depression and is undermined by the surveillance showing her actively going out with friends or family to shop, eating at restaurants, casually socializing with other children’s parents at her son’s daycare and holding conversations with service people at her home. The extensive surveillance of Ms. Knechtel’s social activities leads me to conclude that she is not as socially isolated as Dr. Nelson pessimistically portrays her.

I reject Dr. Nelson’s conclusion that Ms. Knechtel suffers a severe or marked social dysfunction that significantly impedes useful functioning and that she cannot perform basic activities of daily living. Thus, I do not accept Dr. Nelson’s evaluation Ms. Knechtel suffers a Class 4 marked or severe impairment as a result of the May 2002 accident.

Dr. Zaretsky, Royal’s psychiatrist, disagrees with Dr. Nelson’s conclusions. His mild impairment rank of Ms. Knechtel’s concentration, persistence and pace impairment and moderate impairment of her social/interpersonal functioning and adaptation skills is based on his records evaluation, interview and basic psychological tests he administered for memory, mental status and depression. Dr. Zaretsky’s view is that Ms. Knechtel does not suffer a Class 4 impairment based on her psychological and mental condition resulting from the accident, and therefore holds she is not catastrophically impaired.

The Guides mild impairment rating that Dr. Zaretsky assigns to Ms. Knechtel indicates her concentration, persistence and pace are compatible with useful functioning. His mild and moderate impairment ratings are generally consistent with Ms. Knechtel’s admitted abilities in daily activities and the surveillance showing her engaged in normal daily activities as well as socializing.

However, the circumstantial evidence Ms. Knechtel has not successfully resumed college studies since the accident certainly leads me to question whether her higher level concentration is more significantly impaired than the mild rating Dr. Zaretsky allows. On this factor, I discount Dr. Zaretsky’s opinion.

However, Dr. Zaretsky’s undervalued opinion due to this one factor weighs more in the balance against Dr. Nelson’s overstatement of Ms. Knechtel’s entire mental/behavioural impairments. Consequently, I rely on Dr. Zaretsky in finding that Ms. Knechtel does not suffer a Class 4 mental/behavioural impairment under Chapter 14 of the Guides as a result of the accident.

Dr. Nelson took the position that Ms. Knechtel not only met the Class 4 designation for mental/behavioural impairment, but that it is appropriate to assign and add a percentage WPI rating for her mental/behavioural impairments to her physical WPI in order to qualify for the 55% threshold. Dr. Zaretsky does not assign a percentage WPI rating for Ms. Knechtel because she does not meet the appropriate mental/behavioural criteria for a catastrophic impairment under chapter 14 of the Guides’ provisions.

Dr. Nelson’s methodology is not specifically provided for in the Guides. I agree with Arbitrator Renahan that these psychological problems should not be added as a percentage WPI unless the individual has a structural nerve or brain impairment.⁹

Even if I were to accept Dr. Nelson’s views, Ms. Knechtel does not meet the 55% threshold for catastrophic impairment. I would use the lowest 15% WPI figure Dr. Nelson assigns for Ms. Knechtel’s mental/behavioural impairments, which together with her 33% WPI for physical impairments is insufficient.

To conclude, I find that as a result of the May 2002 accident Ms. Knechtel does not suffer a catastrophic impairment under the Guides, and she is not entitled to attendant care benefits under section 16 of the Schedule after the first 104 weeks.

Housekeeping Benefits:

I find Ms. Knechtel is not entitled to post-104 week housekeeping benefits under section 22 of the Schedule on the basis that she does not suffer a catastrophic impairment as a result of the May 2002 accident.

Repayment:

Royal claims that Ms. Knechtel must repay $1,495 she was reimbursed for her son’s daycare expenses following the accident. The correspondence between the parties indicates the amount represents Ms. Knechtel’s daycare subsidy she is alleged to have received both before and after the accident from the City of London. The June 19, 2007 pre-hearing letter calculates the overpayment as $28.75 per week for 52 weeks, and the evidence establishes that Ms. Knechtel received this child care subsidy before and after the accident, with Royal reimbursing her the above stated amount for her son’s full child care amount after the accident.

Royal did not specifically argue that the overpayment is a result of misrepresentation or fraud under subsection 47(1)(a) of the Schedule, and there is no mention of these words in the parties’ correspondence or testimony. Since there is no evidence establishing Ms. Knechtel intended to mislead Royal, the repayment claim falls in the category of insurer error within subsection 47(1)(a) of the Schedule.

Under subsection 47(2)(a) and subsection 47(3) of the Schedule, Ms. Knechtel must be provided with written notice of the repayment amount within twelve months of the benefit paid. Although Royal did not specifically refer to a repayment notice within the volumes of documents, I discovered a November 1, 2004 explanation of benefits form that states “As per your Aug. 3, 2004 Explanation of Benefit we are awaiting repayment of $1485.00. Interest will be assessed in accordance with Section 47(7).”

I am unable to find the August 3, 2004 Explanation of Benefits Payable by Insurance Company in the documents submitted. I do not infer that the August 3, 2004 notice was either created, sent, or that it provided a more detailed description of the overpayment in order to satisfy Royal’s burden.

The November 1, 2004 document does not contain basic information to explain in plain language the details of what Royal seeks repaid. In my view, any repayment request under section 47 of the Schedule should contain: a) the name of the specific benefit(s) the insurer claims it has overpaid; b) a statement of the appropriate weekly/monthly or lump sum amount sought; c) the payment date or applicable time span of the specific benefit(s) it has paid and seeks repaid; and d) calculation of the total repayment claim.

Just as an insured person is entitled to know the details of the insurance company’s decisions to honour or deny claims, the insurer should tell an insured the same information for repayment requests as a matter of basic consumer information. Conversely, repayment requests that merely mention a lump sum leave the insured in the dark and potentially add volatility to their relationship that is mutually destructive for the parties.

I find that Royal has not satisfied the notice requirement under subsection 47(2)(a) and subsection 47(3) of the Schedule, and it is not entitled to the $1,495 repayment.

Special Award:

Ms. Knechtel claims that Royal should pay her a special award in addition to the benefits granted in this proceeding. Special awards are made to an insured person under subsection 282(10) of the Insurance Act where an insurer unreasonably denies or delays payment of benefits.

I do not accept Ms. Knechtel’s submission that this is an appropriate case for a special award. She has recovered a modest monthly sum of attendant care benefits under section 16 of the Schedule for the 104 week period after the accident, but did not submit a formal application for attendant care until many years after this time period. A summary of the evidence indicates that the assessors assigned to examine Ms. Knechtel’s personal needs during and shortly after the 104 week time period did not recommend attendant care, suggesting she had been receiving minor help from family members.

The relatively modest help along with the lack of an attendant care recommendation during the 104 weeks leads me to conclude Royal did not unreasonably withhold or deny payment of attendant care benefits during that period. Afterwards, the opinions respecting Ms. Knechtel’s attendant care needs are conflicting, and do not establish support for her argument that Royal unreasonably delayed or denied her entitlement. I find that Ms. Knechtel is not entitled to a special award under subsection 282(10) of the Insurance Act.

Interest:

Subsection 46(2) of the Schedule requires Royal to pay Ms. Knechtel interest on any overdue benefits, but she did not submit a formal claim for attendant care benefits until almost four years after the accident. The parties did not draw my attention to the documents that would allow me to determine the date Ms. Knechtel applied for attendant care to set out the date when interest accrues.

I find that Ms. Knechtel is entitled to interest on overdue attendant care benefits pursuant to subsection 46(2) of the Schedule. I strongly suggest the parties resolve the calculation of interest on their own.

EXPENSES:

The parties submitted fifteen document briefs along with two briefs of authorities and many other individual pieces of evidence. I spent considerable time reading all of this documentary evidence, and gave the parties warning that presenting such voluminous material is contrary to the expediency of the arbitration process.¹⁰ Further, I am of the opinion that a sizable quantity of the documents is duplicative or only marginally relevant.

The twelve hearing days were taken up with extensive unnecessary submissions, lengthy examinations and cross-examinations that were sometimes overly detailed. If I had not advised the parties to limit their witnesses and exercised my discretion to limit testimony, the hearing would likely have consumed a far greater amount of time.

Two criteria in Rule 75 of the DRPC require me to consider the parties’ conduct that prolongs or hinders a proceeding and also their conduct I consider unnecessary. I find that both parties submitted unnecessary documentation into evidence and examined or cross-examined witnesses far longer than needed to bring out their evidence.

I will regard these two criteria with some importance if I must deal with a dispute about the parties’ expenses. Should they be unable to resolve entitlement and amount of expenses on their own they should first exchange information pursuant to Rule 79 of the DRPC before they contact the Case Administrator about scheduling an expense hearing.

June 15, 2009

Fred Sampliner Arbitrator

Date

Financial Services Commission of Ontario