Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2010 ONFSCDRS 2

FSCO A08-000767

BETWEEN:

C.S.K.

Applicant

and

ECONOMICAL MUTUAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Eban Bayefsky

Heard: January 12, 13, 14, 15 and March 20, 2009, at the offices of the Financial Services Commission of Ontario in Toronto, and February 19, 2009 by teleconference. Written submissions were received on March 30 and April 7, 2009.

Appearances: Theodore P. Charney for the Applicant

Daniel Strigberger for Economical Mutual Insurance Company

Issues:

The Applicant was injured in a motor vehicle accident on March 30, 2006. She applied for and received statutory accident benefits from Economical Mutual Insurance Company (“Economical”), payable under the Schedule.¹ Economical denied certain claims for caregiver, housekeeping and medical benefits. The parties were unable to resolve their disputes through mediation, and the Applicant applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

At the conclusion of the hearing, counsel for the Applicant requested that, given the nature of the evidence concerning the Applicant’s “mental health impairments,” a pseudonym be used in this decision for the Applicant’s name. Following the hearing, counsel also requested that the surnames of the Applicant’s husband and mother be omitted from the decision (and the list of witnesses). The Insurer agreed to the first request and had no objection to the second request. Given the very sensitive nature of the psychological evidence in this case, I am prepared to grant the Applicant’s requests.

The issues in this hearing are:

1. Is the Applicant entitled to receive weekly caregiver benefits, from March 30, 2006 to March 30, 2008, pursuant to section 13(1) of the Schedule, and from March 31 to September 1, 2008, pursuant to section 13(4) of the Schedule?

2. Is the Applicant entitled to receive housekeeping benefits from July 8, 2006 to March 30, 2008, pursuant to section 22 of the Schedule?

3. Is the Applicant entitled to the cost of a neurological examination recommended by Dr. J. Leventhal on August 2, 2006, in the amount of $790, pursuant to section 24 of the Schedule?

4. Is the Applicant entitled to the cost of a dental assessment recommended by Dr. M. Grushka on December 1, 2006, in the amount of $1,490, pursuant to section 24 of the Schedule?

5. Is the Applicant entitled to receive medical benefits for a treatment plan, dated September 27, 2007, recommended by South City Physiotherapy, in the amount of $1,413.57, pursuant to section 14 of the Schedule?

6. Is the Applicant entitled to interest for the overdue payment of benefits, pursuant to section 46(2) of the Schedule?

7. Is either party entitled to its expenses of the arbitration, pursuant to section 282(11) of the Insurance Act?

Result:

1. The Applicant is entitled to caregiver benefits, from March 30 to June 30, 2006, September 1, 2006 to June 30, 2007, September 1 to November 15, 2007, January 17 to February 5, 2008 and June 27 to July 18, 2008, at the rate of $100 per week.

2. The Applicant is entitled to housekeeping benefits from September 1, 2006 to June 30, 2007 and from September 1, 2007 to March 30, 2008, at the rate of $100 per week.

3. The Applicant is not entitled to medical benefits for the neurological examination recommended by Dr. Leventhal on August 2, 2006.

4. The Applicant is entitled to the cost of the dental assessment recommended by Dr. Grushka on December 1, 2006, in the amount of $1,490.

5. The Applicant is entitled to medical benefits for a treatment plan, dated September 27, 2007, recommended by South City Physiotherapy, in the amount of $1,413.57.

6. The Applicant is entitled to interest on the outstanding benefits awarded in this decision.

7. If required, the parties may make submissions on the issue of expenses in accordance with the procedure set out in Rule 79 of the Dispute Resolution Practice Code.

EVIDENCE AND ANALYSIS:

Background

The Applicant was injured in a motor vehicle accident on March 30, 2006 when the car she was driving was rear-ended at a red light. The Applicant testifed that the collision was a “medium impact”, although the car was not pushed forward, and that, afterwards, she got out of the car to speak to the other driver. She testified that her legs were “very, very shaky” after the accident and that she told the other driver that she was not feeling well. However, she stated that she went to play tennis afterwards (although not as well as usual because she “felt shaky all over”) and then went home.

The Applicant testified that she was fine over the next few days, but then sought medical treatment on April 12, 2006 at a sports clinic (Pivot Sports Medicine & Orthopaedics – “Pivot”) where she had previously been treated for tennis elbow (and because the office of her family phyisician, Dr. J. Kozak, was busy) due to her having gotten a headache while playing outside with her daughter in the sunlight and because her neck felt “funny” and “different.” She said that, when she visited the clinic, her neck was swollen on the left side, that her ring finger was numb and that she had developed headaches in the sunlight. The Applicant underwent a course of physiotherapy at Pivot, but then went to Dr. Kozak because her symptoms were worsening. She said that her headaches were significantly worse, her neck was stiff and painful, her left shoulder had become very painful and that she was emotionally shaky. These symptoms became chronic, and ultimately developed into fibromyalgia with severe anxiety and emotional difficulties (at times requiring hospitalization), as well as temporomandibular joint (“TMJ”) disorder.

The Applicant is married, with two children, a son and a daughter. Her son was 15 years old and in Grade 9 at the time of the accident. Her daughter was 6 years old and in Grade 2. Her daughter suffers from attention deficit disorder (“ADD”) and dyslexia, as well as asthma and a skin condition. The Applicant testified that her husband is a full-time teacher and works very long hours, leaving the house at 6:00 a.m. and returning at 6:00 p.m.

The Applicant testified that, in the year preceding the accident, she did not suffer from any physical or emotional problems, but had received medication in order to treat migraine headaches and was receiving physiotherapy for tennis elbow.

At the time of the accident, the Applicant was pursuing a diploma in early childhood education. The Applicant’s husband worked full-time, with some additional work in the evenings and on the weekends. The Applicant lived in a two-storey house. She testified that she did the house cleaning, shopping and cooking for her family, with some assistance from her husband in grocery shopping, dishwashing and taking out the garbage. She stated that there was a significant amount of extra housekeeping due to her daughter’s asthma and skin condition; for example, having to wash her daughter’s clothes separately and to wipe surfaces with a damp cloth to control dust-mites. The Applicant also testified that she did a wide variety of caregiving tasks for her daughter, many of them related to her daughter’s medical problems.

The Applicant maintained that, as a result of the accident, she suffered a substantial inability to perform her pre-accident housekeeping and caregiving tasks, and that she had to rely heavily on her husband and mother for assistance with these activities. In respect of her claim for caregiver benefits beyond the 104-week mark, the Applicant maintained that she suffered a complete inability to carry on a normal life.

The Insurer denied the Applicant’s claims for housekeeping and caregiver benefits on both procedural and substantive grounds. The Insurer maintained that the Applicant failed, without reasonable explanation, to participate in an in-home assessment. The Insurer also submitted that, while the Applicant suffered from certain medical problems following the accident, these were not related to the accident, and, in any event, did not result in the requisite degree of disabilty to entitle her to caregiver or housekeeping benefits. For similar reasons, the Insurer denied the Applicant’s claims for a treatment plan from South City Physiotherapy and OCF-22’s from Drs. Leventhal and Grushka.

In final submissions, the Applicant noted that the Insurer had argued in its Response to the Application for Arbitration that she had not elected to receive caregiver benefits in accordance with the time limits prescribed by the Schedule. The Applicant maintained that the Insurer improperly denied caregiver benefits by failing to offer an election under section 36 of the Schedule (which the Insurer did roughly two years after the accident). The Applicant submitted that given the Insurer’s initial failure to offer an election, and her timely response to the eventual offer of an election, she did not breach any time limits for claiming caregiver benefits. The Insurer did not directly address the issue of delay at the hearing, maintaining, simply, that it was under no obligation to provide the Applicant with an election, and that, in any event, the Applicant would not be entitled to caregiver benefits simply on the basis of a procedural defect and regardless of substantive entitlement.

Procedural Issues

(i) Delay in Claiming Caregiver Benefits/Failure to Offer an Election

The parties appeared to be arguing at cross-purposes in relation to the procedural issues on caregiver benefits. While the Insurer raised the issue of delay in its Response to the Application for Arbitration, it did not pursue this argument at the hearing. The Applicant, on the other hand, maintained that the Insurer had breached its obligation to offer an election (and that this answered any delay on her part) because the Insurer had raised this issue in its Response. The Insurer, in turn, simply maintained that any breach on its part to offer an election did not thereby entitle the Applicant to caregiver benefits, regardless of substantive entitlement. However, the Applicant had not argued that the failure to provide an election automatically entitled her to caregiver benefits.

In these circumstances, I find it unnecessary to address the issue either of the Applicant’s delay in claiming caregiver benefits or the Insurer’s failure to provide an election. In my view, the Insurer has not pursued its initial position that the Applicant unduly delayed her claim for caregiver benefits and the Applicant has not maintained that the Insurer’s failure to offer an election necessarily entitles her to caregiver benefits. The hearing revolved around the Applicant’s substantive entitlement to caregiver benefits and that is the basis on which I will address this aspect of the case.

(ii) Failure to Attend In-Home Assessment

On June 21, 2006, the Insurer’s claims representative, Nick Smith, wrote the Applicant requesting her attendance to participate in an in-home assessment at her home on July 4, 2006 to assess her entitlement to housekeeping benefits. The letter indicated that no benefits would be payable should the Applicant fail to attend or participate in the assessment. The letter also indicated that if the Applicant provided a reasonable written explanation of her failure to attend or participate in the assessment within ten business days of the date of the assessment, the Insurer would reconsider its position. An OCF-25 (Notice of Examination) was attached, confirming most of the details of the assessment.

On June 30, 2006, the Applicant called Mr. Smith and advised that she had discussed the in-home assessment with her husband and that they felt it was “invasive to have a st[r]anger in their home” and, therefore, that she was refusing the assessment. At the hearing, the Applicant testified that her daughter was not well, that she was at the house all of the time, and that she was not telling her children what was going on. The Applicant’s husband testified that he and his wife discussed the in-home assessment, and that he was not terribly happy with the idea of having someone coming into the place. He said “I thought no, I’d rather not.” The Applicant testified that the Insurer did not offer an assessment outside of the home. That day, Mr. Smith wrote the Applicant confirming that she had refused to attend the in-home assessment and that no further housekeeping benefits would be paid. An OCF-9 (Explanation of Benefits Payable) was attached, confirming this advice.

On September 18, 2006, Mr. Smith again wrote the Applicant requesting her attendance at an in-home assessment to determine her entitlement to housekeeping benefits. The Applicant’s residence was noted to be “200-200 St. Clair Avenue West, Toronto.” An OCF-25 was attached, which repeated this address as the location of the assessment, but which indicated that the purpose of the examination was to assess the Applicant’s entitlement to the medical and rehabilitation benefits recommended in treatment plans of July 25 and August 22, 2006. The Applicant testified that she thought that she did attend this assessment. On October 27, 2006,

Mr. Smith wrote the Applicant, attaching an Explanation of Benefits Payable, denying the two treatment plans on the basis of an assessment and report by a physician, Dr. L. Mascarenhas.

On November 15, 2007, at the referral of her counsel, the Applicant underwent an in-home assessment by Janet Njelesani, an occupational therapist. The Applicant testified that this examination took place in her home and that she had no problem with the OT being there. The Applicant’s husband stated that when a new in-home assessment was set up by their lawyer, his opinion had changed from before, since it had been explained to him that there was a need to have the Applicant assessed in her home.

Pursuant to section 42(1) of the Schedule, an insurer is entitled to have an insured person examined “as often as is reasonably necessary.” Under section 42(10)(b) of the Schedule, if an insured person is required to attend an assessment, he or she must participate in the examination and submit to all reasonable tests. Pursuant to sections 35(10) and (11), and 37(7) and (8) of the Schedule, if an insured person fails to comply with section 42(10)(b), the insurer is entitled to determine that the person is not, or no longer, entitled to the disputed benefit and refuse to pay the benefit during the period of non-compliance, and if the insured person subsequently complies with section 42(10)(b), the insurer is required to reconsider and make a determination of the person’s entitlement to the benefit, and subject to the determination, resume payment of the benefit, paying all amounts that were withheld if the insured person provides within a reasonable time a reasonable explanation for not complying.

The Applicant submitted that she had a reasonable excuse for not attending the in-home assessment (namely, that it was too intrusive to have a stranger in her house and that it was potentially harmful to her children), that if the need for the assessment at their home had been explained to them, then they would have permitted it to go ahead, and that there was no reason that the assessment could not have been conducted at a location other than their home. The Applicant noted the case of Brako and State Farm Mutual Automobile Insurance Company (FSCO A02-000673, July 30, 2003), in which it was stated that the insurer’s right to an assessment “must be balanced by the insured person’s right to privacy, and is qualified by the requirement of reasonableness.” The Applicant also pointed out that she did attend a subsequent assessment, on September 28, 2006, which was stated to be an “in-home assessment” regarding housekeeping and to be held at a location other than her personal residence, but which was, in fact, intended to address two recent treatment plans.

The Insurer submitted that it was relevant that the Applicant allowed an occupational therapist referred by her own lawyer into her residence to conduct an in-home assessment. The Insurer also maintained that conducting an in-home assessment in a clinical setting would not have been comparable to one held in the Applicant’s own living quarters.

I find that the Applicant is not disentitled to housekeeping benefits by virtue of her failure to attend the July 4, 2006 in-home assessment. Pursuant to section 42(4)(c) of the Schedule, the Insurer was required to give the Applicant notice of the examination, setting out various items, including the regulated health profession to which the proposed assessor belonged and their title or designation, as well as their specialization, if any, within their profession. The Insurer’s Notice of Examination failed to provide this information. Given the significant consequences flowing from non-attendance at an insurer examination, the statutory requirements for conducting such an assessment should, in my view, be strictly construed. In order to invoke the procedural limitations on the receipt of benefits under section 42 of the Schedule, I find that an insurer must, at the very least, comply with its own procedural obligations under that provision. Based on the Insurer’s failure to do this here, I find that it is precluded from asserting that the Applicant failed, without reasonable explanation, to attend an in-home assessment and is, thereby, disentitled to housekeeping benefits.²

I also reach this conclusion on the basis of the substantive reason the Applicant provided for not allowing the in-home assessment to take place. As noted in Brako, an insurer’s right to an assessment must be balanced with an insured person’s privacy. While the Insurer’s request for an in-home assessment was reasonable as a general matter, I find that the Applicant reasonably felt that it would be too intrusive to have a stranger in her home. This is similar to the reason she subsequently gave at the hearing regarding her concerns about exposing her children, and particularly, her daughter, to an assessment within her home. I also find this relevant to the Insurer’s obligation under section 37(7)(a) of the Schedule (to “make a determination” after the Applicant refused to attend the in-home assessment that she was no longer entitled to housekeeping benefits). The Insurer’s log notes (of June 26 and 30, 2006) and its correspondence (of June 21 and 30, 2006) simply indicate that, if the Applicant refused to participate in the in-home assessment, the Insurer would deny her housekeeping benefits. In my view, the Insurer’s obligation to “make a determination” required more than simply asserting that a denial of benefits would automatically follow upon a refusal to attend the assessment. On the evidence before me, there is no indication that the Insurer considered the basis or reasonableness of the Applicant’s objection to an in-home assessment, discussed the matter with her further or explored the possibility of an alternative to the proposed examination. I find it relevant that the Applicant’s husband testified that, once the need for an in-home assessment was explained to him, he changed his opinion about the examination. I note, as well, that the Applicant was not represented by counsel at the time of the initial request for the assessment. Finally, I find it significant that the Applicant attended an examination at Dr. Mascarehas’ office in September 2006, since this demonstrates that the Applicant was willing to be assessed outside her home. In all of the circumstances, I find that the Applicant had a reasonable basis for refusing to undergo an in-home assessment, and that she was not, thereby, disentitled to housekeeping benefits.

The Applicant’s Substantive Entitlement to Caregiving and Housekeeping Benefits

(i) The Applicable Law

Pursuant to sections 13(1) and 13(2) of the Schedule, the Applicant would be entitled to benefits

for reasonable and necessary expenses incurred as a result of the accident in caring for a person

in need if, as a result of the accident, she suffered a substantial inability to engage in the caregiving activities in which she engaged at the time of the accident. Following March 30, 2008 (the 104-week mark), the Applicant would be entitled to caregiving benefits if she suffered a complete inability to carry on a normal life. Pursuant to section 22(1) of the Schedule, the Applicant would be entitled to benefits for reasonable and necessary expenses incurred as a result of the accident for housekeeping and home maintenance services if, as a result of the accident, she sustained an impairment that resulted in a substantial inability to perform the housekeeping and home maintenance services that she normally performed before the accident.

I find the following comments on housekeeping benefits in Konstantakos and Aviva Canada Inc. (FSCO A05-000546, May 17, 2006) to be instructive in determining the Applicant’s entitlement to both caregiving and housekeeping benefits.³

I find that the test under section 22 involves a consideration of the housekeeping

and home maintenance services the insured normally performed before the

accident and then a consideration of whether the insured suffered a substantial

inability to perform those services as a result of an impairment suffered in the

motor vehicle accident. This involves a comparison of what the insured did before

the accident and what he could do after the accident and whether the difference

amounts to a substantial inability. If it does amount to a substantial inability, the

next question is whether the expenses the insured incurred as a result of that

inability are reasonable and necessary.

Therefore, the issue of the Applicant’s entitlement to caregiving and housekeeping benefits

requires a determination of whether, based on a comparison of her pre- and post-accident

household activities, and as a result of the accident, she suffered a substantial inability to

perform her pre-accident caregiving and housekeeping activities.

(ii) The Applicant’s Pre- and Post-Accident Caregiving and Housekeeping Activities

The Applicant testified that, at the time of the accident, she did eight to ten hours a day of caregiving for her daughter, and that this involved various tasks, including the following:

– driving or walking her daughter to school, five days a week

– bathing her daughter and applying skin creams twice daily

– helping to dress her daughter and brushing her hair each day

– taking her daughter to the library, park and community centre, and supervising her

– carrying her daughter to bed each night and getting up to be with her daughter approximately once or twice a night

– helping her daughter with school work, listening to her read aloud in French

– filling prescriptions and administering medications

– frequently taking her daughter to the paediatrician

– helping her daughter with exercises prescribed by the occupational therapist

– monitoring her daughter’s play and cleaning and tidying up after her

The Applicant testified that, at the time of the accident, she did seven to nine hours a day of housekeeping. She said that her weekly housekeeping tasks included buying groceries (6 hours), going to the pharmacy each week for her daughter (2 hours), preparing meals (7 hours), washing dishes (7 hours), sweeping and washing floors (2 hours), dusting and damp wiping surfaces (2 hours), vacuuming (1 hour), making beds (3.5 hours), cleaning bathrooms (1 hour), taking out the garbage (1 hour), and washing, drying and folding clothes (10 hours). As noted earlier, some of these tasks were particular to the Applicant’s daughter, namely, washing her clothes separately, frequently changing the sheets on her bed and damp-wiping various surfaces in the house.

The Applicant testified that all of her waking hours were spent doing housekeeping or caregiving. However, she also said that she played tennis and attended a pilates class once a week, socialized with friends and family each week, and that she also swam, jogged and bicycled while at the family’s cottage during the summer. She stated that her mother never helped with housekeeping prior to the accident, and that she would only occasionally pick the Applicant’s daughter up from school and take her for a sleepover.

The Applicant stated that she had had a colonoscopy three years before the accident, that she had a bout of diarrhea and abdominal pain in the month preceding the accident, but that the diarrhea had settled approximately a week before the accident. She also acknowledged that she had tennis elbow prior to the accident, with some upper back pain in December 2005. She acknowledged that she had recurrent episodes of bronchitis for approximately two years before the accident (which was most likely associated with asthma) and that “puffers” helped to alleviate the problem. The Applicant’s mother testified that the Applicant was in good health prior to the accident, with no significant physical or mental health problems, and that she had led a busy life as a caring and active mother.

The Applicant testified that, as a result of the accident, she was unable to perform various aspects of her pre-accident housekeeping and caregiving tasks. She stated that she suffered arm pain and weakness, back pain, headaches, dizziness and vertigo. She indicated that these problems resulted in her doing “less or none” of the following tasks: grocery shopping, cooking, vacuuming, cleaning the bathrooms, taking out the garbage, washing, drying and folding clothes. She noted that her injuries resulted in her doing “less” dishwashing, dusting, damp wiping, bedmaking and floor washing. She reported that her vertigo bothered her when sweeping the floor. She stated that she, in fact, spent more time at the pharmacy because of her need for medications and because her daughter’s medications increased after the accident.

In respect of her previous caregiving tasks, the Applicant reported that, in the six months following the accident, she was unable to carry her daughter to bed at night or do dust-mite control. She indicated that she did “less or none” of the following: helping with school work, listening to her daughter read in French, monitoring her daughter’s asthma, attending school meetings, helping her daughter with exercises, taking her daughter to Church. The Applicant reported that, during this time, she was able to do the following caregiving tasks “less”: taking her daughter to school, bathing and dressing her daughter, taking her daughter to the library, park, and community centre and supervising her, getting up to be with her daughter at night, tidying up, changing the sheets, taking her daughter to the paediatrician, and monitoring her daughter’s play and cleaning and tidying up after her. The Applicant testified her mother helped with driving (when she was unable to do this), and with bathing her daughter, preparing meals, and helping with school work between two and four days a week.

The Applicant’s mother testified that the Applicant was a very busy and active person before the accident, spending much of the day taking care of her house and children. She stated that she only occasionally helped with babysitting for her granddaughter before the accident. She stated that the Applicant changed significantly after the accident, both physically and mentally. She stated that the Applicant had widespread pain and that her mind “wasn’t the same.” She said that she had to go over to her daughter’s house to help almost every day of the week for over a year, and in fact, until her daughter’s second hospitalization in 2008. She said that the Applicant’s husband also helped when he was not working. She testified that she helped at her daughter’s house four to five hours per day, four to five days per week, that the Applicant’s husband looked after the family on the weekends and that she helped at the cottage when she was there. She noted that she did a variety of caregiving tasks for the Applicant’s daughter, including preparing meals, bathing, grooming and dressing, buying clothes, driving to school, meeting with teachers and administering medications. The Applicant’s mother said that her granddaughter was very demanding and that it was very difficult taking care of her. She said that she did various housekeeping tasks for her daughter, including sweeping floors, wiping counters, doing dishes, doing laundry and making beds. The Applicant’s mother testified that, after the accident, her daughter would try to help out and do the best she could. She stated that the housekeeping and caregiving receipts submitted in 2006 were not complete, adding that the Insurer would not have liked it if they had put more things down.

The Applicant’s husband testified that the Applicant was in generally good health prior to the accident, with no mental or physical symptoms. He said that he would help out a little around the house, but that the Applicant was the primary caregiver and housekeeper, doing five to eight hours per day of this type of work. The Applicant’s husband said that the Applicant was very shaken up immediately after the accident and that, within a very short period, her mood changed and she began to experience widespread pain. He said that her condition was getting significantly worse by Thanksgiving of 2006. He stated that he did not recall the fainting incident in October 2006, and that he does not know if he was there or not. He said that her behaviour changed in 2007, where she was concerned she was being followed. This led to two hospitalizations.

The Applicant submitted receipts for $1,590 of caregiving services provided by her mother from April to August 2006 (one to two hours per day, at varying times each week, at a rate of $10 per hour). She also submitted receipts for $2,000 of housekeeping by her mother during the same period (five hours per day, five days per week, at a rate of $4 per hour). The Applicant testified that she did not keep any other records of her mother’s help. The Applicant testified that these records were estimates of the jobs her mother did, and that her husband and son may have been doing some of the housekeeping tasks at these times. She said that her children’s rooms were not cleaned as frequently. She also said that her family went to the cottage during the summers and that either her husband or son, or herself, would do the housekeeping at that time. She said that most of the caregiving tasks still needed to be done for her daughter while at the cottage, that her mother, husband or son would do these, although she would do some of them.

The Applicant stated that, when these receipts were submitted, she was represented by a paralegal, that she filled out the forms with the paralegal’s assistance, that the lists were not complete, and that she did not understand that she had to “pick apart” all of the tasks being done by her family. She stated that she now has a better understanding of the process. She said that her memory at that time was probably better than it is now, but that the lists of tasks she prepared prior to the hearing are more accurate than those submitted on the receipts in 2006.

(iii) Medical Evidence of Disability

On April 20, 2006, Dinah Hampson, a physiotherapist at Pivot, submitted an OCF-23 (Pre-Approved Framework Treatment Confirmation Form) seeking approval for massage therapy for the Applicant. Ms. Hampson noted that the Applicant had suffered a WAD I injury in the accident. The Insurer approved this treatment. On April 26, 2006, Dr. E.L. Cruz, a physician at Pivot, submitted a Disability Certificate indicating that the Applicant had suffered a WAD I-II injury, that she was not substantially disabled from performing her pre-accident caregiving activities, but that she was substantially disabled from performing some of her housekeeping activities. On April 18, 2006, a “Yasna” from Pivot had advised the Insurer’s adjuster that the Applicant’s case was only their “second MVA case” and that they did “not normally [treat] auto claims....”

On May 12, 2006, the Insurer’s adjuster, Nick Smith, wrote the Applicant, attaching an OCF-9, indicating that, based on the information provided, the Applicant did not qualify for caregiver benefits, but did qualify for housekeeping benefits.

On May 16, 2006, Dinah Hampson of Pivot reported that the Applicant’s impairment did not affect her ability to carry out her activities of normal life. Ms. Hampson also indicated that the Applicant’s impairment did not affect her ability to carry out her employment tasks.

Ms. Hampson had earlier indicated (in her April 20, 2006 OCF-23) that the Applicant was not employed at the time of the accident. Ms. Hampson reported that the Applicant was “75-80% better.” The Applicant testified that the clinic did not ask her these questions and that she did not know how the process worked at the time. She said that she did not recall telling the clinic that she was “90% better” as reported in their notes and that she did not think she would have told them that she was “concerned about [a] complete recovery”, as also reported in their notes.

On July 27, 2006, Ms. Hampson submitted an OCF-24 (Pre-approved Framework Discharge & Status Report) indicating that the Applicant had returned to her usual work and non-work activities, including her caregiving activities, and that she had recovered to her pre-accident level of overall function.

The Applicant acknowledged that Dr. Kozak’s notes prior to mid-October 2006 do not mention TMJ problems, and stated that if she had had these problems, she would have told him about them. Dr. Kozak’s notes from March to September 2006 refer to the Applicant’s symptoms of left neck pain, spasm and stiffness.

On September 15, 2006, the Applicant saw Dr. B. Schacter, a neurosurgeon, on the referral of Dr. Z. Marciniak, the medical director of the Sports Medicine and Rehabilitation Clinic. Dr. Schacter conducted a neurological examination of the Applicant. On September 19, 2006, he reported the Applicant as saying that she was not able to carry out her “full household responsibilities” and that she relied on her family to do the heavier household work. The Applicant agreed with this description of her abilities at that time. The Applicant agreed that Dr. Schacter did not appear to mention that she suffered from any TMJ problems. Dr. Schacter suggested that the Applicant continue with an active exercise program directed at the upper back and neck musculature. He suggested additional supervised therapy and cervical traction, without manipulation.

The Applicant testified that, from the fall of 2006 to June 2007, she volunteered at Runnymede Jr. & Sr. Public School twice a week, for two and a half hours per day, helping children with reading French and monitoring a student with attention deficit hyperactivity disorder. She stated that the teachers she assisted were not aware of her motor vehicle accident and that she tried not to display her pain because she wanted to be professional. She said she wanted to get on with her life and not sit around thinking about all the pain she was in. She said she stopped because she had achieved what she had wanted to achieve, and they gave her reference letters. The two teachers she worked with testified that she performed her tasks adequately, one indicating that the job was unpredictable, but not physically demanding, and the other indicating that the Applicant was of good character and there was no reason to doubt her honesty or integrity.

The Applicant testified that, during this time, her condition had worsened and that she was doing less housekeeping and caregiving. She said that after she did the volunteer work in the school, she would “literally pass out on the couch at home.” She said that her duties at school were very little compared to her regular caregiving and housekeeping duties, and involved a lot of sitting, some standing and helping children on with their snowsuits and, on a couple of occasions, having to mop the floor for a couple of minutes.

The Applicant testified that she developed pain in her temperomandibular joint over the summer of 2006, and that her general pain symptoms had worsened at that time. She described a burning sensation in her neck and face area. On September 28, 2006, the Applicant underwent an insurer medical examination by Dr. Mascarenhas, who reported the Applicant as complaining of “some pain in the left TMJ area radiating to her left shoulder and to her left elbow and to the ring and small finger on the left side.”

The Applicant stated that on Friday, October 13, 2006, she fainted in her kitchen. On October 16, 2006, her family physician, Dr. Kozak, noted that she had struck her chin, left knee and head in this fall, that this incident was secondary to her getting up too quickly from the couch and that she subsequently had difficulty chewing. The Applicant testified that she thought that her difficulty with chewing may have begun before her fall. She stated that she had told Dr. Kozak about the pain in her left jaw, but that he just “yawned.” She said that a friend, who was a chiropractor, suggested that she go to Henderson’s (a physiotherapy clinic), which she did.

On November 24, 2006, at the referral of Dr. Kozak, the Applicant saw Dr. R. Zabieliauskas, a physical medicine and rehabilitation specialist, who reported the Applicant as saying that a few days after the accident, she “developed neck pain, as well as a bump at the back of her left neck associated with pain in the left TMJ area.” Dr. Zabieliauskas reported that the Applicant had “ongoing evidence of residual cervical strain WAD II from a motor vehicle accident in addition to a probable TMJ problem that should be appropriately assessed by an orthodontist.” Dr. Zabieliauskas referred the Applicant to Dr. M. Grushka, an oral medicine specialist. The Applicant testified that she did not recall if she told Dr. Zabieliauskas about fainting and hitting her face; however, the Applicant stated that she did mention this in a form she filled out for Dr. Zabieliauskas (although such a form was not introduced into evidence).

On November 30, 2006, Dr. Grushka reported that, in light of the “late onset of pain, it may be either that [the Applicant] had worsening disc displacement following the accident; alternatively, as a result of the neck and shoulder pain [the] increased parafunctional activity she has experienced increased problems with the left TM joint.”

On May 29, 2007, Dr. Grushka reported the Applicant as saying that her jaw pain had started in the early fall of 2006 and that, at first, it was a dull pain, but then worsened. The Applicant testified that she thought she had told Dr. Grushka that she had fallen on her face. However, the Applicant had left the following question blank on a questionnaire she filled out at the time of Dr. Grushka’s initial assessment: “Have you experienced any recent facial traumas?” Dr. Grushka attempted to suggest that the Applicant might have left this blank because she answered the following question (in the affirmative): “If so, are they as a result of a motor vehicle accident?” Dr. Grushka testified that she did not believe the Applicant had told her about the fall in October 2006, although she had mentioned that she had fainted. Dr. Grushka testified that she did not know about the history of the Applicant’s jaw problems as recorded in Dr. Kozak’s notes following the fainting episode. Dr. Grushka testified that she would have modified her report to state that the Applicant’s fall exacerbated her previous whiplash injury. Dr. Grushka indicated that her notes record the Applicant as saying that her “jaw started to hurt in early fall [2006].” She stated that Dr. Mascarenhas’ September 28, 2006 report that the Applicant was experiencing left-sided TMJ pain was consistent with her own note to the effect that the Applicant had “what [she] thought was neck [pain]” over the summer of 2006 and that her TMJ symptoms began as a “dull pain.” Dr. Grushka felt that the fainting episode would have aggravated these pre-existing MVA-related symptoms. Dr. Grushka felt that the Applicant was genuinely experiencing pain.

On January 3, 2007, Dave Ursomarzo, a massage therapist at West Park Proactive Healthcare, reported the Applicant as saying that she no longer experienced left TMJ or low back pain, but now had right TMJ pain and “full body shaking.” In February 2007, the Applicant went to hospital emergency departments on three separate occasions for severe chest pain, vomiting and ear pain.

On February 5, 2007, Ms. M. Chesser, a physiotherapist at Kingsway Physiotherapy Centre (“Kingsway Physiotherapy”), reported that the Applicant suffered from a “great amount of pain” and that this rendered her “unable to work” and to “look after her family like she should.”

On February 15, 2007, Dr. M. Pavone, a dental surgeon at Sunnybrook Health and Sciences Centre, reported the Applicant as saying that she had been experiencing TMJ pain since September 2006 and had had “joint clicking, facial spasms, jaw feeling ‘out of place’ on waking, her lower lip spontaneously ‘flops open’, pain with chewing and has had difficulty effectively chewing food.”

The Applicant stated that, in March 2007, she suffered from headaches, neck pain and jaw pain, the latter being her main problem.

On November 15, 2007, at the referral of her counsel, the Applicant underwent an in-home assessment by Janet Njelesani, an occupational therapist, who reported the Applicant as saying that she had “only partially resumed her pre-MVA housekeeping and caregiving tasks due to her decreased activity tolerances and pain with activity” but that she had “resumed assisting her daughter with her self-care tasks and transporting her to/from extra-curricular activities.” The Applicant testified that this examination took place in her home and that she had no problem with the occupational therapist being in her home.

At that time, Dr. Kozak referred the Applicant to Dr. W.J. Reynolds, a rheumatologist, who on November 21, 2007, diagnosed fibromyalgia that had “arisen out of the myofascial pains that were initiated by [the] motor vehicle accident.” Dr. Reynolds indicated that the Applicant was having “severe symptoms and is quite limited in her activities as a consequence.”

On November 23, 2007, Dr. Grushka reported that the Applicant had “evidence of bilateral myofascial pain in the muscles of mastication as well as significant pain over the TM joints which appears to be related to the overall problem with fibromyalgia.”

On December 20, 2007, Dr. Kozak reported that the Applicant had come to see him on April 16, 2006, at which time she described the accident and that she had “developed neck pain associated with pain in her left temperomandibular joint (TMJ) area.” Dr. Kozak testified that he recalled the Applicant having complaints of TMJ problems at the time she had neck complaints, although he also stated that he had no independent recollection other than his notes, which only specifically mentioned TMJ problems after the fall in October 2006. He said that, if the Applicant had told her about TMJ pain or if the jaw symptoms had been sufficiently severe, he would have made a note of it. Dr. Kozak reported that he saw the Applicant on October 16, 2006 concerning her fainting episode and that she had suffered a “minor concussion from this fall which was related to her initial MVA injury.” Dr. Kozak acknowledged that he had not mentioned a “minor concussion” in his clinical notes. He testified that it was not common for people to faint after getting up from a couch too quickly (as described by the Applicant in his notes), and that such a dramatic drop in blood pressure would need a pre-disposing factor, such as cervical manipulation during physiotherapy (as the Applicant had had). Dr. Kozak testified that, although the Applicant’s fainting episode in October 2006 could be a disabling trauma and could be related to the Applicant’s fibromyalgia, this was not the case given that the Applicant had already suffered a trauma in the accident that predisposed her to fibromyalgia. Dr. Kozak concluded that the Applicant suffered serious physical and psychological impairments as a result of the accident and that she “definitely required housekeeping and child care assistance during this whole event.” However, Dr. Kozak testified that he had “not really assessed the Applicant” in relation to caregiving and housekeeping tasks and that his conclusions were based on the Applicant’s own reports. Dr. Kozak testified that, based on the MRI and x-ray findings, he no longer considered the Applicant’s accident to be a minor whiplash (contrary to his initial note on March 30, 2006, which he said was made based on what the Applicant had told him), and that the findings would explain her pain complaints. He said that the Applicant’s cervical pain was related to her jaw pain and that her cervical strain led to her TMJ dysfunction.

On February 4, 2008, Dr. Kozak submitted a disability certificate indicating that the Applicant was substantially unable to perform her pre-accident caregiving and housekeeping activities. Dr. Kozak noted that the Applicant had developed fibromyalgia symptoms, and had had no relief from her TMJ problem. Dr. Kozak also noted that the Applicant had been hospitalized for an “acute psychotic breakdown,” was suffering from post-traumatic stress syndrome and had been prescribed anti-psychotic medication.

The Applicant testified that she worked at the Montessori School from October 2007 to June 2008, one and a half hours per day, three times a week. She taught French to young children, but that speaking and singing in French irritated her jaw. She said that she sat during her lessons. She stopped this work in January when she was admitted to hospital from January 17 to February 5, 2008 to treat symptoms of paranoia (specifically feelings that she was being followed and that someone was trying to harm her and her family). The hospital discharge report of March 4, 2008 noted that the Applicant had suffered a single severe depressive episode, with psychosis, and that she had been referred to the Wasser Pain Clinic. She returned to the school in April and worked until the end of the school year in June.

On April 1, 2008, at the referral of Dr. Reynolds, Brendon McGovern, a physiotherapist at the Toronto Western Hospital saw the Applicant and reported her as saying that she did “most of [the] cooking and cleaning” at her house.

On April 3, 2008, Dr. D. Young, a psychologist, assessed the Applicant at the request of the Insurer. Dr. Young reported that the Applicant had developed a somatoform disorder, but had also been hospitalized with a psychosis. Dr. Young stated that he had “insufficient information that would etiologically link her psychological condition to the events of the MVA” and that he had “no compelling evidence that [the Applicant] is unable to do [her essential caregiving tasks] at present for emotional reasons.” Dr. Young stated that he doubted whether the Applicant suffered a complete inability to carry on a normal life, but that he would need further records from the hospitalization to “investigate this fully.” Dr. Young later received and reviewed the hospital records and, on April 28, 2008, reported that “psychotic symptoms are commonly thought to involve endogenous psychological and cognitive defects and processes [and] that the casualty [sic] between these symptoms and the actual MVA, would seem to me to be remote.”

On April 9, 2008, at the request of the Insurer, Ms. J. Hunter, an occupational therapist, conducted an in-home assessment of the Applicant. Ms. Hunter found that the Applicant did not suffer a substantial inability to complete her pre-accident caregiving tasks. Ms. Hunter reported the Applicant “did not demonstrate physical and functional limitations during the assessment” and that she “demonstrated the function required to complete her pre-accident caregiving tasks with the exception of heavy lifting.”

On April 15, 2008, the Insurer had the Applicant examined by Dr. E. Newell, a physical medicine and rehabilitation specialist. Dr. Newell reported that the Applicant suffered a WAD I injury in the accident, that she has made a “complete recovery from her physical injuries” and that, in respect of her physical injuries, she no longer had a substantial inability to carry on with her essential caregiving tasks.

The Applicant stated that, despite advice from her family, she applied for full-time work, because she did not want to believe she was as “diminished” as people had suggested. She said, though, that she was not in the right frame of mind. She obtained a full-time job teaching English at Graydon Hall School in the fall of 2008, but had to stop after four days because she felt sick. She said that she returned to hospital shortly after this and has not returned to work since.

The Applicant’s counsel referred her to Dr. B. Hoffman, a psychiatrist, who, on June 23, 2008, reported that the Applicant suffered from chronic pain disorder associated with a general medical condition and psychological factors, as well as major depression with psychosis. Dr. Hoffman reported that, on a balance of probabilities, the Applicant’s depressive episode and psychosis were precipitated and perpetuated by the accident and subsequent pains. Dr. Hoffman also stated that, because of the recent depression and psychosis, the Applicant continued to “require support to look after her youngest child who suffers from ADHD until a period of clinical stability has been realized.”

Dr. Hoffman testified that, during the assessment, the Applicant impressed him as a conscientious and honest person. However, he acknowledged that the Applicant’s statement that she did not have any significant pre-accident medical problems differed somewhat from the medical records which showed a pre-accident history of tennis elbow and upper back pain. He stated that he had had the Applicant’s pre-accident OHIP summary which did not contain anything “terribly significant.” Dr. Hoffman testified that the motor vehicle accident materially contributed to the Applicant’s symptoms and disability. He noted that the Applicant had not had any pre-existing history of depression, that the motor vehicle accident was significant, and that, in the absence of the accident, there was no other cause of the Applicant’s depression and psychosis. Dr. Hoffman testified that the Applicant’s impairments would be greater in light of her dual conditions of chronic pain disorder and depression. Dr. Hoffman noted that Dr. Young’s reference to an “endogenous” analysis is no longer used in psychiatry and is not recognized under the DSM IV (Diagnostic and Statistical Manual IV). Dr. Hoffman testified that he was not aware that the Applicant had fainted and/or fallen in October 2006; however, he stated that, even with the fall, the motor vehicle accident could still give rise to various medical problems.

The Applicant was subsequently re-admitted to Toronto Western Hospital from June 27 to July 18, 2008 to deal with severe anxiety.

On December 5 and January 23, 2009, at the request of the Insurer, Dr. B. Kirsh, a pain medicine and psychiatry specialist, conducted a review of the file and reported that, while the Applicant had some pain, “it may be a minor stressor,” the Applicant was not in “emotional distress because pain was stopping her from getting on with her life,” there were “few signs that place the motor vehicle accident as an important etiological factor [in her depression]” and, in light of her accompanying psychosis, the Applicant “[c]learly...has other serious psychopathology unrelated to the accident.” Dr. Kirsh stated that “pain should be the only reason why she cannot get ahead.” Dr. Kirsh did not feel that seeing the patient would change his opinion.

The Applicant testified that her physical symptoms have now improved and that she is now “pretty much back” to her previous housekeeping and caregiving tasks, although she still suffers from back spasms.

(iv) Findings on Entitlement to Caregiver Benefits

I find that the Applicant is entitled to caregiver benefits from March 30 to June 30, 2006, September 1, 2006 to June 30, 2007, September 1 to November 15, 2007, and during the periods of her hospitalization, January 17 to February 5, 2008 and June 27 to July 18, 2008. At the commencement of the claim, the Applicant submitted receipts for caregiving benefits at the rate of $10 per hour. Neither she nor the Insurer suggested that this rate should not continue to apply to any benefits to which she was found to be entitled.

Pursuant to section 13(1)1 of the Schedule, in order for the Applicant to have been entitled to caregiver benefits, she must have resided with a person in need of care, have been the primary caregiver for that person and not received any remuneration for the caregiving activities. There was no dispute that the Applicant met these criteria.

As a general matter, I found the Applicant to have been a credible witness. While she could, at times, have been more direct in her responses (for example, when asked whether she saw Dr. Kozak more frequently after her fall in October 2006, to which she simply said that Dr. Kozak had told her that her fall was due to the motor vehicle accident), I find that, in all material respects, she gave direct, consistent and reliable answers to the questions posed. I note, in this regard, that her evidence on her pre-accident health, as well as her pre- and post-accident caregiving and housekeeping tasks, was generally consistent with that of her husband and mother. Further, while the Applicant reacted very emotionally when asked whether she had told Dr. Zabieliauskas about her fall (requiring a break in the proceedings), I find that this was a function of the Applicant’s vulnerable and volatile emotional state following the accident, rather than her desire to evade questions or to give misleading evidence. Finally, as will be discussed more below, while the Applicant appeared not to have mentioned her fall to either Dr. Zabieliauskas or Dr. Grushka, I find that this was due at least in part to her having suffered from jaw pain prior to the fainting episode and to her view that that pain, as well as her other symptoms, arose from the accident; it also did not materially alter the general medical conclusion that the Applicant’s pain and disability were related to the accident.

I find that the Applicant suffered a substantial inability to perform her pre-accident caregiving activities as a result of the accident. The Applicant did not suffer from any physical or psychological conditions before the accident that prevented her from doing various caregiving tasks for her daughter. The Applicant and her family were consistent in indicating that she was the primary caregiver for her children and that this involved several hours of work each day. While there was some discrepancy between the Applicant’s evidence and that of her husband concerning the specific number of hours she spent on caregiving tasks, I prefer to rely on the Applicant’s evidence in this area, given that her husband was away for much of the time at work and would, therefore, not have had as intimate a knowledge of the extent of her activities each day. However, even if the Applicant’s pre-accident caregiving duties did not involve as many hours as the Applicant indicated, I am nevertheless satisfied that she performed extensive caregiving tasks for her daughter prior to the accident and that, after and as a result of the accident, she required considerable assistance from her family to accomplish these tasks.

While the Applicant stated that her memory was better after the accident than it is now, I accept that the lists she prepared before the hearing (and which the Insurer did not challenge during the hearing) more accurately represent the diverse tasks that she performed for her daughter before and after the accident. In any event, the receipts for three months post-accident show two hours per day, five days a week, of caregiving assistance, which would be approximately 20% to 25% of the Applicant’s daily caregiving tasks. It would be more if the time records initially submitted did not represent a full accounting of the tasks and hours spent on caregiving tasks. In either case, I find that, while the Applicant’s mother was not doing the majority of the pre-accident caregiving tasks, she was nevertheless performing a considerable and substantial portion of them.

I do not place significant weight on the April 26, 2006 Disability Certificate from Pivot given the proximity of the report to the accident, given the lack of experience the clinic had had in addressing motor vehicle accident claims, and given the receipts for caregiving assistance submitted by the Applicant and her mother to the Insurer indicating a minimum of two hours a day of assistance, five days a week.

I also do not find Pivot’s July 27, 2006 discharge report to be reliable given that it said both that the Applicant had recovered to her pre-accident level of overall function, and that she was being discharged because of an unreasonable failure to participate in the Pre-Approved Framework. What is apparent is that, according to the Applicant’s own reports to Pivot (in May 2006), her condition appeared to be improving. However, given the Applicant’s legitimate concerns about a full recovery, this did not mean that she did not need caregiving assistance from her mother at this time. What occurred, according to the receipts submitted for July and August 2006, is that caregiving assistance had been reduced to roughly 1 hour a day of help, five days a week. This was likely a function of the Applicant and her family being at the cottage at the time. In these circumstances, while the Applicant still required some caregiving assistance, given the relatively small amount provided (as well as the lack of evidence concerning the assistance provided by the Applicant’s husband and son during this time), I am not prepared to find that she met the test of a substantial inability to perform her pre-accident caregiving tasks.

However, I accept that the Applicant’s condition worsened in September 2006, given her statement to Dr. Schacter that she was not able to carry out her “full household responsibilities” and that she needed her family to help her with the “heavier household work.” The Applicant also noted that, while she could engage in modest teaching activities from the fall of 2006 to June 2007, she was doing less caregiving at this time. This evidence is consistent with that of her mother who testified that she helped at her daughter’s house almost every day for over a year from the time of the accident. I note as well, that in February 2007, Kingsway Physiotherapy reported that the Applicant suffered from significant pain which rendered her incapable of looking after her family as she should.

However, given the reduced amount of caregiving assistance provided by the Applicant’s mother in the summer of 2006, coupled with the lack of evidence concerning the degree to which the Applicant’s husband and son provided this assistance during either the summer of 2006 or the summer of 2007, I find it reasonable to conclude that the Applicant also did not meet the test of a substantial inability to perform her pre-accident caregiving tasks during the summer of 2007.

I am, nevertheless, prepared to find that the Applicant’s mother continued her previous caregiving assistance in the fall of 2007 and that the Applicant was entitled to caregiver benefits during this time.

However, the Applicant’s circumstances changed in November 2007, when she underwent an in-home assessment and reported that she had “resumed assisting her daughter with her self-care tasks and transporting her to/from extra-curricular activities.” I prefer to rely on this evidence, despite the Applicant’s apparent reporting of the development of more widespread pain to

Dr. Reynolds roughly a week later. In my view, the Applicant’s apparent experiencing of more generalized pain does not negate her comments to an assessor with whom she was comfortable that she had returned to performing virtually all of her pre-accident caregiving tasks for her daughter.

The significant event during this period (namely, from September 2006 to November 2007) was the fainting episode in the Applicant’s kitchen. I find that this increased the pain experienced by the Applicant. I agree with Dr. Grushka’s comment that the Applicant’s fall exacerbated her previous whiplash injury. However, I do not find that it was so significant that it rendered the effects of the motor vehicle accident insignificant in the overall course of the Applicant’s symptoms and disability. In this regard, I note that the Applicant had suffered soft-tissue injuries to her neck and left shoulder, that she suffered headaches and was “emotionally shaky” shortly after the accident. This is consistent with the evidence of the Applicant’s mother who testified that the Applicant changed significantly after the accident, both physically and mentally, that she suffered widespread pain and was not the same person. The Applicant’s husband also confirmed that the Applicant was very shaken up right after the accident and that she very quickly experienced a mood change and widespread pain. I note, in particular, that the Applicant had complained to Dr. Mascarenhas approximately two weeks before the fainting episode of “some pain in the left TMJ area radiating to her left shoulder and to her left elbow and to the ring and small finger on the left side.” This indicates that the Applicant’s TMJ pain did not arise solely from the fall. Perhaps more importantly, the Applicant complained of left TMJ pain after the fall (the same part of her jaw about which she had complained to Dr. Mascarenhas) and then in early January 2007, stated to West Park Proactive Healthcare that she no longer had left TMJ pain, but right TMJ pain, with full body shaking.

Therefore, while the Applicant’s left TMJ pain may have increased after the fall, it was but one of a series of ailments from which she suffered, both before and after the fall, one being the development of right-sided TMJ pain, as well as widespread pain and trauma. Importantly, the Applicant’s initial symptoms of neck pain and headaches (as well as that of shoulder pain and dizziness) continued beyond the fainting episode. Finally, I note that none of the Insurer’s assessors concluded that the jaw injury suffered in the fall was so significant that the motor vehicle accident no longer acted as a material cause in the overall course of her condition. In all of the circumstances, therefore, I find that, while the Applicant suffered a trauma to her jaw in the fall, the motor vehicle accident continued to be a material contributing cause to her symptoms and disability following the accident.

I, therefore, conclude that, other than during the summers of 2006 and 2007, the Applicant suffered, as a result of the accident, a substantial inability to perform her pre-accident caregiving tasks until reported otherwise on November 15, 2007.

On February 4, 2008, Dr. Kozak noted that the Applicant had developed fibromyalgia and was substantially unable to perform her pre-accident caregiving tasks. However, as noted in connection with his December 20, 2007 report, he had not really assessed the Applicant in relation to her specific tasks (unlike the November 2007 in-home assessment) and he appeared to have been heavily influenced by the Applicant’s recent hospitalization (from January 17 to February 5, 2008) for an acute psychotic breakdown. Significantly, on April 1, 2008, shortly after her discharge from the hospital, the Applicant reported that she did most of the cooking and cleaning around the house. While not specifically related to caregiving tasks, I find this evidence relevant to this issue (particularly in light of the overlap between her housekeeping and caregiving activities for her daughter). Therefore (as discussed more below), I find that, other than during her hospitalization from January 17 to February 5, 2008 (in which she was, of course, unable to engage in any of her household activities), the Applicant did not suffer a substantial inability to perform her pre-accident caregiving tasks from November 15, 2007 to the two-year mark, March 30, 2008.

With respect to the Applicant’s emotional breakdowns and resulting hospitalizations, I find that these were related to the motor vehicle accident. In this regard, I prefer Dr. Hoffman’s evidence to that of Dr. Young. While Dr. Young indicated that there was insufficient information to connect the Applicant’s psychological breakdowns to the accident, this was on the basis of an “endogenous” analysis, an approach that Dr. Hoffman pointed out was no longer used in psychiatry and was not recognized in the DSM IV. Further, while Dr. Young concluded that the connection between the Applicant’s symptoms and the accident seemed remote, Dr. Hoffman rightly pointed out that the Applicant had no pre-existing history of depression and that the motor vehicle accident materially contributed to the Applicant’s emotional condition. Consistent with my conclusions concerning the relative importance of the fainting episode, Dr. Hoffman noted that, even with the fall, the motor vehicle accident could still have given rise to various medical problems. Dr. Young did not indicate whether or not the Applicant’s fall would have rendered the motor vehicle accident insignificant in the development of her physical and psychological ailments. Therefore, on a balance of probabilities, I agree with Dr. Hoffman’s evidence that the Applicant’s depression and psychosis were precipitated and perpetuated by the accident and subsequent pain disorder. I place very little weight on Dr. Kirsh’s 2009 reports because he did not have the benefit of personally assessing the Applicant and because he made the puzzling statement to the effect that “pain should be the only reason why [the Applicant] cannot get ahead.” While Dr. Kirsh alluded to the Applicant suffering from “other serious psychopathology unrelated to the accident,” he did not say what this might have been, and did not indicate what factors other than the motor vehicle accident might have contributed to the Applicant’s complex physical and psychological symptomatology. I, therefore, conclude that, as a result of the accident, the Applicant was incapable of performing her pre-accident caregiving tasks during the resulting periods of hospitalization for her psychological conditions, namely, January 17 to February 5, 2008 and June 27 to July 18, 2008.

The second period of hospitalization occurred after the two-year mark, when the requisite test of disability is a “complete inability to carry on a normal life.” Other than during the period of hospitalization, I find that the Applicant did not meet this test. As noted, on April 1, 2008, shortly after her discharge from the hospital, the Applicant reported that she did most of the cooking and cleaning around the house. This is consistent with Dr. Young’s conclusion that, subject presumably to the acute periods of hospitalization, the Applicant would not be precluded from her performing her pre-accident caregiving tasks due to her emotional condition, and would likely not have suffered a complete inability to carry on a normal life. I note as well that the Applicant returned to working part-time at the Montessori School after her hospitalization in early 2008 until the end of the school year in June 2008. While Dr. Hoffman suggested that, until her psychological condition had stabilized, the Applicant would require assistance with taking care of her daughter, I do not find that this is sufficient to meet the more stringent test of a complete inability to carry on a normal life. I note as well the two reports in April 2008 to the effect that the Applicant was capable of performing most, if not all, of her pre-accident caregiving tasks. The Applicant also testified at the hearing that, despite some ongoing symptoms, she had essentially returned to her previous caregiving and housekeeping tasks. I, therefore, find that, other than the period of hospitalization from June 27 to July 18, 2008, the Applicant did not suffer a complete inability to carry on a normal life, and was, therefore, not entitled to ongoing caregiving benefits.

Based on all of the evidence, I find that the Applicant is entitled to caregiver benefits at a rate of $10 per hour, two hours per day, five days per week ($100 per week), from March 30 to June 30, 2006, September 1, 2006 to June 30, 2007, September 1 to November 15, 2007, January 17 to February 5, 2008 and June 27 to July 18, 2008.

(v) Findings on Entitlement to Housekeeping Benefits

For similar reasons, I find that the Applicant is entitled housekeeping benefits from September 1, 2006 to June 30, 2007 and from September 1, 2007 to March 30, 2008. The Applicant was paid housekeeping benefits to July 7, 2006, and she did not attempt to argue that she was catastrophically impaired, which, pursuant to sections 22(3) and (4) of the Schedule, would be the only basis on which she could claim housekeeping benefits beyond the two-year mark. The Insurer did not dispute the rate at which any housekeeping benefits should be paid. I find that the rate should be the same as that at which benefits were paid until July 7, 2006, namely, $10 per hour.

The Applicant testified that, before the accident, she did various housekeeping tasks for approximately seven to nine hours per day. She said that she was able to carry on with some of this work after the accident, but required the help of her family, in respect of which she and her mother submitted receipts for housekeeping of five hours per day, five days a week until the end of June 2006, and then for two hours per day, five days a week, until the end of August 2006.

As with the Applicant’s pre-accident caregiving tasks, even if she did not perform as many hours of housekeeping as she indicated, I am nevertheless satisfied that she performed a variety of housekeeping activities for her family, and for her daughter in particular, and that, as a result of and following the accident, she required considerable assistance from her family. However, I do not find that the Applicant substantiated the housekeeping receipts submitted for the summer of 2006. While she and her mother submitted receipts for two hours a day, five days a week, during this period, the Applicant testified that, when her family went to the cottage during the summer, either her husband, her son or herself would do the housekeeping. The Applicant’s mother simply testified that she would assist with the housekeeping at the cottage when she was there. While the Applicant may well have received housekeeping assistance during the summer, I find that she has not established the extent to which this was the case. For similar reasons, and in a manner consistent with the issue of caregiver benefits, I find that the Applicant would also not be entitled to housekeeping benefits during the summer of 2007.

As previously indicated, I am satisfied that the Applicant’s condition worsened in September 2006 and that her need for housekeeping assistance continued after this point. While there are no receipts for this period, I find it reasonable to infer that she would require a level of housekeeping assistance consistent with the receipts that were submitted prior to the summer. However, given the Applicant’s mother’s evidence that, other than during the summer, she was at her daughter’s house several times a week for four to five hours a day following the accident (which included caregiving assistance), I find it reasonable to conclude that the Applicant received three hours per day of housekeeping assistance from her mother, five days a week. This would change slightly in November 2007 (and until the two-year mark), when the in-home assessment recommended nine-and-a-quarter hours of housekeeping assistance per week, which would be roughly two hours of housekeeping per day, in a five-day period.

Pursuant to section 22(2) of the Schedule, the maximum rate at which housekeeping benefits are payable is $100 per week. Based on the either two or three hours per day, at $10 per hour, the Applicant is entitled to housekeeping benefits from September 1, 2006 to June 30, 2007 and from September 1, 2007 to March 30, 2008 at the rate of $100 per week.

Dr. Leventhal’s OCF-22

Pursuant to section 24 of the Schedule, the Applicant is entitled to the cost of the neurological examination recommended in Dr. Leventhal’s OCF-22 if it was a “necessary and reasonable” expense incurred “as a result of the accident.”

On August 2, 2006, Dr. Joseph Leventhal, a physician at Sports Medicine and Rehabilitation Clinic, submitted an OCF-22 (Application for Approval of an Assessment or Examination) for a neurological assessment (in the amount of $790), due to the fact that the Applicant had “neurological signs and symptoms related to their injury.” Dr. Leventhal noted that there were “significant abnormalities...in almost the whole cervical spine” and that these were “consistent with the patient’s symptoms.”

On August 12, 2006, Dr. Leventhal reported that the Applicant had been “previously erroneously diagnosed as WAD I despite neurological problems and symptoms, the MRI confirms significant abnormalities.” The Clinic indicated that the Applicant was advised that her “cervical spine abnormalities visible on MRI would increase in the future, causing more symptoms.”

On August 16, 2006, Dr. M. Vizel, a family physician, conducted a paper review of Dr. Leventhal’s request and noted that, based on the information from Ms. Hampson and Dr. Cruz, the Applicant had suffered minor injuries in the accident, had had a prior history of right-sided myofascial neck pain, the MRI findings were more than likely present prior to the accident and did not warrant the need for a neurological assessment. Dr. Vizel indicated that he had attempted to contact Dr. Leventhal to discuss the case, but without success. Dr. Vizel did not have Dr. Leventhal’s August 12, 2006 report.

Based on this information, the Insurer denied Dr. Leventhal’s request as not reasonable and necessary. On August 29, 2006, Dr. N. Kerin, a general practitioner, conducted a paper review to determine the reasonableness and necessity of a treatment plan for acupuncture and an in-home assessment, and stated that the MRI findings were of a “degenerative nature and not of an acute origin as would have been expected from a soft tissue injury.” On September 28, 2006, Dr. L. Mascarenhas, a general practitioner specializing in disability assessments, concluded that the treatment plan for physiotherapy and acupuncture was not reasonable and necessary, in part, on the basis of a “gross neurological examination of the upper extremities” which was “essentially unremarkable.”

I find that the recommended neurological assessment was not reasonable and necessary. While Dr. Leventhal noted that the Applicant exhibited “neurological signs and symptoms related to their injury,” he did not indicate what the “signs and symptoms” were or how they were related to the accident. This is significant in light of Dr. Vizel’s and Dr. Kerin’s view that the MRI findings might well have been related to pre-existing degenerative changes, and not the accident. Dr. Mascarenhas also found nothing significant in a “gross neurological examination” of the Applicant’s upper extremities. At the referral of Dr. Marciniak, the Applicant did see Dr. Schacter (a neurosurgeon) in September 2006 and Dr. Schacter also found nothing significant neurologically. No other doctors identified neurological problems. Finally, while it is possible that Dr. Leventhal could have elaborated the basis upon which he felt that a neurological assessment was necessary, Dr. Vizel attempted to contact him, but did not hear back. In all of the circumstances, I find that the recommended neurological assessment was not reasonable and necessary.

Dr. Grushka’s OCF-22

On December 1, 2006, Dr. Grushka submitted an OCF-22 for approval of a dental assessment (in the amount of $1,490), on the basis of the Applicant’s complaints of left-sided myofascial pain and TMJ inflammation. Based on a December 15, 2006 report by Dr. R. Traub, a dental surgeon who conducted a paper review of the OCF-22 on behalf of the Insurer, and who concluded that there were “[no] new symptoms...that would warrant any TMJ treatment,” the Insurer denied the Applicant’s request. Dr. Grushka testified that Dr. Traub did not explain the basis of his conclusion and that she did “not know what he was saying.”

I find that the recommended assessment was reasonable and necessary. Dr. Grushka identified the basis for the examination and, while she was unaware at the time of the Applicant’s fainting episode, the Applicant had suffered TMJ symptoms prior to this incident and it would, at the very least, have been reasonable to assess the extent to which the fall had contributed to and/or exacerbated the pre-existing problems. As noted previously, consistent with the evolving nature of her condition, and shortly after Dr. Grushka recommended the assessment, the Applicant developed right-sided TMJ symptoms, in addition to her continuing complaints of neck and shoulder pain and headaches (which were part of a constellation of symptoms following the accident). Finally, I agree with Dr. Grushka’s observation that the Insurer’s reviewing assessor, Dr. Traub, did not explain the basis of his conclusion that there were no new symptoms justifying TMJ treatment. Dr. Traub’s finding was also not clearly directed toward the reasonableness and necessity of a comprehensive dental examination, as recommended by Dr. Grushka. Therefore, in all of the circumstances, I find that the proposed dental assessment was reasonable and necessary.

South City Physiotherapy’s OCF-18

On September 27, 2007, Ms. Francine Doré, a physiotherapist of South City Physiotherapy, submitted an OCF-18 (Treatment Plan) recommending fifteen sessions of physiotherapy, at a cost of $1,413.57. Ms. Doré reported the Applicant as saying that she had difficulty with her heavier housekeeping activities, such as vacuuming and cleaning floors. The Applicant described widespread symptoms, including daily headaches, ringing in ears, vertigo, neck and left shoulder pain, low energy and TMJ pain. The Applicant underwent this treatment, but said she stopped in November 2007 because driving to the clinic in Guelph was “too much.” Ms. Doré reported that the treatments had stopped for this reason over the summer of 2007 and that they stopped again in November 2007 due to the treatment plan having been denied.

Ms. Zinnia Lee, a physiotherapist who assessed the Applicant on October 19, 2007 in relation to the treatment plan, stated, in part, that given that the Applicant appeared to have suffered a WAD I, rather than a WAD II, injury, and that she had not responded well to previous physiotherapy, the proposed treatment was not reasonable and necessary. Ms. Lee also stated that the Applicant’s physical condition was “rather complex as there is some discrepancy between her initial presenting physical signs and symptoms and what has developed in the past year following the motor vehicle accident.” Based on Ms. Lee’s report, the Insurer denied the treatment plan.

On January 4, 2008, Ms. Doré prepared a rebuttal report setting out in detail the various symptoms the Applicant was reporting and indicating, in part, that, through the treatment, she had experienced improvement in her headaches, dizziness and jaw pain. On March 17, 2008, Ms. Lee responded with a supplementary report, indicating, in part, that there had been a “difference in the clinical opinion in the extent of the injuries...sustained during the subject accident” and that “[c]onsidering the significant delayed onset of her reported symptoms of vertigo, and lack of other clinical supporting, accident related evidence,” her opinion remained as initially stated.

I find that South City’s treatment plan was reasonable and necessary. In my view, Ms. Lee relied too heavily on the early reports of the Applicant’s symptoms, and did not have a sufficiently comprehensive appreciation of the nature and extent of the Applicant’s condition. Ms. Lee did not have the benefit of Dr. Reynolds’ November 21, 2007 report, in which he diagnosed fibromyalgia and which Ms. Lee noted in her January 2008 report would have been helpful in “defin[ing the Applicant’s] accident related medical diagnosis and recovery.” This was directly relevant to Ms. Lee’s concern that there was a “discrepancy” between the Applicant’s initial physical symptoms and what subsequently developed. I also find significant that the Applicant reported improvement from the treatments she received at South City Physiotherapy. I, therefore, find that the proposed course of treatment was reasonable and necessary.

Interest

The Insurer did not dispute that, if benefits were owed, the Applicant would be entitled to interest on those benefits. I find that the Applicant is entitled to interest on the amounts awarded.

EXPENSES:

The parties did not address the issue of expenses. If required, the parties may make submissions on this issue in accordance with the procedure set out in Rule 79 of the Dispute Resolution Practice Code.

January 8, 2010

Eban Bayefsky

Arbitrator

Date

ARBITRATION ORDER

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

1. Economical shall pay to C.S.K. caregiver benefits, from March 30 to June 30, 2006, September 1, 2006 to June 30, 2007, September 1 to November 15, 2007, January 17 to February 5, 2008 and June 27 to July 18, 2008, at the rate of $100 per week.

2. Economical shall pay to C.S.K. housekeeping benefits from September 1, 2006 to June 30, 2007 and from September 1, 2007 to March 30, 2008, at the rate of $100 per week.

3. Economical shall pay to C.S.K. the cost of the assessment recommended in Dr. Grushka’s December 1, 2006 OCF-22, in the amount of $1,490.

4. Economical shall pay to C.S.K. the cost of the treatment recommended in South City Physiotherapy’s September 27, 2007 OCF-18, in the amount of $1,413.57.

5. Economical shall pay to C.S.K. interest on the benefits awarded in this decision.

January 8, 2010

Eban Bayefsky

Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2While not identical, a similar finding was made in the case of Paul and Dominion of Canada General Insurance Company (FSCO A05-002302, February 7, 2007), where it was stated that the Insurer’s failure to “specifically mention housekeeping and home maintenance as one of the benefits in respect of which the examinations were requested...[dis]entitled [it] to an order in relation to housekeeping and home maintenance benefits by reason of Ms. Paul’s failures or refusals to submit to the December examinations.”
3. 3See also, for example, Mercier v. Royal & SunAlliance Insurance Company of Canada, 2004 CanLII 5551 (ON CA), [2004] 72 O.R. (3d) 94 (Ont. C.A.) and Maitland and State Farm Mutual Automobile Insurance Company (FSCO A05-000307, May 9, 2006).