Financial Services Commission of Ontario

Neutral Citation: 2012 ONFSCDRS 86

FSCO A10-000755

BETWEEN:

CLAUDIA McLEOD

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Lloyd (J.R.) Richards

Heard: July 18, 19, 20, 21, and December 5, 6, 7, 2011, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Jeffrey Shinehoft for Ms. McLeod Darrell March for State Farm Mutual Automobile Insurance Company

Overview:

Ms. Claudia McLeod was injured in a motor vehicle accident on July 31, 2007. At the time, she worked as a personal support worker. Since the accident she claims that she has not been able to return to her old employment, has required help doing her housekeeping, and has needed medical benefits to assist in her recovery. State Farm Mutual Automobile Insurance Company (“State Farm”) paid her statutory accident benefits under the Schedule¹, but subsequently terminated her benefits, claiming that she could return to work. State Farm also took the position that Ms. McLeod could do her housekeeping and was not entitled to all the medical benefits she claimed.

For the reasons that follow, I find that the July 31, 2007 accident rendered Ms. McLeod unable to return to her pre-accident employment or any other employment for which she is reasonably suited by education, training or experience. I also find that Ms. McLeod is entitled to some of the housekeeping and medical benefits she claimed.

The particular issues in this hearing are:

1. Is Ms. McLeod entitled to receive a weekly income replacement benefit of $315.06 per week from September 22, 2008 to date and ongoing?

2. Is Ms. McLeod entitled to payments for housekeeping and home maintenance services of $100.00 per week from January 1, 2008 to July 31, 2009?

3. Is Ms. McLeod entitled to medical benefits, set out as follows?

(a) Services at Chronic Pain Recovery:

• $2,400.00 for treatment under a treatment plan dated July 11, 2008.

• $1,000.30 ($2,049.80 less $1,049.50 paid by State Farm) for treatment under a treatment plan dated May 6, 2008.

• $2,994.50 for chronic pain treatment under a treatment plan dated March 18, 2008.

• $520.00 for chronic pain treatment under invoice number 1267.

(b) Services at Oshawa Physiotherapy and Rehabilitation Centre:

• $736.35 for a work hardening program under invoice number 4279.

• $568.73 ($610.68 less $41.95 paid by State Farm) under invoice number 4279.

• $600.00 for supportive therapy sessions under a treatment plan dated September 12, 2008.

• $1,491.36 for physiotherapy, chiropractic and massage therapy sessions under a treatment plan dated January 2, 2008.

(c) Services at Mandel and Associates:

• $1,754.87 for services under a treatment plan dated October 10, 2008.

• $269.98 for services under invoice number 4741.

3. Is Ms. McLeod entitled to the payments for the cost of examinations, set out as follows?

• $463.72 ($1,963.72 less $1,500.00 paid by State Farm) for a neurological assessment at Precision Assessment.

• $450.00 for a rebuttal assessment by Chronic Pain Recovery.

4. Is Ms. McLeod entitled to interest for the overdue payment of benefits?

5. Is State Farm liable to pay Ms. McLeod’s expenses in respect of the arbitration under section 282(11) of the Insurance Act?

6. Is Ms. McLeod liable to pay State Farm’s expenses in respect of the arbitration under section 282(11) of the Insurance Act?

Result:

1. Ms. McLeod is entitled to receive a weekly income replacement benefit of $315.06 per week from September 22, 2008 to date and ongoing.

2. Ms. McLeod is entitled to payments for housekeeping and home maintenance services she claimed from January 1, 2008 to September 3, 2008 up to a maximum of $100.00 per week, and 50% of the housekeeping assistance she claimed from September 4, 2008 to July 31, 2009.

3. Ms. McLeod is entitled to the following medical benefits:

Services at Chronic Pain Recovery:

• $2,400.00 for chronic pain treatment under a treatment plan dated July 11, 2008.

• $1,000.30 for treatment under a treatment plan dated May 6, 2008 if she presents to State Farm evidence of her documented participation and progress in the first 5 sessions of this treatment plan.

• $2,994.50 for chronic pain treatment under a treatment plan dated March 18, 2008.

The remainder of Ms. McLeod’s claims for medical benefits are dismissed.

4. Ms. McLeod’s claims for cost of examinations are dismissed.

5. Ms. McLeod is entitled to interest for the overdue payment of benefits pursuant to section 46.2 of the Schedule.

EVIDENCE AND ANALYSIS:

Personal and work history

When this motor vehicle accident occurred, Ms. McLeod was 40 years old with three children aged approximately 16, 11 and 7. She also had a grandchild. She lived with her children and grandchild in an apartment containing a kitchen, living and dining room, three bedrooms and a bathroom. She now lives in the basement of a friend’s home with her family. She is a grade 12 graduate and completed a post secondary program to become a personal support worker. She also completed a laboratory technician course but has never worked in the field.

Ms. McLeod was working as a personal support worker at Saint Elizabeth Health Care when the accident took place. Prior to her employment with Saint Elizabeth’s, she did assembly line work in a factory for approximately 10 years. She also has some experience working at a day care, albeit over 20 years ago. She has no formal training as a day care worker and when she worked in the field she taught children ages 2 to 10 how to paint and draw.

At Saint Elizabeth’s, Ms. McLeod worked 40 hours per week on a split shift beginning at 5:30 in the morning. She would assist up to 10 clients get ready for breakfast, shower them, dress them, make their beds and get their support stockings on, if needed. After completing her duties in the nursing home she went home, got her children off to school then went on home visits to see other clients. In her clients’ homes she assisted them with showering, vacuuming, dusting and any exercises that her clients’ occupational therapists recommended. She transferred them into and out of bed, got them dressed and helped them onto and off the toilet using a Hoyer Lift. The lift is used to “jack a patient up” employing a strap and hoist mechanism. Ms. McLeod testified that she needs a good attention span to do her job. She needs to recognize changes in her clients and has to ensure that they are taking their medications correctly.

Ms. McLeod gave evidence that while working at Saint Elizabeth’s, she took very little time off and had an excellent attendance record. She was off for 6 months from October 2006 to April 2007 because she gave birth to a baby who died after only a few hours. In 2006 her 14 year relationship with the father of her two youngest children ended. In that year Ms. McLeod’s sister also died. Ms. McLeod was diagnosed with depression in March 2007 and prescribed medications, which she did not take as she did not believe she needed them. Once back to work she returned to her regular split shift.

Prior to the motor vehicle accident Ms. McLeod was very involved in her children’s lives, taking them on picnics, roller skating, to the movies and playing sports with them. She is also an avid reader.

Post-accident complaints and status

Since the accident, Ms. McLeod has complained of left shoulder pain going up into her ears, with a “full” feeling in her ears. Forward bending has caused her problems and at one point she could not get up from the toilet. She required assistive devices to do some housekeeping and other personal functions. She states that when she tries to use her left arm it hurts and walking and sitting too long are painful. She complains of headaches that occur three to four times per week that last a few hours. She has completed a work hardening program and has requested that her employer put her on modified duties. Ms. McLeod gave evidence that her employer has refused her modified duties and insists that she return to work at 100% capacity. She admits that she never contacted her employer to discuss what they meant by 100% capacity. Ms. McLeod is also worried about putting her clients in danger because she is not physically capable of working at 100% capacity. She has made no enquiries to date about completing any other courses because she was comfortable as a personal support worker.

Since the accident, Ms. McLeod has become depressed and states that she has lost confidence. She attempts to do activities but is exhausted by the weekend. Her attention levels are not as sharp as before and she frequently wakes during the night because of pain. She now tries to stay busy to get out of the house. She remains an avid reader, completing approximately 1 book per week. She helps out with the breakfast club at her children’s school for one hour in the morning five days per week. She also supervises the lunch hour every day. She volunteers in the nursery at her church, supervising newborns to five year olds two times per week for four hours. She accompanies her son to football practice twice per week and attends his games on Sundays. She attends brownies once per week and sewing classes once per week with her daughter. She engages in camping, attends treatment and goes to church programs. She has travelled twice to Brooklyn, New York since the motor vehicle accident to see her mother. She has also travelled twice to Jamaica since the motor vehicle accident to see her father. She has gone on trips to Cobourg beach and taken her children to Wonderland Park. She noted to an insurance medical assessor that the day after the Wonderland trip she was bedridden due to pain in her lower back.²

Income Replacement Benefit

The Schedule states that State Farm shall pay an income replacement benefit to Ms. McLeod for 104 weeks if she sustains an impairment because of this accident and, as a result, suffers a substantial inability to perform the essential tasks of her employment. State Farm is not required to pay Ms. McLeod income replacement benefits for longer than 104 weeks unless, as a result of the accident, she is suffering a complete inability to engage in any employment for which she is reasonably suited by education, training or experience.

Substantial Inability

Ms. McLeod claims that, as a result of the automobile accident, she is unable to work at her pre-accident employment. State Farm terminated her income replacement benefits on or around September 22, 2008. State Farm did not dispute that Ms. McLeod sustained some impairments as a result of the accident and I find that she did. I also find that Ms. McLeod’s impairments and complaints of pain remained consistent throughout her claim. Ms. McLeod attended numerous examinations to assess her condition, many of them at State Farm’s request, and appeared motivated to determine the cause of her pain.

Some assessors declared that Ms. McLeod had developed a chronic pain condition.³ Dr. Joseph Wong, in giving oral evidence at this hearing, stated that the term “chronic pain” can be applied to any injury from which someone takes too long to recover. Dr. Wong’s evidence, as well as Dr. Ken Fern’s opinion on chronic pain, were not contradicted by anyone giving evidence on State Farm’s behalf and, given the nature of Ms. McLeod’s injuries, I find that her pain amounted to chronic pain.

As stated in Quattrocchi and State Farm, there are a number of general principles to consider when looking at chronic pain and its impact on claims for income replacement benefits:

1. Pain on its own is not compensable in the statutory accident benefit scheme. Nor does a diagnosis of “chronic pain syndrome” guarantee entitlement. However, an insured may be found entitled to benefits because of disabling pain, despite there being no objectively confirmable impairment.

2. It is not necessary for an Arbitrator to accept any particular diagnosis of the Applicant’s complaints, because the issue for the Arbitrator is whether the Applicant is substantially disabled from performing the essential tasks of her pre-accident job as a result of the accident. This requires a comparison of the insured person’s functional ability before and after the accident. Arbitrators have shown little interest in debates between medical experts as to the legitimacy or significance of a diagnosis of “chronic pain’ syndrome.

3. Where there is no objective evidence of impairment, or the objective evidence does not explain the degree of pain reported by the insured person, the insured’s credibility becomes important. In assessing the insured person’s subjective pain complaints, Arbitrators consider all of the circumstances, including the consistency of the insured person’s complaints and apparent functional level.

4. In order to prove entitlement to weekly benefits, an insured must show that her disability resulted from the accident. Arbitrators have consistently said that the accident need not be the only cause of the insured’s problems, but must be a significant or material contributing factor. Accordingly, even if the Applicant’s own attitudes or inaction have delayed her recovery, she may still be entitled to benefits, if the accident remains the more significant factor.

5. Where an insured person becomes deconditioned and depressed as a result of ongoing pain and disability, thus further delaying her recovery, she may be found entitled to benefits if the Arbitrator finds that the psychological elements of her condition are secondary to the injuries she sustained in the accident. Arbitrators have also recognized the “thin skull” principle in weekly benefits cases. On the other hand, insurers are not required to subsidize an insured person who takes the opportunity of an accident to leave the workforce and adopt an inactive lifestyle.

6. It is not sufficient to dismiss a chronic pain claim on the basis that returning to work would not harm the applicant.

7. Nor is it sufficient to say that returning to work would be therapeutic for the applicant… Whether work might be therapeutic is a distinct question from whether the Applicant is substantially disabled from returning to her pre-accident job.⁴

Ms. McLeod has complained of pain in her left shoulder and cervical strain since the motor vehicle accident.⁵ At some point after the accident she also began to complain of lumbar strain and pain in her coccyx and legs. Initially, the medical assessors in her case acknowledged the pain and attempted to discern some objective impairment that might be responsible for her complaints. The first two MRIs of her shoulder, to which she was referred by her family physician, showed no tears or significant abnormality in her shoulder.⁶ The third significant MRI, in April 2008, to which she was referred by State Farm, showed mild degenerative changes but no definite rotator cuff tear in her left shoulder.⁷ Even with no confirmable objective impairment, Ms. McLeod continued to complain of pain and engaged in active and passive therapies to address her complaints.

In May 2009, Ms. McLeod continued to address her impairments by getting viscosupplementation in her shoulder. She engaged in this invasive therapy because she was experiencing pain. Dr. Chris Osinga, who administered the therapy, noted that there was no evidence of separation or other abnormality, but that his palpations over Ms. McLeod’s left shoulder resulted in pain.⁸

In February and March 2010, Dr. Farooq Ismail referenced Ms. McLeod’s weight gain and deconditioning and stated that core strengthening and exercises would help her conditioning. Dr. Ismail gave Ms. McLeod a steroid injection in her shoulder because he believed it would alleviate her pain.

Since the accident, Ms. McLeod has engaged in a work hardening program and I have no evidence that she is a malingerer or that she has not been working diligently to address her impairments through active and passive treatments.

Only in October 2009 did assessors begin to state that there were inconsistencies in Ms. McLeod’s responses.⁹ It appears from some of the reports that Ms. McLeod was somewhat frustrated at this point with the amount of testing that she had endured and the fact that her complaints had not resolved. Even at this point Ms. McLeod’s assessors reported that she was experiencing pain. Dr. E. Mah, while noting that Ms. McLeod engaged in pain amplification, stated that Ms. McLeod had achieved physiological resolution, but that her prognosis was guarded.

At two years after the accident, Ms. McLeod’s family doctor recommended imaging tests because of her ongoing pain complaints. The imaging reports note tears in Ms. McLeod’s shoulder.¹⁰ I place little weight on the imaging results presented in this hearing because neither Ms. McLeod nor State Farm presented evidence on whether the motor vehicle accident caused the tears. More importantly, the course of Ms. McLeod’s treatment, her attendance at her family doctor and other practitioners, her consistent pain complaints and her willingness to undergo some invasive treatments, compel me to find that her pain complaints are credible.

In finding that Ms. McLeod’s pain complaints are credible, I now turn to whether she was substantially disabled from performing the essential tasks of her pre-accident job as a result of the accident. Neither Ms. McLeod nor State Farm presented evidence of an occupational therapy job site analysis. I place little weight on Ms. Janice Kim’s analysis¹¹ of Ms. McLeod’s functioning because of Ms. Kim’s approach in conducting her assessment. Ms. Kim clearly considered only reports and documents that supported her position that Ms. McLeod would not be able to return to work. The best evidence of Ms. McLeod’s pre-accident job duties was from Ms. McLeod’s own oral evidence. I find that Ms. McLeod’s impairments resolved to some degree over time, but as of the date of the hearing, she still suffered an impairment in her right shoulder – and other impairments that had developed over time – which affect her ability to function as she had prior to the accident.

Dr. Rehan Dost noted that Ms. McLeod’s complaints suggested root irritation that required further evaluation.¹² Neither party presented evidence of such an evaluation ever taking place. Dr. Andrew Wilk stated that Ms. McLeod suffered from mild allodynia in her lower right paralumbar area extending to her right hip.¹³ Neither party presented evidence on this diagnosis. It is clear from the evidence that up to 104 weeks after the motor vehicle accident, as well as beyond that point, Ms. McLeod still suffered from impairments that affected her pre-accident employment functioning. She has attempted to remain engaged in her recovery and in the rest of her life by remaining active, but her impairments persist. Ms. McLeod’s employment as a personal support worker involves heavy work and I find that her employer required her to return to work without accommodations. Even with a Hoyer lift, Ms. McLeod is required to get her clients ready for breakfast, shower them, dress them, and make their beds. She is further required to assist them to get onto and off the toilet, with vacuuming, dusting and exercises. I accept Ms. McLeod’s evidence that she would be unable to perform these tasks at work in a sustained way. The medical evidence points to Ms. McLeod having continuing difficulties with her shoulder and increasingly with pain in her hips, coccyx and legs.

State Farm also posits that Ms. McLeod was depressed before the motor vehicle accident and that the accident did not contribute materially to her psychological impairments. I am persuaded that the accident contributed materially to Ms. McLeod’s depression and pain focus.¹⁴

I find that Ms. McLeod’s psychological condition before the accident was somewhat fragile, given the stressors with which she had to contend.¹⁵ Those stressors included: the breakup of her 14 year dating relationship; the death of her sister; her miscarriage due to infant cardiac defect leading to a six-month work absence; and her role as a single parent/grandmother. However, even with those stressors, Ms. McLeod was a diligent employee who took very little time off work. In fact, she had a very consistent and stable work record. I find that Ms. McLeod functioned normally before the accident. I also find that the motor vehicle accident materially contributed to Ms. McLeod’s depression and other psychological issues. As she struggled with her pain she grew more withdrawn, she worried about her financial situation and developed feelings of low self-esteem because of her inability to return to work.

Despite her depression and adjustment disorder, Ms. McLeod’s psychological condition has not prevented her from remaining active and involved in her own life. It is clear on the evidence presented in this hearing that while Ms. McLeod might be suffering from psychological issues related to the motor vehicle accident, she is involved socially in her children’s lives, at her children’s school and still reads extensively. She has not completely withdrawn socially and has an active life with her children and her church. What is also clear is that she still complains of pain. Several assessors in her case suggested further evaluations dealing with her pain focus. Neither party presented me with evidence of these evaluations being done. I find that Ms. McLeod suffers from both physical and psychological impairments that make her substantially unable to engage in her pre-accident employment.

Complete Inability

Ms. Mcleod, in claiming income replacement benefits for a period greater than 104 weeks after the motor vehicle accident, has to demonstrate that, as a result of the accident, she suffers a complete inability to engage in any employment for which she is reasonably suited by education, training or experience. She does not have to be formally qualified and able to begin work immediately in a job for which she was not already qualified. However, a job may be a suitable alternative if substantial upgrading or retraining is not required.¹⁶ A holistic approach is necessary in assessing employment suitability. It is not enough to identify the job tasks in artificial testing and then to put them together into a theorized ability to engage in employment. Engaging in employment means to actively participate in the work relationship over a reasonable period of time.¹⁷

State Farm did not present an occupational therapy job site analysis or an employability assessment. Ms. McLeod presented Ms. Janice Kim’s occupational therapy report on which I place little weight. Once again, the best evidence presented at the hearing is Ms. McLeod’s oral testimony on her ability to return to work.

I find that Ms. McLeod’s pain complaints persisted to at least the date of this hearing. Other than Ms. McLeod’s opinion, neither party presented any evidence on the physical demands of the personal support worker job. On the face of it, the personal support worker job is very physically demanding. I find that given Ms. McLeod’s persistent pain and the physical nature of personal support work, she is completely unable to engage in that employment.

Neither party presented evidence on the nature of lab technician and child care work, or whether Ms. McLeod would have to retrain for these positions. In essence, the parties have asked me to guess what the demands or requirements of these jobs would be. The ultimate burden in proving eligibility for her claim rests with Ms. McLeod. In Canadian Surety and H.K.¹⁸, the arbitrator considered how much evidence is reasonable in proving disability. She stated:

I do not view the decisions as establishing a rigid proposition that insured’s must “provide evidence of suitable employment” to prove their claim. The appropriate approach is always a flexible, fact-based one, in which, while the legal onus always remains on the insured, the sufficiency of the proof depends on what is reasonable in the circumstances. This involves consideration of the evidence presented by both parties, including the nature of the individual’s condition and extent of the disability, the efforts the insured has made to position himself or herself to return to the workforce, the vocational assistance made available by the insurer and the options for alternative work that have been put forward. p.7

Assessors from both sides in Ms. McLeod’s case presented a large volume of evidence, all of which points to Ms. McLeod’s consistent, credible pain complaints. No one assessor fully captured the true nature of Ms. McLeod’s impairments and the evidence suggests that Ms. McLeod would not be able to actively participate in her old job over an extended period of time. Ms. McLeod remained motivated to address her impairments by seeing a psychologist, psychiatrist, physical therapists and by engaging in a work hardening program. She also underwent invasive therapies to address her pain. When her employer told her that it would not accept her back unless she was 100%, she grew discouraged and did not inquire about what her employer would require her to do to return to work. Given her psychological condition, her response was understandable.

State Farm put Ms. McLeod under surveillance in January and March of 2011. The surveillance is not relevant to Ms. McLeod’s substantial inability claim because it was conducted after the 104 week mark. However, it is relevant to her post 104-week income replacement benefit claim. The surveillance shows Ms. McLeod driving, walking, shopping with her children and reading for a prolonged period of time in a library. None of the surveillance shows her using her left arm to lift or carry objects for any appreciable length of time or using her left arm above her shoulder. The surveillance does not show Ms. McLeod being particularly physically active or engaging in any activities that remotely resemble any of the heavier tasks she would be required to perform at work. Ms. McLeod has reported to at least one assessor that after being very physically active, she experiences higher levels of pain the next day. I find that the surveillance does not in any way weaken Ms. McLeod’s assertions that she is not capable of performing her work functions.

I find that there is enough evidence to support Ms. McLeod’s claim that she is disabled from engaging in any employment for which she is reasonably suited by education, training or experience. Ms. McLeod’s position is that she does not have the experience or training to engage in lab technician or child care work. Given the length of time that she has been a personal support worker, and absent any contrary evidence, it is reasonable to assume that she is not qualified to engage in the lab technician or child care fields. Under the circumstances, and given the evidence presented by the parties, it is also reasonable to expect that State Farm would have engaged in vocational analyses and presented alternative employment options.¹⁹ Having no evidence before me to persuade me otherwise, I find that Ms. McLeod, as a result of the accident, suffers a complete inability to engage in any employment for which she is reasonably suited by education, training or experience.

Housekeeping and Home Maintenance services of $100.00 per week from January 1, 2008 to July 31, 2009

State Farm shall pay for reasonable and necessary additional expenses incurred by or on behalf of Ms. McLeod as a result of this accident if she sustained an impairment that results in a substantial inability to perform housekeeping and home maintenance services that she normally performed before the accident.

Ms. McLeod must satisfy three elements in order to prove entitlement to housekeeping and home maintenance benefits. She must have performed housekeeping and home maintenance services before the accident. She must suffer a substantial inability to perform those housekeeping and home maintenance services, as a result of an accident-related impairment. She must also have incurred additional expenses for someone else to perform those services.²⁰

Ms. McLeod arranged to have occupational therapist Emily Fern complete an in-home assessment of her dated January 8, 2008.²¹ During the assessment, Ms. McLeod reported having a sharp, constant, aching pain in her left upper extremity that radiated from her fingers up to her shoulder. As her daily activity level and fatigue increased she reported that the pain radiated up her shoulder and into her left ear. Ms. McLeod complained of problems with headache, sleeplessness and pain in her hips, back and legs. Ms. Fern’s opinion was that Ms. McLeod risked re-injury if she did her housekeeping tasks on her own and that Ms. McLeod required 15 to 20 hours of housekeeping per week. Ms. Fern recommended re-assessing Ms. McLeod in three to four months.

A week after Ms. Fern’s assessment, Ms. Daniela Laski, occupational therapist, at State Farm’s request, completed an in-home assessment of Ms. McLeod, dated January 17, 2008.²² Ms. Laski noted that Ms. McLeod could return to the majority of her light to medium weighted housekeeping activities if she used assistive devices. However, because of ongoing pain and dysfunction, Ms. McLeod would be unable to complete tasks requiring repetitive left shoulder flexion and heavier lifting tasks. Ms. Laski recommended 2.5 hours per week of heavy meal preparation assistance, 90 minutes of laundry assistance, 15 minutes per week of linen changing and 45 minutes per week of grocery shopping assistance.

Ms. Laski again assessed Ms. McLeod and completed a report dated September 3, 2008. In the September report, Ms. McLeod stated that she was able to resume participation with many of her housekeeping tasks, but continued to receive assistance from a friend with heavier tasks. Ms. Laski recommended that Ms. McLeod assume her housekeeping duties with assistive devices and that, other than the devices, no housekeeping assistance was necessary.

There was no dispute at the hearing about whether Ms. McLeod performed her own housekeeping tasks before the motor vehicle accident and I find that she did. There was also no dispute concerning the housekeeping invoices Ms. McLeod submitted to State Farm, and so I find that she incurred additional expense for someone else to perform her housekeeping duties after the motor vehicle accident. I also find that Ms. McLeod suffered a substantial inability to perform her housekeeping tasks because of an impairment related to the motor vehicle accident.

I find that Ms. Laski’s initial in-home assessment in January 2008 is overly optimistic about the housekeeping duties Ms. McLeod could complete with assistive devices. Ms. Laski made some of the same observations that Ms. Fern made about Ms. McLeod’s functioning, including Ms. McLeod’s left shoulder pain, difficulty standing for prolonged periods and her difficulty carrying weight in her left hand. Given that Ms. McLeod was the person responsible for the housekeeping in a household with three children and a grandchild, I find that she required more housekeeping assistance than Ms. Laski recommended. Ms. Fern’s report very clearly stated that Ms. McLeod could perform some functions, but that prolonged activity put her at risk of re-injury. I find that Ms. McLeod could not engage in the majority of her heavy housekeeping tasks and risked re-injury if she attempted them.

I find that Ms. McLeod required the housekeeping assistance that she claimed at the time and that State Farm shall pay her the housekeeping benefit she claimed up to the maximum allowed under the Schedule up to the date of Ms. Laski’s second report, which is September 3, 2008.

Ms. McLeod’s condition had changed by the time Ms. Laski re-assessed her in September 2008. Ms. Laski’s September 2008 report contains many of the same recommendations contained in her January 2008 report. At the time of Ms. Laski’s second report, Ms. McLeod had reported to Dr. Andrew Wilk that she had experienced a 40% improvement in both shopping and household chores. I find Ms. McLeod’s reports to her assessors to be credible. While she did report improvement in her ability to do her household chores in September 2008, she still reported to her assessors that she was experiencing significant pain and an inability to engage in prolonged activity. I find it reasonable to assume that while Ms. McLeod may have experienced improvement, she still required assistance. Therefore, State Farm shall pay Ms. McLeod half of the housekeeping assistance she claimed from September 4, 2008 to July 31, 2009.

Medical Benefits

State Farm shall pay to Ms. McLeod all medical and rehabilitation benefits that are reasonable and necessary that she incurred as a result of this accident. There are a number of factors taken into account when deciding what medical and rehabilitation benefits are reasonable and necessary. Among them: whether the treatment is appropriate to the goals and the person; whether the treatment’s aim of returning Ms. McLeod to work or her pre-accident state are being met; the subjective benefit to Ms. McLeod; and whether the treatment helped relieve pain, without encouraging an inappropriate or indefinite dependency.²³

Services at Chronic Care Recovery

$2,400.00 for chronic pain treatment under a treatment plan dated July 11, 2008

In this treatment plan, Dr. Riaz Moolla recommended Botox injections into Ms. McLeod’s left shoulder every three months for one year. He also suggested that Ms. McLeod attend for follow-up after six months to assess the effectiveness of the therapy. Dr. Moolla noted that Ms. McLeod’s impairment affected her ability to perform her pre-accident activities and a course of conventional rehabilitation had not completely resolved her signs and symptoms. In his view, Botox presented a simple, effective intervention with no side effects when injected into specific muscles. Dr. Moolla stated that Botox promotes muscle relaxation and reduces spasticity and tightness, helping patients function more normally.

Dr. Albert Cheng assessed Ms. McLeod at State Farm’s request to determine if this treatment plan was appropriate.²⁴ At the assessment, Ms. McLeod reported to Dr. Cheng that she still used a chair in the shower and was afraid of falling. She participated in aqua-fit three times per week and was attending a work hardening program. In addition, she performed home exercise programs and iced her shoulder and low back after her exercises. Dr. Cheng found that Ms. McLeod had end range discomfort in her left shoulder, however the impingement tests he performed were negative. He remarked that the MRI that had been performed on Ms. McLeod’s shoulder revealed no evidence of post traumatic tear or other abnormalities. He found no clear cut features of underlying impingement or myofascial pain and therefore Botox, being a passive treatment, was not appropriate.

I find that the treatment recommended in this treatment plan is reasonable and necessary. This treatment is appropriate to Ms. McLeod’s goals as its stated purpose is to reduce the tightness in her shoulder and assist her in functioning more normally. At the time this treatment plan was recommended Ms. McLeod had already tried numerous therapies. In fact, she willingly engaged in both active and passive therapies which seemed to be of value but only gave temporary relief. Dr. Moolla encouraged a cautious approach, with a re-assessment after six months, and so I do not believe that the Botox injections would create inappropriate or indefinite dependency.

In attempting to get Ms. McLeod back to her pre-accident state, I find that Botox is a reasonable treatment option and a necessary one, given that so many other treatment modalities had only limited effectiveness.

$1,000.30 ($2,049.80 less $1,049.50 paid by State Farm) under a treatment plan dated May 6, 2008.

Zahra Juma, occupational therapist, recommended that Ms. McLeod participate in 10 sessions of a Progressive Goal Attainment Program (PGAP). The program is a disability prevention program for individuals suffering from persistent pain. It targets psychosocial risk factors for pain and disability and the focus is on disability reduction. One of the goals of the program is transition from unemployment to employment.

Dr. Peter Marton, psychologist, assessed Ms. McLeod, at State Farm’s request, to determine if the treatments Ms. Juma recommended were appropriate. Dr. Marton had assessed Ms. McLeod once before this assessment. He remarked that Ms. McLeod had a history of psychological stress, which was a primary contributor to her complaints in his prior assessment. He noted that there were no indicators that her complaints and symptoms had substantially increased since his earlier assessment. He stated that Ms. McLeod had a tendency to over-endorse psychological symptoms and that there were inconsistencies between her self-reported complaints and her complaints on diagnostic interview. He concluded that Ms. McLeod’s lack of progress to that point appeared to be a poor prognosticator of any benefit to her from the proposed treatment. He recommended a trial of 5 sessions of the PGAP and that without Ms. McLeod’s documented participation and progress, the remaining sessions should not be approved.

I find that Dr. Marton’s recommendations with respect to this treatment plan are reasonable. Ms. McLeod did not present any evidence at the hearing that State Farm had denied this benefit after she had provided evidence of her participation and progress in this program. I find that Ms. McLeod is entitled to the remainder of this benefit if she presents to State Farm evidence of her documented participation and progress in the first 5 sessions.

$2,994.50 for chronic pain treatment under a treatment plan dated March 18, 2008

Dr. Amarpreet Jaswal, chiropractor, recommended that Ms. McLeod participate in a functional restoration program to address her present symptoms and pain focussed behaviour. The program allows for specific task simulation and hurt versus harm education. In addition, it aims to increase pain tolerance and reduce task avoidance due to anticipation of pain and further harm or impairment. The program includes behaviour modification and psychological counselling. Dr. Jaswal’s treatment plan also recommends low energy photonic therapy, which uses monochromatic light of specific wavelengths to treat medical conditions. The therapy decreases pain and inflammation, improves microcirculation and peripheral nerve regeneration, and improves muscle, tendon and ligament healing.

Dr. C. Locke assessed Ms. McLeod at State Farm’s request to determine if this treatment is reasonable and necessary.²⁵ His report briefly addressed what he contends is Ms. McLeod’s treating practitioners discouraging her from participating in his treatment recommendations, and encouraging her to follow only their advice. His opinion is that Ms. McLeod’s condition would have been significantly improved if she had followed his treatment recommendations. His testing revealed the possibility that Ms. McLeod’s left arm limitations may be due to frustration and fear that doing more activity will cause pain. His belief is that no physical treatment will help her non-physical pain issues. He concluded that the proposed treatment is not consistent with Ms. McLeod’s injury or diagnosed conditions.

While I sympathize with Dr. Locke’s concerns about Ms. McLeod’s treating practitioners, I do believe that his concerns about contradictory medical advice affected the conclusions he made in his report. Dr. Locke notes that Ms. McLeod’s issues may be from a fear of doing more activity that will cause pain. This is precisely what the recommended treatment plan states as its goal. However, Dr. Locke’s opinion is that hurt versus harm education would not assist Ms. McLeod.

I find that this treatment plan is reasonable and necessary as it is consistent with Ms. McLeod’s goals. Its aims are to address her pain focus and get her back to normal functioning. The treatment plan does not seem designed to just relieve pain, but rather to teach Ms. McLeod how to handle her pain and pain avoidance. The program is not of indefinite duration and so would not encourage dependency. I find that Ms. McLeod is entitled to this claim for benefits.

$520.00 for chronic pain treatment under invoice number 1267

The treatment plan for this benefit was not provided to me in Ms. McLeod’s exhibits entered into evidence at this hearing. Hearing no evidence from Ms. McLeod or from State Farm that could support this claim, I find that she has failed to meet the burden of proving her claim. Therefore, her claim for this benefit is dismissed.

Services at Oshawa Physiotherapy and Rehabilitation Centre

• $736.35 for a work hardening program under invoice number 4279.

• $568.73 ($610.68 less $41.95 paid by State Farm) under invoice number 4279.

• $600.00 for supportive therapy sessions under a treatment plan dated September 12, 2008.

• $1,491.36 for physiotherapy, chiropractic and massage therapy sessions under a treatment plan dated January 2, 2008.

The treatment plans for these benefits were not provided to me in Ms. McLeod’s exhibits entered into evidence at this hearing. Hearing no evidence from Ms. McLeod or from State Farm that could support these claims, I find that she has failed to meet the burden of proving her claims. Therefore, her claims for these benefits are dismissed.

Services at Mandel and Associates

• $1,754.87 for services under a treatment plan dated October 10, 2008.

• $269.98 for services under invoice number 4741.

The treatment plans for these benefits were not provided to me in Ms. McLeod’s exhibits entered into evidence at this hearing. Hearing no evidence from Ms. McLeod or from State Farm that could support these claims, I find that she has failed to meet the burden of proving her claims. Therefore, her claims for these benefits are dismissed.

Cost of Examinations

Ms. McLeod claims entitlement to the following expenses for the cost of examinations:

• $463.72 ($1,963.72 less $1,500.00 paid by State Farm) for a neurological assessment at Precision Assessment.

• $450.00 for a rebuttal assessment by Chronic Pain Recovery.

Neither of these requests for assessments was provided to me in Ms. McLeod’s exhibits entered into evidence at this hearing. Hearing no evidence from Ms. McLeod or from State Farm, that could support these claims, I find that she has failed to meet the burden of proving her claims. Therefore, her claims for these benefits are dismissed.

EXPENSES:

The parties made no submissions on expenses. They are encouraged to resolve the issue. If they are unable to do so, they may schedule an expense hearing before me according to the provisions of Rule 79 of the Dispute Resolution Practice Code.

May 25, 2012

Lloyd (J.R.) Richards Arbitrator

Financial Services Commission of Ontario

Neutral Citation: 2012 ONFSCDRS 86

FSCO A10-000755

BETWEEN:

CLAUDIA McLEOD

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

ARBITRATION ORDER

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

1. State Farm shall pay to Ms. McLeod a weekly income replacement benefit of $315.06 per week from September 22, 2008 to date and ongoing.

2. State Farm shall pay to Ms. McLeod the housekeeping and home maintenance services she claimed from January 1, 2008 to September 3, 2008 up to a maximum of $100.00 per week, and 50% of the housekeeping assistance she claimed from September 4, 2008 to July 31, 2009.

3. State Farm shall pay to Ms. McLeod the following medical benefits:

Services at Chronic Pain Recovery:

• $2,400.00 for chronic pain treatment under a treatment plan dated July 11, 2008.

• $1,000.30 for treatment under a treatment plan dated May 6, 2008 if she presents to State Farm evidence of her documented participation and progress in the first 5 sessions of this treatment plan.

• $2,994.50 for chronic pain treatment under a treatment plan dated March 18, 2008.

The remainder of Ms. McLeod’s claims for medical benefits are dismissed.

4. Ms. McLeod’s claims for cost of examinations are dismissed.

5. State Farm shall pay to Ms. McLeod interest on the overdue payment of benefits pursuant to section 46.2 of the Schedule.

May 25, 2012

Lloyd (J.R.) Richards Arbitrator

Footnotes

1. 1The Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2Tab 15 Insurer’s Brief – Dr. Albert Cheng assessment, dated August 22, 2008
3. 3Tab 11 Applicant’s Brief – Dr. Ken Fern orthopaedic rebuttal, dated March 14, 2008, Tab 6 Applicant’s Brief – Dr. Riaz Moolla record, fax dated July 29, 2008, Tab 16 Applicant’s Brief – Dr. Wong report, dated April 25, 2011
4. 4Quattrocchi and State Farm Mutual Automobile Insurance Company, (OIC A-006854, Sept. 29, 1997)
5. 5Tab 3 Applicant’s Brief – Dr. David Surette disability certificate, dated August 13, 2007
6. 6Tab 7 Applicant’s Brief – Dundas Center Medical X-Ray and Ultrasound record, Tab 7 Applicant’s Brief – Bloor Christie record, dated September 26, 2007
7. 7Tab 15 Insurer’s Brief – Dr. Albert Cheng physiatry assessment, dated August 22, 2008 (Dr. Cheng references an MRI of Ms. McLeod’s left shoulder completed by Dr. Winnie Lee at St. Michael’s Hospital, dated April 2, 2008. Neither Ms. McLeod nor State Farm produced the St. Michael’s report at the hearing.)
8. 8Tab 8 Applicant’s Brief – Dr. Chris Osinga report, dated May 25, 2009
9. 9Tab 15 Insurer’s Report – Dr. E. Mah chiropractic report, dated October 16, 2009
10. 10Tab 7 Applicant’s Brief – Whitby Medical Arts Imaging record, dated December 29, 2009
11. 11Tab 17 Applicant’s Brief – Janice Kim occupational therapy report, dated June 17, 2011
12. 12Tab 15 Insurer’s Brief – Dr. Rehan Dost neurological assessment, dated January 18, 2008
13. 13Tab 6 Applicant’s Brief – Dr. Andrew Wilk consultation referral from Chronic Pain Recovery, dated April 30 2008 (Allodynia is pain resulting from something not normally causing pain)
14. 14Tab 15 Insurer’s Brief – Dr. Peter Marton psychological assessment, dated December 4, 2007, Dr. Peter Marton assessment, dated July 9, 2008, Dr. Lubbers assessment, dated May 25, 2011
15. 15Tab 15 Insurer’s Brief – Dr. Lubbers assessment, dated May 25, 2011
16. 16Burtch v. Aviva Insuance Company of Canada, 2009 ONCA 479, p.11
17. 17Shubrook and Lombard General Insurance Company of Canada, (FSCO A03-000361, Nov. 26, 2004)
18. 18Canadian Surety Company and H.K., (FSCO P98-00041, February 29, 2000)
19. 19Canadian Surety and H.K., p.9
20. 20Waheed and RBC General Insurance Company, (FSCO A06-000761 and A06-000856, Oct. 26, 2007)
21. 21Tab 10 Applicants Brief – In-home occupational therapy re-assessment report
22. 22Insurer’s Brief – Tab 15
23. 23Amoa-Williams and Allstate Insurance Company of Canada, (A97-001864, June 5, 2000); Pinto and Allstate Insurance Company of Canada, (OIC A05-000403, Nov. 26, 1997)
24. 24Tab 15 Insurer’s Brief – Dr. Albert Cheng physiatry assessment, dated August 22, 2008
25. 25Tab 15 Insurer’s Brief – Dr. C. Locke chiropractic assessment, dated April 6, 2008