Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2014 ONFSCDRS 183

FSCO A11-003435

BETWEEN:

JOYCE TRACEY

Applicant

and

YORK FIRE & CASUALTY INSURANCE COMPANY

Insurer

Before: Eban Bayefsky

Heard: March 31, April 1-3, 2014, in Barrie, Ontario

Appearances: Andrew Kerr for Ms. Tracey

Kerri P. Knudsen for York Fire & Casualty Insurance Company

Issues:

The Applicant, Joyce Tracey, was injured in a motor vehicle accident on February 28, 2008. She applied for and received statutory accident benefits from York Fire & Casualty Insurance Company (“York”), payable under the Schedule.¹ York terminated weekly income replacement benefits on June 26, 2008. The parties were unable to resolve their disputes through mediation, and Ms. Tracey applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

Is Ms. Tracey entitled to income replacement benefits, from June 26, 2008, at a rate of $182.34 per week, pursuant to section 5(1) of the Schedule?
Is Ms. Tracey entitled to housekeeping benefits, from July 15, 2008 to February 28, 2010, at a rate of $100 per week, pursuant to section 22 of the Schedule?
Is Ms. Tracey entitled to payment for the cost of a multi-disciplinary assessment, in the amount of $1,512.09, recommended by the Canadian Back Institute on March 27, 2009, pursuant to section 24 of the Schedule?
Is Ms. Tracey entitled to interest for the overdue payment of benefits, pursuant to section 46(2) of the Schedule?
Is either party entitled to its expenses of the arbitration, pursuant to section 282(11) of the Insurance Act?

Result:

York Fire & Casualty Insurance Company shall pay to Ms. Tracey income replacement benefits, from June 26, 2008, at a rate of $182.34 per week.
Ms. Tracey is not entitled to housekeeping benefits.
York Fire & Casualty Insurance Company shall pay to Ms. Tracey the cost of the multi-disciplinary assessment recommended by the Canadian Back Institute on March 27, 2009, in the amount of $1,512.09.
York Fire & Casualty Insurance Company shall pay to Ms. Tracey interest on the benefits ordered to be paid, in accordance with section 46(2) of the Schedule.
If required, the parties may request an expense hearing in accordance with the process set out in Rule 79 of the Dispute Resolution Practice Code.

EVIDENCE AND ANALYSIS:

Background – Ms. Tracey’s Accident and Injuries

Ms. Tracey was involved in a motor vehicle accident in Barrie, Ontario on February 28, 2008, when the van she was driving was rear-ended by another van while stopped at a traffic light. Ms. Tracey testified that it was a “big blow”, and that she felt like the “wind had been knocked out of [her].” She stated that she experienced dizziness, and neck and back pain at the time of the accident. She was taken by ambulance to Royal Victoria Hospital in Barrie, where she underwent x-rays (which were normal), she was diagnosed as having suffered neck and back strain, and was discharged home with pain medication and instructions to see her family doctor. Ms. Tracey went to her family physician, Dr. W.S. Cutbush, on March 3, 2008, after the weekend (because there had been a snow storm on the weekend), and Dr. Cutbush referred her to physiotherapy at the Canadian Back Institute (“CBI”), where she attended for approximately 22 weeks. Ms. Tracey also attended at Maple View clinic until January 2009. In a disability certificate, dated March 20, 2008, Dr. Cutbush reported that Ms. Tracey had suffered a WAD-II injury, with low back strain and left side pain in the accident. Dr. Cutbush reported that Ms. Tracey was unable to do her pre-accident employment and housekeeping duties.

In the CBI discharge report, dated May 15, 2008, Marc Simard, a physiotherapist, diagnosed Ms. Tracey has having “chronic phase lumbar facet sprain L5S1 segment with overlying muscular spasm/pain.” Mr. Simard reported that Ms. Tracey’s pain was “reproduced as muscles fatigue and patient rests on articular and ligamentous structures” and that “pain is also reproduced with increased load including heavy lifting.” Mr. Simard stated that he expected “with diligent exercise and appropriate activities that Ms. Tracey should have a full recovery”, but that “if symptoms persist over the next 3-4 weeks…Ms. Tracey [should] first see her physician…and follow up with physiotherapy if directed.”

On January 8, 2009, Dr. R.H.N. Fielden, an orthopaedic surgeon who assessed Ms. Tracey at the request of the Insurer, reported that Ms. Tracey suffered “soft tissue strain without evidence of underlying pathology, and persistent pain in the absence of pathology is usually soft tissue and muscular in origin either due to tension, muscle stiffness or over protective use of the musculature of the back to protect motion.”

On May 27, 2010, in support of Ms. Tracey’s Canada Pension Plan disability application, Dr. Cutbush reported that Ms. Tracey suffered from a reduced range of movement in her cervical and lumbar spine, paresthesies in her arms when raised, pain in her neck, and upper and lower back (with pain radiating to her shoulders and arms), and that Ms. Tracey could not lift or carry, required frequent rest periods and had poor sleep due to her pain. Dr. Cutbush stated that he anticipated minimal improvement, and that Ms. Tracey had “put every effort into her recovery.”

On September 12, 2011, Dr. D. Haaland, a rheumatologist, reported to Dr. Cutbush that Ms. Tracey “certainly…does have features of fibromyalgia syndrome [which] relates to emotional traumas/depression and as well previous MVA.” Dr. Haaland confirmed the diagnosis of fibromyalgia syndrome on January 15, 2014.

On January 25, 2012, Dr. S.W.J. Wong, a physiatrist who assessed Ms. Tracey at the request of her counsel, reported that, as a result of the accident, Ms. Tracey suffered moderate myofascial injury of the thoracic spine, with referred pain to the neck and shoulders; mild myofascial injury to the cervical spine paraspinal muscles; cervicogenic headaches, moderate myofascial injury to the lumbar spine paraspinal muscles and the upper sacral spine gluteal muscles; insomnia; and an increase in her depression.

On December 24, 2012, Ms. C. MacGregor, a vocational rehabilitation consultant who conducted a Transferable Skills Analysis of Ms. Tracey at the request of her counsel, reported that Ms. Tracey suffered from headaches, right and left shoulder pain, low back pain, general stiffness, right knee pain, vision problems, and difficulties with concentration and memory.

With respect to Ms. Tracey’s pre-accident medical history, she testified that she suffered from depression and anxiety her entire life, that she would occasionally go to the hospital for these problems and that it sometimes interfered with her ability to work. She said she had also suffered from migraine headaches since she was 18 years old. She took medications to control these problems and was sometimes unable to work as a result of the pain. Ms. Tracey also stated that she had experienced back problems beginning with a motor vehicle accident in approximately 1986, but that she did not suffer significantly, did exercises to help her back, and was able to “move on with life.”

In an Ontario Disability Support Program Self Report Form, dated January 10, 2004, Ms. Tracey stated that she suffered severe arthritis several times a year, migraine headaches with associated vision problems and muscle weakness, anxiety attacks, and digestive problems. At the same time, Dr. Cutbush reported that Ms. Tracey suffered from depression arising from an abusive childhood, recurrent arthritis in the knee and elbow, and recurring headaches. Dr. Cutbush stated that Ms. Tracey’s “mood disorder” prevented her from working, and that he expected this to continue for approximately a year. On May 16, 2006, Dr. Cutbush reported that Ms. Tracey suffered from recurrent back and abdominal pain which limited her stamina, her ability to bend and to do heavy lifting.

1) Ms. Tracey’s Claim for Income Replacement Benefits

Ms. Tracey claims income replacement benefits (“IRBs”) from June 26, 2008, at a rate of $182.34 per week. The Insurer does not dispute the quantum of any IRBs owing. Pursuant to sections 5(1) and (2) of the Schedule, Ms. Tracey is entitled to IRBs within the first two years of the accident, if as a result of the accident, she suffered a “substantial inability to perform the essential tasks” of her pre-accident employment, and beyond the first two years of the accident, if she suffered a “complete inability to engage in any employment for which…she is reasonably suited by education, training or experience.”

Ms. Tracey submitted that, despite her significant pre-accident medical history and an inconsistent work history, she suffered significant injuries as a result of the February 28, 2008 motor vehicle accident, had a reasonable employment history in the year immediately preceding the accident, and, as a result of the accident, was rendered incapable of returning to either her pre-accident job or a reasonably suitable alternative. The Insurer submitted that the accident did not materially worsen Ms. Tracey’s pre-accident condition and did not contribute to any inability to perform her pre-accident employment or a reasonable alternative.

(i) Vocational and Medical Evidence of Disability

At the time of the accident, Ms. Tracey worked at Costco and trade shows as a product demonstrator, requiring prolonged periods of standing and bending, setting up displays, climbing ladders to stock shelves, lifting and carrying boxes, some of which were very heavy, and general cleanup duties, including washing dishes, mopping, sweeping and removing garbage. Ms. Tracey worked part-time, 3-4 days per week, 8-9 hours per shift, and an average of 16 hours per week, earning $8.25 per hour for food demonstrations in stores, and $10.75 per hour for road show demonstrations. Ms. Tracey testified that she had been doing this job for approximately 14 months before the accident, that she had no physical difficulties doing the job, and that she would get “the odd migraine”, but that her boss would let her take a break at these times.

Ms. Tracey had intermittently held jobs as a cleaner, secretary and personal support worker. She had also had casual employment as a landscaper, and as a babysitter for friends. Ms. Tracey had a grade 10 level of education.

Ms. Tracey testified that she has not been able to return to work due to the injuries she suffered in the accident. She testified that her pain improved after the physiotherapy treatment, but that she still had significant pain, and still required pain medication. Ms. Tracey stated that she used to stand throughout her entire shift as a product demonstrator, and that, because of the accident, she could not stand for all of those hours. Ms. Tracey testified that she contacted a co-worker after the accident, who advised her that her old job was no longer available. She also stated that, at the request of the Insurer, she called her pre-accident employer approximately 1-2 months following the accident to see if there was “anything at all” she could do there, but that her employer said that they had already informed the Insurer that the available work was too physically demanding for her. Ms. Tracey said that, in October 2010, she attempted to work for a local newspaper, inserting flyers into newspapers, but that she had to stop after only two and a half hours due to pain in her neck and shoulders. She testified that she might be able to do some type of sedentary work, because she obtained a certificate for a computer course in 2006 from Georgian College. She said that she is in too much pain to look for a job, and that she is afraid of failing, because of the pressure involved.

On January 8, 2009, Dr. Fielden reported that “there are no findings that would cause [Ms. Tracey] to suffer a substantial inability to perform her occupational duties which she has not returned to at this time.”

On November 25, 2009, Dr. Cutbush reported to the Ministry of Community and Social Services that Ms. Tracey suffered a cervical and lumbar spine strain, that this began with the February 28, 2008 motor vehicle accident and had not improved with therapy, and that this “severely limited” her vocational and recreational activities (specifically, preventing her from doing manual labour, sitting, standing or walking for prolonged periods and requiring frequent rest periods).

On July 8, 2010, Dr. Cutbush’s clinical notes report Ms. Tracey as being “unable [to do] any work, school, or volunteer [activities] due to variability of symptoms” and that “some days [she] can only rest.”

On January 25, 2012, Dr. Wong reported that Ms. Tracey “cannot participate in physically demanding jobs in the future due to her injuries” and that “[t]he chance for [her] to find a job in the future is guarded due to her multiple injuries and her limited education background.” Dr. Wong said that Ms. Tracey would benefit from a vocational assessment and transferrable skills assessment to determine if “there is any work that can accommodate her permanent impairment.” At the hearing, Dr. Wong noted that there was no record of neck and back pain for any length of time before the accident, and so these problems were caused by the accident. Dr. Wong testified that Ms. Tracey’s arthritis would only be significant if it were disabling. Dr. Wong also stated that even though Dr. Cutbush reported in May 2006 that Ms. Tracey had recurrent back pain, his clinical notes at the time did not bear this out since there ought to have been repeated references to back pain. Dr. Wong acknowledged that there are no reports that Ms. Tracey’s depression had been worsened by the motor vehicle accident.

On December 24, 2012, Ms. MacGregor reported that Ms. Tracey “is not competitively employable in any occupation for which she is qualified based on education, training or experience” and that “[r]etraining would not appear to be an option at this time as Ms. Tracey’s ability to complete a learning program would be compromised based on her pain symptoms and need to pace activities.” Ms. MacGregor stated that “[a]t best [Ms. Tracey] may manage a return to volunteer work, or casual paid employment, however this would not be expected to be competitive or result in any significant earnings.” Ms. MacGregor testified that “casual paid employment” meant informal employment that was not necessarily scheduled and that would only involve work one day per week or month. Ms. MacGregor noted that Ms. Tracey’s experience of pain flare-ups “does not bode well for seeking, securing and maintaining employment” as “[e]mployers look for those who can attend scheduled shifts, take on extra duties, work overtime as needed and give 100% on a day to day basis.” Ms. MacGregor stated, as follows:

Ms. Tracey’s education and prior employment experience enables her to work in one area, that of a sales clerk or demonstrator. These types of occupations are physically demanding, requiring extensive standing, walking, carrying and lifting. Those without high school are most often relegated to physically demanding, entry level positions. Ms. Tracey is no longer able to work in this type of physically demanding occupation. Alternative occupations, sedentary in nature, were explored however Ms. Tracey does not possess the education, skills or experience to secure employment in more sedentary positions.

Ms. MacGregor testified that the positions of retail sales clerk or customer service representative were not appropriate for Ms. Tracey as the constant standing and sitting would be too physically demanding for her and because she did not possess the required education and training for these positions. Ms. MacGregor said that Ms. Tracey’s age and having been out of the workforce for a considerable period of time would also be barriers to her returning to work. Ms. MacGregor pointed out that most sedentary jobs required computer skills for which Ms. Tracey would have to undergo retraining and upgrading. Ms. MacGregor testified that, even if Ms. Tracey did not work as many hours per week as she said, she still had had meaningful remuneration pre-accident, and that she was not be able to obtain this type of employment after the accident.

(ii) Findings on Income Replacement Benefits

For the following reasons, I find that Ms. Tracey is entitled to IRBs from June 26, 2008, at a rate of $182.34 per week.

The Insurer did not seriously challenge Ms. Tracey’s credibility. The Insurer attempted to point out certain inconsistencies regarding Ms. Tracey’s pre-accident medical history arising from an Examination Under Oath on February 3, 2012, but the Insurer did not put these inconsistencies to Ms. Tracey in cross-examination, as is required to challenge a witness’ credibility.² This is also true in relation to Ms. Tracey testifying that she worked an average of 32 hours per week before the accident, whereas the relevant payroll documents suggest that Ms. Tracey worked an average of 32 hours every two weeks.

Dr. Wong testified that Ms. Tracey told him that she did not have pre-accident back pain. While this appears to be at odds with Ms. Tracey’s testimony that she had experienced back problems beginning with a motor vehicle accident in approximately 1986, Ms. Tracey did indicate that she did not suffer significantly from back pain and had been able to move on with her life, which is certainly consistent with the fact that she was able to work on a regular basis as a product demonstrator for at least a year before the accident. Ms. Tracey’s apparent statement to Dr. Wong is also at odds with Dr. Cutbush’s May 16, 2006 report to the effect that she suffered from recurrent back pain. However, as Dr. Wong pointed out, Dr. Cutbush’s clinical notes do not actually reflect that Ms. Tracey suffered from recurrent back pain, as those notes do not contain regular and/or ongoing references to this problem. I, therefore, do not find a significant discrepancy in this regard.

Finally, there are two brief references in the materials to Ms. Tracey’s demeanor and propensity to complain about her medical problems. On March 14, 2004, Ms. C. Creber, a social worker who assessed Ms. Tracey at the request of Dr. Cutbush, reported that Ms. Tracey was a person “with whom it was difficult to establish a rapport” and that she was “at times evasive and other times overly inclusive and difficult to redirect.” On October 19, 2006, Dr. R. Petroniene, a gastroenterologist to whom Dr. Cutbush had referred Ms. Tracey, reported that she believed that “some of [Ms. Tracey’s] complaints are psychosomatic.” As discussed by Ms. Creber, and is evident from Ms. Tracey’s testimony and Dr. Cutbush’s reports, a number of Ms. Tracey’s problems (for example, her migraines, anxiety, lack of concentration and digestive problems) appear to be related to the significant abuse she suffered earlier in her life. This may, therefore, explain Ms. Tracey’s conduct, but, in any event, I did not find her testimony particularly evasive, inconsistent or misleading, and in fact found it to have been given in a generally straightforward and honest manner. I note, as well, that none of the assessing or treating practitioners seriously questioned Ms. Tracey’s credibility.

For all of these reasons, I find that Ms. Tracey presented in a credible manner and that her evidence is reliable.

I find that the motor vehicle accident materially contributed to Ms. Tracey’s inability to return to her pre-accident work or a suitable alternative, and that, had it not been for the accident, she would likely have continued in her previous job as a product demonstrator. While Ms. Tracey suffered from various medical problems prior to the accident, I find that she did not suffer significant back or neck pain at the time. I find, as borne out by the evidence of Ms. Tracey, Dr. Cutbush and Dr. Wong, as well as that of the Insurer’s assessor, Dr. Fielden, that Ms. Tracey suffered significant soft-tissue injuries to her neck and back as a result of the accident. I find that these injuries became chronic and developed into fibromyalgia, which as reported by Dr. Haaland, was attributable, at least in part, to the motor vehicle accident. While Ms. Tracey suffered significant symptoms of anxiety and depression before the accident, and while these may not have been significantly worsened by the accident, I find it reasonable to infer, based on Dr. Wong’s evidence, as well as the change in Ms. Tracey’s ability to work and to take care of her house after the accident (discussed more below), that the accident materially contributed to her psycho-emotional problems following the accident.

Ms. Tracey underwent a hysterectomy in late 2012, and, in July 2013, Dr. Haaland reported that Ms. Tracey “attribute[d] most of her symptoms to anxiety about the surgery.” I note, however, that Ms. Tracey testified that there was no real improvement in her back pain after the hysterectomy. Dr. Haaland also recommended “mindfulness based therapies” for both the “anxiety and fibromyalgia…which have shared…neuropsychological underpinnings.” I, therefore, conclude that Ms. Tracey suffered from significant psycho-physical injuries as a result of the accident, which also interacted with her pre- and post-accident psycho-emotional problems.

Ms. Tracey’s pre-accident employment was physically demanding. I accept her testimony (as supported by Dr. Cutbush and Dr. Wong, as well as Ms. MacGregor) that, as a result of the injuries she suffered in the accident, and despite participating in two courses of physiotherapy, she was unable to return to her previous job as a product demonstrator. I prefer this evidence to that of Dr. Fielden, who, approximately a year post-accident, concluded that Ms. Tracey was able to return to her pre-accident job. Dr. Fielden’s report does not reflect any appreciation of the demands of Ms. Tracey’s previous work. Dr. Fielden also suggested that Ms. Tracey’s soft-tissue injuries had resolved, but this is not borne out by either Ms. Tracey’s own credible evidence (including the fact that she attended the Maple View physiotherapy clinic until roughly the time of Dr. Fielden’s assessment, with unfortunately no discharge report from Maple View) or that of Dr. Cutbush (as evidenced in both his November 2008 and May 2010 reports, which pre- and post-date Dr. Fielden’s assessment). Dr. Haaland and Dr. Wong, of course, provided additional evidence of the ongoing, chronic nature of Ms. Tracey’s injuries. Dr. Fielden also suggested that Ms. Tracey did not suffer an impairment by virtue of the fact that there were “no findings” and “persistent pain in the absence of pathology”, but this fails to take into account the non-organic, neuropsychological nature of Ms. Tracey’s symptoms, as later discussed by Dr. Haaland. Therefore, given the nature and extent of her injuries, as well as the demanding nature of her pre-accident employment, I find that, as a result of the accident, Ms. Tracey was substantially disabled from performing the essential tasks of her pre-accident work as a product demonstrator.

The Insurer attempted to suggest that Ms. Tracey used the accident as a pretext for not returning to her previous job. They pointed, for example, to a note in the Canadian Back Institute’s March 10, 2008 Occupational Therapy Functional Review that Ms. Tracey was “not really concerned about going back [to her previous job, because she] does not feel respected.” While Ms. Tracey agreed with this statement at the hearing, I did not understand this to mean that she did not want to return to work at all (regardless of any injuries she had suffered in the accident); it simply meant that given the injuries she had suffered, she would not be overly concerned if she were unable to return to that particular job, since she did not feel respected there. In any event, I accept Ms. Tracey’s uncontroverted evidence that she did, in fact, inquire about the possibility of returning to her pre-accident employment, but was informed that there was nothing there for her.

Finally, I accept Ms. MacGregor’s comprehensive report that, as a result of the accident, Ms. Tracey was completely unable to engage in any employment for which she was reasonably suited by education, training or experience, within the meaning of section 5(2) of the Schedule. Significantly, the Insurer did not provide any direct evidence on whether Ms. Tracey satisfied the post-104 week test. In any event, given my findings on the nature and extent of Ms. Tracey’s injuries, as well as my findings on her inability to return to her previous job, I accept Ms. MacGregor’s opinion that there were various functional and occupational barriers to Ms. Tracey securing productive/competitive employment. I also accept Ms. MacGregor’s view that, while Ms. Tracey may only have been working part-time before the accident, she still earned meaningful remuneration, worked on a regular basis and would now only be capable of returning to, at most, casual paid employment which would be significantly less than what Ms. Tracey was doing before the accident. I, therefore, conclude that, as a result of the accident, Ms. Tracey has been rendered completely unable to engage in any reasonably suitable alternative employment.

2) Ms. Tracey’s Claim for Housekeeping Benefits

Ms. Tracey claims housekeeping benefits, from July 15, 2008 to February 28, 2010, at a rate of $100 per week. Pursuant to section 22 of the Schedule, an insurer is required to pay for reasonable and necessary expenses incurred by an insured person if, as a result of the accident, the person sustains an impairment that results in a substantial inability to perform the housekeeping and home maintenance services that he or she normally performed before the accident. This test requires a comparison of the insured person’s pre- and post-accident housekeeping abilities, and a determination of whether the difference amounts to a substantial inability.³

Ms. Tracey submitted that, as a result of the accident, she was rendered substantially unable to do her pre-accident housekeeping duties, and relied on her daughter, neighbours and friends to complete those tasks. The Insurer submitted that, despite any injuries Ms. Tracey sustained in the accident, she was able to complete most, if not all, of her pre-accident housekeeping duties, and, in any event, she failed to provide substantiating evidence of the amount of housekeeping assistance she either received or required or of what she may have promised to pay the service providers.

(i) Personal and Medical Evidence on Housekeeping

Ms. Tracey testified that, prior to the accident, she lived with her daughter in a townhouse, preparing meals, washing dishes, vacuuming, mopping, cleaning bathrooms, carrying laundry and buying groceries. In a statement given to the Insurer on March 4, 2008 (five days after the accident), Ms. Tracey said that she did 2 loads of laundry a week, cooked every day, vacuumed every other day, and used the steam cleaner twice a month. In an occupational therapy in-home assessment report, dated March 31, 2008, by Theresa Oldfield, an occupational therapist at CBI Physiotherapy & Rehabilitation Centre, Ms. Tracey was reported as saying that, prior to the accident, she was independent with meal preparation, dishwashing, bathroom cleaning, grocery shopping, dusting, mopping and vacuuming, laundry, bed-making and garbage removal.

Ms. Tracey testified that, after the accident, she was able to do her housekeeping tasks, but slowly, that she was not able to prepare meals to the same extent or to vacuum and that she “let [her] house go.” She said that her friends and neighbours have had to help her with her housekeeping, such as doing the laundry, vacuuming, cleaning the bathrooms, preparing meals and taking out the garbage. Ms. Tracey testified that she had not paid anyone for assisting with housekeeping and that she had not promised to pay anyone for this assistance. In a March 4, 2008 statement to the Insurer, she said that she had “not paid anyone for their help”, “[n]o one ha[d] asked for any money from [her] yet” and she had “not offered anything.”

Ms. Tracey’s daughter, Sheena Tracey, who was 7 years old at the time of the accident, testified that, before the accident, her mother was “amazing” and used to clean “constantly…every day.” Sheena said that, after the accident, her mother used to complain all of the time, had difficulty walking, going up and down stairs, and getting out of a chair. Sheena said that she began to help her mother with some of the housekeeping tasks, such as taking the laundry downstairs, doing the dishes, making her mother’s bed, and making lunch in the morning. Sheena stated that her mother can, at most, work a half an hour to an hour, after which her hands become swollen, her legs weaken and her back becomes tense.

A friend and neighbour of Ms. Tracey, Merina Faetz, testified that, before the accident, Ms. Tracey did not complain about neck or back pain, did not have difficulty doing housekeeping tasks, did housekeeping almost every day, and her apartment was spotless. Ms. Faetz said that, after the accident, Ms. Tracey complained about neck and back pain, and required assistance with her various housekeeping tasks. Ms. Faetz said that she is not doing as much as she used to for Ms. Tracey, but that Ms. Tracey’s daughter now does more. A friend of Ms. Tracey, Iris Kroeger, testified that she assisted with some housekeeping duties, and that Ms. Tracey’s condition has stayed the same since they met in early 2010.

In her March 31, 2008 report, Ms. Oldfield reported Ms. Tracey as saying that, following the accident, she was “independen[t] with several housekeeping tasks although…[needs] to implement modified strategies and perform housekeeping tasks at a slower pace.” Ms. Oldfield recommended 2 hours of housekeeping assistance per week, for “laundry…[and] grocery transport” and for mopping.

Ms. Oldfield re-assessed Ms. Tracey’s housekeeping abilities on April 29, 2008, and on May 6, 2008 reported that, with the assistive devices provided, Ms. Tracey “demonstrates sufficient physical abilities as required to perform her pre-accident housekeeping and home maintenance tasks….” Ms. Tracey was noted as saying that she continued to have difficulty with vacuuming tasks and that it “takes forever to do” given the need to take frequent rest breaks and to pace herself to avoid flare-ups. Ms. Tracey testified that Ms. Oldfield was correct in reporting that she was independent in her housekeeping tasks.

In a May 16, 2008 discharge report, David Burns, a kinesiologist at CBI, reported Ms. Tracey as saying that she was “able to perform all of her normal activities but at a slower pace.”

In a disability certificate, dated November 27, 2008, Dr. Cutbush reported that, although Ms. Tracey was unable to do her pre-accident housekeeping duties, this meant that she was unable to do the “heavier tasks.”

On January 8, 2009, Dr. Fielden reported that “[t]here is no impairment and basically there are no findings that would cause her to suffer a substantial inability to perform housekeeping and home maintenance duties, which she does.”

On January 25, 2012, Dr. Wong reported that Ms. Tracey “will need to continue to utilize pacing techniques when she performs her household duties” and that she “will require much more [help] with her household tasks if she ever moves into a regular house that requires lawn mowing and snow removal activities.”

In her December 24, 2012 report, Ms. MacGregor noted Ms. Tracey as saying that, due to ongoing right knee and low back pain, and the “multiple flights of stairs” in her previous home, she was forced to relocate to a new residence. Ms. MacGregor also noted Ms. Tracey as saying that she was able to do all aspects of her housekeeping before the accident, but that afterwards, she will do some light housekeeping tasks when her pain is less severe.

(ii) Findings on Housekeeping Benefits

I find that Ms. Tracey is not entitled to the housekeeping benefits she claimed.

I accept the evidence of Ms. Tracey, her daughter and Ms. Faetz that Ms. Tracey did various housekeeping tasks prior to the accident, that she was fully independent with those tasks and that she kept her apartment very clean. I also accept that, as a result of the accident, Ms. Tracey experienced difficulties in doing her previous housekeeping duties, and that her daughter, neighbours and friends assisted with some of these activities. However, for the following reasons, I am not satisfied that Ms. Tracey suffered a substantial inability to do her pre-accident household tasks as of July 15, 2008, the date on which the Insurer terminated housekeeping benefits.

There is no evidence as to the actual amount of housekeeping assistance Ms. Tracey received, either in the form of Ms. Tracey providing a written account of the hours the service providers spent on housekeeping or in the service providers testifying as to the time they spent assisting Ms. Tracey. The service providers also did not indicate the months and years they assisted Ms. Tracey with her housekeeping duties.

The assessments of Ms. Oldfield are significant in that they establish that, while Ms. Tracey may have had difficulty in performing some of her household duties, she was not substantially disabled from doing them. As early as March 2008, Ms. Tracey indicated to Ms. Oldfield that she was independent with several housekeeping tasks, although needing to perform them differently and more slowly. Further, Ms. Oldfield only recommended 2 hours of housekeeping assistance at that time. Two months later, in May 2008, Ms. Oldfield reported that, although there was some lingering difficulty with vacuuming, with the assistive devices provided, Ms. Tracey was able to perform her pre-accident household activities. At the hearing, Ms. Tracey acknowledged that Ms. Oldfield was correct in saying that she was independent with her housekeeping tasks, having also indicated to Mr. Burns at CBI that she was able to perform all of her normal activities, except at a slower pace. I find that while Dr. Cutbush reported in November 2008 that Ms. Tracey was unable to do her previous household duties, his explanation that this referred to the “heavier tasks” is consistent with Ms. Oldfield’s report of essential independence in this area. And while I have concerns with the findings of Dr. Fielden (as discussed in relation to Ms. Tracey’s ability to return to work), I am satisfied that they are consistent with the other evidence of Ms. Tracey’s ability to do her housekeeping tasks as of July 2008.

Dr. Wong’s assessment supports the conclusion that Ms. Tracey was not substantially disabled from her household activities, given his view that Ms. Tracey would need to continue to pace herself and would need more help if she began doing lawn mowing and snow removal (neither of which Ms. Tracey indicated were required before the accident). And while Ms. MacGregor’s report (of Ms. Tracey saying that she was only able to do light housekeeping duties on her better days and if she paced herself) may suggest an increased level of impairment, Ms. MacGregor did not actually assess Ms. Tracey’s abilities in this regard, and her report was done well after the two year mark of February 28, 2010, the end date of Ms. Tracey’s claim for housekeeping benefits.

Finally, to the extent that it is necessary to Ms. Tracey’s claim, she did not establish that there was any payment to the service providers for their help with housekeeping, nor any promise to pay or any expectation of payment.

In all of the circumstances, I find that Ms. Tracey is not entitled to the housekeeping benefits claimed.

3) Ms. Tracey’s Claim for the Cost of a Multi-Disciplinary Assessment

Ms. Tracey claims the cost of a multidisciplinary assessment by the Canadian Back Institute, recommended by Ms. Rina Jones, a physiotherapist at CBI, on March 27, 2009, in the amount of $1,512.09. Pursuant to section 24(1)11 of the Schedule, an insurer must pay, in part, for “reasonable fees…charged by a member of a health profession…for conducting an assessment or examination and preparing a report if the assessment or examination is reasonably required in connection with a benefit that is claimed…,and…the insured person applied for approval of the assessment or examination either in a treatment plan…or by way of a separate application submitted under section 38.2 [for the approval of an assessment or examination not submitted as part of a treatment plan].”

In the Application for Approval of an Assessment or Examination (“OCF-22”), Ms. Jones stated that the proposed assessment was to “determine if [the] patient is appropriate for [a] chronic pain program”, including the following:

i) a physiotherapy assessment to identify any physical impairments and plan intervention

ii) an occupational therapy assessment to identify any need for life or work coaching

iii) a psychological assessment to identify any psychological barriers and plan appropriate intervention

On April 2, 2009, Daniel M. Shum, a physiotherapist, conducted a paper review of the request for an assessment, and concluded that Ms. Tracey was “having difficulty adjusting to her pre-accident status, not likely by any physical/functional barriers, but her perception of her own impairments” and that the proposed assessment was not reasonable and necessary.

On April 6, 2009, Dr. D. Prendergast, a psychologist, conducted a paper review of the requested assessment and reported as follows:

For the following reasons it is my opinion that insufficient clinical rationale has been provided to warrant the psychological component as outlined in the OCF-22 in dispute. First there was no indication that a psychologist screened the claimant and typically without the benefit of such a screening, any emotional concerns referenced in an OCF-22 cannot be relied upon to support a comprehensive assessment. To this I would also add that no emotional problems were identified in the OCF-22. Related to this I would offer that while an individual may have persistent pain, the need for an assessment by a chronic pain program would require some indication as to the presence of psychological overlay to that pain. This could best be determined by a screening by a psychologist. Furthermore, again as such, without the benefit of an identified screening the request for a psychological assessment cannot be supported. Furthermore, the supplied documentation did not identify any significant emotional issues that could be having an adverse role in the claimant’s pain experience. As such without the benefit of additional information, the request has not been demonstrated to be reasonably required.

On April 8, 2009, the Insurer denied the requested assessment on the basis of these two paper reviews.

As noted earlier, on January 8, 2009, Dr. Fielden reported that Ms. Tracey suffered “soft tissue strain without evidence of underlying pathology, and persistent pain in the absence of pathology is usually soft tissue and muscular in origin either due to tension, muscle stiffness or over protective use of the musculature of the back to protect motion.” And on September 12, 2011, Dr. Haaland reported that Ms. Tracey “certainly…does have features of fibromyalgia syndrome [which] relates to emotional traumas/depression and as well previous MVA.”

On January 25, 2012, Dr. Wong noted Ms. Tracey’s report of increased depression following the accident, and indicated that she “would benefit from a chronic pain program to address both the physical and psychological problems.” Dr. Haaland confirmed the diagnosis of fibromyalgia syndrome on January 15, 2014.

I find that Ms. Tracey is entitled to the requested assessment. I do not accept Mr. Shum’s assessment of Ms. Tracey’s condition, given the preponderance of personal and medical evidence that Ms. Tracey suffered chronic and disabling neck and back pain as a result of the accident. Needless to say, Mr. Shum did not actually examine Ms. Tracey, from either a physical or psychological perspective.

I also do not accept Dr. Prendergast’s circular reasoning as to the need for the psychological component of the recommended assessment. Dr. Prendergast seems to be saying that a psychological assessment is not reasonable and necessary because a psychological assessment has not been conducted to determine if a psychological assessment is warranted. In any event, the psychological pre-screening of which Dr. Prendergast speaks is precisely what is recommended in the application for the assessment, namely, a “psychological assessment to identify any psychological barriers and plan appropriate intervention” (emphasis added). And while Dr. Prendergast may have been correct in saying that the OCF-22 did not identify any emotional problems that might justify the recommended assessment, Dr. Prendergast also said that the supporting documentation did not identify any “significant emotional issues” that could be adversely affecting Ms. Tracey’s condition (emphasis added). Dr. Prendergast seems to acknowledge the presence of at least some non-organic issues, and the evidence (including Dr. Fielden’s earlier observation of persistent pain without pathology) establishes that Ms. Tracey had significant psycho-emotional issues prior to the accident, which could very well have been (and, in fact, were) exacerbated and affected by the accident. Mr. Shum suggests in his own analysis that Ms. Tracey’s inability to regain her pre-accident status was the result not of physical problems, but of perceptual problems. Dr. Prendergast did not comment on this observation.

Finally, while the reports were much later, Dr. Haaland’s and Dr. Wong’s assessments confirm the psycho-emotional component of Ms. Tracey’s problems and support the reasonableness of what was being proposed, namely, a combined physical, psychological and occupational assessment to determine the exact nature and extent of Ms. Tracey’s chronic condition and to identify the steps appropriate to treating that condition.

I, therefore, find that Ms. Tracey is entitled to the cost of the proposed multidisciplinary assessment.

4) Interest

Pursuant to section 46(2) of the Schedule, an insurer is required to pay interest on any amounts found to be overdue for each day the amount was overdue from the date the amount became overdue at the rate of 2 per cent per month compounded monthly. I find that Ms. Tracey is entitled to interest on the income replacement benefits ordered to be paid, as well as on the cost of the multidisciplinary assessment.

EXPENSES:

The parties did not address the issue of expenses. If required, they may request an expense hearing in accordance with the process set out in Rule 79 of the Dispute Resolution Practice Code.

December 4, 2014

Eban Bayefsky

Arbitrator

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