Financial Services Commission of Ontario

Neutral Citation: 2015 ONFSCDRS 94 FSCO A12-001522

BETWEEN:

NANCY BELTRAME Applicant

and

DOMINION OF CANADA GENERAL INSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: Rosemary Muzzi Heard: June 16, 17, 18 and 19, 2014 at the offices of the Financial Services Commission of Ontario in Toronto Appearances: Frank Burns for Ms. Beltrame Jane Cvijan for Dominion of Canada General Insurance Company

Overview:

Nancy Beltrame, the applicant, was injured in a motor vehicle accident on July 2, 2009. She hit her head when she was knocked backward as the doors of a street car closed. Following the accident, she experienced a decline in physical and other capabilities. Ms. Beltrame was diagnosed with both physical and psychological conditions following the accident for which she received treatment and Dominion paid benefits for housekeeping assistance for almost the entire two years after the accident.¹ Non-earner benefits, on the other hand, were denied.

The main issue in this case is whether Ms. Beltrame qualifies for a non-earner benefit because she suffered a complete inability to carry on a normal life as a result of and within two years of the accident in addition to other issues in dispute.

The parties were unable to resolve their disputes through mediation, and Ms. Beltrame 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:

1. Is Ms. Beltrame entitled to receive a non-earner benefit from the date of accident and ongoing, pursuant to the Schedule²?

2. Is Ms. Beltrame entitled to attendant care benefits at the rate of $753.79 monthly from the date of accident to July 1, 2011?

3. Is Ms. Beltrame entitled to expenses up to $100 per week for housekeeping and home maintenance services provided from July 2, 2009 to August 27, 2009 and from May 21, 2011 to June 8, 2011?

4. Is Ms. Beltrame entitled to the costs of the following examinations: (1) $4,850 for an orthopedic assessment dated May 5, 2011; (2) $1,649.98 for an in-home assessment dated April 8, 2013; and (3) $1,681.47 for an OT assessment dated June 26, 2013?

5. Is Ms. Beltrame entitled to interest pursuant to the Schedule on any amounts outstanding?

Result:

1. Ms. Beltrame is not entitled to a non-earner benefit.

2. Ms. Beltrame is entitled to $1,560.97 for attendant care services.

3. Ms. Beltrame is entitled to $100 per week in housekeeping benefits for the periods during which those benefits were withheld.

4. Ms. Beltrame is not entitled to (1) $4,850 for an orthopedic assessment dated May 5, 2011; (2) $1,649.98 for an in-home assessment dated April 8, 2013; and (3) $1,681.47 for an occupational therapy assessment dated June 26, 2013.

5. Ms. Beltrame is entitled to interest payable pursuant to the Schedule for the amounts withheld.

ANALYSIS:

Issue 1

Is Ms. Beltrame entitled to non-earner benefits (NEBs)?

Ms. Beltrame asserts that the 2009 accident caused her injuries and pain, psychological issues and cognitive difficulties that seriously limit all of her activities. She has abandoned her plans to return to university to pursue a master’s degree. She no longer engages in the same way socially with her friends and family. She has lost her ability to concentrate and multi-task. Overall she has less engagement in all her regular activities.

Dominion argues that Ms. Beltrame does not meet the onerous test for NEBs in that she does not show the degree of disability required for entitlement.

Law

The non-earner benefit that Ms. Beltrame seeks has as its purpose to provide compensation to persons who have suffered a severe diminution in their overall quality of life³. The legal test for entitlement is that she suffers a complete inability to carry on a normal life as a result of and within 104 weeks of the accident.⁴ The Schedule says that this means that I must be satisfied that Ms. Beltrame was continuously prevented from engaging in substantially all of the activities in which she ordinarily engaged before the accident⁵.

The jurisprudence of the Courts and the Commission tells us to compare pre- and post-accident activities⁶ and assess the degree to which the insured has been prevented from engaging in those activities. A reasonable period of time pre-accident should be used to determine what the pre-accident activities are. Changes between pre- and post-accident activities must amount to being continuously prevented from engaging in those activities, with continuously meaning “uninterrupted”. Whether the insured is “engaging in” activities is to be interpreted from a qualitative perspective. The following considerations also apply to this exercise:

• All activities are to be considered but important activities are to be given greater weight.

• Where pain is the primary factor, the question is whether the degree of pain practically prevents the applicant from engaging in the activities.

Conclusion

There is insufficient evidence on balance to show that Ms. Beltrame suffered a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Neither the medical evidence nor the testimony of Ms. Beltrame and her daughter indicate that after the accident she was continuously prevented from engaging in substantially all of the activities in which she ordinarily engaged in before the accident.

Medical Evidence

The preponderance of the medical evidence does not support a finding that Ms. Beltrame suffered a complete inability to carry on a normal life.

Many of the assessors and her treating psychologist⁷ early on noted some deficiencies in Ms. Beltrame’s function as well as diagnosed both physical and psychological conditions including moderate myofascial injury⁸, chronic pain, anxiety and major depression⁹. None of these medical opinions reveals deficiencies after the accident that amount to Ms. Beltrame being continuously prevented from carrying on substantially all of her regular pre-accident activities. While more recently, Dr. Young opined that Ms. Beltrame has suffered a brain injury, even his observations do not support a finding of a complete inability to carry on a normal life.

At least four assessors - a neurologist and psychologists - who saw her during the two years post-accident commented on her abilities and found only partial limits on her activities. In December 2009, Dr. Majl, neurologist, examined her and found that she required assistance with some tasks and she had reduced walking ability from two hours to 15 minutes. Also, she had disturbed sleep and was not reading as much.¹⁰ She had not returned to the full extent of her recreational activities and physical abilities.

In January 2010, at a subsequent assessment, Ms. Beltrame reported that she had reduced her working hours as a tutor of Spanish and Italian due to pain, poor cognitive abilities and sleep problems.¹¹ She also indicated she got less pleasure from things she used to enjoy. There were no cognitive difficulties or impairment noted by Dr. Vitelli¹² in January 2010.

Essentially the same limitations to the same degree were noted by other assessors. Dr. Wong assessed her in January 2011¹³ and found her stressed and depressed. She could not take long walks due to back pain and she had curtailed her social gatherings and volunteer work. Like Dr. Vitelli over a year before, Dr. Lee did not note cognitive difficulties or impairment in September 2011¹⁴, though, like Dr. Wong, he diagnosed her with depressed mood and adjustment disorder with mixed anxiety. He found her emotionally composed and noted difficulties with memory and concentration.

Dr. Pilowsky, Ms. Beltrame’s treating psychologist, who assessed her in May 2011¹⁵, found symptoms of anxiety and depression and a pain disorder associated with both psychological factors and a general medical condition. Her treatment seemed to focus on the anxiety though other matters¹⁶ were discussed during the treatment period from June 2011 to late 2012. There was some improvement in anxiety levels between June 2011 to March 2012 and a decrease in panic attacks experienced when travelling on transit or socializing with family and friends¹⁷. Ms. Beltrame reported maintaining her goal to pursue a master’s degree as late as October 2011 though she felt restricted by her difficulty in concentrating. Through November and December 2011, it appears that Ms. Beltrame made some strides in the master's degree application process and socialized more. Ms. Beltrame reported that she decided against applying for further education by March 2012.

In January 2013 Dr. Vigna¹⁸ found that she exhibited cognitive, affective and physiological symptoms of depression. His psychological assessments of November and December 2012¹⁹

state that “limitations in functioning have compromised the pursuit of significant goals”²⁰. He also notes that Ms. Beltrame reported that she had not attended lectures since approximately April 2012. She could attend to her personal needs but required assistance with more physically demanding housework and could not cook elaborate meals. Her memory was fine but her concentration was not good.

The only assessor who found “severe” deficits was Dr. Young, psychologist, but he did not examine her until October 2012, over three years after the accident. He consulted with her on three separate occasions and testified at the hearing. His testing found what he called severe deficits and what looked like a manifestation of a brain injury. Still, Dr. Young’s diagnoses²¹ are similar in many respects to the earlier medical opinions, though he observed somewhat more limited function.

Nevertheless, Dr. Young’s deficit findings do not indicate that Ms. Beltrame was continuously prevented from engaging in substantially all of her regular activities. First, Dr. Young’s focus appears to have been on psychological injury and psychological degradation. He noted that her feelings of being inadequate persisted; she was not enjoying her life as before, and her frustration was leading to a spiral in terms of the loss of her identity.

In terms of her function, however, Dr. Young states her limitations in much less serious terms. Dr. Young’s testing found some cognitive and working memory problems²². He also found her confused. Dr. Young testified that her performance on these tests gave credence to her reports of problems in multitasking. He also stated that her socialization was limited²³, she could not read complex books, and her adaptability was limited. Dr. Young concluded that Ms. Beltrame’s level of independence is compromised; she had curtailed her ongoing activities and she relinquished her educational aspirations.

While Dr. Young’s prognosis is not a positive one, none of his reports discloses a loss of function sufficient to meet the NEBs test.

Significantly, Ms. Beltrame’s treating practitioners, such as her family doctor, her psychologist and her physical therapists, do not appear to find or note the severe deficits found by Dr. Young.

For example, Dr. Caravaggio, her family doctor, never completed a disability certificate that indicated that Ms. Beltrame’s level of impairment was a complete inability to carry on a normal life, though he clearly indicated in those same certificates²⁴ that Ms. Beltrame was substantially unable to do her housekeeping tasks for nine to 12 weeks each time, another very consistent observation throughout the medical evidence. In terms of function, his notes indicate that she travelled to Europe in April 13, 2010 and then again in October 2010 for four months²⁵. Regarding physical complaints, Dr. Caravaggio notes on January 19, 2011 that she complained of a right wrist problem that she had not complained of since the accident and believed them to be related.²⁶

Ms. Beltrame’s physical therapy providers did not note serious limitations to her function either. They made contemporaneous and detailed notes²⁷ at their sessions about Ms. Beltrame’s activities following the accident. These detailed notes show that her life was reasonably active following the accident, with only some limitation. Over the course of the two years post-accident she reported to the therapists that:

• She engaged in all recreational activities with some neck pain and more low back pain.

• She could do most of her usual work, but not all.

• She could drive as long as she wanted, but with moderate pain.

• She read as much as she wanted with no headaches in October 2010

• She took several vacations (May to April 2010, two weeks in Greece in May 2012, vacation for a week and a half in August 2011).

Overall, while the medical evidence speaks to Ms. Beltrame’s functional limitations after the accident, those observed limitations do not amount to Ms. Beltrame having been continuously prevented from engaging in substantially all of the activities in which she ordinarily engaged before the accident.

Activities comparison

General

The pre- and post-accident activities comparison also fails to disclose that Ms. Beltrame suffered a complete inability to carry on a normal life as a result of and within 104 weeks after the accident.

While the evidence of Ms. Beltrame and her daughter provided the context of an accomplished life, it did not show that Ms. Beltrame was continuously prevented after the accident from engaging in substantially all of the activities she engaged in pre-accident.

Both women testified to the big picture of Ms. Beltrame’s life. She immigrated to Canada as a teenager, learned to speak English, married and had four children and worked, initially at odd jobs, and then had a brief career as an actress and managed her children's work in acting and modelling. She socialized with family and friends. She was active in her community and church. After recovering from the effects of a brain tumour in 1987, she devoted herself to volunteering. She raised funds for charities and travelled to disaster-stricken countries to assist as necessary. She then completed a bachelor’s degree in 2006 at the age of 66. She had intentions to pursue a master’s degree but did not immediately enroll and then did not return to university.

In the three years preceding the accident, however, Ms. Beltrame’s life slowed to some degree. She gave up her intensive charitable work before she enrolled in university and restricted her volunteer activities to financial donation. Her daughter said that she did not resume that work after graduation because there were a lot of changes in her life. Both she and her daughter testified that she decided to take a break for a while once she completed her degree in 2006 before continuing with her education. Therefore, three years pre-accident is a reasonable period of time pre-accident to assess her activities because it was a period of relative stability in those activities.

I have grouped Ms. Beltrame’s regular activities under three general categories: independence; social functioning; and recreation/other. An analysis of these activities post-accident shows only some limitations that do not amount to being continuously prevented from engaging in substantially all of those activities. Further, the evidence of Ms. Beltrame’s engagement in these activities does not suggest an absence of quality.

Independence

Travel

Ms. Beltrame’s charity-related travel all but stopped many years before the accident and prior to her enrollment in university. She undertook only one such trip to Haiti for one week in 2008 to assist her parish priest. During her studies, in 2003 and 2006, Ms. Beltrame travelled to Italy and Greece for language studies.

After the accident, Ms. Beltrame travelled on numerous occasions. While she spent time with family and friends while away, it appears that she travelled and functioned independently. Ms. Beltrame travelled to Italy on several occasions. Dr. Caravaggio’s notes indicate that she travelled to Italy on April 13, 2010 and then again in October 2010 for four months²⁸. She returned to Italy for a family wedding in July 2012. Ms. Beltrame testified that she also visited Greece in 2010 to celebrate an old friend’s graduation and she stayed for a couple of weeks. She has also gone to a friend’s cottage twice since the accident.

In addition, more recently, Ms. Beltrame has also travelled twice to Arizona – from January to April 2013 and from January to February 2014. Her daughter testified that she rented a townhome on her own for the first visit and, the second time, stayed with a family she befriended on her first trip. Ms. Beltrame testified that she went to church and birthdays with this family. She did a lot of walking and played with their children, spent time in the vegetable garden and fruit orchard. During her second trip to Arizona she spent time at a spiritual retreat for one week.

Ms. Beltrame’s daughter characterized the 2013 Arizona trip as ostensibly one of sabbatical during which time Ms. Beltrame was to have worked on writing her autobiography, something she had talked about doing after her graduation. She was, however, unable to focus on this project. The fact that Ms. Beltrame contemplated such a project almost four years after the accident speaks to some degree about her own sense of capability and independence.

Cooking

Before the accident, at family gatherings, Ms. Beltrame would often be the primary caterer of elaborate meals. Ms. Beltrame was unable to continue with this type of cooking after the accident though it is not clear to me when she ceased this type of activity. Ms. Beltrame testified that she would see her family on and off after 2006 and she would prepare multi-course meals.

Ms. Beltrame testified that she can no longer multi-task and juggle the activities involved in such cooking. Her daughter gave the example that her mother was to host the 2014 New Year’s lunch for the family but had not even started cooking when company arrived. The family had to intervene to get things done. Ms. Beltrame still does basic cooking for herself. On occasion her daughter and a neighbour might bring her a meal.

Personal and household care

Prior to the accident, Ms. Beltrame did her own housework. When she was away travelling, her daughter would pick up mail, water plants, etc. After the accident, for approximately one year, Ms. Beltrame’s daughter and daughter-in-law assisted her with housekeeping once every two weeks for a couple of hours. In the subsequent year, their visits decreased to about once a month for two to four hours each time. They also picked up groceries because Ms. Beltrame had mobility issues. Ms. Beltrame testified that her daughter provided assistance to her occasionally, not every day.

Ms. Beltrame’s daughter testified that after the accident her mother became particularly messy. Ms. Beltrame admitted that she leaves a pile of clothes on the floor but she also testified that she makes her bed, changes her sheets, dusts, and does laundry.

With respect to her personal care after the accident, Ms. Beltrame had to start getting her hair dried at the salon once per week. Also, she had to attend at an aesthetician for pedicures every two to three weeks after the accident. There was no evidence to indicate that beyond this and housekeeping assistance that Ms. Beltrame required any further personal care or assistance from family or other persons. Ms. Beltrame was living alone at the time of the hearing.

Financial

Ms. Beltrame has always managed her own accounts, lines of credit and RRSPs. She has an accountant with whom she deals directly now as she did before the accident.

Before the accident, Ms. Beltrame owned two rental properties with which her children assisted her, facilitated by a power of attorney. One of the properties was sold and Ms. Beltrame purchased a condo close to her children. She then decided to rent an apartment downtown instead. The condo was eventually sold in 2011 as was the other property. Ms. Beltrame and her daughter testified that she was having trouble being a landlord with tenants who did not pay the rent. Ms. Beltrame testified that for at least four years after the accident she continued to rent and manage the properties but with her children's assistance.

Social engagement

Family

The family has always socialized but, whereas before the accident Ms. Beltrame was often the life of the party and the centre of attention, after the accident she was more subdued and participated differently though she continued to attend family events.

After the accident, Dr. Pilowsky treated Ms. Beltrame for anxiety related to socializing. Dr. Pilowsky’s notes indicate that Ms. Beltrame’s anxiety levels improved from June 2011 to March 2012 and she reported a decrease in the panic attacks she experienced when travelling on transit or socializing with family and friends²⁹.

Ms. Beltrame testified that currently she finds that she does not tolerate socializing with large groups of family or friends; she is bothered by the noise, confusion, and the people.

Friends

Before the accident, Ms. Beltrame was a social person who met with friends for dinner, movies, and lectures. Her daughter testified that Ms. Beltrame made a “new” group of friends during the time she pursued her degree and she believed that her mother did still see her “new friends” for some time after the accident. More recently, Ms. Beltrame’s daughter heard from one of her mother’s friends from a senior’s group that her mother had been making excuses to stay home. Both Dr. Wong, in January 2011³⁰, and Dr. Young, in October 2012³¹, found that Ms. Beltrame had curtailed her social gatherings after the accident.

Ms. Beltrame began dating a widower in 2007. Ms. Beltrame’s relationship appears to have continued after the accident though there was little direct evidence about it. She ended the relationship in June 2011. She was able to deal with that situation reasonably well according to Dr. Pilowsky’s notes.

Recreational and other activities

Walking and driving

Before the accident, Ms. Beltrame did not own a car. She testified that she walked on a daily basis and walking was her exercise. The medical evidence confirms that after the accident Ms. Beltrame had reduced walking ability, of 15 minutes at a time down from two hours previously.³²

Before the accident, Ms. Beltrame used public transit to run errands, visit and do her grocery shopping. In 2010, she purchased a car to run errands as it had become difficult for her to use transit and carry parcels. She also used the car to travel to her children’s homes. Her daughter testified that her mother recently experienced a memory lapse while driving, got lost, and had to be assisted by police. Ms. Beltrame testified that she recently got lost driving to her accountant’s office and driving a friend home. She also admitted that she doesn’t drive a lot for this reason but is not nervous when she drives, only when someone else does. Ms. Beltrame continues to drive with a valid driver’s license with no restrictions

Intellectual pursuits

Ms. Beltrame regularly attended lectures at the university and cultural institute before the accident. She continued with her intellectual pursuits after the accident but her attendance decreased because she could not concentrate and as a result did not enjoy these activities as much as she did before. She stopped altogether attending lectures about two years ago. Her daughter’s evidence and some of the assessment reports confirm that she stopped altogether likely around 2012.

I heard no evidence that Ms. Beltrame’s return to the master’s degree program was imminent at the time of accident. She intended to apply, had made some inquiries and her daughter testified that she was hoping to apply for 2010. The accident occurred in 2009. The psychologist’s notes³³ record that Ms. Beltrame maintained her goal to do a master’s degree as of October 2011 though she felt restricted by her difficulty in concentrating. She made some strides in the application process in late 2011 but decided against applying for further education in March 2012.

Ms. Beltrame testified that she tutored students in Spanish and Italian from her home after the accident as she did before the accident but by January 2010 had reduced her working hours due to pain, poor cognitive abilities and sleep problems.³⁴

Ms. Beltrame has a computer at home and has continued to use it since the accident. Her daughter testified that her mother manages but is not very proficient. She also noted that it is hard for her mother to learn new things. The example she gave was that recently her mother had forgotten how to access her phone contacts and gave up frustrated. Before the accident, Ms. Beltrame would not have given up.

Ms. Beltrame testified that she was an avid reader before the accident. Immediately after the accident, she was not reading as much.³⁵ Her daughter testified that her mother had tried reading a book a year ago and simply read the same page over and over again. It took her some time to finish reading the book. Her daughter also testified that her mother does not read the paper anymore and she does not see her mother doing crosswords, though Ms. Beltrame testified that she can still read and was doing crossword puzzles.

Ms. Beltrame continues to go to church but those visits are weather dependent. It is not clear from the evidence how often she went to church before the accident. Ms. Beltrame’s participation in other parish activities appears to have decreased several years before the accident, at the same time as her volunteer activities decreased, just before she commenced her degree.

She attended movies before the accident and went to restaurants two to three times per month. Her daughter knows of one movie she attended after the accident. Ms. Beltrame testified that she stopped watching TV in 2014 as it annoys her.

Conclusion regarding pre- and post-accident activities

The changes from pre- to post-accident activities must amount to the insured being continuously prevented from engaging in substantially all of the activities, with continuously meaning “uninterrupted”. I find that there is insufficient evidence that after the accident Ms. Beltrame was continuously prevented from engaging in substantially all of the activities in which she ordinarily engaged before the accident.

There is evidence of limitation in some activities, decreased activity and also a change in the nature of Ms. Beltrame’s participation in some of her regular activities. But, a reduction in frequency, less proficiency, and a lesser engagement in some of her activities are not changes that are sufficient to meet the NEBs test.

While it is clear that she began to experience some decline in the 104 weeks after the accident, Ms. Beltrame was able to participate both physically and intellectually in many of her previous activities. She continued to contemplate returning to post-secondary studies and made efforts to apply until 2012 when she gave up the idea. She continued to attend lectures until 2012 and see friends and attend family events. She travelled abroad on several occasions to visit family and friends and appears to have done so independently and to have enjoyed it. She continued to live on her own and look after her personal care and her financial affairs.

There is insufficient evidence of the kind of profound compromise in activities that is expected to qualify an insured for non-earner benefits.

Having considered all the evidence, I find that the substance of Ms. Beltrame’s life did not change significantly enough within the two years after the accident to meet the test for NEBs.

Issue 2

Is Ms. Beltrame entitled to benefits for Attendant care services at the rate of $753.79 monthly from July 2, 2009 to July 2, 2011?

The attendant care benefit shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for services provided by an aide or attendant.³⁶

There is no evidence before me that Ms. Beltrame hired someone to assist her with her personal care after the accident, apart from the assistance she received with her hair at a salon, once per week, and with her pedicures at an aesthetician, every two to three weeks. There was no evidence to indicate that beyond this and housekeeping assistance that Ms. Beltrame required any further personal care or assistance from other persons.

I find that Ms. Beltrame is entitled to payment for this assistance for the 104 weeks following the accident. While Ms. Beltrame never submitted expenses to Dominion, I find it appropriate to use the Form 1 hourly rate payable for routine personal care for accidents on or after March 2008, which is $11.23. A weekly hourly visit for hair care and an hourly visit for pedicures once every three weeks over a two year period amount to 139 hours. At an hourly rate of $11.23, Ms. Beltrame is entitled to a payment of $1,560.97 for attendant care services.

Issue 3

Is Ms. Beltrame entitled to payments for housekeeping and home maintenance services?

The only payments for housekeeping and home maintenance services outstanding in this case are for two short periods of time: from July 2, 2009 to August 27, 2009 and from May 24, 2011 to June 8, 2011. Dominion did not pay the expenses incurred in these periods because Ms. Beltrame failed to provide updated disability certificates to Dominion at the time they were requested and failed to provide a reason for her failure to submit them.

An insurer may discontinue paying for housekeeping and home maintenance services where the insured person fails or refuses to submit a completed disability certificate as required.³⁷ Further, no benefits are payable commencing the 15th business day after the insured person received the request for the certificate and ending the day the insurer received the completed disability certificate³⁸.

Dominion submitted that it had never had an explanation from Ms. Beltrame for her failure to provide the disability certificate. At the arbitration hearing Ms. Beltrame testified that she had left the task of delivering the disability certificate to Dr. Caravaggio. She testified that he told her he would fax the housekeeping documents but she surmised that he never did so or did so late.

The evidence before me indicates that apart from her failure to provide the required documentation, Ms. Beltrame otherwise qualified to receive payments for housekeeping services during those periods and had incurred such expenses. Further, the documents before me include a copy of a disability certificate from Dr. Caravaggio dated May 24, 2011³⁹ so it appears that at least one of the requested certificates was prepared. Moreover, I accept Ms. Beltrame’s explanation for the failure to provide the documentation as a reasonable one and, in these circumstances, find that Ms. Beltrame should not be denied these payments.

Therefore I find that she is entitled to the outstanding payments for housekeeping and home maintenance services at the rate of $100 weekly for the periods July 2, 2009 to August 27, 2009 and May 24, 2011 to June 8, 2011.

Issue 4

Is Ms. Beltrame entitled to payments for the following assessments: (i) $4,850 for an orthopedic assessment (May 5, 2011); $1,649.98 for an in-home assessment (April 8, 2013) and $1,681.47 for an occupational therapy assessment (June 26 2013)?

I heard no direct evidence about the need for these assessments or the reasonableness of the fees.

Dominion submitted that similar if not identical assessments had been conducted a short time before these additional assessments were proposed.

In the absence of any relevant evidence directly addressing these assessments, I find that Ms. Beltrame has failed to prove that Dominion should pay for them in accordance with section 24 of the Schedule.

EXPENSES:

No submissions were made in respect of expenses. I encourage the parties to resolve the matter, failing which they may request an assessment of expenses hearing in accordance with the Dispute Resolution Practice Code within thirty days of the date of this decision.

April 30, 2015

Rosemary Muzzi Arbitrator

ARBITRATION ORDER

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

1. Ms. Beltrame is not entitled to non-earner benefits.

2. Ms. Beltrame is entitled to $1,560.97 for attendant care services.

3. Ms. Beltrame is entitled to benefits for housekeeping and home maintenance services at the rate of $100 weekly for the periods July 2, 2009 to August 27, 2009 and May 24, 2011 to June 8, 2011.

4. Ms. Beltrame is not entitled to payments for an orthopedic assessment (5 May 5, 2011), an in-home assessment (April 8, 2013), and an occupational therapy assessment (June 26, 2013).

5. Ms. Beltrame is entitled to interest pursuant to the Schedule for any outstanding amounts.

April 30, 2015

Rosemary Muzzi Arbitrator

Footnotes

1. 1The only amounts not paid were those during a few weeks where Ms. Beltrame failed to provide an updated disability certificate.
2. 2The Statutory Accident Benefits Schedule – Accidents on or after November1, 1996, Ontario Regulation 403/96, as amended.
3. 3Galdamez v. Allstate Insurance company of Canada, 2012 ONCA 508 (20120724): in this case the CA stated that post-accident job does not disqualify one from NEBs assuming could meet the disability standard for NEBs; and, Walker v. Ritchie 2003 CanLII 90084 (ON SC), [2003] OJ No.5596 at paras 41-31: "The non-earner benefit, if it is akin to any head of damages in a court action, is akin to non-pecuniary or general damages."
4. 4Section 12(1) of the Schedule provides for a three-part test but there is no dispute that Ms. Beltrame meets the third part of the test: she does not qualify for an income replacement benefit.
5. 5Section 2(4) of the Schedule
6. 6Heath v. Economical Mutual Insurance Co., [2009] O.J. No. 1877, 2009 ONCA 391, 2009 CarswellOnt 2443 (May 11, 2009)
7. 7Dr. Pilowsky, who treated Ms. Beltrame from June 2011 to late 2012
8. 8Dr. Kwok in January 2011
9. 9Drs. Vigna and Lee
10. 10Exhibit 25, Report dated January 2, 2010, Dr. Majl’s neurology evaluation from December 2009
11. 11Psychological assessment undertaken in January 2010; Report dated January 20, 2010, page 5
12. 12Exhibit 13
13. 13Exhibit 26, Report dated January 12, 2011, pages 5, 8,9
14. 14Exhibit 28, Dr. Lee’s report, September 22, 2011
15. 15Exhibit 27, Dr. Pilowsky’s report, May 26, 2011
16. 16Dr. Pilowsky’s notes from this point forward refer to other issues that arise for Ms. Beltrame such as some personal tragedy with a number of deaths in the family starting in August 2012 and then her transfer to a new home in November 2012, which seemed to increase her anxiety symptoms.
17. 17Exhibit 12 – Dr. Pilowsky’s notes
18. 18Exhibit 15, Report dated January 20, 2013
19. 19Exhibit 15, Dr. Vigna’s report dated February 1, 2013
20. 20Exhibit 15, page 13. The full quotation is: Within the context of Ms. BG being an ambitious individual who is, by character, actively engaged in pursuits that would promote self-actualization and a positive personal identity, her pain and her limitations in functioning have compromised the pursuit of significant goals (continued self-reliance, community involvement, further education) that would have been important in maintaining a positive self-identity. They have fostered significant losses for her.
21. 21Depression and chronic pain
22. 22Exhibit 22, Report dated June 23, 2013
23. 23Exhibit 22, Report dated May 1, 2013
24. 24Exhibit 17, three disability certificates signed by Dr. Caravaggio, dated August 12, 2009, December 22, 2009 and May 24, 2011
25. 25Exhibit 7, Dr. Caravaggio’s clinical notes and records, pages 14-15
26. 26Exhibit 7, page 17
27. 27Exhibit 16, Ontario Rehab and Laser Centres notes, page 26
28. 28Exhibit 7, Dr. Caravaggio’s clinical notes and records, pages 14-15
29. 29Exhibit 12
30. 30Exhibit 26, pages 8-9
31. 31Exhibit 22
32. 32Exhibit 25, report dated January 2, 2010
33. 33Exhibit 12
34. 34Exhibit 13, Report dated January 20, 2010, page 5
35. 35Exhibit 25, Report dated January 2, 2010
36. 36Section 16(2)(a) of the Schedule
37. 37Section 37(2)(a) of the Schedule
38. 38Section 37(3)
39. 39Exhibit 17