Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2016 ONFSCDRS 81

FSCO A13-004345

BETWEEN:

DEBORAH ALLISON

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

Before: Arbitrator Irvin H. Sherman, Q.C.

Heard: In person at Kingston, Ontario on December 8 and 9, 2015 and by written submissions due January 14, 2016

Appearances:

Mr. Chris Clifford, legal counsel, assisted by Ms. Dina Zirandi, paralegal, represented Mrs. Deborah Allison

Ms. Susannah Margison, legal counsel, represented State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Mrs. Deborah Allison, was injured in a motor vehicle accident on May 14, 2010 and sought accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and the Applicant, through her representative, 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 Mrs. Allison entitled to receive an income replacement benefit at the rate of $400.00 per week from November 8, 2011 to date and ongoing less any post-accident income?
Is Mrs. Allison entitled to receive a medical benefit in the amount of $13,215.64 for assistive devices as per a Treatment and Assessment Plan (OCF-18), dated September 6, 2012, prepared by Dan Fyke, O.T.?
Is Mrs. Allison entitled to receive a medical benefit for $1,360.00 for physiotherapy as per a Treatment and Assessment Plan (OCF-18), dated August 2, 2011, prepared by Cherisse Morettin?
Is Mrs. Allison entitled to interest on the overdue payments of benefits?
Is Mrs. Allison liable to pay State Farm’s expenses with respect to this Arbitration?
Is State Farm liable to pay Mrs. Allison’s expenses with respect to this Arbitration?

Result:

Mrs. Allison is entitled to receive an income replacement benefit in the amount of $3,511.89 for the pre-104 week period extending from November 8, 2011 through May 13, 2012.
Mrs. Allison is not entitled to receive an income replacement benefit for the post-104 week period commencing May 14, 2012 to date.
Mrs. Allison is entitled to receive a medical benefit for $5,315.00 for assistive devices as per a Treatment and Assessment Plan (OCF-18), dated September 6, 2012, prepared by Dan Fyke, O.T.
Mrs. Allison is not entitled to receive a medical benefit for physiotherapy as per a Treatment and Assessment Plan (OCF-18), dated August 2, 2011, prepared by Cherisse Morettin.
Mrs. Allison is entitled to receive interest on the overdue payments of benefits in the manner prescribed under sections 46(1) and (2) of the Schedule.
The parties made no submissions as to expenses. If they are unable to resolve this issue either party may make an appointment with me to determine the matter in accordance with Rules 75-79 of the Dispute Resolution Practice Code.

EVIDENCE AND ANALYSIS:

Mrs. Deborah Allison

Deborah Allison is a married woman who resides with her husband and two adult children in rural Ontario.

Mrs. Allison was in good health prior to the car accident. She was then working as an education assistant where she worked with children with high needs who were often non-verbal; had significant behavioural problems; minimal, if any, communication skills; who were autistic and who were sometimes violent. She has worked as an education assistant on a part-time basis from 1998 until now.

Mrs. Allison stated that on the day following the car accident, she ached “from head to toe” and that she had a headache. She went to the hospital that day where her condition was diagnosed as whiplash and muscle soreness. She continues to feel pain in her arms, neck, hips and legs, especially when she moves. She continues to suffer from headaches of varying degrees of intensity. She has difficulty sleeping. She takes prescribed medications and Tylenol.

Mrs. Allison has also undergone physiotherapy treatments, massage therapy and yoga sessions to help ease her pain. Since 2012, she has attended the Kingston Orthopaedic Pain Institute (“KOPI”) where she has received trigger pain injections, nerve block injections and oblation therapy.

Mrs. Allison recently fell ill with a non-accident related illness. She has, as a result of this illness, been unable to work for most of the fall 2015 school year. She expected to be able to return to work as an educational assistant in early 2016.

Mrs. Allison has received both short term and long term disability payments from a collateral Insurer following her car accident. She ceased to receive these benefits in September 2011.

Mrs. Allison did not work from May 14, 2010 to September 2011 as a result of her car accident. She was able to work progressively longer hours beginning in the fall of 2011. She ultimately was able to work 25 hours per week. This workload proved too strenuous for her. She has, on the advice of her doctor, cut back her workload to 15 hours per week.

Prior to her accident, Mrs. Allison worked 30 hours per week. She worked at night at a school library reading program from February to April 2010.

Mrs. Allison was unable to work for one week in August 2013 for medical reasons. She has however since then been able to work 15 hours per week.

Mrs. Allison continues to work with disabled school children with less demanding needs.

With respect to the recommendations for assistive devices recommended by Don Fyke, O.T., Mrs. Allison stated that:

(a) she did not purchase the type of mattress recommended by Mr. Fyke in his Treatment and Assessment Plan. She purchased a different mattress that cost between $800.00 to $900.00 that provides her with some pain relief;

(b) she did not purchase the ergonomic computer desk and chair but felt that the ergonomic desk and chair would be of assistance to her medically;

(c) the treadmill would be of assistance to her physically. If she purchased the treadmill she would not have to drive 45 minutes to the nearest gym;

(d) She did not purchase the therapeutic tub. Instead, she purchased a soaker tub (a deep bathtub) that has no water jets. She finds her using this tub to be helpful. She did not remember the exact cost of the soaker tub except that it cost about $600.00. The installation of this tub was part of her home renovations.

Mrs. Allison stated that she has received a medical benefit from taking physiotherapy treatments.

In cross-examination, Mrs. Allison confirmed the particulars of her work history, her receiving long and short term disability payments and her net income as it appears on her income tax returns for 2009 to 2014. She admitted that in 2013, she earned as income a sum of money that equalled 76% of her 2009 (i.e. pre-accident) income.

Mr. Paul Ronald Allison

Paul Ronald Allison is the husband of Deborah Allison. He corroborated in general terms his family’s living arrangements, the particulars of Mrs. Allison’s pre- and post-accident work history. He stated that prior to her accident, Mrs. Allison was also physically active, participating in recreational activities such as fishing, boating, camping and her daughter’s hockey.

Mr. Allison confirmed that his wife still has medical issues arising from the accident. She continues to lack energy such that she is unable to do certain domestic chores that she did pre-accident.

Mr. Dan Fyke, O.T.

Dan Fyke is an experienced occupational therapist who in his Treatment and Assessment Plan (OCF-18), dated June 28, 2012,² recommended that Mrs. Allison receive certain assistive devices.

Mr. Fyke stated that the therapeutic (Jacuzzi) tub would benefit persons such as Mrs. Allison who were experiencing chronic pain. This type of therapy offered constant heat (hydro therapy) that helps reduce pain and improves the quality of life. The cost of the therapeutic tub was stated to be $3,500.00 and the cost of installing the tub would be $4,782.90, for a total cost of $8,282.90.

Mr. Fyke recommended that Mrs. Allison receive a new mattress at a cost of $1,467.87 that would enable Mrs. Allison to sleep better which, in turn, relates to her ability or capacity to work.

Mr. Fyke stated that Mrs. Allison sits at her dining room table when she uses her computer, which does not provide her with the support she requires. An ergonomically designed computer desk and chair would assist Mrs. Allison in managing her pain. The cost of this computer chair and desk was estimated to be between $600.00 and $730.00.

Mr. Fyke stated that Mrs. Allison would benefit from using a treadmill that costs $1,800.00. Mrs. Allison now drives 45 minutes in order to travel to her gym. Her ability to drive to the gym is weather related. Were she to have and use the treadmill, Mrs. Allison would be able to control the intensity and timing of her exercising.

In cross-examination, Mr. Fyke stated that Mrs. Allison’s range of motion is limited only when doing flexion exercises. She has a normal range of motion with respect to hip and lumbar flexions. Mrs. Allison did not complain to him about the non-restorative sleep she was experiencing when she slept or the mattress that she kept using post-accident.

Mr. Fyke also stated that the soaker tub used by Mrs. Allison did not provide the constant heat that the therapeutic tub would offer and which would benefit her by increasing blood flow to the muscles.

Mr. Michael Sigsworth, CPA, CGA, CIP

Michael Sigsworth is a Chartered Professional Accountant who holds the designation of a Chartered Insurance Professional. He is experienced in calculating income replacement benefits in the manner prescribed in the Schedule. He has provided his professional services for both insured persons and insurance companies.

Mr. Sigsworth was retained by Mrs. Allison to calculate the income replacement benefits to which she may be entitled. He stated that his report was fair and unbiased and that he had complete independence in the preparation of this report. Mr. Sigsworth’s report and the supporting documentation is found in the income replacement benefits brief prepared by ADS Forensic Inc. (the ADS Brief ) and in Exhibits A7 and A8.

Mr. Sigsworth reviewed in detail the methodology he used to calculate the income replacement benefits that may be payable to Mrs. Allison. He stated that his calculations are based upon the manner prescribed in sections 6, 7 and 61 of the Schedule. He also followed the steps outlined for calculating income replacement benefits by Arbitrator Joyce Miller in the case of Longo and Lombard General Insurance Company.³

It was Mr. Sigsworth’s professional opinion that the amount of pre- and post-104 week income replacement benefits (including interest) that may be due to Mrs. Allison was $24,656.13. This sum was accepted by State Farm as being correct.

Subsequent to this Hearing, I requested from each counsel a breakdown of the pre- and post-104 week income replacement benefits that may be due to Mrs. Allison. It was agreed by each counsel that the pre-104 week income replacement benefit amounts to $3,511.89.

Dr. Stephen Bagg

Dr. Stephen Bagg is a physiatrist who saw Mrs. Allison in his office on August 3, 2011, July 8, 2014 and October 21, 2015. His reports on each of these office visits as well as an Addendum Report, dated November 30, 2013, are found in Tab 2 of the Medical Brief filed at the Hearing.

It was Mr. Bagg’s opinion that Mrs. Allison has suffered from and continues to suffer from soft tissue injuries, whiplash, strained muscles of the neck, shoulders and joints in the cervical spine and fibromyalgia.

In his report, dated August 3, 2011, Dr. Bagg wrote that the impairments and limitations experienced by Mrs. Allison as a result of her car accident would have a negative impact on her ability to work as an educational assistant. Also, Mrs. Allison will be unable to work on a full time basis or until age 65 as a result of the chronic pain symptoms she has exhibited since the date of the car accident.

Upon reviewing the updated medical reports regarding Mrs. Allison’s medical condition that was not available when he examined Mrs. Allison on August 3, 2011, Dr. Bagg noted in his Addendum Report, dated November 20, 2013, that he saw “no evidence that Mrs. Allison was purposefully exaggerating her symptoms or was misrepresenting her physical tolerance level”. He commented on her various types of medical interventions, pain injections and medications that Mrs. Allison received at KOPI that provided her with only “partial relief of variable durations”. Dr. Bagg concluded his Addendum Report by opining that upon reviewing the Functional Capacity Evaluation Report, dated March 12, 2013, as prepared by Mr. Keith Nelson, he saw “no evidence to suggest that Mrs. Allison is purposefully exaggerating her symptoms or is misrepresenting her physical tolerance level”. The contents of this report did not alter Dr. Bagg’s initial impression regarding the “nature of Mrs. Allison’s accident related injuries, physical abilities and prognosis”.

Dr. Bagg updated his professional opinion on Mrs. Allison on July 8, 2014, following his reassessing her medical condition and reviewing her updated medical information including the prescribed medication that Mrs. Allison used to alleviate her pain. He noted that over the previous two years Mrs. Allison received a variety of different injections including intramuscular, myofascial trigger points of local anaesthetic, cervical and lumbar paracetamol blocks as well as radio frequency medical branch blocks in the cervical and lumbar spine. She also received “intravenous Lidocaine infusion treatments for pain”. These injections which took place at the KOPI provided partial relief of variable durations.

Dr. Bagg recorded that Mrs. Allison received physiotherapy treatments until the fall of 2011 when she returned to part time employment as an educational assistant. Mrs. Allison purchased a membership at a fitness centre where she exercised twice a week. She participated in aquatic exercises in April 2014. Mrs. Allison told Dr. Bagg that exercise fatigue prevented her from resuming her twice weekly exercise class.

Dr. Bagg noted that Mrs. Allison’s anxiety subscale was also within the normal range. Dr. C. Cooper, in his independent psychological reports of May 3 and September 26, 2011, concluded that Mrs. Allison tends to “present herself in a rather more favourable fashion and to deny personal difficulty, fault or factum”.

Dr. Bagg stated both in this report and in the oral evidence that he gave at this Hearing that Mrs. Allison was only able to work three-hour shifts. Any attempt on her part to work longer hours resulted in “a pain level that was severe to cope with” resulting in further fatigue and reactive depression. Dr. Bagg concluded this report by recording that he did not believe that there are any medical interventions that would improve Mrs. Allison’s symptoms in the foreseeable future to the point where she would be able to resume full time employment.

In his October 21, 2015 report, Dr. Bagg again updated the medical information regarding Mrs. Allison since his July 2014 report. Dr. Bagg reported that Mrs. Allison had not received any physiotherapy interventions over the past 14 months. She was “unable to pursue any form of therapeutic exercise on a regular basis”.

Dr. Bagg recorded that Mrs. Allison reported tenderness to palpation of her lower cervical and upper thoracic spinous process and lumbar spine where severe pain was reported on palpation of the soft tissue in certain muscle areas. She reported tenderness or pain on palpation of the fibromyalgia tender points which she also did when Dr. Bagg examined her on July 8, 2014. Mrs. Allison demonstrated a high degree of motivation to return to work. She was unable to work on a full time basis which, in his opinion, was reasonable. Dr. Bagg opined that it would be unreasonable to predict with 100% emphasis “that Mrs. Allison may have to retire from work prior to age 65” due to the fact that “she is attempting to deal with a widespread chronic pain syndrome that adversely affects her activity in this area and quality of life each and every day”.

Dr. Bagg concluded in his report that was prepared within two months of the date of this Hearing, that it was reasonable and beneficial for Mrs. Allison to receive the therapeutic and Jacuzzi tub, a suitable cushioned-support mattress, the ergonomically correct home computer and desk and the treadmill.

Dr. Bagg recorded in late 2014 that Mrs. Allison had in fact purchased a new mattress such that she is now sleeping in a “more complete and restorative fashion”.

Mrs. Allison, he wrote, “may require in the future re-evaluation from a physiotherapist, should her symptoms intensify and become disabling”.

Dr. Richard J. Reopalle, in a clinic report,⁴ described Mrs. Allison as being animated and having a histrionic personality. Dr. Bagg, who has seen Mrs. Allison professionally on three occasions, stated that he did not see these personality traits in Mrs. Allison, whom he stated was neither overly dramatic nor prone to exaggeration.

Dr. J. Dean was an orthopaedic surgeon who prepared an independent orthopaedic assessment report, dated September 30, 2011, for the Insurer. At pages 144 and 149 of the Accident Benefit Brief, the Insurer asked Dr. Dean to respond to the following question:

Has the insured suffered a substantial inability to perform the essential tasks of her employment as an educational assistant?

Dr. Dean responded:

No, there is no evidence of muscle or skeletal abnormality that should prevent Mrs. Allison from returning to those tasks.

Dr. Bagg stated that: (a) Dr. Dean did not comment if Mrs. Allison experienced pain during the physical examinations and (b) orthopaedic surgeons treat injuries requiring surgery. These surgeons do not see patients (such as Mrs. Allison) who suffer from chronic myofascial pain.

Dr. Dean, in his Orthopaedic Addendum Report, dated May 18, 2012, recorded that he reviewed Dr. Bagg’s report, dated August 3, 2011, in which Dr. Bagg reported that Mrs. Allison was at a greater risk than usual of developing chronic pain and that she has gone on to develop myofascial pain syndrome. Dr. Dean recorded that he also believes that Mrs. Allison’s symptoms are best explained on the basis of myofascial pain syndrome. He repeated that Mrs. Allison did not sustain any severe orthopaedic muscle or skeletal injuries that would not have healed. He wrote that attempts at rehabilitation should include restoration of normal function, both vocational and avocational as tolerated. He reaffirmed his earlier opinion while adding that whether Mrs. Allison’s symptoms would diminish or persist remained to be seen. Dr. Bagg agreed with this opinion.

Dr. Joshua Abiscott is a family medical practitioner who conducted a paper review of Mrs. Allison’s medical reports. He, too, concluded that Mrs. Allison reached her maximum level of medical recovery such that she would not receive long lasting benefits from the assistive devices recommended by Dan Fyke, O.T. in his OCF-18. Dr. Bagg opined that Dr. Abiscott did not consider the non-curative benefits that Mrs. Allison would receive from her using the recommended assistive devices.

Dr. Abiscott recommended in his June 8, 2012 report that Mrs. Allison should continue with her own exercise program and go to the gym and work on her own self-rehabilitation program which is helping her. Mrs. Allison is able to work three hours per day and should continue to do so, adding hours if she is able.

Dr. Bagg commented that treatments such as acupuncture, therapeutic massage, and physiotherapy decrease the severity of pain and headaches. He therefore disagreed with Dr. Abiscott’s opinion that the Treatment Plan for assistive devices was not reasonable or necessary.

Physiotherapy

There was little evidence offered with respect to Mrs. Allison’s entitlement to physiotherapy as recommended by Cherisse Morettin, a physiotherapist, in her Treatment and Assessment Plan (OCF-18) that appears at Tab B, page 1 of the Medical Brief. Ms. Morettin recommended that Mrs. Allison receive physiotherapy, yoga and a yoga instructional video that would assist Mrs. Allison in doing yoga workouts at home. The cost of the yoga sessions and video is recorded as being $680.00.

ANALYSIS

Mrs. Allison bears the burden of proving on the balance of probabilities that she is entitled to the claimed income replacement benefits and the medical benefits claimed.

Income Replacement Benefits

Mrs. Allison claims entitlement to income replacement benefits for two periods of time, namely:

(a) for the period running from November 8, 2011 until May 13, 2012 (the pre-104 week period); and

(b) from May 14, 2012 to date and ongoing (the post-104 week period).

Mrs. Allison was in receipt of short term and long term disability payments in the pre-104 week period. Both parties agree that Mrs. Allison’s alleged entitlement to the pre-104 week benefit commences on November 8, 2011.

Under section 4(1) of the Schedule, an insured person who sustained an impairment as a result of an accident is entitled to an income replacement benefit if such person was employed at the time of the accident, and, as a result, and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment.

Mrs. Allison has been at all material times employed as an educational assistant. She continues to suffer from significant health concerns as a result of the accident. In this regard, I find Dr. Bagg’s evidence to be credible and convincing. Dr. Bagg examined Mrs. Allison on October 21, 2015, which was less than two months prior to the date of this Hearing. In that report he referred to the medical help Mrs. Allison continues to receive on a regular basis. He described Mrs. Allison as still expressing chronic pain that has a myofascial component. The Insurer fairly submitted that Mrs. Allison continues to suffer from chronic pain.

Prior to the accident, Mrs. Allison worked with school children with high needs. Since the accident, Mrs. Allison continues to work with children with significant needs. Her post-accident work however is less physically demanding than her pre-accident work. She now works three hours per day. Prior to her accident, Mrs. Allison worked six hours per day. She is no longer physically able to perform further work tasks such as working in the school library reading program.

Mrs. Allison made two genuine attempts to work six hours per day but was physically unable to do so.

Mrs. Allison has found it necessary by reason of her health to be transferred to a school that is closer to her home. She no longer drives one hour per day in order to get to her job.

I found on the balance of probabilities that Mrs. Allison exhibited a substantial inability to perform the essential tasks of her employment. The substantial inability is evidenced by the diminution in Mrs. Allison’s work hours, the less physically demanding work she now does, her inability to seek additional work from her employer and her move to a school closer to her home. She is accordingly entitled to an income replacement benefit to be paid by the Insurer for the period of November 8, 2011 to May 13, 2012 in the amount of $3,511.89.

Post-104 Week Period

The entitlement to post-104 week income replacement benefits is found in section 5(2) of the Schedule. An insurer is not required to pay post-104 week benefits unless, as a result of the accident, the insured person is suffering from a complete inability to engage in any employment for which he or she is reasonably suited by reason of education, training or experience.

Counsel for Mrs. Allison submitted that she receive post-104 week benefits. Counsel stated:

Real world jobs should not be broken down into their component parts such that if an applicant is able to do a little more than half of any suitable job, then she should be found not to be disentitled from receiving income replacement benefits.

The complete inability test does not require that the applicant prove an inability to perform more than 50% of her job.⁵

In calculating the income replacement benefits that may be paid in the post-104 week period adjudicators have taken into account such factors as the hours of work, the level of remuneration as well as the nature and status of the work as compared with what the Applicant did before.

Insurer’s counsel submitted that Mrs. Allison continues to work in her post-104 week period employment as an educational assistant working with school children with disabilities. She has not been demoted in terms of title. There is no persuasive evidence to show that she is less respected post-accident than she was pre-accident. She returned to the same type of employment at a school that is closer to her home. Mrs. Allison has received a small raise in her hourly pay rate.

Insurer’s counsel correctly sought to distinguish the Terry case, supra, from the facts of this case. In Terry, the Applicant was a labourer who post-104 weeks sought work as a taxi dispatcher for three days per week (nine hours per week). Mr. Terry was unable to perform the duties of a taxi dispatcher and was accordingly awarded post-104 week income replacement benefits.

In this case, Mrs. Allison continues to work as an educational assistant for the same school board as she did pre-104 week and pre accident, albeit at a new school at reduced work hours.

It was further submitted that the post-104 week test for income replacement benefits involves a higher degree of disability than does the pre-104 week test (substantial inability). Mrs. Allison did not exhibit a higher degree of disability post-104 week than she did in the pre-104 week period.

I find that the Insurer’s submissions on the post-104 week period are convincing. Mrs. Allison has tried hard to work notwithstanding her health concerns. She has been able to work on a reduced hourly basis at the same job she has had since 1998. She has not demonstrated a complete inability to engage in any employment for which she is reasonably suited by reason of education, training or experience. Her claim for post-104 week income replacement benefits is therefore dismissed.

Medical Benefits

Assistive Devices

Mrs. Allison’s claimed entitlement to assistive devices stems from the Treatment and Assessment Plan prepared by Dan Fyke, O.T.

With respect to the recommendation for a therapeutic (Jacuzzi) tub at a cost of $8,282.90, I find that Mrs. Allison, on her own volition, renovated her bathroom at an unstated cost and installed a soaker tub that provides her with heat relief. Dr. Bagg wrote that “Mrs. Allison continues to derive partial and significant pain relief after soaking in her tub”.⁶ It would now be unreasonable for Mrs. Allison to tear up part of her renovated bathroom and install a therapeutic tub. I award Mrs. Allison the sum of $2,000.00 on account of her purchasing the soaker tub.

It was reasonable and necessary for Mrs. Allison to purchase a new mattress at a cost of between $800.00 to $900.00. Dr. Bagg wrote that Mrs. Allison receives pain relief as a result of her purchase of a new mattress. Accordingly, she is entitled to $850.00 (the median between $800.00 and $900.00) for the new mattress.

I find that it is reasonable and necessary for Mrs. Allison to receive an ergonomic computer desk and chair at a cost of $665.00. In arriving at this cost, I used the midpoint of the suggested cost of this benefit as stated by Dan Fyke, O.T.

Dr. Bagg stated that Mrs. Allison would derive a health benefit from using a treadmill. The purchase of the treadmill is a reasonable and necessary expense. Accordingly I award $1,800.00 for the purchase of the treadmill. It is also reasonable for Mrs. Allison, in view of her continuing health problems, to exercise at home and not have to drive approximately 40 km to a gym in order to exercise.

Physiotherapy Treatment

Mrs. Allison claims a medical benefit in the amount of $1,360.00 for physiotherapy treatment as recommended in the Treatment and Assessment Plan (OCF-18), dated August 2, 2011, prepared by Cherisse Morettin. Mrs. Allison stated that she has received a health benefit in the past when she underwent physiotherapy. She has not received physiotherapy for the past 14 months. Dr. Bagg opined that Mrs. Allison may require in the future, re-evaluation from a physiotherapist should her symptoms intensify and become more disabling. There is no persuasive evidence to show at this time that Mrs. Allison’s symptoms have intensified and become more disabling.

The cost of the physiotherapy treatment included the sum of $686.00 for yoga sessions and the cost of a yoga video. Mrs. Allison stated that she participated in yoga programs in the past. There is no persuasive evidence as to how she would at this time benefit from participating in yoga sessions and using the yoga instructional video. I find at this time that it is not reasonable and necessary for Mrs. Allison to receive this medical benefit.

Mrs. Allison is entitled to interest on (a) the pre-104 week income replacement benefit in the amount of $3,511.89 and (b) the sum of $5,315.00 for assistive devices in the manner prescribed in section 46(1) and (2) of the Schedule.

EXPENSES:

The parties made no submissions as to expenses. If they are unable to resolve this issue either party may make an appointment with me to determine the matter in accordance with Rules 75-79 of the Dispute Resolution Practice Code.

March 14, 2016

Irvin H. Sherman, Q.C. Arbitrator

Date