Neutral Citation: 1992 ONICDRG 12

File No. A-000931

ONTARIO INSURANCE COMMISSION

BETWEEN:

STEVE SMINTICH

Applicant

and

GORE MUTUAL INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant was injured in a motor vehicle accident on May 13, 1991. He was insured under an automobile owner's standard policy issued by the Insurer. He applied for weekly income benefits, payable under Part IV of Ontario Regulation 273/90 ("the No-Fault Benefits Schedule"), enacted under the Insurance Act, R.S.O. 1990, c. I.8.

The Applicant was paid weekly income benefits until October 7, 1991. Thereafter, the Insurer refused to pay these benefits to the Applicant, stating that he no longer qualified under the terms of the policy and Regulation.

The Applicant also claimed benefits of $600.00 per week for his wife and children, as compensation for their suffering while he has been engaged in the dispute with his Insurer following the accident.

The Applicant applied for mediation of these issues. Mediation was unsuccessful and the Applicant subsequently applied for the appointment of an arbitrator.

The issues to be determined in this arbitration are:

1. Is the Applicant entitled to weekly income benefits from October 8, 1991 onwards?

2. Are Mrs. Smintich and the Smintich children entitled to any benefit under the Act following the accident because of the dispute between the Applicant and the Insurer?

The Applicant also claims interest upon any amount found to be owing and his expenses of this arbitration.

Decision:

The decision is:

a) The Applicant is not entitled to weekly income benefits for the period October 8, 1991 onwards.

b) The Applicant's wife and children are not entitled to any benefit under the No-Fault Benefits Schedule.

c) The Applicant is entitled to his expenses on this arbitration, as prescribed under Ontario Regulation 275/90, and Schedule 1 to the Dispute Resolution Practice Code.

Hearing:

An arbitration hearing was held at North York, Ontario, on March 23, 1992, before K. Julaine Palmer, arbitrator.

Present at the hearing were:

Applicant:

Steve Smintich

Applicant's Spouse:

Doreen Smintich

Insurer's

Gary Logan

Representative:

The proceedings were recorded by Pascal Kuehnhold, Network Court Reporting.

Witnesses:

Steve Smintich, the Applicant

Kurt Weder

Mantis Investigation Agency

Evidence:

On May 13, 1991, the date of the motor vehicle accident, the Applicant was not working because of injuries received in a workplace accident. He received weekly income benefits from the Insurer until October 7, 1991, but after that date the Insurer refused to pay further weekly income benefits.

The Applicant testified that the motor vehicle accident of May 13, 1991 caused him additional suffering. He had stopped working on May 10, 1990 because of a job-related accident, which was compensable under the Workers' Compensation Act. In that accident, he injured his left shoulder, lower back, and left knee. On May 13, 1991, he was still suffering from the injuries received in the industrial accident and was still under his doctor's care. Those injuries were still affecting his daily routine.

The Applicant testified that there is no "magic" in the date his no-fault benefits ceased: October 8, 1991. There was no difference in his physical condition from October 6 and 7, 1991 and thereafter.

The Applicant described his daily routine. He testified he has difficulty in sleeping and often has a headache when he wakes in the morning. When he sits on the toilet, he has difficulty holding his head up. He is able to dress himself, care for his personal needs and make his own breakfast. Sometimes he will take his children to school.

The Applicant often walks 1,000 meters to the local grocery store. He accompanies his wife to do other shopping. He visits his doctor each week and now attends physiotherapy three to five times weekly. The Applicant takes his wife out to appointments in the evening and occasionally visits his social club. He attends his church as often as possible.

The Applicant testified that he has vacationed several times since the automobile accident of May 13, 1991. He has visited a cottage owned by a friend, near Gravenhurst, Ontario, and walked and fished there. In the fall of 1991, he drove with a group of hunters to Thunder Bay, Ontario, to hunt for moose. He was away eight days and went hunting each day, walking more than a mile in the bush, and carrying a 12 gauge shotgun. The Applicant also travelled to Europe twice since the accident, the first time just 15 days after the accident.

The Applicant testified that since the accident he has only performed minor home repairs, in the nature of "light work" while taking pain medication and "under the advice of doctors to keep mobile". He also testified that since the accident he had done no work on his van. He particularly denied installing a radio or antenna since the accident.

The Applicant's only hobby is reading books. Since the accident, he has been able to read, however, his headaches have added some discomfort to this activity.

Kurt Weder, a licensed private investigator, was sworn and gave evidence of his observations of the Applicant in the late summer and early fall of 1991. His written report was filed as Exhibit 6. In addition, videotape recordings made by Mr. Weder on August 25, 30, September 6, and October 1, 1991 were received in evidence.

The videotape recording of September 6, 1991 shows the Applicant re-shingling the roof of his home. This work was carried out from a period before 8:25 a.m. until 3:10 p.m. in all, more than four hours and 55 minutes of work. The Applicant was alone throughout the day. He was seen to kneel, squat, bend, hammer, sit, walk along the roof, drag shingles, climb up and down a ladder and perform all the usual manoeuvres involved in such a task. The pace of the activity of the Applicant appeared to be neither speedy nor vigorous, but he was doing the work.

The videotape of October 1, 1991 shows the Applicant installing an antenna in the roof of his van, including reaching to place the antenna in the very centre of the van roof.

In addition to this evidence, I reviewed the report of Kevin Hildreth, physiotherapist, dated March 12, 1992, which states that the Applicant first attended the clinic on February 13, 1992. The report concludes that the Applicant was experiencing some relief with treatment, "however [he] continues to complain of a mild headache and central cervical spine discomfort". I also reviewed the brief report of Dr. G.S. Conn, Orthopaedic Surgeon, dated October 11, 1991, and 21 pages of the clinical notes of Dr. Gary Mason, the Applicant's family doctor, dated April 24, 1987 to May 10, 1991.

Legislation:

Weekly income benefits are payable under Part IV of the No-Fault Benefits Schedule. In the case of the Applicant, it was agreed that the appropriate section of the Schedule is Section 13.

Section 13

(1) The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident, a weekly benefit during the period in which the insured person suffers substantial inability to perform the essential tasks in which he or she would normally engage if he or she meets the qualifications set out in subsection (2).

(2) The following qualifications apply to an insured person who claims weekly benefits under subsection (1):

1. He or she as a result of an within two years of the accident must have suffered a substantial inability to perform the essential tasks in which he or she would normally engage....

2. He or she must attain the age of sixteen years before being eligible to receive the weekly benefit.

Section 2

"insured person", in respect of a particular motor vehicle liability policy, means,

(a) in respect of accidents in Ontario, an occupant of the insured automobile, [....]

(f) the named insured, his or her spouse and any dependant of either of them who is not involved in an accident but who suffers psychological or mental injury as the result of an accident involving a physical injury to his or her spouse, child, grandchild, parent, grandparent, brother or sister or a dependant of the named insured or of his or her spouse. O. Reg. 273/90, s. 2.

Findings:

In order to qualify under Section 13 of the No-Fault Benefits Schedule, the Applicant must demonstrate "substantial inability to perform the essential tasks in which he would normally engage".

The Applicant presented little evidence of his activities before the motor vehicle accident of May 13, 1991. He was at that date a 54 year old man, not employed due to a workers' compensable injury to his lower back, left shoulder, and left knee. He lived with his family in Toronto, in a single family house he owned. The Applicant testified that after the accident he could carry out the following activities: shopping, walking, driving, attending his social club, attending church, visiting his doctor and recently attending physiotherapy. He gave evidence of his ability to travel on vacation.

The Applicant's only complaint which appears to have survived October 8, 1991 is one of headaches. When he uses prescribed medication, Tylenol 3, his headache is reduced.

The Applicant submitted that he should not be made to suffer "gratis" for the Gore Mutual Insurance Company or for any person. He asked me to act with compassion and to understand his responsibilities in providing for the members of his household. He asked me to agree that he was entitled to a remedy and that the Insurer should uphold its contract and pay his remedy, until the time comes when he feels better and can retire properly, free from any disability.

My jurisdiction is limited to the adjudication of disputes regarding injuries which are compensable under the No-Fault Benefits Schedule of the Insurance Act.

I must compensate Mr. Smintich only if his condition falls within the language of the Regulation.

As Senior Arbitrator Susan Naylor said in the decision Norman Downs v. Allstate Insurance Company of Canada, O.I.C. File No. A-000064:

In order to establish entitlement to weekly benefits under s. 13, an applicant must prove, on the balance of probabilities, that, for the period for which benefits are claimed, the applicant is disabled as a result of the effects of his or her injuries, to the degree required by the terms of the section. The limitation may be physical, mental or psychological in nature.

Pain and suffering which is experienced as a result of injuries sustained in an automobile accident are not, per se, compensable under section 13, unless the experience of pain causes an insured to be substantially disabled, within the meaning of the section.

To establish entitlement to weekly benefits, evidence must be adduced that the effects of the injury, to some significant extent, prevent an applicant from carrying out the necessary and key tasks that were normally performed before the accident. It requires an individualised inquiry into the circumstances of the particular applicant, in order to identify the activities of daily living prior to the accident and compare them with the post-accident activities.

Having a view to all of the evidence, I cannot conclude that Steve Smintich suffers substantial inability to perform the essential tasks in which he would normally engage. I am unable to compensate the Applicant for the pain which he has suffered either physically or emotionally because of this accident because, since October 8, 1991, it has not impaired his abilities to the required extent.

Similarly, no section of the No-Fault Benefits Schedule allows me to compensate Mrs. Smintich or the four Smintich children for any aggravation they may have suffered as a result of the Applicant's dispute with the Insurer. No evidence was before me which would bring Mrs. Smintich or the children within the terms of s. 2(f) of the "definitions" as having suffered psychological or mental injury as a result of this accident. Similarly, there was no evidence before me of any care benefit or supplementary medical or rehabilitation expense payable as a result of any activities by Mrs. Smintich or the Smintich children.

The Applicant is entitled to his expenses on this arbitration, as prescribed under Ontario Regulation 275/90, and Schedule 1 to the Dispute Resolution Practice Code.

April 8, 1992

K. Julaine Palmer

Arbitrator

Date