Neutral Citation: 1992 ONICDRG 48
File No. A-001024
ONTARIO INSURANCE COMMISSION
BETWEEN:
LILY STEELE
Applicant
and
ZURICH INSURANCE COMPANY
Insurer
DECISION
Issues:
The Applicant, Lily Steele, was injured in a motor vehicle accident on August 27, 1990. She was insured under a standard automobile owner's policy issued by the Insurer. She applied for accident benefits, payable under Regulation 273/90, the No-Fault Benefits Schedule, enacted under the Insurance Act, R.S.O. 1990, c. 1.8. Every motor vehicle policy provides for the no-fault benefits set out in the No-Fault Benefits Schedule.
The Applicant did not submit a completed application for accident benefits until August 1991. The Insurer denied the Applicant's claim, citing section 22(1) of the No-Fault Benefits Schedule as its reason. That section of the No-Fault Benefits Schedule requires claimants to give initial notice of their claim to the Insurer in writing within 30 days from the date of the accident or as soon after that date as is practicable. It also requires claimants to furnish to the Insurer a completed application for no-fault benefits within 90 days of giving notice. However, section 22(2) of the No-Fault Benefits Schedule goes on to state:
(2) A failure to comply with a time limit set out in subsection (1) does not invalidate a claim if the claimant has a reasonable excuse and so long as there is compliance within two years of the accident.
Following the denial of her claim for accident benefits, the Applicant applied for mediation. She claimed both weekly income benefits and supplementary medical and rehabilitation benefits under the No-Fault Benefits Schedule. Mediation failed to resolve the dispute. The Applicant then applied for an appointment of an arbitrator to decide the issues.
The issues before me in the arbitration were as follows:
Does the Applicant have a "reasonable excuse" for failing to provide the Insurer with a completed application for no-fault benefits within 90 days of giving notice of the accident?
Is the Applicant entitled to weekly income benefits under the provisions of section 13(1) of No-Fault Benefits Schedule? If so, for what period of time?
If the Applicant is entitled to benefits under section 13(1) of the No-Fault Benefits Schedule, should there be any deductions from this benefit pursuant to section 13(3) of the No-Fault Benefits Schedule?
Is the Applicant entitled to be paid the supplementary medical and rehabilitation expenses which she is claiming in this arbitration?
The Applicant also claims her expenses of this hearing.
Result:
The Insurer is estopped from relying on the failure of the Applicant to submit the application for no-fault accident benefits within 90 days by reason of its own delay in providing the forms to her.
The Applicant is entitled to weekly income benefits for the period August 27, 1990 to September 14, 1990, a period of three weeks following the accident.
The Applicant must deduct from her weekly income benefits loss of income payments received from C.P.P. Disability Pension and Bell Canada Class "D" Disability Pension.
The Applicant is entitled to $1,557.00 in supplementary medical and rehabilitation expenses and reimbursement for 6,385 kilometres as set out herein.
The Applicant is entitled to interest pursuant to section 24(4) of the No-Fault Benefits Schedule.
The Applicant is entitled to her expenses of this hearing as prescribed under Ontario Regulation 275/90.
Hearing:
A hearing was held at Mount Forest, Ontario, on September 14, 15 and 16, 1992, before me, K. Julaine Palmer, arbitrator.
Present at the hearing were:
Applicant:
Lily Steele
Applicant's Representative:
Darryl March
Barrister & Solicitor
Insurer's Representative:
F.Q. Csathy
Barrister & Solicitor
The following gave oral evidence under solemn affirmation at the hearing:
Glen W. Krueger
Senior Constable, O.P.P.
Lily Steele
Applicant
Ross Strain
Section Manager, Benefits Bell Canada
Evelyn Grasley
Massage Therapist
Sadie Blackburn
Friend of Applicant
Dr. Hugh Perrin
Physician
Dr. Kenneth Babey
Physician
Donald MacGillivray
Physiotherapist
Mary Foster
Motor Vehicle Operator
Marianne Braun
Neighbour of Applicant
Bill Kalkhoven
Neighbour of Applicant
The parties filed 13 exhibits at the hearing.
Cases and Authorities cited:
Levata v. Simcoe and Erie General Insurance Company, [1992] O.J. No.1778
Maxwell, Interpretation of Statutes, 12th edition
Paese v. United States Fidelity and Guarantee Company, (1985) 1985 CanLII 1984 (ON HCJ), 17 C.C.L.I. 1
Pineda v. The Co-Operators, (1985), 1985 CanLII 2094 (ON HCJ), 51 O.R. (2d) 787
Evidence:
Pre-accident Health and Social History:
The Applicant is a 58 year old widow, who resides on a farm near the community of Holstein. She also owns a home in Mount Forest, which, until recently, was occupied by her mother, who died in June 1992. The Applicant has been a permanent resident of the Mount Forest area for approximately 13 years. She first came to the area while working as an employee of Bell Canada in Toronto. In the late 1970's, she often commuted to work from her Mount Forest home. In 1980, the Applicant started receiving a disability pension from Bell Canada, as a result of severe arthritis.
The Applicant testified that in 1980 she did not agree that she was disabled from employment. She testified that her husband was already on a disability pension from Bell Canada because of his heart. Her evidence was that she felt it was more "convenient" for Bell to place both spouses on disability pensions. After obtaining the Bell Canada pension, the Applicant applied to the Canada Pension Plan for a disability pension. Initially, this claim was denied. She applied again and, after a successful appeal, she was awarded the pension, which she receives to this day.
In April 1983, the Applicant and her husband separated. She began to reside permanently at the farm near Holstein, while her husband lived at their Toronto home.
The only employment that the Applicant has held since 1980 was a part-time job doing credit checks for Zellers. She performed this work for approximately three years in the early 1980's. She both received and submitted her work by mail.
Since the early 1980's, the Applicant has been a volunteer at nursing homes and has had a power of attorney for a woman who is now a resident of a nursing home. She was also the attorney for her mother and looked after her mother's financial affairs for several years. The Applicant has worked as a volunteer on several boards, and still is a member of the local credit union board and the board of the Louise Marshall Hospital. She was a member of the board of the local branch of the Ontario Federation of Agriculture for three years and served as its Treasurer for two of those years.
In 1982, the Applicant had a hysterectomy. She contracted breast cancer and had a successful operation in June 1983.
The Applicant testified that from 1984 to 1986 she was a full member of the Holstein Horseshoe Club. Before and after that time, she played as a spare for the club. The Applicant testified that, prior to the accident in August 1990, she sang in her local church choir. She liked to attend auction sales. She did all her own interior painting, laundry, dishes, and other household chores. She also engaged in fence repair on her farm with the help of others.
The Applicant owns a Massey 135 diesel tractor. She testified that she previously cultivated her garden with this tractor and maintained her lane. She also used the tractor to assist in tree-limb cutting.
From 1984 to 1986, the Applicant sold timber from her wood lot. She helped to load this timber on the truck by lifting and throwing pieces of firewood. She did gardening and cut her own lawn.
From October 1990, when her mother became ill, the Applicant had increasing responsibilities caring for her mother.
The Applicant had the misfortune to be involved in at least four motor vehicle accidents from the early 1970's until 1990. She also injured herself in a slip and fall accident in the early 1980's. In 1984, she broke her right wrist while walking on the gangway to her barn. She testified that she broke her right foot in a fall in 1989.
The Applicant testified that in the two years before the motor vehicle accident of August 27, 1990, her arthritic pain had subsided greatly from its intensity of the early 1980's. In 1988-90, it manifested itself mainly in her fingers and in her back. In damp weather, her arthritis would be worse. On those days, she would rest, take medication, and lie down. If she was going to be attending a meeting in the evening, she would rest in the afternoon. At that time, ironing was difficult for her, as was vacuuming. She would put those tasks off and do them on days when she felt better. From 1988-90, the Applicant took her laundry to a laundromat because she had no washing machine at the farm.
In the two years before the accident, the Applicant had headaches only occasionally. She testified at the time of the accident that she visited her family doctor every month or two months, and more frequently if she contracted an ailment like a bad cold.
In the two years before the accident, the Applicant received regular physiotherapy treatments. She found it difficult to stand or sit for lengthy periods of time on account of her arthritis. The Applicant testified that in the two months before the motor vehicle accident she had visited her family doctor because of back pain. She believed that she was suffering from degenerative disc disease which caused sciatic pain in her leg. When she experienced this pain, she would have to get off her feet. The Applicant testified that this condition had begun in the late 1970's. When she could do her own scheduling, in the late 1980's, the Applicant felt her health was better. There were even days when she felt "normal".
The Accident - August 27, 1990:
The Applicant testified that on August 27, 1990 she was doing some banking in Mount Forest when she recalled that she had another cheque on the front seat of her car. She returned to her vehicle, which was parked on the street in front of the bank, and opened the passenger door. She reached inside, kneeling on the front seat, and balanced with her right hand on the door frame of the car. Just as she was reaching with her left hand for the paper she required, her car was hit from the front. The Applicant testified that the impact was such that it caused her car to go backward and forward: thus, she was hit by the door on her right side twice.
The Applicant confronted Mary Foster, the driver of the other motor vehicle, about the impact, and told her she was hurt. Mary Foster had been attempting to get her vehicle out of its parking space at the time of impact. The Applicant recorded Mary Foster's name and telephone number. Together, the two women confirmed that there was no damage to either motor vehicle. Therefore, neither called the police. The Applicant went to her doctor's office, from where she called her insurance broker and told her about the accident. She gave the broker the name, telephone number and license number of the person who hit her. According to the Applicant, her insurance broker stated she would report the accident to the Insurer and that the Insurer would probably be in touch with Mrs. Steele directly.
The Applicant testified that in the fall of 1990 no one seemed to know much about the new no-fault insurance. She telephoned her broker once or twice when she still had not received any forms from the Insurer by mid-October. She also called the Ontario Insurance Commission and was told she should have received the forms by then. The Applicant called her insurance broker again and the insurance broker undertook to call the Insurer once more. The Applicant received the forms from the Insurer in the first week of November 1990.
The Applicant testified that subsequently she had a telephone conversation with Gary Johnson of Zurich Insurance regarding rehabilitation and she received correspondence from Barlow & Associates, rehabilitation consultants, before she filed an application for benefits with the Insurer. She also had more than one telephone conversation about her injuries with Cliff Pierce, the adjuster in London in charge of her claim. At the same time, she was also dealing with Mr. Pierce and Mr. Johnson in the adjusting of a claim relating to Mrs. Grasby's car tires.
On March 6, 1991 a serious fire occurred at the Applicant's mother's home. The Applicant then had to find a suitable place for her mother to live temporarily. Once her mother was relocated to Palmerston, the Applicant made a three-way trip most days between that town, Mount Forest, and Holstein. During April 1991, her car gave out and the Applicant was forced to shop for another vehicle. These personal circumstances, the Applicant explained, took her mind from applying for accident benefits with the Insurer.
Injuries:
The Applicant testified that she was injured on the right side of her head, face, arm and shoulder, and on her right body from her shoulder to her knee. Her head and right arm were hit by the frame or the car door, and she was thrown against the back of the front seat.
Later, the Applicant suffered from bad headaches, spasms in her scapular area and further down her back, and a sore face and knee. From time to time, she would be dizzy. The accident took place on Monday. By the end of the week, the pain was very severe and she was taking six Tylenol No. 2 from the time she got up in the morning until 6:00 p.m. The Applicant testified that she was distraught and did not know "where to put my head".
The Applicant testified that her head pain came from the back of her skull, up the right side, to behind her right eye. She testified that she could not touch the right side of her head for the best part of a year. She had spasms in her right shoulder and this caused difficulty in lifting objects.
She also felt pain on tilting her head in extension and when attempting to fully rotate her neck.
The Applicant testified that she had neck and shoulder pain after the accident daily until the last six to eight months before the hearing. Since then, the pain has been intermittent, not constant.
Treatment:
Since the motor vehicle accident of August 27, 1990, the Applicant has had 45 treatments from a massage therapist, Evelyn Grasley, who testified at the hearing. She has also had numerous physiotherapy treatments from Donald J. MacGillivray, who also testified. In addition, she has received 74 physiotherapy treatments at the Louise Marshall Hospital in Mount Forest, using a technique known as "spray and stretch", and other techniques.
At the time of the accident, the Applicant was under the care of Dr. Kenneth Babey, who had been her family physician since February 6, 1989. He remained her family physician until February 26, 1991. Dr. Babey testified at the hearing, under summons from the Insurer.
Dr. Hugh Perrin also testified at the hearing. He was the Applicant's family physician from October 4, 1982 until August 22, 1988. He has also recently become her family physician again since May 20, 1992.
The Applicant was also treated by Dr. Raymond Chan. Two narrative reports and one note of Dr. Chan were filed as exhibits to the hearing. Dr. Chan saw the Applicant in his office in Markdale, Ontario, beginning March 5, 1991. He last saw the Applicant on Friday, September 11, 1992.
The Applicant was treated by one specialist since the motor vehicle accident of August 27, 1990: Dr. Q.A. McCain, a rheumatologist, who at that time practised in London, Ontario. The consultation note of Dr. McCain to Dr. Babey dated February 20, 1991 was filed as an exhibit. The parties were unable to obtain any further information from Dr. McCain since his move to North Carolina.
Activities, Injuries Post-Accident:
The Applicant testified that since the motor vehicle accident of August 27, 1990 she has experienced difficulty in the following areas:
Washing her clothes - she cannot fold and carry
Sweeping, floor washing and general housekeeping
Ironing - she cannot iron at all
Carrying - she cannot carry heavy parcels
Driving a tractor - she cannot operate her tractor
Chores - she cannot mend fence nor paint around the house nor cut the lawn
The Applicant testified that she is tired from the pain and so eats out frequently. She testified that a great deal of food has spoiled in her refrigerator she has no energy to prepare it. The Applicant also testified that, if she drives her car too far, she is unable to raise her right arm above her shoulder. She cannot stand or sit for a long time in one position. She occasionally does not sleep well and she suffers from stress. She is no longer able to garden, although she can put the plants into holes if others dig the garden. She attributes all of these symptoms to the injuries she received in the accident.
On cross-examination, the Applicant admitted that she was placed on the Bell Canada disability pension in 1980 after several extended absences as a result of her poor health. The Applicant admitted that she had been in four accidents prior to 1984, for each of which she had claimed and received compensation.
The Applicant admitted that she had seen the physiotherapist, Don MacGillivray, many times in the two years before the accident and would not disagree if his notes indicated that she saw him with the same frequency after the accident.
Her role in repairing fences in the mid-1980's was to carry a rail and hold it while her assistant tied the wire. The fence that was repaired between 1985-87 was her section of the fence between her farm and the farm to the west. The Applicant admitted that the last time she drove her tractor was in 1989, as far as she could remember.
The Applicant stated that she had both an electric and a gas lawnmower prior to the accident, but that she hired Bob Grasby in the spring of 1990 to cut her lawn, because it gave her time to do other things, and it gave him something to do when he visited her home.
The Applicant agreed that she was capable of driving in August 1992 for more than an hour to visit a friend near Milton, Ontario. However, she noted, she stopped for lunch along the way. The Applicant admitted that she was capable of putting air in her car tires, explaining that it was something that had to be done and she had no one else to do it, even if it caused her pain. The Applicant admitted that she has no trouble shopping now, but previously she asked Bob Grasby to carry parcels and to push her grocery cart. In the past, occasionally, she would have some groceries for herself delivered with her mother's grocery order.
The Applicant stated that she took Tylenol No. 2 less frequently after the accident than prior to the accident, although not right at the beginning. She attributed part of the change in the amount of Tylenol No. 2 she was taking to the success of the massage treatment she received.
Ross Strain:
Ross Strain, Section Manager - Ontario, Benefits, for Bell Canada testified. He had familiarized himself with the manner in which employees could qualify for class D Bell Canada Disability Pensions in 1979-80. He testified that employees had to have 15 years of net credited service; had to be totally disabled from employment; and had to have completed 52 weeks on the sickness disability plan. He testified that the monthly payment is calculated according to a formula involving number of years of service, average of the best 60 months' salary, plus a once-per-year cost of living adjustment. Occasionally, ad hoc adjustments are made with respect to cost of living. He testified that the Applicant's total gross pension per month is $540.39. Mr. Strain stated that, if the Applicant became fully employed, her disability status with Bell would be reviewed. Similarly, if she wished to return to work for Bell, her situation would be reviewed, and if she was medically fit, Bell would make a position available for her.
Evelyn Grasley:
Evelyn Grasley, a medical masseuse with 47 years' experience, and qualifications in six countries, testified that she first treated Lily Steele on September 1, 1990. On that occasion, she noted spasm from the base of the Applicant's spine to the top of her head. Mrs. Grasley treated the Applicant last on August 31, 1992. Since June 1992, she has not noted much change. Mrs. Grasley testified that the Applicant's sick stomach has subsided and her nervous headaches are not as severe since she first began treatment. Mrs. Grasley testified that she only sees the Applicant on a professional basis. It was her view that the Applicant tries to do as much for herself as Mrs. Grasley suggests, and that she is very diligent and anxious to recover.
Sadie Blackburn:
The Applicant's friend, Sadie Blackburn, testified about her knowledge of the Applicant, both before and after this accident. Mrs. Blackburn stated that she noticed a change in the Applicant after the accident. She found her more tired and unable to do the things she did before. Mrs. Blackburn testified that her friend was a very helpful, outgoing person.
Mrs. Blackburn testified that she had seen the Applicant drive a tractor, although she could not remember the last time she saw her on it. She had not seen her fixing fence, but she had seen Lily Steele's hands with blisters, after she reported she had been doing that work. Mrs. Blackburn could not recall hearing about or seeing the Applicant trimming trees in the years before the accident of August 27, 1990. She was convinced that, if the Applicant tried carrying 10 pounds of potatoes, she would be in bed the next day.
Dr. Hugh Perrin:
Dr. Hugh Perrin testified that he was the Applicant's family physician from October 24, 1982 until August 22, 1988. The Applicant began to see him again as her family physician on May 20, 1992. He has seen her every month since then until September 10, 1992.
From 1982 to 1988, the Applicant's primary complaints were as follows:
neck and arthritic problems;
menstrual problems, which ultimately resulted in a hysterectomy;
breast cancer which was very significant and resulted in surgery in June 1983;
shingles; colds; and flu, etc.
Dr. Perrin stated that during this time period the Applicant complained of upper back pain with radiation downward. X-rays of T/3 T/4 area were taken to ensure that the pain did not relate to the breast cancer. When Dr. Perrin was treating the Applicant, she was regularly prescribed 100 to 200 Atasol-15 every month or two. She has also had 292's from time to time. The Applicant also consumed regularly Diazepam. Dr. Perrin testified that in his view the fact that the Applicant took Tylenol No. 2 every month indicated that she suffered from a chronic pain condition that was not resolving.
Dr. Perrin also testified that the Applicant currently suffers from diabetes mellitus, although she is not insulin dependent, and is able to control her blood sugar level very well with a proper diet.
The doctor testified that he concluded in 1984 or 1985 that the Applicant was chemically dependent on Diazepam. He attempted, unsuccessfully, to withdraw her from this medication at a time when she was receiving chemotherapy treatments following her cancer surgery. In retrospect, this did not appear to have been the optimum time to attempt such a withdrawal.
Dr. Perrin testified that, when the Applicant was regularly travelling to Toronto for cancer treatment, she had cancer drivers to drive her, because of pain in her neck. This was not only for chemotherapy treatments but also for regular checkups.
Dr. Kenneth Babey:
Dr. Kenneth Babey testified that he was Lily Steele's family doctor from February 6, 1989 until February 26, 1991. His notes indicate that when he first met the Applicant she was under some pressure because her husband had just died after a few years of separation, and his family was causing her difficulty with settling his estate. Her mother's health was also deteriorating. He suggested counselling to help her through that difficult time.
Dr. Babey testified that he gave the Applicant a prescription for 100 Tylenol No. 2 on June 1, 1990, to be renewed six times. If the Applicant consumed 100 Tylenol No. 2 in a month, that prescription would have lasted until December 1990. However, he did not prescribe Tylenol for the Applicant again until March 1, 1991, nine months later.
Dr. Babey testified about injuries which the Applicant received to her ankle on January 27, 1990. The ankle was not fractured, but the Applicant could not bear weight on it and it was casted in any event. The Applicant experienced pain from her heel, up her back, into her neck.
Dr. Babey summarized his notes on the Applicant from January 27, 1990 to June 17, 1990. Her ongoing complaints were of pain in her foot, back and neck. After the motor vehicle accident, the Applicant complained repeatedly of pain and fatigue.
The Applicant attended at Dr. Babey's office shortly after the motor vehicle accident on August 27, 1990. The Applicant told Dr. Babey that she was leaning into her car when it was hit. He noted a mark on ulnar aspect of her right forearm, which was compatible with grease from the door frame. He noted no redness. The Applicant told him that it was painful for her to grip with the right hand. The Applicant complained of pain in her right buttock radiating to her knee. Her range of movement in her hip was normal. Dr. Babey recollected that the Applicant was quite distraught, but could give a very specific description of her injuries. Neck pain and headaches seemed to be her biggest concern.
On November 27, 1990, Dr. Babey reviewed the Applicant's condition prior to completing an insurance form. He noted that she complained of pain inside her knee, pain in her right shoulder-blade, right neck and scalp.
Dr. Babey referred the Applicant to Dr. Q.A. McCain, a rheumatologist, who practised in London, Ontario. He was concerned about the Applicant's pain and that his treatment so far had done little to help her.
Dr. Babey was asked whether before the motor vehicle accident he considered the Applicant an "active" person, as far as household chores and outside work were concerned. Dr. Babey answered that he was aware of the Applicant's involvement in the hospital board and other activities, but that he had only been her physician for a relatively short time, when he was treating her for pain. He knew that her activities caused her pain and fatigue. As far as he was concerned, the Applicant had problems that limited her activities. From his records, Dr. Babey was able to testify that he had only seen the Applicant on four occasions, for respiratory complaints, when pain was not the main reason for her visit.
On cross-examination by the Applicant's solicitor, Dr. Babey agreed that he had no notes of the Applicant having any difficulty with her right shoulder from February 6, 1989 until August 27, 1990. Dr. Babey, however, qualified this statement by saying that the shoulder girdle is a complex structure involving muscles from the mid-back to the shoulder joint and down the arm. He noted that the Applicant had complained of pain in the mid-back during that period.
Dr. Babey testified that his clinical notes relating to the Applicant's visit of October 31, 1990 indicate that she was still waiting to receive insurance forms. He did not note when the Applicant received her forms. Dr. Babey testified that his office policy is that when forms are to be completed, the patient must make an appointment to provide the current information.
Dr. Babey stated that he completed a medical form for the Applicant on or about January 23, 1991, after meeting with her on or before that date. He later completed a second set of forms. After she picked up the first set of completed forms, the Applicant complained about an error in the forms about the cause of prior swelling of her right arm. This had not been linked to the cancer surgery, but to an infection from a cat scratch. Dr. Babey corrected this error on the second set of forms.
Dr. Babey testified that he urged the Applicant to continue with physiotherapy from Don MacGillivray after the motor vehicle accident and also to continue to see Evelyn Grasley for massage, since it appeared to be beneficial. He also encouraged her to attend for "spray and stretch" physiotherapy at the Louise Marshall Hospital, following her visit to Dr. McCain, who recommended this technique.
Dr. Babey testified that after the accident the Applicant's activities were restricted beyond what they had been before. The pain pattern which the Applicant described after the accident was more head and neck pain, whereas previously it had been largely leg and back pain. The focus of his treatment changed, but, in general, the Applicant's difficulties still related to pain and fatigue. Dr. Babey testified that, in his opinion, the Applicant was re-injured on August 27, 1990 and suffered an exacerbation of her problems.
Physiotherapist, Donald J. MacGillivray:
Donald J. Macgillivray practices physiotherapy in Durham, 16 miles north of Mount Forest. He has practised physiotherapy for 42 years and first treated the Applicant on July 2, 1980. Since that time, she has received six series of physiotherapy treatments, always under medical supervision. Series six commenced on February 26, 1990 and ended on March 2, 1991. Series five began on June 15, 1987 and ended on June 6, 1989.
During series five, Mr. MacGillivray treated the Applicant's neck, right shoulder, thoracolumbar region, right hand and right knee. Her appointments were scheduled three times weekly, sometimes more often. Over two years of treatments, he perceived a general or gradual improvement in her condition.
During series six, between February 26, 1990 and the motor vehicle accident on August 27, 1990, Mr. MacGillivray treated the Applicant for ankle inversion, strain, achilles tendon problem, neck, shoulder, thoracolumbar stiffness and pain. In Mr. MacGillivray's view, the Applicant had a chronic back problem. On February 26, 1990, Mr. MacGillivray noted that she suffered from neuro-musculoskeletal disfunction of her neck, shoulders and thoracolumbar region and right arm. Mr. MacGillivray had no other notes of his treatment before the August 27, 1990 accident.
Mary Foster:
Mary Foster testified she was the driver who reversed her Safari van into the Applicant's Ford L.T.D. on August 27, 1990. Mrs. Foster testified that her van touched the Applicant's car and then she pulled ahead again. She characterized the impact as just a bump: "enough that I know I touched her". Mrs. Foster had two children in the car with her and no one was hurt. Mrs. Foster did not see the impact. The Applicant came to her window and told her that she had hurt her arm because she was leaning into her car getting out some papers when the van contacted her vehicle.
Marianne Braun:
Marianne Braun, 61, is a neighbour of the Applicant. The corners of her property and the Steele property would meet if there were no road in between. Ms. Braun has been a full-time farmer since 1966. She testified that she had never seen the Applicant drive a tractor.
Bill Kalkhoven:
Bill Kalkhoven, 43, has lived for the past five years as a neighbour to the west of the Applicant's property. They share a common fence. He testified that he has never seen the Applicant gardening or doing any kind of outside work or maintenance. In the last five years he has seen the Applicant approximately twice monthly coming in or going out of her laneway, or occasionally in town.
Videotape:
The Insurer filed a videotape of the Applicant taken a few weeks prior to the hearing. A portion of the videotape showed the Applicant loading groceries into her car trunk, including a ten-pound bag of potatoes. Another part of the tape showed her putting air into the tires of her car with a compressed-air hose.
Submissions:
Applicant's Argument:
The solicitor for the Applicant submitted with respect to the 90-day requirement of section 22(1) of the No-Fault Benefits Schedule that the Applicant had a "reasonable excuse" for not filing the forms within that time limit. She had contacted her broker, the Insurer and the Ontario Insurance Commission, and none of those parties mentioned the 90-day obligation until after it had expired. The solicitor for the Applicant submitted that, since this accident took place just two months after the Ontario Motorist Protection Plan came into existence, none of the parties were familiar with the requirements under the new legislation.
The Applicant received the forms for accident benefits in November 1990, when more than 60 days of the 90-day period had already passed. Dr. Babey testified that he routinely took from two weeks to two months to deal with such forms. The Applicant testified she had telephone conversations with Zurich representatives more than 90 days after the accident and that she received correspondence from the rehabilitation firm of Barlow & Associates. These facts indicate that the Insurer had intentions to grant accident benefits and "bend the rules" as far as limitations were concerned. No one testified on behalf of Zurich Insurance and an appropriate adverse inference should be drawn from this, the Applicant's counsel submitted.
Finally, the circumstances in the Applicant's life give her a reasonable excuse for the filing the forms within 90 days.
With respect to the test of eligibility under section 13, the Applicant admits that she was receiving disability pensions prior to August 27, 1990 and that she had previously been injured in other motor vehicle accidents. She was still suffering effects from the prior accidents, but the injuries received in the August 27, 1990 accident were completely different, he submitted.
On August 27, 1990, the Applicant suffered injuries to her head, right shoulder, right arm, right side, headaches and dizziness, and blurred vision. She continues to experience disabilities and difficulties to this day, because of this accident, he submitted. The evidence of the Applicant is supported by the three reports of Dr. Chan, by the referral report of Dr. McCain, and the evidence of Evelyn Grasley, massage therapist.
The Applicant is unable to perform the following essential tasks: ironing, laundry, and general upkeep of her household and maintenance of her farm, such as mending fences, cutting grass and gardening. She is also unable to do any long-distance driving, cannot carry heavy objects nor stand for substantial periods of time and cannot vacuum.
With respect to suggested deductions under section 13(3), counsel submitted that there should be no deduction, he submitted. The money which Lily Steele receives from Bell Canada is a pension, not income replacement.
Insurer's Arguments:
With respect to the 90 day limitation, the Insurer's counsel submitted that the Applicant filed the form at the end of August 1991, six months after she had the necessary reports. Her excuses were that she was too busy and that she did not know about the time limit. There is no reasonable excuse here.
The Applicant's entitlement to section 13 benefits hinges on her credibility. The Applicant believes what she says, but one must look to the outside facts to see what is the truth, the Insurer's counsel submitted.
The tasks in which the Applicant would normally engage at the time of the accident were quite restricted. She had suffered four previous motor vehicle accidents or slip and falls and got money for all of them. On January 27, 1990, she broke her foot. She admits that she had arthritis in the two years prior to the accident and had bad days where all she could do was rest. She could not vacuum or do ironing. She was consuming significant amounts of Tylenol No. 2, both before and after the accident.
Dr. Perrin testified that the Applicant complained of headaches before the accident and that this headache problem waxed and waned. He also testified that she had pain in the T/3 and T/4 area above the shoulder blades. Donald MacGillivray, the physiotherapist, testified that his opinion in February 1990 was that the Applicant had neuro-musculoskeletal disfunction, right shoulder and arm and thoracolumbar pain.
Dr. Babey, whom the Applicant chose not to call, was a physician who saw her both before and after the accident. Dr. McCain and Dr. Chan have seen this woman only after the accident and their reports are only as valid as the Applicant's credibility, he submitted.
Dr. Babey made extensive notes of the Applicant's visits. He stated that, on April 24, 1990, she had pain in her body from her heel up to her neck and, on May 8, 1990, she complained of fatigue. The Applicant denied that this is true. Dr. Babey testified that he made no mistake and would not have written this down unless she told him. The Insurer's counsel submitted that the doctor's testimony should be believed in preference to that of the Applicant.
Dr. Babey testified, "I can't say I perceived her as an active person because we always dealt with things limiting her activity." The Tylenol No. 2 was prescribed for spinal aching. Dr. Babey was asked whether the motor vehicle accident of August 27, 1990 reduced the Applicant's ability to perform. Dr. Babey replied that in the context of a person with long-standing pain, a foot injury, and fatigue, her complaints following this accident were a "similar inability to do things".
With respect to the task of ironing, the Applicant admitted that she was told by both Dr. Babey and Dr. Perrin not to do it before the accident. This was not altered by the accident. In the videotape, we saw that she can bend over, throw an air hose over a car, and carry a 10 pound bag of potatoes. The Insurer's counsel submitted the Applicant could iron if she wanted to. There is no evidence of any essential task of the Applicant requiring her to lift more than 10 pounds. The Insurer's counsel submitted that there was no physical reason why Lily Steele cannot do her laundry. The Applicant also drove to Milton in August 1992 for a social visit, so she is capable of driving for more than an hour at a time.
The Insurer's solicitor submitted the following inventory of the Applicant's activities since the spring of 1991: she dealt with her mother's financial affairs, with insurance adjusters and insurers regarding fire repairs; she drove almost daily to Palmerston to visit her mother; she drove home to Holstein to care for her pets; she bought a new car; she looked after Mrs. Grasby's financial affairs and visited her; she remained on two volunteer community boards.
With respect to deductions from section 13 benefits, the Applicant is the beneficiary of two "income continuation benefit plans": one from Bell Canada, and one from the Canada Pension Disability Pension. Both of these pensions should be deducted from any benefits that might be awarded to the Applicant.
With respect to rehabilitation benefits, the payments to Evelyn Grasley should not be covered under section 6, because section 6(1)(a) does not specifically include masseuse expenses. There should be no transportation expense allowed for her trips to Mount Forest, since she would have had these expenses anyway. The August 27, 1990 accident has had no impact on physiotherapy visits, just the nature of her complaints.
Findings:
1. Reasonable Excuse for Failure to Comply with
Time-limit of Section 22(1) No-Fault Benefits Schedule:
Section 22 of the No-Fault Benefits Schedule sets out the notice requirements for an applicant:
(1) The insured person or the person otherwise entitled to make a claim shall,
(a) give initial notice of a claim to the insurer, in writing, within thirty days from the date of the accident or as soon as practicable thereafter; and
(b) furnish to the insurer within ninety days of the giving of the notice under clause (a) a completed application for no-fault benefits respecting the accident and the resulting loss.
(2) A failure to comply with a time limit set out in subsection (1) does not invalidate a claim if the claimant has a reasonable excuse and so long as there is compliance within two years of the accident.
At the outset of this arbitration, the parties agreed that the forms required to claim benefits were filed within two years of the accident. The Applicant testified that she submitted her Application for Accident Benefits, dated December 11, 1990, in late August 1991. This document was filed as Exhibit 1.
The Applicant testified that she called her insurance broker from her doctor's office on the day of the accident. She testified she gave the broker the details of the accident, including the other party's identity, and told her she had been injured. The Applicant testified that the broker told her she would notify the Insurer, who would probably be in touch with her directly.
The Applicant stated that the broker did not seem to know much about procedures under no-fault insurance which, at this time, had been in force for just two months. I accept this uncontroverted evidence of the Applicant.
The Applicant further testified that she called her broker again when she had not been contacted by the Insurer by early October. The broker stated to the Applicant that she would call the company again. The Applicant also called the Ontario Insurance Commission about this time and was told she should have had some forms from the Insurer by then.
The Applicant testified she received the accident benefit claim forms in the first week of November 1990, some 70 to 77 days after the accident. I accept this evidence of the Applicant.
The Applicant testified that she had conversations with Cliff Pierce, an adjuster in London, and with Gary Johnson, a supervisor for the Insurer, during the late winter of 1990-1991. In the interim, she had received a letter from Barlow & Associates, a Kitchener rehabilitation firm, which the Applicant presumed had been engaged by the Insurer. She spoke on the telephone to Mr. Barlow. Later, in August 1991, the Applicant had a conversation with Brian Tandy, the successor adjuster who was assigned to her file.
The Insurer has not objected in this case to any lack of written notice from the Applicant. In any event, I accept the evidence of the Applicant that she gave effective notice of her claim on the very day of the accident.
The Insurer now takes the position that the completed application for no-fault benefits respecting the accident should have been provided within the statutory time limit of ninety days after the giving of the notice of the claim. It takes this position despite its failure to call any evidence with respect to this issue.
It was not argued before me that the Applicant should have obtained the application for accident benefits elsewhere than from her Insurer, nor that there is no obligation on an Insurer to furnish to an applicant the prescribed forms for her use in completing her application. Indeed, although this obligation is not specifically set out in the No-Fault Benefits Schedule, the whole scheme of statutory accident benefits calls for fast, efficient service and prompt payment. In my view, it is implicit in the operation of the scheme that an insurer, once notified of injury by an applicant, must forward promptly the prescribed claim forms. Certainly, under Part XVIII of the Insurance Act the definition in s. 438 of "unfair or deceptive acts or practices" includes:
(i) any conduct resulting in unreasonable delay or resistance to the fair adjustment and settlement of claims.
Such conduct is prohibited and may result in a Superintendent's Order against such an insurer.
The Applicant gave several reasons for her failure to comply with the 90-day time limit, not the least of which was the lengthy period which had elapsed before she received the application from the Insurer and the Insurer's failure to indicate any imminent time limits to her.
In this case, the Insurer unreasonably and substantially delayed providing the application for accident benefit forms to the Applicant, having received effective notice of her claim of injury. It then continued to maintain occasional contact with her after 90 days had passed, through its adjuster, supervisor, and a rehabilitation consulting firm. In the circumstances, I find that the Insurer is estopped from relying on the technical 90-day time limit for filing an application for accident benefits.
Even in the absence of the delay on the part of the Insurer, the Applicant's personal circumstances might have provided a reasonable excuse for her failure to complete the application within 90 days of her initial notice. The Applicant was helping to care for her elderly, ailing mother; she was herself physically injured in the accident; her doctor completed one Form 4 report, but it contained a material error as to her previous health history and there was further delay in obtaining another blank Form 4 report. The Applicant submitted the doctor's report together with her application -- she testified that she believed it was preferable to submit all the documents at once to the Insurer.
Subsequently, once the delay in submitting the application had extended into February 1991, the Applicant became embroiled in the adjusting with another insurer of a serious fire loss which had occurred in her mother's home on March 6, 1991. She was also dealing with Zurich Insurance and Cliff Pierce, the adjuster, regarding a problem with Mrs. Grasby's car tires. She had more than one conversation with Gary Johnson regarding that loss. In the middle of finding her mother a suitable place to stay while the house was being repaired and making a three-way trip each day between Holstein, Mount Forest and Palmerston, the Applicant's car gave out, and she was forced to go car-shopping in April 1991. Had the Applicant been provided with the No-fault Benefit Application form earlier, then the application might well have been submitted in advance of all of this upheaval. I find that, even in the absence of estoppel, the Applicant's delay until the end of April 1991 is reasonably excused.
The delay between May and August 1991 approaches four months. The Applicant failed to justify this delay in her testimony, except to explain that she believed, erroneously, that she had until the first anniversary date of the accident to submit her claim for no-fault accident benefits. I find that the Applicant's delay during this time period is not reasonably excused. However, because I have found that the Insurer is estopped from relying on the 90-day time limit, I find this delay on the part of the Applicant is immaterial. Even if I am in error with respect to the application of the doctrine of estoppel in this arbitration, I would find that the Applicant has, on balance, overall, a reasonable excuse for failure to comply with the ninety day time limit of section 22(1)(b) of the No-Fault Benefits Schedule, since I have found that her delay for the first eight months was reasonably excused.
2. Eligibility for Weekly Income Benefits
The Applicant, Lily Margaret Steele, is now age 58. Since the early 1970's, she has been injured in at least four motor vehicle accidents. She was a long-time employee of Bell Canada in a managerial position, when she developed arthritis in the late 1970's. In 1980, she began to receive a disability pension from Bell Canada, which she still receives. She also receives a Canada Pension Plan Disability pension.
Until April 1983, the Applicant maintained two homes: a farm near Holstein, and a home in Toronto. After her separation from her husband in April 1983, the Applicant began to reside permanently at her farm.
Since 1980, the Applicant has not worked, except for a part-time job performing credit checks, which she did from her home in the early 1980's. The Applicant, however, has acted as a volunteer since that time. She volunteered at a local nursing home for approximately three years in the early 1980's. She is the attorney for a woman who now resides in a nursing home. In earlier years, the Applicant helped care for this woman when she lived in her own home and did her shopping, banking, etc. The Applicant is also a volunteer board member for her local credit union and hospital. She served for three years as a member of the local Ontario Federation of Agriculture executive, two of those years as treasurer.
The Applicant's testimony painted a picture of a person who, while receiving two disability pensions, was able to do all her own yard work, household work, gardening, as well as the volunteer work mentioned above. She claimed that, in the two years prior to the motor vehicle accident of August 27, 1990, she suffered very little from arthritic pain, and only occasionally had a headache.
As the Applicant described it, her condition after the August 27, 1990 motor vehicle accident deteriorated dramatically. She could no longer do the household or yard activities which she used to carry out around her farm. She is, however, able to carry on as a member of the local credit union and hospital boards. Since her mother's recent death in June 1992, she no longer has responsibility to help care for her mother or the stress and worry about her final days.
The Applicant applied for arbitration seeking a weekly income benefit under the provision of section 13 of the No-Fault Benefits Schedule. Section 13(1) provides as follows:
(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).
To be successful in this case, the insured person must provide evidence of the essential tasks in which she would normally engage. She must then convince me, on a balance of probabilities, that she suffers a substantial inability to perform those same essential tasks. It is important to note that pain and suffering are not compensable under the Schedule unless they result in substantial impairment of the Applicant's ability to perform her essential tasks.
The word "substantial" has been defined in the Concise Oxford Dictionary 8th ed. (1990) as meaning: "of real importance or value...of large size or amount." The word "essential" has been defined as meaning: "1. absolutely necessary; indispensable. 2. fundamental, basic. 3. of or constituting the essence of a person or thing."
In the case of Norman Downs v. Allstate Insurance Company of Canada (O.I.C. File No. A-000064), dated July 18, 1991, Senior Arbitrator S. Naylor stated her view of these words:
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. (pp. 22-23)
Accordingly, it is not some inability to perform key tasks, but a sizeable inability which is compensable. Similarly, not every task performed prior to the accident will meet the criterion of "essential" only those that are basic or absolutely necessary. Further, as Senior Arbitrator Naylor stated in Dana B. Levenson v. The General Accident Assurance Company of Canada (O.I.C. File No. A-000260), dated February 18, 1992, at p. 20:
The context of the legislation distinguishes between a "task" and an "activity". Subsection 13(8) provides that, after 156 weeks, it must be shown that an applicant is incapable of "substantially all of the activities" normally engaged in. This is clearly intended to be a more stringent test.
In addition, section 12(1) provides that these essential tasks must be ones in which the applicant would "normally engage". The word "normally" suggests a usual or regular pattern of activity of the Applicant.
The evidence shows that the Applicant led a largely sedentary life in the six months to one year prior to the motor vehicle accident. I find that the following are among the essential tasks in which the Applicant normally engaged prior to the accident of August 27, 1990:
general personal hygiene
ordinary, light household cleaning chores, with the exception of vacuuming
regular personal laundry requirements, but no ironing
walking short distances
standing and sitting for reasonable lengths of time at one stretch
ability to drive a car for up to one hour at a time
The Applicant testified that in the mid-1980's she belonged to a horseshoe club. She gave evidence that she repaired fences, gardened and drove a tractor. She testified that she helped load trucks with the wood from her wood lot. I find that Lily Steele did carry out all of these activities, but they were carried on sporadically in the mid to late 1980's, and not regularly during the period directly preceding the accident. In addition, many of these activities were not tasks in which the Applicant would normally engage, even at that time.
I find the Applicant suffered substantial inability to perform her essential tasks for several weeks after the accident. However, I find this period ended on September 17, 1990, three weeks following the accident.
Section 13(8)(a) of the No-Fault Benefits Schedule states as follows:
The insurer is not required to pay a weekly benefit under this section,
(a) for the first week of the disability;
Accordingly, the Insurer is not required to pay the Applicant a weekly income benefit as a result of the injuries she received in the accident of August 27, 1990 until September 4, 1990.
For the three weeks following the accident, the Applicant suffered from painful headaches, muscle spasms in her shoulder and back, blurred vision, and an aching and swollen right knee. This pain was of such an acute degree that it prevented her from substantially performing her essential tasks. Thereafter, the Applicant continued to experience headaches and pain on the right side of her body, but to a lesser degree I do not find that this pain caused her a substantial inability to perform her key or absolutely necessary tasks.
3. Deductions from Weekly Income Benefit
Section 13(3) of the No-Fault Benefits Schedule reads as follows:
(3) The weekly benefit under subsection (1) will be $185 less any payments for loss of income, except Unemployment Insurance benefits.
(a) received by or available to the insured person under the laws of any jurisdiction or under any income continuation benefit plan; or
(b) received under any sick leave plan.
The first issue I must consider is whether the pensions the Applicant receives are "payments for loss of income" within the meaning of section 13(3).
In this case, I heard evidence that both the amount of the C.P.P. Disability Pension and the Bell Canada pension which the Applicant receives are calculated on the basis of prior contributions to the plan or number of years of service and the best five years' earnings. Mr. Ross Strain of Bell Canada's Benefits department gave detailed testimony of the rationale for the payments which the Applicant receives and the manner of their calculation. I have also considered the reasoning of both Judge McMahon in Paese v. United States Fidelity and Guarantee Company (1985) 17 C.C.L.I.1 and Justice Cusinato in Levata v. Simcoe and Erie General Insurance Company [1992] O.J. No. 1778 and concur with their views of the nature of C.P.P. Disability Plan payments.
I find, therefore, that the C.P.P. Disability Pension and Bell Canada Disability Pension are "payments for loss of income" and are received by the Applicant under Canadian law and under a Bell Canada income continuation benefit plan, respectively.
The second issue I must consider is whether these loss of income payments should be deducted from the $185.00 weekly income benefit the Applicant would otherwise receive.
This issue was considered by my colleague, Senior Arbitrator Naylor, in the case of McCormick v. Economical Mutual Insurance Company (O.I.C. File No. A-000139) in the context of section 12(4)(b) of the No-Fault Benefits Schedule. It was also considered by Senior Arbitrator Rotter in the Michael Morin v. The Personal Insurance Company of Canada case (O.I.C. File No. A-000468) (under appeal) in the context of section 13(3) of the Schedule. The decisions in these two cases are conflicting and cannot be reconciled. With the greatest respect for the view of Senior Arbitrator Rotter, I believe the reasoning in the McCormick decision is to be preferred.
This question is really one of timing and perceived ambiguity. Does the fact the Applicant was already in receipt of loss of income payments prior to the accident of August 27, 1990 render these payments ineligible for deduction from the weekly income payments awarded as a result of the accident?
In his decision in Levata, cited above, Justice Cusinato neatly sidesteps the issue now before me by reasoning in the following manner:
I turn now to an ancillary issue concerning whether the present C.P.P., disability payments relate to the accident of September 1990. These payments have continued since the Plaintiff's accident in July 1986. Within the wording of the C.P.P., disability payments result from the contributor's inability to perform any substantial gainful occupation.
The effective result is that those benefits payable for the accident of July 1986 would have ceased within the provisions of the C.P.P., had the Plaintiff continued his employment of September 4, 1990 prior to the accident of September 5, 1990.
For this reason, I construe if it makes a difference that the receipt of C.P.P., payments presently available for total disability are payable as a result of the accident of September 5, 1990, even though no effective termination of the earlier accident disability benefits were processed.
I arrive at this finding because entitlement to disability benefits, require that the contributor sustained physical, or mental impairment of an indefinite duration, and for continuation of such benefits inability to perform any substantial gainful employment.
Upon my findings the insured re-entered the work force with permanent employment, and I therefore conclude that present C.P.P., payments continue as a result of the plaintiff's last accident now before me.
At page 17 of the McCormick decision, Arbitrator Naylor considered an argument that section 12(4)(b)(i) should be read with limiting words inserted as follows:
...less any payments for loss of income....received by or available to the insured person because of the automobile accident.
She stated that such limiting words should not be read into the statute unless absolutely required by the context or intent of the legislation (p. 17).
Mr. Justice McMahon went even farther in the Paese case when he said at page 8:
If the words of a statute are clear they may be followed even though they may lead to manifest absurdity. The Court has nothing to do with the question of whether or not the legislature created an absurdity. If however the words admit of two interpretations, one leading to an absurdity and the other which does not, the Court will conclude that the Legislature did not intend to lead to an absurdity and will adopt the other interpretation. A construction that makes nonsense of a section must be avoided if the language will permit.
Should the meaning of the words used be plain, the Court must construe and act according to that meaning, and whatever may be the consequence they form part of the responsibility which the Legislature deliberately assumed when it passed the statute, presumably in the public interest. When a statute admits of but one interpretation, effect must be given to it regardless of the result.
Maxwell on the Interpretation of Statutes (12th ed.) discusses the issue of the insertion of limiting words in a statute as follows (at p. 33):
It is a corollary to the general rule of literal construction that nothing is to be added to or be taken from a statute unless there are adequate grounds to justify the inference that the legislature intended something which it omitted to express. Lord Mersey said: "It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do." "We are not entitled," said Lord Loreburn LC, "to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself".
In the Morin case, Senior Arbitrator Rotter preferred the reasoning of Mr. Justice Cromarty in Pineda v. The Co-Operators (1985), 1985 CanLII 2094 (ON HCJ), 51 O.R. (2d) 787 and held that C.P.P. disability payments being received for a disability that predated the automobile accident were not deductible under section 13(3) of the No-Fault Benefits Schedule.
In Pineda, however, Justice Cromarty was considering the precursor of what is now section 20 of the No-Fault Benefits Schedule regarding workers' compensation payments. In the case, he held that on the wording of the then section that the Legislature could not have intended that an insured person would be completely disentitled from accident benefits after an automobile accident by reason of entitlement to any amount of workers' compensation benefits from a prior accident.
Section 13(3), in contrast, allows for a deduction to be made from accident benefits. Section 20 of the No-Fault Benefits Schedule now provides more clearly with respect to workers' compensation benefits that the benefits are "as a result of an accident", which is defined in section 2 of the same Schedule.
Corresponding additional phrases were not inserted in section 12(4)(b) and section 13(3) of the Schedule. If the Legislature had intended such limiting words to form part of these sections, it would have been a simple matter to add them.
Section 13 has added a category of persons eligible for compensation as a result of an automobile accident who previously received no such benefits. The exact purpose of this compensation under the Schedule is not clear. Clearly, its purpose cannot be income replacement, as in section 12 cases. It has been said that section 13 payments are meant to compensate for a loss of function, not loss of income (Arbitrator Rotter, Morin case, cited above, at p. 13).
At the same time, in my view, the Legislature did not open the door of compensation so wide as to permit all who suffer eligible injury to receive weekly income benefits from their automobile insurers. To me, it is manifest in the wording of section 13(3) of the Schedule that applicants like Lily Steele were not intended to receive weekly income benefits under the Schedule where their disability income was already sufficiently high to exceed the potential benefits. In the case of this applicant, her total gross monthly loss of income payments exceed $1,000.00 per month. Only were she to receive something less than $795.00 per month would she be eligible for weekly income payments under section 13(3).
The No-Fault Benefits Schedule does not provide unlimited benefits to all possible victims of automobile accidents in this province. It is a restrictive code of limited benefits payable in particular circumstances to a carefully defined set of individuals. For example, under section 9(1) of the No-Fault Benefits Schedule, the Insurer will not pay any portion of an expense referred to in section 6(1), section 6(2), or section 7 "that is reasonably available to the insured person under any insurance plan or law or under any other plan or law that will pay the expense."
Accordingly, in my view, there is no obvious absurdity nor repugnance nor inconsistency in reading section 13(3) in its ordinary and grammatical sense. I therefore find that the Applicant must deduct from weekly income benefits her C.P.P. Disability Pension payments and her Bell Canada Disability Pension payments. The result, then, in this case, is that the Insurer is not liable for any payment for weekly benefits.
4. Supplementary Medical and Rehabilitation Expenses:
The Applicant suffered physical injury in the accident of August 27, 1990. However, she was at the time of the accident already suffering from a chronic condition, described by her long-standing physiotherapist, Don MacGillivray, as "neuro-musculoskeletal disfunction of the neck, shoulders and thoracolumbar region and right arm." The Applicant was also disabled from time to time, before the accident, by arthritis.
It is important that the Applicant be compensated for all reasonable expenses for supplementary medical and rehabilitation services which are required as a result of the accident. It is equally important that this treatment be differentiated from treatment that the Applicant would have undergone in any event, or which is not as a result of the accident.
It is the Applicant's responsibility to prove, on a balance of probabilities, that the supplementary expenses she claims in this arbitration are required as a result of the accident. I find no difficulty in allowing the initial visits to the massage therapist, under the provisions of s. 6(1)(f) of the No-Fault Benefits Schedule, particularly in light of the evidence of Dr. Babey at the hearing, that he refers patients in appropriate cases for this therapy. I allow the claim for transportation expenses for this therapy and for visits to Dr. Babey until February 26, 1991, pursuant to section 6(1)(d) of the No-Fault Benefits Schedule.
Similarly, the Insurer should pay the expense of the travel and related costs for the Applicant's visit on her referral to Dr. McCain in London, February 20, 1991. Dr. McCain recommended "spray and stretch" therapy at the Physiotherapy Department, Louise Marshall Hospital, Mount Forest, and the cost of this treatment should be borne by the Insurer, under the provisions of s. 6(1)(a) of the No-Fault Benefits Schedule, if required, together with associated transportation costs (s. 6(1)(d)).
Dr. Chan provided treatment to the Applicant from March 5, 1991 onward. His reports, which were filed as exhibits, record the continuing need for the Applicant to receive physiotherapy treatment.
However, I cannot order the Insurer to pay for physiotherapy treatment given by Donald MacQillivray, and for associated transportation costs, given the evidence, which I accept, that the Applicant saw him as frequently before the accident as after, for the treatment of her chronic problems. I find that this treatment was not rendered "as a result of the accident", so is ineligible for payment.
With respect to the ongoing massage therapy treatment, no evidence shows that this treatment is providing any significant benefit to the Applicant at this stage. Indeed, Mrs. Grasley herself expressed dismay and surprise that there was not much change in the Applicant's condition at her latest visits. The lack of benefit may also be evidenced in the falling number of visits to the massage therapist in 1992. I find that the cost of treatment and transportation claimed in 1992 is not reasonable, and therefore ineligible for payment by the Insurer.
Finally, Dr. Perrin testified that he had seen the Applicant monthly in his office since May 20, 1992, her last visit being September 10, 1992. It was apparent that Dr. Perrin considered that he is now providing the Applicant's care as her family physician. The Applicant, however, has claimed transportation expenses for visits to Dr. Chan in Markdale from March 5, 1991 to August 13, 1992. It is not reasonable for the Insurer to reimburse the transportation expense to that general practitioner after May 20, 1992. Accordingly, I disallow the claims for such expense for the visits of July 21 and August 13, 1992.
I have summarized my findings with respect to the claims for supplementary medical and rehabilitation benefits in the following table:
Supplementary Medical & Rehabilitation Benefits
ALLOWED:
Dates
No. of Visits
Cost
Km.
Total
Massage Therapy, Arthur
Sept. 1/90-Dec. 31/91
40
Usually $35
Total: $1,508
79
3,160
Dr. Babey, Mt. Forest
Sept. /90-Feb. 26/91
5
28
140
Dr. McCain, London 345
Feb. 20/91
1
Misc Exp. $49
345
Physiotherapy
Mar. 13/91- 22
32
704
Louise Marshall
Aug. 8/91
Hospital
Aug. 8/91- Sept. 11/92
32
32
1,024
Dr. Chan, Markdale
Mar. 5/91- Apr. 21/92
11
92
1,012
$1,551.00
6,385
km DISALLOWED:
Massage Therapy, Arthur
Jan. 1-Aug. 31/92
5
$35
Total: $115
19
395
D. Macgillivray, Physiotherapist, Durham
Sept. /90-Mar. 2/91
36
46.8
1,685
Dr. Chan, Markdale
July 21/92 Aug. 13/92
2
92
184
km
$ 175.00
2,264
Payments for the kilometres allowed will be at the rate the Insurer customarily paid its insureds from time to time over the period.
Expenses:
The Applicant seeks an award of the expenses she has incurred in this arbitration. An award for expenses may be made under section 282(11) of the Insurance Act, which provides as follows:
The arbitrator may award to the insured person such expenses incurred in respect of an arbitration proceeding as may be prescribed in the regulations to the maximum set out in the regulations.
The prescribed expenses and amounts are set out in Schedule 1 of the Dispute Resolution Practice Code and in Ontario Regulation 275/90 "Schedule".
In the Ralph McCormick v. Economical Mutual Insurance Company case (O.I.C. No. A-000139), Arbitrator Susan Naylor made the following comments about expenses, with which I agree:
The discretion to award expenses should be exercised, having regard to the intent and purpose of the legislative scheme. The arbitration process has been established under the Insurance Act, as amended, in order to facilitate applicants' access to relatively inexpensive, speedy and informal adjudication of disputes regarding no-fault benefits. The discretion to award expenses should be exercised in accordance with this objective, having regard to the individual circumstances of each case.
Accordingly, it is appropriate to award an applicant his or her expenses, unless, in the circumstances of the particular case, it is determined that the application for appointment of an arbitrator was manifestly frivolous or vexatious, or that the applicant's conduct unreasonably prolonged the proceedings.
The Applicant is entitled to her expenses as set out in Schedule 1 of the Dispute Resolution Practice Code. In the event that the parties cannot agree as to the total amount of expenses, I remain seized of this matter and a party may apply for assessment of the expenses before me.
Order:
The Insurer is estopped from relying on the failure of the Applicant to submit the application for no-fault accident benefits within 90 days by reason of its own delay in providing the forms to her.
The Applicant is entitled to weekly income benefits for the period August 27, 1990 to September 14, 1990, a period of three weeks following the accident.
The Applicant must deduct from her weekly income benefits loss of income payments received from C.P.P. Disability Pension and Bell Canada Class "D" Disability Pension.
The Applicant is entitled to $1,557.00 in supplementary medical and rehabilitation expenses and reimbursement for 6,385 kilometres as set out herein.
The Applicant is entitled to interest pursuant to section 24(4) of the No-Fault Benefits Schedule.
The Applicant is entitled to her expenses of this hearing as prescribed under Ontario Regulation 275/90.
December 3, 1992
K. Julaine Palmer
Arbitrator
Date