Neutral Citation: 1993 ONICDRG 10

File No. A-000161

ONTARIO INSURANCE COMMISSION

BETWEEN:

ELIZABETH ANDREACCHI

Applicant

and

METROPOLITAN INSURANCE COMPANY

Insurer

DECISION

Issue:

The Applicant, Elizabeth Andreacchi, was injured in a motor vehicle accident on June 25, 1990. She applied for and received accident benefits from the Insurer payable under Ontario Regulation 672 (the "No-Fault Benefits Schedule"), enacted under the Ontario Insurance Act, R.S.O. 1990, c. I.8.

The Applicant received weekly income benefits until January 25, 1991. She also received physiotherapy treatments, which the Insurer stopped funding on the advice of its independent medical expert. The Applicant disputed the termination of her weekly income benefits, and claimed that she should have received them until August 29, 1991. She also disputed the termination of her physiotherapy treatments.

The Applicant applied for mediation of her disputes with the Insurer. Mediation resolved the question of the physiotherapy treatments, which the Insurer agreed to continue funding. The Applicant applied for the appointment of an arbitrator under the Insurance Act, to deal with the remaining issues in dispute.

The issues in this hearing are:

1. Is the Applicant entitled to weekly income benefits for the period from January 25, 1991 to August 29, 1991?

2. Is the Insurer obliged to pay for the cost of a medical report, pertaining to the issue of the Applicant's physiotherapy treatments?

The Applicant also claims interest on any outstanding amounts owing, and her expenses incurred in the hearing.

Result:

The decision is:

1. The Applicant is not entitled to weekly income benefits subsequent to January 25, 1991.

2. The Insurer is obliged to pay for the medical report.

Hearing:

A hearing was held at North York, Ontario, on February 14, February 28, and August 6, 1992, before me, Frederika Rotter, Senior Arbitrator.

Present at the hearing were:

Applicant:

Elizabeth Andreacchi

Applicant's Representative:

Leo J. Dillon

Barrister & Solicitor

Insurer's Representative:

James Dunn

Barrister & Solicitor

Witnesses:

Elizabeth Andreacchi:

Applicant

Hym Dun Cheung, M.D.

Michael Clement Hall, M.D.

Madeleine Nevins

Kathleen Maureen McKay

} Applicant's teachers

Janet Christine Johnson

Edward Joseph Markson

Arvo N. Poolar

Licensed Investigator

Guiseppina (Josie) Rabito:

Applicant's friend

Ralph Andreacchi:

Father of Applicant

Documents before the Arbitrator:

Application for Appointment of an Arbitrator in Form 4, dated October 6, 1991

Response in Form 5, dated October 31, 1991

Report of Mediator, dated June 26, 1991

Exhibits:

Exhibit 1

Handnote by Dr. H.D. Cheung, dated August 29, 1991, with letter dated September 5, 1991

Exhibit 2

Report of Dr. H.D. Cheung addressed to Janice Mackintosh, Mediator, dated May 13, 1991

Exhibit 3

Report of Dr. W. Michael Tew, dated December 11, 1990

Exhibit 4

Report of Dr. W. Michael Tew, dated March 26, 1991

Exhibit 5

Medical or Psychological Report Form 4 from Dr. H.D. Cheung dated August 30, 1990

Exhibits 6 to 12

Seven (7) Claim reports from Dr. H.D. Cheung, dated September 27, 1990, October 11, 1990, October 15, 1990, November 9, 1990, November 22, 1990, December 7, 1990, December 20, 1990

Exhibit 13

Curriculum Vitae of Dr. Michael Clement Hall

Exhibits 14 to 17

Reports from Dr. Michael Clement Hall, dated November 29, 1990, June 24, 1991, July 26, 1991, February 7, 1992

Exhibit 18

Registered Letter from Metropolitan Insurance to Elizabeth Andreacchi, dated October 12, 1990

Exhibit 19

Letter from Metropolitan Insurance to Elizabeth Andreacchi, dated August 22, 1990

Exhibit 20

Ontario Automobile Insurance Accident claim forms

Exhibit 21

Photograph of Universe Hardware Store

Exhibit 22

Series of photographs (12)

Exhibit 23

Photographs of cars showing damage

Exhibit 24

Copy of letter dated May 22, 1991 to Dr. H.D. Cheung from Janice Mackintosh, Mediator, with attachments

Exhibit 25

Videotape taken by Arvo N. Poolar, Licensed Investigator

Exhibit 26

Assignment Sheet received by Mr. Poolar

Exhibit 27

Letter dated February 6, 1992 from Markham Physiotherapy Clinic, signed by Gaye Spence and Pauline Ho, Physiotherapists

Exhibit 28

I.D. photograph of Elizabeth Andreacchi and job advertisement for post office staff

Cases referred to:

Norman Downs and Allstate Insurance Company of Canada, Commission File No. A-000064, S. Naylor, Arbitrator, dated July 18, 1991

Ronald Gatt and Coachman Insurance Company, Commission File No. A-000134, S. Naylor, Arbitrator, dated December 31, 1991

Evidence and Findings:

1. Weekly Income Benefits:

The Applicant, Elizabeth Andreacchi, was 16 years old at the time of the accident on June 25, 1990. She was a high school student and had just completed 12th grade. The Applicant was an excellent student: this fact was attested to by a number of witnesses at the hearing, including the Applicant's former high school teachers and a fellow-student. Through hard work and diligence, she "fast tracked" through high school, finishing courses intended to be done over five years in three and one half years. Her teachers and colleagues at school described her as a bright, ambitious, highly motivated individual who was an "organizer" at school.

At the time of the accident, the Applicant had one term of high school left to complete. She was to finish high school at the end of January 1991, and start her university programme at York University in February 1991.

The Applicant's evidence was that, throughout high school, she had worked part-time. Since 1989, she had a part-time job with Allstate Insurance, involving 16-20 hours of work a week. The Applicant testified that her hours of work were flexible, and that she worked evenings, weekends, and on days when she had breaks or holidays from school. She normally would work for a four-hour period, three afternoons a week, and on Saturday mornings.

She intended to continue this part-time job over the summer and into the next school year. The Applicant had worked on the day of the accident, June 25, 1990, and was just leaving work when the accident occurred.

Over the summer holiday, the Applicant also intended to work full-time (40 hours per week) as a bookkeeper at her grandfather's hardware store. The hardware store is located at College and Shaw, in downtown Toronto. The Applicant lives in Markham, a suburb northeast of the city.

She testified that she had completed a day-long "training" at the hardware store, and was about to start working there for the summer when the accident occurred. Her pay was to be $10.00 an hour, or $400.00 weekly for a 40 hour week.

The Applicant explained that her hours of work at the store were flexible, because it was owned by a relative. She could work evenings and weekends, as she chose. The Applicant testified that she planned to continue working full-time at the hardware store during the 1990-91 school year. She testified that she also intended to continue with her part-time job at Allstate. In essence, her evidence was that, during the school year, she planned to work at two jobs -- a time commitment of up to 60 hours per week -- while carrying her full load of high school and university courses.

As a result of the accident, the Applicant was unable to work during the summer. She was granted weekly income benefits, based on her expected earnings from the hardware store and from Allstate.

At the end of the summer, the Applicant returned to school and successfully completed her remaining high school term. In February 1991, the Applicant started at York University.

The Applicant testified that, because of the accident, she was unable to work while attending school. Previously, she had had no difficulty coping with a schedule that included part-time work and school work. However, after the accident, she was unable to concentrate and efficiently handle the requirements of both work and school. The Applicant claims to be entitled to ongoing weekly income benefits because, during the period from January 25, 1991 to August 29, 1991, she was unable to work while attending school.

The Applicant's entitlement to weekly income benefits is governed by section 12 of the No-Fault Benefits Schedule, which provides:

Section 12.

(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 income benefit during the period in which the insured person suffers substantial inability to perform the essential tasks of his or her occupation or employment if the insured person meets the qualifications set out in subsection (2) or (3).

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

1. He or she must have been at the time of the accident,

i. employed or self-employed,

ii. on a temporary lay-off, or

iii. entitled to start work within one year under a legitimate offer of employment made before the accident and evidenced in writing.

Accordingly, to qualify for ongoing benefits, the Applicant must prove that she was suffering from a substantial inability to perform the essential tasks of her employment.

The Applicant described her duties at the hardware store as including doing the books, banking, paying the bills, controlling inventory and generally helping out: "whatever needed to be done". The Applicant did not indicate that the job involved anything other than clerical, basically sedentary tasks. She did not indicate that the work would be particularly challenging or demanding for her -- either physically or intellectually. Her evidence was that she was capable of doing the work as she had completed a grade thirteen, or university-level, accounting course.

The Applicant's job as a claims loss reporter with Allstate involved making telephone calls on behalf of adjusters, to follow up reports of losses. She would enter the information taken on the telephone call into the computer system. When she had occasion to work during the day, the Applicant would deal with new claims. The Applicant's job involved sitting at a desk, using the telephone, and working at a computer. She earned $8.93 an hour.

It was submitted by counsel for the Insurer that the physical requirements of the Applicant's jobs were basically similar to her activities as a student. The Applicant's own family doctor, Dr. Cheung, opined at the hearing that attending school was probably more difficult than working as a bookkeeper. Based on the evidence before me, I conclude that the Applicant's essential tasks were clerical and sedentary in nature, and comparable to the physical requirements of attendance at school.

The Applicant testified that she was not able to work because of the ongoing effects of the motor vehicle accident.

Her evidence is that during the period for which she claims benefits she still had residual complaints as a result of the motor vehicle accident. In particular, she states that she suffered from headaches, neck and back pain, and pain in her right leg and knee, which caused her to limp.

She further testified that her pain, and her corresponding inability to function and perform as she had prior to the accident, left her frustrated and depressed.

The Applicant testified that the pain and frustration resulting from the accident made it difficult for her to concentrate as usual. Her school work was harder for her as she was less capable of intense or prolonged concentration. After completing her school work, she did not have the energy or stamina required to also work at a paying job.

The Applicant testified that after the accident, she suffered from intense headaches, often accompanied by nausea, dizziness, and blurred vision, almost every day. The headaches became less frequent in about January 1991, although their intensity did not diminish. The Applicant testified that by January 1991 she had headaches approximately twice weekly. When a headache came on, she had to relax and wait for it to pass. The Applicant testified that the headaches became less intense by the summer of 1991, although she still had them with the same frequency -- that is, about two times a week.

The Applicant also suffered from neck and back pain. At the beginning, her neck and lower back were very stiff, and her range of movement in those areas was diminished. Physiotherapy was prescribed for the Applicant, and her condition gradually improved. She testified that by January 1991 her neck was much improved -- she still had some pain, but nothing that would prevent her from working. Similarly, by January 1991 her back was much improved.

The Applicant's family doctor, Dr. Cheung, in his testimony confirmed the Applicant's complaints of frequent headaches, and of back and neck pain. His diagnosis was that the Applicant had sustained muscular-ligamentous injuries, and he prescribed anti-inflammatory medications, analgesics, and physiotherapy.

A report from Markham Physiotherapy Clinic dated February 6, 1992 (Exhibit 27) confirms that on February 5, 1991 the Applicant was complaining of very bad headaches, neck pain, pain in her lumbar spine, as well as pain in her right hip radiating down to her knee. The report indicates that with treatment the Applicant's cervical and lumbar range of movement improved, with less pain on movement.

Dr. Tew, a consultant referred to by Dr. Cheung, in a letter dated December 11, 1990 (Exhibit 3), confirmed the Applicant's complaints of severe headaches, pain in the neck, and pain in the low back. He confirmed that the Applicant's range of movement was somewhat reduced.

Dr. Hall, the independent consultant retained by the Insurer, also confirmed in his reporting letter (Exhibit 14) that the Applicant complained of very bad headaches, neck and back pain.

I conclude that the Applicant did suffer from headaches, neck and back pain as a result of the accident, as she claims. However, the Applicant's own testimony is that by January 1991 her neck and back problems were largely resolved, and would not have prevented her from working.

I find that the Applicant continued to suffer from headaches after January 1991. However, I conclude that the headaches themselves were not so severe as to disable the Applicant from performing her essential tasks doing clerical work -- especially as the Applicant testified that, after January, she only suffered from headaches approximately twice a week. Since the Applicant's employers were willing to accommodate the Applicant with flexible work hours, I cannot find that she was substantially disabled from performing the essential tasks of her employment because of her headaches.

A great deal of time was spent at the hearing discussing the evidence of the Applicant's right leg pain and the question of her limp. Surveillance videotape of the Applicant walking, taken on April 3 and 4, 1991, was shown to most of the witnesses at the hearing. The videotape showed the Applicant walking relatively normally on April 3rd, but walking with a noticeable limp on April 4th.

Various witnesses, including the Applicant's teachers, her friend, her father and her family doctor, confirmed that the Applicant typically walked with a limp, as depicted on the second day of the videotape, from approximately September 1990 to March 1991.

The evidence before me was that, after that time, the frequency and severity of her limp decreased.

The Applicant's family doctor, Dr. Hym Dun Cheung, confirmed at the hearing that the Applicant complained of pain and stiffness in her right knee. He stated that the Applicant did not regain a normal range of movement and weight-bearing in her right leg until approximately June 1991. Before that time, she had good days and bad days.

Dr. Cheung supported the Applicant's position that she was incapable of working until August 29, 1991. However, as I have noted above, Dr. Cheung felt that bookkeeping work was probably less strenuous and physically demanding than going to school.

The orthopaedic specialists who examined the Applicant also noted her limp, but could find no medical reason or explanation for her refusal to bend her right knee. Dr. Michael Tew, the specialist who saw the Applicant at the request of Dr. Cheung, stated in his report of December 11, 1990 (Exhibit 3):

Elizabeth has post-traumatic neck and back pain with referral to the right leg. I don't know why she is unwilling to bend her knee, but I can't find any local pathology to explain it.

The report from Markham Physiotherapy Clinic (Exhibit 27) confirms that the Applicant, upon presenting herself on February 5, 1991, would not actively flex her right knee. That report indicates that by June 1991 the Applicant's right knee flexion and extension were normal.

The Insurer's expert, Dr. Michael Clement Hall, also testified at the hearing. Dr. Hall is an orthopaedic specialist. It was his view that the Applicant's reaction to her injuries from the accident was emotional and exaggerated: he used the term "theatrical" to describe her behaviour. He confirmed that the Applicant held her right knee stiffly and refused to bend it.

Dr. Hall testified that no injury or medical condition would cause the Applicant to sit with her leg extended, or prevent her from bending her knee. From his examination, he could detect no injury or abnormality in the knee itself. He concluded that the limp was a deliberate behaviour of the Applicant, which could be assumed, but could also be consistent with her emotional response to her injury. In any case, Dr. Hall was of the view that the Applicant's leg pain, such as it was, should not have prevented her from doing sedentary work like bookkeeping.

The Applicant's own evidence is that she felt the knee was unstable, and that she had intense pain in her leg. She stated that frequently her leg would "give out" or collapse beneath her, causing her to fall.

This would happen approximately once a week during the months of September and October, 1990.

Her condition improved gradually, and from January 1991 onwards, the Applicant's leg would "give out" perhaps once a month. She held her leg stiffly and limped as a protective response to her pain.

The Applicant testified that the pain and the limp began to be somewhat less intense about February 1991. She indicated that after that time, she had good days and bad days: on days when the leg hurt more, she would limp.

I find that the Applicant's testimony regarding her limp is consistent with the videotape evidence. I conclude that the Applicant was fully mobile, and capable of a fairly free and comfortable walk on some days during the period for which benefits are claimed. On some days, she still experienced pain. However, I find that the Applicant's pain and limp were not such as to disable here from doing her essential tasks in a sedentary occupation.

I accept the Applicant's evidence of her pain and frustration. I am persuaded that, as a result of the accident, the Applicant's lifestyle and activities did change, and that she was no longer capable of participating in many of the activities that she had previously enjoyed. Furthermore, I find that the accident and the pain associated with the Applicant's injuries did negatively affect her stamina, concentration and energy level for the following year.

However, weekly income benefits under section 12 are not designed to compensate individuals for anything other than an inability to perform essential tasks of employment. In particular, section 12 benefits are not designed to compensate for pain and suffering, or for loss of enjoyment of life, or for the loss of an individual's stamina and ability to participate in many extracurricular tasks or activities.

The Applicant is entitled to weekly income benefits only if, as a result of the accident, she suffers a substantial inability to perform the essential tasks of her occupation or employment.

The Applicant did not choose to work during the period for which she claims benefits. She chose, instead (to her credit, in my view), to continue her education.

From the evidence, I am satisfied that the Applicant would have been capable of performing the essential tasks of her employment, after January 25, 1991, had she chosen to work rather than attend school. Notwithstanding her headaches and other complaints of pain, she was able to function at a satisfactory level at school. She completed her grade 13 courses as she had planned to, in the school term immediately following the accident. During the winter term, she successfully completed two university level courses. She testified that she received B+ grades in the courses she completed, although she normally was a "straight A" student.

The Applicant testified that her university courses were in the area of sociology and social science. She indicated that the courses were quite difficult and challenging: they were not considered "bird" courses. I conclude that these university courses would have been more intellectually demanding of the Applicant than bookkeeping, or her job at Allstate.

I have found that the physical requirements of the Applicant's employment were similar to the requirements of school attendance. It follows, therefore, that the Applicant could have functioned at a satisfactory level at work, in spite of her pain and frustration, had she opted for work rather than school.

To be sure, the Applicant's employment, for which she claimed weekly income benefits, was based on two jobs, and a total of 60 hours of work per week. The evidence is that the Applicant is a capable, diligent and well-organized individual. I accept that the Applicant's plan for the summer, which she probably would have carried out but for the accident, was to work at both these jobs.

However, I do not accept that the Applicant would or could have realistically continued to work 60 hours a week at outside jobs while carrying her full complement of high school or university-level courses. The Applicant's evidence was that, during the school year prior to the accident, she had worked 16-20 hours a week at Allstate. I find that, had she not been injured, she would have continued to spend approximately the same number of hours doing part-time work.

2. Cost of Medical Report:

According to the evidence at the hearing, the Insurer declined to pay for ongoing physiotherapy treatments for the Applicant, after receiving the report of Dr. Hall (Exhibit 14), who opined that "this and all other forms of treatment should be discontinued".

The Applicant and her medical advisers disputed this point of view. Dr. Tew, the Applicant's orthopaedic consultant, considered that "physiotherapy is the mainstay of her treatment" and he unreservedly recommended the continuation of this treatment (Exhibit 4).

Dr. Cheung also prepared a report (Exhibit 2) in response to the report of Dr. Hall, a letter dated May 13, 1992, in which he outlined his role in the treatment of the Applicant. He referred to Dr. Tew's report (Exhibit 4), with which he was in agreement, and "strongly urged" physiotherapy treatments be continued. In the result, the Insurer agreed to pay for ongoing physiotherapy treatments for the Applicant. However, a dispute arose about who was responsible for paying Dr. Cheung's account of $250.00 for Exhibit 2, his report of May 13, 1992.

The Insurer's representative submitted that the Insurer should not be responsible for payment for this report, since the dispute about ongoing physiotherapy treatments had been successfully resolved.

I find that this dispute would not have been successfully resolved, from the point of view of the Applicant, without the assistance and intervention of Dr. Cheung. In providing his report of May 13, 1992, I find that Dr. Cheung provided a "medical service" required by the Applicant, within the meaning of section 6(1)(a) of the No-Fault Benefits Schedule. That section provides:

Section 6.

(1) The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident all reasonable expenses resulting from the accident within the benefit period set out in subsection (3) for,

(a) medical, psychological, surgical, dental, hospital, chiropractic, nursing and ambulance services and the services of physiotherapists;

I heard no evidence or argument that $250.00 was not a reasonable fee for a medical report, in the circumstances of this case. Therefore, I find that the Insurer is obliged to pay the cost of the medical report.

Order:

1. The Applicant is not entitled to weekly income benefits from January 25, 1991 onwards.

2. The Insurer is obliged to pay for the medical report prepared by Dr. Cheung, in the amount of $250.00.

3. The Applicant is entitled to her expenses incurred in the arbitration proceedings under Ontario Regulation 664, Dispute Resolution Expenses.

March 9, 1993

Frederika M. Rotter Senior Arbitrator

Date