Neutral Citation: 1993 ONICDRG 23

File No. A-001894

ONTARIO INSURANCE COMMISSION

BETWEEN:

CHOR TING LUI

Applicant

and

WELLINGTON INSURANCE COMPANY

Insurer

DECISION

The Applicant, Chor Ting Lui, was injured in a motor vehicle accident on September 2, 1990. He applied for and received accident benefits, payable under Regulation 672 (R.R.0. 1990, the "No-Fault Benefits Schedule"), enacted under the Ontario Insurance Act, R.S.O. 1990, c. I.8. Every motor vehicle policy provides for these no-fault benefits.

The Applicant received weekly benefits (non income) under section 13 of the No-Fault Benefits Schedule until November 10, 1991, when the Insurer terminated his benefits, alleging that the Applicant no longer qualified for them. The Applicant disputes the termination of his benefits.

The Applicant applied for mediation of his dispute with the Insurer. Mediation was unsuccessful, and the Applicant subsequently applied for the appointment of an arbitrator.

Issues:

The issues to be determined at this arbitration hearing are:

1. Is the Applicant entitled to weekly benefits (non income) under section 13 of the No-Fault Benefits Schedule from November 11, 1991 to the present and ongoing?

2. Is the Applicant entitled to payment of interest on any outstanding amounts owing by the Insurer and expenses incurred in relation to this arbitration?

The parties confirm that there are no outstanding claims for Supplementary Medical and Rehabilitation Benefits.

Results:

1. The Applicant is entitled to receive weekly benefits (non income) under section 13 of the No-fault Benefits Schedule from November 11, 1991 to October 6, 1992.

2. The Applicant is entitled to receive interest on overdue payments at the rate of 2% per month under s. 24 of the No-Fault Benefits Schedule, and payment of expenses incurred in relation to this arbitration as prescribed in Ontario Regulation 664, R.R.O. 1990.

Hearing:

A hearing was held at North York, Ontario, on Wednesday, January 6, and Friday, January 8, 1993, before me, Janice I. Mackintosh, Arbitrator.

Present at the Hearing were:

Applicant:

Chor Ting Lui

Applicant's

Loretta P. Merritt,

Representative:

Barrister & Solicitor

Insurer's

Thomas J. Hanrahan,

Representative:

Barrister & Solicitor

Witnesses:

The following witnesses gave oral evidence under solemn affirmation at the hearing:

Chor Ting Lui

Applicant

Sylvia Rose

Applicant's daughter

Peter Louie

Applicant's son

Leo Slivka

Chiropractor

Interpretation services in the Cantonese language were provided to the Applicant by Caren Cheng of Global Translation and Interpretation Services Inc.

Documents before the Arbitrator:

Report of Mediator, dated July 7, 1992

Application for Appointment of an Arbitrator, dated July 30, 1992

Response by Insurer, dated September 9, 1992

Letter to parties from pre-hearing arbitrator, K. Julaine Palmer, dated November 19, 1992

Exhibits:

1. Brief of medical and investigative reports concerning the Applicant, Tabs marked 1 through 11.

2. Report of Leo Slivka, D.C., dated January 5, 1993

3. Video tape #1, investigation conducted October 4 to October 6, 1992.

4. Video tape #2, investigation conducted November 6 to November 9, 1992.

Evidence and Findings:

To be successful in his claim for weekly benefits under section 13 of the No-Fault Benefits Schedule, the Applicant must establish:

1. that he sustained physical, psychological or mental injury as the result of a motor vehicle accident;

2. that the injury results in a substantial inability;

3. to perform the essential tasks in which;

4. the Applicant would normally engage;

5. during the time period claimed.

The relevant portion of section 13 reads 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).

The Applicant is a 63 year old retired person. He resides in Toronto with his wife and the youngest of his six children, Peter Louie. The Applicant retired from Canada Post at age 60 because he was offered an early-retirement compensation package. At the time of his retirement, the Applicant was generally in good health.

Pre-Accident Activity:

The Applicant stated that, prior to the motor vehicle accident of September 2, 1990, he enjoyed an active retirement lifestyle. The Applicant's evidence of his daily routine was supported by the testimony of his married daughter, Sylvia Rose, and his teenage son, Peter Louie.

I find the Applicant's pre-accident activities included the following. During the week, the Applicant rose early, ate breakfast and performed routine household chores including general cleanup, washing dishes, washing floors, vacuuming, taking out the garbage, and laundry.

The Applicant assumed primary responsibility for these household chores, as his wife rose at 5:00 a.m. to leave for work and returned at 5:00 p.m., five days a week. His son was a full-time student at Ryerson and active in volunteer work. On the weekends, the Applicant and his wife shared the housecleaning and chores. Their son Peter occasionally helped out.

At around 10:00 or 11:00 in the morning, every day except Sunday, the Applicant generally walked, but sometimes drove the several blocks to the Chinese community/recreation centre for a swim. The Applicant spent between 45 minutes to an hour in the pool. His evidence was that he generally swam approximately six lengths of the pool without stopping.

Occasionally, the Applicant delivered information fliers for the community/recreation centre. He went to a specified neighbourhood within the Chinese community delivering fliers from door to door. During cross-examination, the Applicant estimated that he delivered fliers for the Chinese community/recreation centre approximately two times in the eleven months of retirement prior to the accident. Prior to the accident, the Applicant could walk a few miles without stopping to rest.

The Applicant performed volunteer work for the Chinese senior citizens' centre close to his home approximately three times a week. Personnel from the senior citizens' centre telephoned the Applicant with specific requests. The Applicant helped out in many different ways. The Applicant delivered meals, picked up medications and miscellaneous groceries, ran errands, and wrote letters in Chinese characters for the seniors. He sometimes walked and sometimes drove his car, depending on the task.

On weekdays, the Applicant did the daily shopping for his family. He either walked or drove to pick up necessary items. On the weekends, the Applicant and his wife shopped together. Also on weekdays, the Applicant tried to have dinner ready for his wife when she returned home from work in the evenings. During cross-examination, the Applicant agreed that his wife generally assisted with meal preparation when she arrived home after work. On weekends, the Applicant and his wife prepared meals together. Their son Peter occasionally helped out.

The investigation reports at tabs 10 and 11 of Exhibit 1 describe the Applicant's home as a modest, two-storey, semi-detached dwelling, located in an older, quiet, middle-class neighbourhood, with well-maintained grounds, a rear garage, and small back yard. The Applicant stated that prior to the accident he maintained the house and grounds, with some help from his son Peter. The Applicant turned the soil in spring, did the spring planting, cut the grass in seasons other than summer, trimmed the edges with hand-held scissors, watered and weeded. He did the fall cleanup, shovelled snow following light snowfalls, and did some occasional painting. The Applicant's son Peter helped with spring planting, cut the grass in summer and shovelled the snow following heavy snowfalls.

On occasion, the Applicant drove to his daughter Sylvia's home, played with his grandchildren, and helped his daughter and her husband with their antique business.

The Applicant stated that prior to his retirement he was employed as a truck driver for Canada Post. Prior to his accident, he drove his car every day.

In her evidence, Sylvia Rose mentioned that her father attended English classes. Neither the Applicant, nor his son Peter, mentioned these classes in their evidence.

The Applicant's essential tasks, normally engaged in:

Not every activity performed by an applicant prior to a motor vehicle accident will meet the criteria of essential tasks in which the insured person would normally engage set out in section 13(1) of the Schedule. The terms "essential", "tasks", and "normally" have been examined in the cases of Edgar Cowie and The Non-Marine Underwriters, Members of Lloyd's, Commission File No. A-001159 (currently under appeal), Lily Steele and Zurich Insurance Company, Commission File No. A-001024, and Dana B. Levenson and The General Accident Assurance Company of Canada, Commission File No. A-000260 (upheld on appeal).

I agree with counsel for the Applicant's submission that "essential tasks" in subsection 13(1) cannot refer only to those activities that are absolutely necessary and essential to maintain life, such as eating, sleeping, and personal hygiene. To do so would virtually eliminate any meaningful distinction between the test contained in subsection 13(1) which is currently being examined, and the test contained in subsection 13(8) which provides that after 156 weeks, an applicant must establish that injury "prevents the insured person from engaging in substantially all of the activities" normally engaged in. However, I cannot agree with the broad and inclusive definition of "essential tasks" proposed by counsel, which would include all of the Applicant's usual or regular activities, regardless of their nature or purpose. To do so would rob the terms "essential" and "tasks" of their specific meanings and would result in two radically different compensation schemes - one for those who are employed and claiming benefits under section 12, and a different scheme for those without employment income, claiming benefits under section 13.

Section 13(1) must be construed in context. Both sections 12(1) and 13(1) appear under Part IV of the No-Fault Benefits Schedule entitled WEEKLY BENEFITS, and are similarly worded. These two sections should be read in harmony and should be somewhat consistent in their application. Under section 12(1), the insured person must establish a substantial inability to perform the essential tasks of his or her occupation or employment to qualify for weekly income benefits. The analysis under section 12(1) focuses on the essential tasks of employment. An employed person's ability or inability to participate in hobbies, social events and casual pastimes is relevant only to the extent that such activities correlate with and shed light upon that person's ability to perform the essential tasks of employment. This would remain so regardless of the frequency with which the insured person engaged in such hobbies and pastimes and their importance to the quality of the insured person's life. Likewise, an unemployed person seeking weekly benefits under section 13(1) should not be entitled to receive benefits solely on the basis that he or she is unable to participate in hobbies, social events and casual pastimes, even when such activities are frequently engaged in.

I interpret the words "essential tasks" in subsection 13(1) to refer to those activities connected to the ongoing business of living. I include the routine tasks a person performs to maintain themselves, their dependants, and their home. The words "essential tasks" also import an element of commitment, a sense of purpose or responsibility to oneself, one's community or dependants. I therefore find the essential tasks in which Mr. Lui would normally engage to include:

1. Bathing, dressing, eating, sleeping.

2. Domestic chores including general cleanup, washing dishes, washing floors, vacuuming, taking out garbage and laundry.

3. Meal preparation and grocery shopping.

4. A regular program of physical fitness including daily walks, and swimming six days per week.

5. General maintenance of house and grounds including upkeep of lawn and garden, essential repairs, and snow removal.

6. Driving.

While I recognize the value and social importance of the Applicant's volunteer community service and his work with the elderly, I do not include them in the list of his essential tasks. Mr. Lui's evidence was that his volunteer activities, while quite regular, occurred on an informal, ad hoc basis. He could accept or refuse each request for his assistance at will. There was no future commitment or obligation.

The evidence submitted did not establish that the Applicant attended English classes as part of a regular program of courses or training to upgrade an essential skill. Had the evidence established this, I would have found Mr. Lui's attendance at English classes to be an essential task.

In certain circumstances, the care and nurturing of grandchildren by a grandparent may be found to be an essential task, normally engaged in. However, I do not include Mr. Lui's pre-accident activity of playing with his grandchildren as an essential task normally engaged in, because of the relative infrequency and essentially social nature of the contact with his grandchildren. I rely upon the reasoning of my earlier decision Edgar Cowie and The Non-Marine Underwriters, Members of Lloyd's, Commission File No. A-001159, issued March 9, 1993, at page 15 (currently under appeal):

This list of essential tasks does not include spontaneous, casual social activities described by the applicant, such as swimming at the invitation of friends, dancing, and playing with his children and grandchildren. These activities undoubtedly contributed to the quality of the applicant's life. However, they cannot be considered "essential tasks" within the ordinary meaning of the words. The No-fault Benefits Schedule is not intended to replace general damages under the tort law system and does not compensate individuals for loss of enjoyment of life or a reduction in the general quality of life.

I do not include the Applicant's pre-accident activities of occasionally assisting his daughter and her husband with their antique business and delivering fliers for the Chinese community / recreation centre as an essential task normally engaged in, because of the infrequency of these activities.

I must now determine the nature and extent of the Applicant's physical, psychological or mental injury, sustained in the motor vehicle accident.

Applicant's Medical Condition:

The Applicant and his wife were involved in a motor vehicle accident on September 2, 1990. Following the accident, both Mr. and Mrs. Lui were transported by ambulance to St. Michael's Hospital. Mr. Lui was discharged from hospital later that day. The next day, the Applicant saw his family physician, Dr. Michael Lai, who diagnosed a soft tissue injury to the neck and lumbar sprain. The Applicant's complaints included neck stiffness and pain, low back pain and limitation of movement. Dr. Lai also noted that the Applicant was experiencing "auto anxiety neurosis" (Tab 8 of Exhibit 1).

The Applicant stated that soon after the accident he also began to experience pain in his right shoulder, left buttock, hip and leg. The Applicant's family physician referred Mr. Lui to a specialist in internal medicine, Dr. K.Y. Lee, for further investigation. Dr. Lee first examined Mr. Lui on June 3, 1991.

In his report dated October 4, 1991 (Tab 3 of Exhibit 1), Dr. Lee noted:

On skeletal examination, there was slight limitation on flexion and extension as well as rotary movement of the lower cervical spine. There was minimal subjective tenderness at the C-7 and C-8 region. However, there were no paraspinal muscle spasm, sensory or motor root abnormalities. Lumbar spine examination was negative. The rest of the skeletal examination was negative, except for local tenderness at the left trochanter region. Routine neurological examination was normal.

The clinical diagnosis at that time was aches and pains of the lower cervical spine secondary to recurrent strain. This may be related to his past MVA in Sept. 1990 and likely superimposed by underlying DDD of the spine. There were no sensory or motor root abnormalities.

Dr. Lee noted in his report dated October 4, 1991 that the Applicant's active left trochanter bursitis was treated with local steroid injection at his office on June 18, 1991.

The Applicant's last visit to Dr. Lee occurred on September 3, 1991. At that time, Dr. Lee noted that the Applicant had further improved and there were few clinical complaints at that time. Dr. Lee noted that Mr. Lui "has a close to normal range of movement of the cervical and lumbar spine. Anterior leg raising was freely up to 90° bilaterally."

In cross-examination, the Applicant stated that, at the time of the September 1991 visit to Dr. Lee, he was experiencing the beneficial effects of the local steroid injection given to him in June 1991. The Applicant noted that the injection was particularly beneficial in reducing his right shoulder pain. Mr. Lui stated the pain in his lower back and left hip and leg was not significantly affected by the steroid injection. The Applicant stated that the effects of the injection wore off in November 1991.

In April 1991, the Applicant was assessed by the Canadian Back Institute at the Insurer's request. In a report dated April 23, 1991 (Tab 1 of Exhibit 1), the Applicant's principal complaints were described as left hip pain, numbness in the left foot and some central neck pain. The Applicant's low back pain and right shoulder pain were reported to be somewhat diminished.

The Canadian Back Institute report goes on to state:

On assessment of his lumbar spine, Mr. Lui has a reduced lumbar lordosis. He has minimal loss of lumbar flexion but a major loss of extension. Flexion reproduced some left hip pain. Extension in standing was painfree. Repeated flexion in lying again reproduced some hip pain. Extension in lying similarly produced some hip pain although it was less than with flexion. Neurological testing appeared normal.

In a final report dated June 18, 1991 (Tab 2 of Exhibit 1), the Canadian Back Institute reports:

Chor Ting Lui continues to feel some buttock pain and some leg pain, however, he does several exercises that at least temporarily take this pain away. I feel that continuing with the exercise routine and being persistent with controlling the pain when he does get it will also with some time take away these symptoms.

On September 17, 1991, the Applicant was examined by Dr. Arthur Ameis, a specialist in Physical Medicine and Rehabilitation (Physiatry), at the request of the Insurer. In his report dated November 13, 1991 (Tab 4 of Exhibit 1), Dr. Ameis found the Applicant to have a full range of movement in the neck, shoulders, and lower back, with some pain present. The doctor noted no spasm, and no significant straight leg raise response in any position tested. Dr. Ameis concluded:

I do not think that there is any serious neurologic problem any longer. What remains now are the effects of soft tissue strain injury to the neck and back region.

He is co-operative with his exercises, has done well at CBI, and knows what to do to control his pain. There is no reason to hold him back on the basis of potential injury, from his normal activities.

Over time, he will gradually resume all of his normal activities and I do not think that there is any rehabilitation service needed to assist him in this regard.

In cross-examination, Mr. Lui noted that he continued the 15-minute exercise program designed for him by the Canadian Back Institute, three times daily for two to three weeks following his discharge from the program. Mr. Lui stated he discontinued the home exercise program because he no longer found it helpful. Upon the suggestion of his family doctor, however, Mr. Lui does light exercises in the pool and walks daily.

In his report dated January 3, 1992 (Tab 5 of Exhibit 1), the Applicant's family doctor recorded Mr. Lui's complaints of back, neck and left hip pain. Dr. Lai concluded that "his neck and back pain has improved a lot, but his left hip pain still persists".

In his report dated November 9, 1992 (Tab 6 of Exhibit 1), Leo Slivka, Doctor of Chiropractic, noted that the Applicant continues to experience pain in the left sacroiliac and gluteal regions. The chiropractor stated in oral evidence that the Applicant's mobility has improved since the accident, however, the chiropractor noted that the Applicant's mobility "seems to come and go".

In evidence, the Applicant confirmed that his shoulder pain has diminished, and his neck pain has improved. Mr. Lui stated that his chief complaint is of low back pain, with pain radiating to his left hip and leg. He confirmed that his pain is always present to some degree, but worsens with changes in the weather and certain activities.

Three of the five health care professionals who dealt with the Applicant allude to the possibility of pre-existing degenerative disc disease or disc irritation, which may be contributing to the Applicant's ongoing complaints of pain. None of the medical evidence submitted expresses a firm opinion on this point. Consequently, I have insufficient evidence to conclude that the Applicant's pre-accident physical condition contributes significantly to his present complaints of pain.

The consensus of medical opinion and the Applicant's own evidence indicate that the Applicant's condition has improved significantly since the motor vehicle accident of September 1990. His chief remaining complaint is that of pain. This pain, while constant, varies in intensity. The intensity of the pain, in turn, affects the Applicant's mobility and functioning.

The evidence of Mr. Lui and his family members is consistent with the totality of the medical evidence. None of the medical evidence casts doubt upon the authenticity of the Applicant's pain. In his report dated November 13, 1991 (Tab 4 of Exhibit 1), Dr. Ameis described the Applicant as "a man with a strained back who is learning to deal with the pain". Dr. Ameis noted that "over time the applicant would gradually resume all of his normal activities...". No issue was raised concerning the Applicant's sincerity or credibility.

The remaining issue for me to determine is whether the intensity of the Applicant's pain substantially interferes with his ability to perform the essential tasks which have been identified.

Substantial Inability:

The Applicant's substantial inability is considered in relation to those activities that are determined to be the essential tasks in which the Applicant would normally engage, rather than the complete range of activities, pastimes and pleasures pursued by the Applicant prior to the accident.

It is conceded by the Applicant that he has been substantially able to bathe, dress, eat and sleep since the accident. The evidence indicates that the Applicant prepares his morning and mid-day meals along with daily, light grocery shopping.

In her submissions, counsel for the Applicant distinguished between those tasks the Applicant cannot do at all, and those that the Applicant performs in a significantly modified manner. In the present case, the Applicant no longer drives. The Applicant has significantly modified his housekeeping duties to light duties only, and his general maintenance of house and grounds to simply watering the lawn.

Counsel argued that insured persons should be encouraged to return to their pre-accident tasks by resuming them, in a modified fashion, wherever they can. Having worked hard to return to modified activities, counsel submitted that it would be unfair and counter-productive to deny benefits to the Applicant on the basis that he is no longer substantially unable to perform such tasks. Counsel suggested that a return to former activities in a modified fashion should not disentitle the Applicant from receiving benefits.

I agree that one of the goals of the No-Fault Benefits Schedule is to facilitate the rehabilitation of insured persons. An insured person's efforts to return to pre-accident tasks in a modified manner should be encouraged. The extent, nature, and purpose of the pre-accident activity must be compared to the extent, nature and purpose of the post-accident resumption of that activity.

The Applicant's family physician, Dr. Lai, noted in his report dated January 3, 1992 (Tab 5 of Exhibit 1), "he [Mr. Lui] claims that he cannot sit for longer than half an hour or walk for over one block because of the pain". I therefore accept that at January 3, 1992 the Applicant's physical abilities were so significantly modified as to render him substantially unable to perform his essential tasks. The Applicant should continue to receive benefits where there are marked adjustments in the performance of essential tasks.

However, by October 6, 1992 (Tab 10 of Exhibit 1, Investigation Report dated October 14, 1992 and accompanying video marked as Exhibit 3), the Applicant's activities included walking a total of five kilometres, interspersed with light exercises in the pool, swimming approximately two pool lengths with rests in between, shopping, squatting, and sitting, without apparent discomfort or impediment. The Applicant reported that at present he can walk about six blocks without feeling pain and then he must stop to rest.

While the Applicant continues to limit his fitness activities of walking and swimming to a more leisurely pace, the pre and post-accident purpose of these activities remains the same, that is, to improve the Applicant's overall level of fitness. In addition, by October 6, 1992, the totality of the Applicant's functioning had improved to the extent that I conclude he is no longer substantially unable to perform the bulk of his essential tasks. As stated in Lawrence Whitney and Co-operators General Insurance Company, O.I.C. File No. A-001005 dated March 31, 1993, at page 14:

To qualify for benefits under this test, it is not sufficient to show that the Applicant has been prevented from returning to his full pre-accident level of activities, or that he suffers from some remaining limitations. As stated in Lily Steele and Zurich Insurance Company, O.I.C. File No. A-001024, dated December 3, 1992, at page 32:

...it is not some inability to perform key tasks, but a sizable inability which is compensable.

In his report dated November 9, 1992, (Tab 6 of Exhibit 1), Leo Slivka, Doctor of Chiropractic, noted that the Applicant "continues to experience discomfort", however, the chiropractor made no mention of disability, or pain of a disabling intensity. In his follow-up report dated January 5, 1993 (Exhibit 2), the chiropractor reported a diminished range of movement on straight leg tests, lumbar spine and joint compression tests. He also recorded Mr. Lui's complaint that prolonged sitting, standing and walking causes discomfort in his low back.

As noted by Senior Arbitrator Naylor, at page 23 of her decision Norman Downs and Allstate Insurance Company of Canada, Commission File No.A-000064:

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.

I have concluded that, although Mr. Lui continues to experience discomfort and some limitation of function after October 6, 1992, which may prevent him from carrying out his essential tasks to his former level of performance, he is no longer substantially disabled to the degree contem-plated by section 13.

Expenses:

The Applicant seeks an award of the expenses he has incurred in this arbitration. An award for expenses may be made under section 282(11) of the Insurance Act, which provides as follows:

(11) 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 664 R.R.O. 1990. The Applicant is entitled to his expenses as set out in this Schedule. In the event that the parties cannot agree as to the total amount of expenses, I remain seized of this matter and either party may apply for assessment of the expenses before me.

Order:

1. The Applicant is entitled to receive weekly benefits (non income) under section 13 of the No-fault Benefits Schedule from November 11, 1991 to October 6, 1992.

2. The Applicant is entitled to receive interest on overdue payments at the rate of 2% per month under section 24 of the No-Fault Benefits Schedule.

3. The Applicant is entitled to payment of reasonable expenses incurred in respect of this arbitration proceeding, as prescribed in Ontario Regulation 664, R.R.O. 1990.

April 28, 1993

Janice Mackintosh Arbitrator

Date