Neutral Citation: 1994 ONICDRG 108

File No. A-003287

BETWEEN:

CARMELITA VICARI

Applicant

and

MARKEL INSURANCE COMPANY OF CANADA

Insurer

DECISION

The Applicant, Carmelita Vicari, was injured in a motor vehicle accident on March 4, 1992. She applied for and received statutory accident benefits from the Insurer, payable under Ontario Regulation 672¹. Weekly income benefits were terminated by the Insurer on May 29, 1992. The Applicant claims weekly income benefits under subsection 13(1) of the Schedule from May 29, 1992, care benefits under subsection 13(4) from March 11, 1992, and housekeeping expenses under paragraph 6(1)(f). The parties were unable to resolve their disputes through mediation and the Applicant applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

Is the Applicant entitled to weekly income benefits of $185 per week, under subsection 13(1), from May 29, 1992?
Is the Applicant entitled to care benefits of $50 per week, under subsection 13(4), from March 11, 1992?
Is the Applicant entitled to reimbursement of housekeeping expenses of $120 per week until January 1993, and $480 per month thereafter?
Is the Applicant entitled to a special award under subsection 282(10) of the Insurance Act?
The Applicant also claims interest on overdue benefits and her expenses incurred in the arbitration.

The Applicant is not entitled to further weekly income benefits.
The Applicant is entitled to care benefits of $50 per week between March 11 and May 29, 1992.
The Applicant is not entitled to her housekeeping expenses.
The Applicant is not entitled to a special award.
The Applicant is awarded her expenses incurred in the arbitration.

The hearing was held in North York, Ontario, on November 22, 1993, and April 7, 1994, before me, Nancy Makepeace, arbitrator.

Present at the Hearing:

Applicant:

Carmelita Vicari

Applicant's Representative:

Altor Shields Barrister and Solicitor

Insurer's Representative:

Karen McGuire Barrister and Solicitor

Insurer's Officer:

Wendell Pilgrim

Witnesses:

Carmelita Vicari

James Tuck, private investigator

Wendell Pilgrim, Claims Adjuster

Dr. George D. Kay, orthopaedic specialist

Exhibits and other documents before the arbitrator are listed in an appendix to this decision.

The Applicant was assisted on the first day of hearing by Joseph Dionigi, and on the second day of hearing by Carmen Lisscio, interpreters in the Italian language.

Entitlement to weekly income benefits:

Under subsection 13(1) of the Schedule, the Applicant is entitled to weekly income benefits of $185 per week during any period when, as a result of the accident, she was substantially unable to perform the essential tasks in which she would normally engage.

a) Essential tasks:

Mrs. Vicari testified about her activities before the accident. She is in her mid-sixties, and left her last job in 1982. Her husband, from whom she was separated for many years, died in November 1992. She lives in a small house with two of her seven grown children, Giuseppe and Tonia.

I find that the following activities were essential tasks in which Mrs. Vicari would normally engage before the accident:

Self-care: sleeping, personal hygiene and grooming,
Housekeeping: grocery shopping, meal preparation and clean-up, laundry, washing and vacuuming floors, dusting, other general cleaning, and garbage removal,
Gardening: planting tomatoes and green peppers,
Leisure activities: watching television, walking, and bingo.

b) The motor vehicle accident and its consequences:

Mrs. Vicari was a passenger on a TTC bus on March 4, 1992. She was on her way to a driving lesson. She sat directly behind the driver, facing the aisle. The bus braked suddenly. She fell against the back of the driver's seat, striking her left arm, shoulder, and chest.

An ambulance arrived, and she was taken to hospital, where x-rays were taken. A cardiogram was also done because she has a pacemaker. The results were essentially negative, and she was discharged with Tylenol 3.

Mrs. Vicari testified that she has had a lot of pain since the accident. At first she "couldn't move". Now she has good days and bad days, more bad than good. On bad days she stays in bed. On good days she is able to do a few things. Sometimes she has pain "all over". Other times she has pain in her left neck and shoulder, the left side of her head, her right neck and her mid-back. She does not sleep well, and has a hard time getting up in the morning. She does not want to eat because of the pain.

When she has pain, she cannot lift her arms to wash her face, comb her hair or get dressed. She is unable to prepare anything but a light meal. She no longer does any housework, except for "the odd time". These tasks are all performed by her daughter, Tonia, or her cleaner, a Ms. Julia T.

She does not walk, except to attend medical appointments. She only goes to bingo "once in a while". She cannot work in her garden.

She has been treated by her family doctor, Dr. G.T. Fiorini. When Dr. Fiorini examined Mrs. Vicari on March 10, 1992, he described her as being "in obvious distress with pain in her neck, bitemporal headaches and left shoulder pain". She also complained of dizziness. Movements of the head and neck were restricted to one third of normal. She was tender at the left shoulder, in the cervical spine at C5-6, and in the temporal area. An x-ray showed degenerative disc disease at C5-6 and mild degenerative changes in the left shoulder. Dr. Fiorini diagnosed temporo-mandibular joint strain, cervical strain, and left shoulder strain. As of October 20, 1993, Dr. Fiorini opined that Mrs. Vicari had stabilized and improved, but was not fully recovered.

Mrs. Vicari has been treated with heat, massage, physiotherapy, exercise and analgesics. She testified that the treatment gives her temporary relief, but the pain recurs later.

c) Reasons:

I am not satisfied that Mrs. Vicari is substantially unable to perform her essential tasks after May 29, 1992.

On October 19, 1992, Mrs. Vicari was examined by Dr. George Kay, an orthopaedic consultant, at the request of the Insurer. He found no spasm, tenderness or restriction of movement "[a]lthough there might have been some decrease of shoulder movement from full elevation He believed that she was restricting her movements voluntarily, and that some of her complaints were non-organic. She complained of "total face discomfort", and tenderness over a wide area of the shoulder "and a multiplicity of structures". Dr. Kay opined that Mrs. Vicari was now as able to perform the activities of daily living as she had been before the accident. He did not recommend further physiotherapy.

Dr. Kay's opinion was consistent with the opinion of Dr. Martin W. Roscoe, an orthopaedic surgeon to whom Mrs. Vicari was referred by Dr. Fiorini. Dr. Roscoe examined Mrs. Vicari on September 14, 1992 and May 19, 1993. On both occasions, he found Mrs. Vicari to have "an excellent range of motion in her cervical and lumbar spine". He diagnosed a mild cervical strain, and a mild left shoulder contusion. He also suggested that her dizziness might be related to a possible head injury. He recommended that she continue a daily exercise program.

In a case of chronic soft tissue pain where there are no orthopaedic or neurological problems, an arbitrator must rely to a great degree on an applicant's subjective reports about her pain. The applicant's credibility is an important consideration in evaluating these reports. In this case, I did not find Mrs. Vicari to be a credible witness.

There are a number of discrepancies in Mrs. Vicari's evidence. For example, while there is no real dispute that Mrs. Vicari struck her left arm, chest and shoulder against the back of the driver's seat, Mrs. Vicari testified at the hearing that she also struck the left side of her head and fell out of her seat. However, her March 6, 1992 statement to Mr. Pilgrim expressly states that Mrs. Vicari did not strike her head or fall out of her seat. This information is also omitted from her accounts to her doctors, though she did tell Dr. Roscoe she might have hit her head. I do not accept that Mrs. Vicari struck her head in the accident, or fell out of her seat. I find that the accident was relatively minor. In my view, this discrepancy suggests an attempt to embellish the details of the accident. At the very least, it represents Mrs. Vicari's belief, which I find to be completely unfounded on the evidence, that her dizziness and weakness are a result of the accident.

Further, in her evidence in chief, Mrs. Vicari said that since the accident, she has only been going to bingo "once in a while". On cross-examination, she said she did not go for about one month after the accident, then went back to bingo. According to Mrs. Vicari, she knew Julia, her cleaner, from bingo, and made the housekeeping arrangements with her by telephone after the accident. Mr. Pilgrim testified that in his discussion with Julia, she told him that Mrs. Vicari had approached her at bingo a few nights after the accident. Mr. Pilgrim's evidence about Julia's statement is hearsay, and I do not rely on it. Whether Mrs. Vicari returned to bingo within days of the accident, or a month afterwards, this evidence is inconsistent with Mrs. Vicari's testimony about her condition immediately after the accident.

Mrs. Vicari's second statement to Mr. Pilgrim, dated June 10, 1992, also indicates that she was not as disabled after the accident as she now says she was. The statement reports Mrs. Vicari as saying that she is able to wash and look after herself, make breakfast, feed her son, attend medical appointments and therapy, do the shopping (except for heavy articles), use the vacuum, iron, do the laundry, and take the laundry off the clothesline. On cross-examination, Mrs. Vicari admitted that the signed statement is accurate, but she suggested it was misleading in that the activities listed were activities she "tried" when she felt well. However, her statement to Mr. Pilgrim is consistent with the essentially negative findings of Dr. Kay and Dr. Roscoe.

Observations made by Mr. Pilgrim and by James Tuck, a private investigator retained by the Insurer, suggest that any substantial disability the Applicant suffered in performing her essential tasks ended soon after the accident. On May 26, 1992, Mr. Tuck observed Mrs. Vicari hanging some sheets over her backyard clothesline, and removing and folding them about 15 minutes later. Four still photographs were filed. Though the activities depicted in the photographs took only a short time, I find them significant because they involved overhead reaching with both arms. On the same day, Mr. Tuck took another photograph showing Mrs. Vicari leaning out her front door to retrieve mail from her mail box. Mr. Tuck testified that he observed no sign of discomfort or restriction of movement in these activities.

Mr. Pilgrim also observed Mrs. Vicari's activities on his visits. At no time did he notice any medical aids or signs of difficulty in movement, although he thought she seemed anxious and depressed. Mrs. Vicari was not home when he visited on April 29, but as Mr. Pilgrim and a co-worker were about to leave, Mrs. Vicari was seen walking down the street carrying her purse and two large plastic shopping bags. She told him she had just come back from the doctor, and complained of her pain. Mr. Pilgrim observed that she walked upstairs to her front door with no apparent difficulty, and her movements were fluid. On June 10, when the second statement was taken, Mrs. Vicari was observed walking into her bedroom twice in search of housekeeping receipts. Again, Mr. Pilgrim observed no difficulty in movement. When he visited on June 15, Mrs. Vicari appeared to have just come home, and admitted she had been cooking. She told him she was improving, and was able to do some housework. On July 15, Mr. Pilgrim observed Mrs. Vicari bent over at the waist, moving something along the ground, again without apparent difficulty.

The cumulative effect of these observations, in my view, is to establish that Mrs. Vicari is able to perform her essential tasks at least some of the time. Though she may feel some pain, it is not serious enough to restrict her movement or cause her to grimace.

It may be that when Mrs. Vicari testified that she "tries" to hang her clothes on the clothesline and "tries" to do her housework, she meant that she does it, although it causes her pain. As arbitrators have said in many previous decisions, the Schedule does not compensate for pain and suffering unless the pain is disabling. I am not satisfied that Mrs. Vicari's pain renders her substantially unable to perform her essential tasks.

Furthermore, I am not satisfied that any disability suffered by the Applicant results from the accident.

Mrs. Vicari has had a pacemaker since 1981. The battery needs to be replaced about every five years. This was done around 1987, and again in December 1992, when the pacemaker had become infected. In her testimony, Mrs. Vicari seemed to suggest that the operation in 1992 resulted from the motor vehicle accident. Dr. Roscoe dismissed this suggestion in his report. I heard no evidence to support Mrs. Vicari's claim in this regard. I do not accept that Mrs. Vicari's problems in December 1992 were related to the accident.

At the time of the accident, Mrs. Vicari had not worked since she left Commisso's Bakery in 1982. Dr. E.J.G. Noble's report of June 23, 1982, indicates that Mrs. Vicari told him that she gave up her job because of "difficulty moving her left arm", low energy, and four episodes of sudden weakness and blurred vision, all related to her heart problems. On cross-examination, Mrs. Vicari admitted that she had left that job because of her heart problems.

Dr. Miceli's file includes his medical report in support of Mrs. Vicari's application for welfare benefits, dated May 21, 1986. The report states that Mrs. Vicari "tires very easily" and has dizzy spells. Dr. Miceli indicated on the report that he did not expect Mrs. Vicari to improve sufficiently to be able to return to her previous job or any job.

The medical evidence filed suggests that Mrs. Vicari's problems with fatigue relate to her heart problems and continued after her pacemaker was installed (for example, Dr. Noble's report of June 23, 1982, and Dr. Cameron's report of July 16, 1987.

Mrs. Vicari testified at the hearing that she had not suffered from headaches or neck and shoulder pain before the accident. However, the records of Dr. Miceli, Dr. Castiglione and Dr. Fiorini indicate that Mrs. Vicari had complaints before the accident that were similar to her complaints after the accident. For example, Dr. Miceli's note for May 11, 1983, refers to poor sleep, dizziness and headaches. On cross-examination, Mrs. Vicari admitted that she had had ongoing neck and shoulder pain, headaches and poor sleep in 1983, though she denied dizziness. "Headache" is also noted in Dr. Miceli's note for July 7, 1986.

In my view, Mrs. Vicari's testimony that she was "like iron" before the accident is disproved by the medical records. The accident may have added to Mrs. Vicari's pre-existing health problems, at least for a short time. However, I am not satisfied that the accident contributed significantly to Mrs. Vicari's problems after May 29, 1992.

Care benefits:

Care benefits under subsection 13(4) are only available "to an insured person who is receiving a weekly benefit under subsection 13". Given my finding that Mrs. Vicari is not entitled to weekly benefits after May 29, 1992, her potential entitlement to care benefits is limited to the period from March 11 to May 29, 1992.

Mrs. Vicari is entitled to care benefits for the period between March 11 and May 29, 1992, if she establishes (i) that Giuseppe resided with her at the time of the accident, (ii) that she was his primary caregiver, and (iii) that he required care because of mental incapacity.

Mrs. Vicari contends that her son, Giuseppe, is mentally incapacitated, within the meaning of subsection 13(4). She testified that he does not look after himself and is very dirty in his personal habits. He soils his clothing and his bed. He is not able to wash his face or shave himself, and cannot prepare his own meals. Mrs. Vicari testified that she changes and cleans her son's clothing and bedlinens, and generally cleans up after him. She prepares his meals and feeds him.

Neither the Insurance Act nor the Schedule defines "mental incapacity". Considering the term in the context of section 13 as a whole, I find that care benefits are available where a person over 16 years of age, because of physical or mental incapacity, requires a level of care analogous to the care required by a person under 16. Clearly, the level and type of care required by a 15 year old is different from the care required by an infant. In my view, a similar range of situations is contemplated by the term "mental incapacity".

Mrs. Vicari admitted that her son manages his own affairs, and no administrator or public trustee has been appointed for him. The (partial) records of the Queen Street Mental Health Centre pertaining to Giuseppe were filed (Exhibit 10). According to the records filed, Giuseppe was last seen at the hospital on April 14, 1992, and was previously seen in 1981, 1982 and 1986. The main diagnosis was organic brain disorder secondary to substance abuse (glue sniffing). The hospital's admission and discharge notes corroborate Mrs. Vicari's evidence about her son's presentation, incontinence, anti-social behaviour and cognitive problems. The records of Mrs. Vicari's family doctors, Dr. Fiorini and Dr. Miceli, also contain numerous references to her complaints and concerns about her son.

Mr. Pilgrim's two observations of Giuseppe were consistent with the medical records and Mrs. Vicari's evidence. On April 29, in the evening, Mr. Pilgrim observed Mrs. Vicari taking a saucepan to her son in the backyard. This observation corroborates Mrs. Vicari's evidence that her son sometimes stays in her yard. On June 10, while taking Mrs. Vicari's second statement, Mr. Pilgrim briefly observed Giuseppe, who he described as dirty and "not particularly presentable".

I accept that Giuseppe Vicari requires care because of mental incapacity.

I am troubled by Mr. Pilgrim's evidence that he saw Giuseppe on only two of the nine occasions when he attended at Mrs. Vicari's house. Moreover, the address set out in the hospital records is not Mrs. Vicari's. However, the hospital's Admission Assessment Data sheet for April 14, 1992, states: "patient refuses to stay at hostels or detoxes - always returns to mother's home". On this admission, he had been brought in by the police, who had been called by Mrs. Vicari. In my view, this suggests that he was living with his mother, who was primarily responsible for his care. I heard no submissions on the meaning of "resided" in subsection 13(4). In this case, it appears that Giuseppe was not continually or regularly present in his mother's house. However, his absences appear to be related to his substance abuse and mental incapacity. I accept that Giuseppe resided with Mrs. Vicari at the time of the accident, and that she was his primary caregiver.

Mrs. Vicari is entitled to care benefits of $50 per week between March 11 and May 29, 1992.

Housekeeping expenses:

Mrs. Vicari testified that after the accident, she hired Julia to do the housekeeping tasks she could no longer perform. Julia worked for about three or four hours a day, starting in the morning, three days a week (four hours on Monday, three hours on each of Wednesday and Friday). Mrs. Vicari had known Julia before the accident from bingo; Julia also cleaned for Mrs. Vicari's daughter, Maria.

The Applicant provided a series of receipts, signed by Julia, for payments for housekeeping services (Exhibits 1 and 2). Each receipt in 1992 is in the amount of $120. Monthly receipts of $480 are provided for January through May 1993.

I am troubled that all the receipts appear to be prepared and signed in one or two pens, and in almost identical wording. I find it likely that they were all prepared at the same time. In addition, while most of the 1992 receipts are dated about one week apart, the dates of the first three receipts are March 9, March 13, and March 16. All three receipts are for a full $120. Mrs. Vicari testified that all the receipts were given on the dates specified. She also testified that she called Julia "a couple days" after the accident. If she called on March 6 or 7, this hardly seems time enough for ten hours work to be done by March 9. Further, in Mrs. Vicari's March 6 statement to Mr. Pilgrim, she did not mention housekeeping expenses.

I am also troubled by Mrs. Vicari's testimony that she was paying Julia $12 per hour because Julia demanded it. This seems an excessive wage for cleaning work, and I do not accept it without corroboration.

Julia did not testify.

Finally, Mr. Pilgrim testified that when he attended at Mrs. Vicari's home for about half an hour between 9 and 10:30 on the morning of March 23, 1992, a Monday, he saw no sign of Julia. When he attended at Mrs. Vicari's home on the mornings of Wednesday, May 13, and Friday, May 29, no one answered the door.

I am not satisfied that Mrs. Vicari has incurred the housekeeping expenses claimed. Further, I find that any housekeeping expenses incurred did not result from the accident but from Mrs. Vicari's pre-existing heart problem or her son's needs.

Special award:

The Applicant claims a special award under subsection 282(10) of the Insurance Act on the basis that the Insurer unreasonably withheld payment of housekeeping expenses, despite the information Mr. Pilgrim received from Julia. Given my finding that no housekeeping expenses are payable, the Applicant is not entitled to a special award.

Expenses:

I find this an appropriate case in which to award the Applicant her expenses incurred in the arbitration. Although she was only minimally successful in her claim, I believe that she suffers real pain as a result of the accident. I remain seized of the issue of expenses. If the parties are unable to agree on the amount payable, either of them may bring the matter before me for determination.

Order:

The Applicant is not entitled to further weekly income benefits.
The Applicant is entitled to care benefits of $50 per week between March 11 and May 29, 1992.
The Applicant is not entitled to her housekeeping expenses.
The Applicant is not entitled to a special award.
The Applicant is awarded her expenses incurred in the arbitration.

November 10, 1994

Nancy Makepeace Arbitrator

Date

APPENDIX

Exhibits:

Exhibit 1

Application for Additional Accident Benefits, dated July 13, 1992, with housekeeping receipts, from March 9, 1992 to May 29, 1992, attached

Exhibit 2

Housekeeping receipts, from June 5, 1992 to May 1, 1993

Exhibit 3

Applicant's signed statement, dated March 6, 1992

Exhibit 4

Applicant's Document Brief:

Tab 1

Dr. G.T. Fiorini, O.M.P.P. Report, dated June 18, 1992

Tab 2

Dr. G.T. Fiorini, O.M.P.P. Report, dated October 15, 1992

Tab 3

Dr. D.F. Rideout, Radiologist Report, dated March 10, 1992

Tab 4

Dr. D.F. Rideout, Radiologist Report, dated June 5, 1992

Tab 5

Dr. John Castiglione, Clinical Notes, dated June 24, 1993

Tab 6

Dr. Martin W. Roscoe, Medical Report, dated July 6, 1993

Tab 7

Dr. I.H. Lipton, Operative Note, dated December 17, 1992

Tab 8

Dr. I.H. Lipton, Medical Report, dated July 29, 1993

Tab 9

Dr. G.T. Fiorini, Medical Report, dated October 20, 1993

Tab 10

Dr. G.T. Fiorini, Clinical Notes, from March 10, 1992

Tab 11

Dr. G.A. Miceli, Clinical Notes, from January 20, 1981

Exhibit 5

Dr. G.D. Kay, Medical Report, dated October 19, 1992

Exhibit 6

Applicant's signed statement, dated June 10, 1992

Exhibit 7

Photographs (4) of Applicant, dated May 26, 1992

Exhibit 8

Photograph of Applicant, dated May 26, 1992

Exhibit 9

Dr. J. Castiglione, Medical Notes, dated December 16, 1993

Exhibit 10

Letter of Queen Street Mental Health Centre, dated January 6, 1994, with information from casebook attached

Footnotes

Prior to January 1, 1994, Ontario Regulation 672 was called the No-Fault Benefits Schedule. After that date it became the Statutory Accident Benefits Schedule - Accidents Before January 1, 1994. In this decision, the term "Schedule" will be used to refer to Regulation 672.

Carmelita Vicari v. Markel Insurance Company of Canada, 1994 ONICDRG 108

Case Summary