Neutral Citation: 1994 ONICDRG 11
File No. A-003517
ONTARIO INSURANCE COMMISSION
BETWEEN:
LOUISE-ANN DUGAS
Applicant
and
WELLINGTON INSURANCE COMPANY
Insurer
DECISION
Issues:
The Applicant, Louise-Ann Dugas, was injured in a motor vehicle accident on February 11, 1992. At the time of the accident, Ms. Dugas was a student. Following the accident, the Applicant attended classes until the end of the term in April 1992. She claimed weekly benefits from the Insurer, payable under section 13 of Ontario Regulation 6721, from February 18, 1992 to the end of term, being April 30, 1992, on the basis that she was substantially unable to perform the essential tasks of a student, despite her continued attendance.
The Applicant stated that at the end of the school term she expected to obtain employment. She took the position that she was entitled to further weekly benefits, payable under section 13, from and after May 1, 1992, on the basis that she suffered a substantial inability to perform the essential tasks of an employed person. The Applicant maintained that at the end of the school term, the criteria to determine whether she was substantially disabled shifted from an examination of the essential tasks of a student to the essential tasks of an employed person.
The Insurer denied payment of section 13 benefits to the Applicant under the provisions of section 16(3) of the Schedule during the period she attended school.
The Insurer denied weekly benefits after the conclusion of the school term, claiming that the Applicant did not suffer a substantial inability to perform her essential tasks.
The parties were unable to resolve their disputes through mediation and the Applicant applied for arbitration under the Insurance Act.
The issues in this hearing are:
Is the Applicant entitled to weekly benefits under section 13 of the Schedule?
If the Applicant is entitled to weekly benefits under section 13 of the Schedule, what is the effect of section 16(3) of the Schedule upon the payment of such benefits?
Is the Applicant entitled to payment of a special award under section 282(10) of the Insurance Act?
The Applicant also claims interest on any outstanding amounts owing and her expenses incurred in the hearing.
Result:
The Applicant is entitled to weekly benefits under section 13 of the Schedule.
Section 16(3) of the Schedule relieves the Insurer of the obligation to pay weekly benefits under section 13 of the Schedule from February 11, 1992 to April 30, 1992. The Insurer is required to pay weekly benefits from May 1, 1992 to December 21, 1992.
The Applicant is entitled to payment of a lump sum special award in the amount of $1,000 under section 282(10) of the Insurance Act.
The Applicant is entitled to interest on any outstanding amounts owing and her expenses incurred in the hearing.
Hearing:
The hearing took place on August 11 and 17, 1993, in North York, Ontario, before me, Janice Mackintosh, arbitrator.
Present at the Hearing:
Applicant: Louise-Ann Dugas
Applicant's Representative: Altor Shields, Barrister and Solicitor
Insurer's Representative: Edmund Kent, Barrister and Solicitor
Witnesses: Louise-Ann Dugas and Dr. Olu Nicol.
Exhibits: Seven exhibits were filed including a brief containing 13 medical reports and records. A list of documents filed is appended as Schedule 1.
The proceedings were recorded by Ms. Karen West of Paul W. Rosenberger, Official Examiner.
Evidence and Findings:
Prior to her accident, Louise-Ann Dugas was a full-time student at Humber College in the final semester of a two-year program leading to a marketing diploma. She had successfully completed four courses in the fall 1991 term, with a term grade point average of 72.4. She was registered for five courses in the winter 1992 term, however, she attended classes and completed assignments for only four courses because she had been exempted from one of her courses (Exhibit 1, Tab 7).
The Applicant testified she attended approximately 15 hours of classes per week and spent approximately 15 to 20 additional weekday hours on assignments and study. She also spent Sunday afternoons studying and working on assignments.
She shared an apartment with a roommate and was responsible for doing her own laundry, grocery shopping, cooking, and cleaning her bedroom. She and her roommate rotated the responsibility for cleaning their shared bathroom, kitchen and living room.
On Tuesday, February 11, 1992, the Applicant was driving to school when her car was rear ended. Although there was little physical damage to the car (Exhibit 3), the Applicant felt unable to go to class that morning, and went directly to the emergency ward of the Mississauga Hospital.
The Applicant felt unable to return to school that week, but attended one class on Friday morning, February 14, 1992, to write a scheduled test in her Organizational Management 2 course. She failed this test.
The Applicant reported her accident to her insurer, who agreed to provide her with an accident benefits package and encouraged her to return to school and to try her best. She returned to school the following Monday, February 17, as she was anxious to complete her final semester. The Applicant experienced various physical and emotional problems following the accident.
To be successful in her claim for weekly benefits under section 13 of the Schedule, the Applicant must establish:
that she sustained physical, psychological or mental injury
as the result of a motor vehicle accident
that the injury results in a substantial inability
to perform the essential tasks in which the Applicant would normally engage
during the time period claimed.
The relevant portion of section 13 reads as follows:
13.-(1) The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident, a weekly benefit during the period in which the insured person suffers substantial inability to perform the essential tasks in which he or she would normally engage if he or she meets the qualifications set out in subsection (2).
Was there physical, psychological or mental injury?
The Applicant testified that immediately following the collision, she felt a hot burning sensation down the right side of her neck and arm. At the emergency ward of the Mississauga Hospital, she was treated for pain at the back of her head, pain in her right neck, right shoulder and right arm, and pain radiating to her right leg and lower back. She was prescribed pain and anti-inflammatory medications and released (Exhibit 1, Tab 1).
She saw Dr. S. Mehmi, her family doctor, on Thursday, February 13, 1992 with the same complaints (Exhibit 5). She also complained that she could not look up due to neck stiffness and that she felt numbness in her lower right arm and tingling in the first three fingers of her right hand. Upon initial examination, Dr. Mehmi noted significant limitation in the flexion and extension of the Applicant's cervical spine (Exhibit 1, Tab 9, page 2).
Over the next few days, the Applicant began to feel stiffer and experienced numbness in her right thigh.
In March 1992, Dr. Mehmi recorded that the Applicant could not do household chores such as cooking, cleaning and shopping, and that she missed classes and examinations due to severe neck and back pain, and muscle spasm (Exhibit 1, Tab 9, page 3). In her report dated September 20, 1992, Dr. Mehmi made the following diagnosis: "whiplash, right lumbar muscle spasm, right sciatica, and reactive anxiety neurosis" (Exhibit 1, Tab 3).
The Applicant continued seeing her family physician regularly until March 1993 when she sought another family physician. She received three months of chiropractic care, and participated in regular physiotherapy treatments including pool therapy from February 24, 1992 to April 3, 1992 (Exhibit 1, Tab 1). In March 1992, she began massage therapy two or three times per week, which continued over the next year and a half. She also participated in a rehabilitation program at the Canadian Back Institute in March 1993. The Applicant reported little long-term relief of her pain from these various treatments.
Soon after the accident, the Applicant began to experience a resurgence of some former psychological and emotional problems. The Applicant had been diagnosed and treated for anxiety state, with secondary depression since 1987 (part of Exhibit 5). In 1990 and 1991, she was diagnosed as suffering Seasonal Affective Disorder, depression, anxiety, insomnia, and occasional panic attacks. She received counselling from her family doctor as well as medication and weekly psychotherapy from her psychiatrist (Exhibit 1, Tab 6, part of Exhibit 5). In a report dated July 30, 1993, her treating psychiatrist, Dr. Françoise Langlet, wrote:
By the fall of 1991, she [the applicant] was functioning well at school and in her life; anxiety and panic attacks had subsided while she was taking the minimum dose of anti anxiety medication (Lorazepam 1 mg daily).
Her presentation changed dramatically as soon as seen one week after her MVA. There was from then on a strong recurrence of frequent and debilitating panic attacks, generalized anxiety, sleep difficulties, worries regarding school work, oral presentations, difficulties concentrating.
The Applicant testified that through the spring and summer of 1992, the panic attacks were her most debilitating psychological symptom. While it is true that the Applicant experienced occasional panic attacks before the accident, her psychiatrist reported that they were well under control prior to the accident and had been stable for some time. I am satisfied that the marked recurrence and increased frequency of the Applicant's panic attacks soon after the accident were directly attributable to the motor vehicle accident.
On the basis of the medical reports filed, I am satisfied that the Applicant sustained both physical and psychological injuries as the result of the motor vehicle accident.
Did all the Applicant's post-accident complaints result from the accident:
Under section 13 of the Schedule, entitlement to weekly benefits is limited to those who sustain physical, psychological or mental injury "as a result of" an accident. The fundamental question for determination is whether a causal connection between the Applicant's specific complaints and the accident exists, sufficient to warrant compensation under the section. I do not find that all of the Applicant's post-accident complaints can be attributed to the motor vehicle accident.
From my review of the medical records, I find that the Applicant has been plagued by bouts of reactive depression and generalized anxiety for many years prior to the motor vehicle accident. Excerpts from Dr. Mehmi's clinical notes and records prior to the accident (all of Exhibit 5) refer to several incidents of depression and anxiety in response to various stressors in the Applicant's life, including winter depression, childhood family problems, school work, health concerns, and relationships. I conclude that the motor vehicle accident was one more stressor in a long line of stressors in the Applicant's life. Although the accident temporarily heightened and focused the Applicant's general anxiety and depression, it did not fundamentally change the nature of the her difficulties.
The medical report of Dr. J.M. Clark, of the Whiplash & Headache Clinic, dated May 31, 1993, mentions a flare-up of temporomandibular joint (T.M.J.) jaw pain (Exhibit 1 Tab 11b, page 2). Dr. Clark noted that the pain on mastication, which used to be on the left side of the Applicant's jaw, was now situated on the right side. He related this problem to the motor vehicle accident. There is no other significant reference to post-accident jaw pain in the remainder of the medical evidence filed.
My review of excerpts from Dr. Mehmi's clinical notes and records made prior to the accident (Exhibit 5) and the report of Dr. F.M. de Souza dated November 27, 1991 (part of Exhibit 5) establishes that the Applicant had ongoing problems with T.M.J. pain prior to the motor vehicle accident. Dr. de Souza reports:
This 27 year old has a long standing history of temporo-mandibular joint dysfunction, for at least ten years... She still complains of difficulties which are becoming more severe.
On examination, there is crepitus of both temporo-mandibular joints... X-rays, obtained by you, show anterior subluxation of both heads of the mandible, in open mouth position.
I feel she would benefit from a consultation from an oral surgeon...
The T.M.J. jaw pain was not significant enough to be discussed in the medical reports until well over a year after the accident. It also appears that it was a long-standing problem affecting both temporomandibular joints. The condition was far from resolved prior to the accident. Rather, it was described as worsening, with further treatment being considered. I conclude that the Applicant's T.M.J. pain was a pre-existing condition which was only marginally affected by the motor vehicle accident. It is likely that the Applicant would have experienced further problems with her jaw, whether or not the motor vehicle accident had occurred.
What were the Applicant's essential tasks?
During the hearing, counsel for the Applicant conceded that the determination of whether the Applicant was substantially disabled under section 13 of the Schedule did not shift from an examination of the essential tasks of a student, to the essential tasks of an employed person, when the Applicant's full-time studies ceased. Counsel for the Applicant proposed that since the Applicant was a student at the date of the accident, her essential tasks would be determined by her activities at that time. No evidence concerning the Applicant's activities as an employed person was adduced.
I previously considered the meaning of the words "essential tasks" in the context of an application for weekly benefits under section 13 in the case of Chor Ting Lui and Wellington Insurance Company, Commission File No. A-001894, April 28, 1993. In that case, I interpreted the "essential tasks" of a retired person to refer to those activities connected to the ongoing business of living. I included the routine tasks performed by a person to maintain themselves, their dependants, and their home.
In the present case, I have added the routine tasks performed by a full-time student. Accordingly, I find the essential tasks in which the Applicant would normally engage include:
household chores including grocery shopping, meal preparation, washing dishes, laundry, cleaning, vacuuming, and garbage removal,
school-related physical activities including attending classes, sitting for long periods, and typing or writing,
intellectual tasks and activities, including completing assignments, and preparing for and writing examinations, which demand, reading, study, comprehension, memory and concentration,
driving.
What is a substantial inability?
The meaning of the phrase "substantial inability" was discussed by the Director of Arbitrations in the appeal decision in Sharon Lee and Unifund Assurance Company, Commission File No. P-000078, September 14, 1993, as follows:
Numerous arbitration decisions have analyzed these words. In summary, using dictionary definitions and common sense, these cases have held that pain and suffering are not compensable under the Schedule, unless they result in a sizeable inability or large and important impairment of a person's ability to perform the previously defined essential tasks. While the impairment may be mental, psychological or physical, it must be proven by the claimant on a balance of probabilities that, to a significant degree, he or she is disabled because of the effects of the injuries sustained.
I concur with this approach and apply it to the Applicant's individual circumstances as set out below.
Was a substantial inability demonstrated by the Applicant?
The Applicant was anxious to return to school as she wanted to complete her education. She missed most of the week of school immediately following the accident and estimates that she missed approximately 40 per cent of her classes in total. She experienced difficulties sitting, moving her head to read or study, and holding a pen to write, due to pain, stiffness, and numbness all along the right side of her body. She was unable to concentrate, she had difficulty controlling her emotions, and was unable to participate in class. The Applicant reports she completed the term with great difficulty. At home, the Applicant was unable to complete her household chores and required the assistance of her roommate.
The Applicant testified that it was a struggle to keep up with reading and assignments. Every task took her many more hours than usual. She was particularly debilitated by frequent panic attacks which interrupted her sleep, leaving her exhausted and distracted the next day. The Applicant testified that the pain medication and muscle relaxants prescribed for her physical symptoms contributed to the frequency of her panic attacks. She complained that when she was tired, she had difficulty with her memory, speech and word recall.
The Applicant sought counselling at the school concerning her mounting academic problems (Exhibit 1, Tab 8). Her principal academic problem was centred on her Organizational Management 2 course. She was asked to withdraw from the course, but fought to stay in it. She wrote and failed the final examination several times. However, with the assistance of her counsellor, she was able to obtain an aegrotat grade in the course. An aegrotat grade differs from a failing grade in that credit is received for the course, but (unlike a poor or failing grade) no grade is assigned or included in the calculation of the student's grade point average. The Applicant's term ended in April 1992. The Applicant obtained a grade point average of 65.7 for the term. The Humber College grading system for evaluating student performance established the per cent range of 50% to 59% as failure (Exhibit 1, Tab 7, page 3). Had a failing grade in Organizational Management 2 been included in the calculation, the Applicant's grade point average would have been much lower than 65.7 for the term and she might have failed the term.
In May 1992, the Applicant discovered that in order to fulfil the requirements for her diploma in marketing, she needed to take one further course in general education, outside the marketing field. However, she felt unable to pursue either school work or employment during the summer and fall of 1992. The Applicant testified that during April and into the summer of 1992 her physical and psychological condition worsened due to the long hours of extra study she had been required to put in to complete her school term.
At the end of March 1992, Dr. Mehmi had recorded that the Applicant could not do any household chores such as cooking, cleaning, and shopping (Exhibit 1, Tab 9, page 3). However, the Applicant testified that by the end of the summer 1992 she was able to do all her household chores except vacuuming which continued to hurt tremendously and required extra time and a rest afterwards.
Throughout the summer and into the fall of 1992, the Applicant strove to control the debilitating effects of her panic attacks. She testified that during the fall of 1992 her panic attacks, sleeping problems and anxiety were coming under control. In his report dated March 10, 1993, the Applicant's treating psychiatrist, Dr. Langlet, noted that the Applicant's panic attacks, sleep difficulty, impaired concentration and general anxiety were not relieved by medication until the end of the summer. In the fall, the Applicant's medication was reduced and her main problem was physical pain (Exhibit 1, Tab 6).
By late fall of 1992, the Applicant noted improvement in her condition and felt well enough to register for the one remaining course necessary to complete her marketing diploma. In January 1993, the Applicant began her full-time sociology course.
At the Applicant's request, her family doctor arranged for her to attend a six-week comprehensive rehabilitation program offered through the Canadian Back Institute ("C.B.I."). On March 17, 1993, the Applicant began to attend a daily rehabilitation program of three hours and 40 minutes, in addition to her course (Exhibit 6, page 3).
At the beginning of the program, the C.B.I. prepared an initial rehabilitation assessment report, dated March 10, 1993 (Exhibit 6). The C.B.I was of the opinion that the Applicant would benefit from an aggressive, active, exercise program focused on flexibility, strengthening and conditioning. The C.B.I noted that the Applicant perceived herself to be significantly disabled although physical examination demonstrated few restrictions. The report concluded that no physical problem precluded the Applicant from working.
The Insurer takes the position that the Applicant has failed to demonstrate that she ever suffered a substantial inability to perform her essential tasks. The Insurer argued that the Applicant attended the majority of her classes, completed tasks and assignments, sat for her examinations, and ultimately passed her term.
The Director of Arbitrations discussed the essential tasks and substantial inability of a student in the appeal decision Dana B. Levenson and The General Accident Assurance Company of Canada, Commission File No. P-000260, September 29, 1992, at page 12, as follows:
Attendance at school is not just the physical act of occupying space in a classroom or lecture hall. Attendance at school encompasses many other activities, including the ability to comprehend and absorb classroom and laboratory instruction, complete assigned work, participate in discussions and projects, study, write or take examinations, meet any physical requirements of the course work, and generally function as part of the student body with provision for some extra-curricular activity. This does not mean a person must excel in any of these tasks or be able to function in them as if the accident had not occurred, but be substantially able to perform them.
The Applicant testified that she was unable to attend 40 per cent of her classes. When she did attend, she had difficulty sitting, concentrating, and participating. She cried in class and was emotionally and psychologically distraught. At home, she found it difficult to read or study, she suffered panic attacks and disrupted sleep, and she had difficulty completing her household chores. The Applicant testified that she could not attend to the daily tasks of cooking, shopping and cleaning until the fall of 1992. Through sheer will-power and determination, she pushed herself to complete her courses and sit her examinations. Humber College acknowledged the Applicant's difficulties and efforts by granting her an aegrotat standing in one of her courses, which allowed her to obtain a passing grade point average for the term. But the Applicant's efforts, combined with the pain killers and muscle relaxants she took to maintain this effort, resulted in debilitating panic attacks and exhaustion, which continued into the fall of 1992. These factors, coupled with the Applicant's credible testimony, convince me that the Applicant suffered a substantial inability to perform her essential tasks into the fall of 1992.
During the fall, the Applicant's panic attacks were coming under control, she had returned to performing the bulk of her domestic chores, and by late fall she felt well enough to register for a further college course. The C.B.I. initial assessment report of March 1993 confirmed that the Applicant had few physical limitations and was capable of meeting the demands of employment. I conclude that the Applicant suffered a substantial inability to perform her essential tasks until the end of the fall of 1992 (December 21, 1992).
Did the Applicant's substantial inability continue beyond December 1992?
On April 7, 1993, more than a year after the accident, the Applicant discharged herself from the C.B.I. program because she felt it was setting her recovery back. At the conclusion of the C.B.I. program, a discharge report dated April 8, 1993 was prepared. The report expressed concern regarding the Applicant's early termination of the program. The report concluded that no restrictions should be placed upon the Applicant's activity level. She had the capacity to continue her activities as a full-time student. The C.B.I. noted a strong behavioural component to the Applicant's complaints and suggested a pain management approach.
In spring 1993, the Applicant sought a new family physician, Dr. Olu Nicol, to help her with her difficulties. The Applicant reported that following the C.B.I. program her condition deteriorated. In May 1993, she became greatly concerned because she was beginning to experience aches and pains on the left side of her body for the first time (Exhibit 1, Tab 11(b), page 2). She began to experience increased neck and shoulder pain, and new sharp pains in her right elbow. Her T.M.J. problem recurred, accompanied by headaches. Her psychiatrist also reported increased anxiety and depression in response to her deteriorating physical condition. However, the Applicant did not experience a recurrence of her panic attacks (Exhibit 1, Tab 12).
Dr. Nicol first examined the Applicant on April 12, 1993 and reported that she appeared to be in mild distress from her symptoms of neck and right-sided arm pain and weakness, but emotionally appeared severely distressed (Exhibit 1, Tab 11(a), page 3). The Applicant reported that Dr. Nicol was seeing her on a good day because on a bad day she "would be considerably disabled by the pain" (Exhibit 1, Tab 11(a), page 3). Dr. Nicol observed a full range of movement of her cervical spine, lower back and in the joints of all her limbs. Examination of her muscles revealed significant tenderness to trigger points in her neck, back, arms, thighs and hip regions. Dr. Nicol concluded that:
She very convincingly met the diagnostic criteria for fibromyalgia. This is a chronic disabling condition affecting joints and soft tissues and causing the characteristic episodes of pain and stiffness such as are seen in this patient. Fibromyalgia also known as fibrositis or myofascial pain syndrome is a very difficult condition to treat. Little is known about the aetiological factors causing this condition however, in susceptible individuals, trauma, such as in a motor vehicle accident would certainly be a major contributory factor.
This condition has both physical and psychological components making it very difficult to treat and therefore significantly disabling for the patient.
The Applicant reported to Dr. Nicol that she was physically fit and healthy with no pain symptoms prior to the accident. On that basis, Dr. Nicol concluded that her fibromyalgia was the direct result of injuries sustained in the accident of February 1992.
Dr. Nicol referred the Applicant to two different specialists, Dr. J.M. Clark, a pain control consultant, and Dr. Frank Lipson, a rheumatologist, in connection with his diagnosis of fibromyalgia.
Dr. Clark examined the Applicant on May 31, 1993 and noted:
On examination she is rather emotional, however, she does not appear to be in much pain, and she admits that today is one of her good days.
There is good mobility of the lower back and of the neck, though there is some pain on lateral rotation of the neck.
I agree with your [Dr. Nicol] diagnosis of fibromyalgia, and I am sure that were I to see her on one of her bad days, there would be a great deal of tenderness to demonstrate. I think she should be encouraged to continue with her aerobics (Exhibit 1, Tab 11(c), page 4).
The Applicant informed Dr. Clark that her sleep had improved with medications, her panic attacks were less of a problem, and her anxiety and emotional problems were improving with psychotherapy, although mood changes were still a problem. The Applicant also reported difficulty studying, however she managed to obtain a 73 average in the course she finished in April 1993 and admitted in testimony that her concentration had improved.
In June 1993, the Applicant saw Dr. Lipson, who reported:
Physical examination reveals an almost normal range of motion of the cervical spine. Right shoulder movement is normal and there is very little evidence of neurological damage involving the upper extremity. Her hip mobility is fairly good and the knees and ankles are essentially normal.
She does have a problem with her neck but the limiting factor is a fibromyalgia...
The Applicant was also seen by an orthopaedic surgeon in May 1993. In his report dated May 3, 1993, Dr. Nigel Clements noted that the Applicant demonstrated a very good range of movement with no evidence of any significant disc herniation (part of Exhibit 6).
In July 1993, the Applicant's psychiatrist, Dr. Langlet, reported that:
At the present time, she [the Applicant] appears however psychologically more able to have intellectual activities, appears to cope with her anxiety regarding her physical limitations and her future, able to reduce external stress, and more confident in her medical treatment.
I accept that the Applicant continued to experience pain and emotional difficulties beyond the fall of 1992. In particular, I accept the diagnosis that she suffered from chronic fibromyalgia, which has both physical and psychological components. However, I do not share Dr. Nicol's conclusion that the Applicant's fibromyalgia was the direct result of the injuries sustained in the accident of February 1992.
During testimony, Dr. Nicol explained that trauma, infection, and exposure to extremes of temperature can all cause fibromyalgia. Dr. Nicol was unaware of the Applicant's history of migratory muscular pain and stiffness prior to the accident, when concluding that her present condition of muscle pain and stiffness was caused by the motor vehicle accident. Counsel for the Insurer drew Dr. Nicol's attention to a consultation report from Dr. S. McKenzie, dated October 28, 1990, contained in Dr. Mehmi's clinical notes and records which reports:
This 26 year old right handed woman has a four week history of back pain and neck pain. There was an aching pain and a stiffness and tightness to the shoulders, the neck and the mid back. It has also spread to the low back and upper buttock area. There are sharp stabs of pain in varying locations throughout that area. With the arms elevated she has had an experience of tingling shooting into the fingers bilaterally.
She has had stiffness and pain in muscles for many years and she relates this to a fall off a train as a youngster. For many years, certainly from the ages of 13 to 17 she went for chiropractic treatment for stiffness and muscle spasm in the neck and was told that she had abnormalities of the discs of her cervical spine.
There was no significant curvature of the spine but there was tenderness in the paraspinal muscles throughout the distribution of the spine from the neck to low back area.
Impression: This young woman seems to suffer from chronic muscle spasm and it may have been aggravated by starting jogging a month ago. She seems to have developed a vicious cycle of more spasm and more pain and I think she may respond to a non-steroidal, anti-inflammatory drug (part of Exhibit 5).
In cross-examination, Dr. Nicol conceded that knowledge of the Applicant's pre-accident medical history would have affected his assessment of the relationship between her symptoms and the motor vehicle accident.
The new symptoms arising on the left-hand side of the Applicant's body in April and May of 1993 and the marked increase of physical symptoms in late March and early April 1993 are puzzling and difficult to relate to the motor vehicle accident.
The Applicant testified that the muscle spasm and pain cycle referred to by Dr. McKenzie was triggered by poor posture while studying and was resolved by a course of physiotherapy. It may be that the worsening of the Applicant's symptoms in late March and early April 1993 could also have been triggered by long hours of study around examination time. The Applicant attributed the deterioration in her condition to the exercise program given by the C.B.I. However, Dr. Clark, the specialist in fibromyalgia consulted by her new family physician, specifically advised the Applicant to continue aerobic exercises. In any event, I am not satisfied that the intensification of the Applicant's symptoms, more than a year after the accident, is more related to the motor vehicle accident of February 1992, than to the Applicant's long-standing problems with chronic muscle spasm, stiffness, and pain.
Furthermore, Dr. Nicol noted that fibromyalgia, although chronic, is episodic in nature. On my review of the medical evidence submitted, it appears from the medical reports that the Applicant was having many good days.
I am satisfied that the worst of the Applicant's physical limitations and psychological problems, that can be related to the motor vehicle accident, were largely resolved by the late fall of 1992, and were no longer substantially interfering with the Applicant's daily tasks. By winter 1992, the Applicant had returned to school. I conclude that the Applicant's disability and resulting entitlement to weekly benefits did not extend beyond December 21, 1992.
How does section 16(3) operate upon the Applicant's claim for weekly benefits during the period of substantial inability?
Section 16(3) states:
(3) The insurer is not required to pay weekly benefits under section 13 for any week in which the insured person attends school.
The Director of Arbitrations commented upon the operation of section 16(3) in the case of Levenson (supra), at pages 11 and 12 as follows:
...I find the applicability of s.16(3) is a necessary component in determining not the applicant's entitlement to benefits but the length of time those benefits continued.
Section 16 of the No-fault Benefits Schedule deals with persons whose basic entitlement to s. 12 and s. 13 income benefits is no longer in dispute. It permits such persons to resume schooling or work without endangering their entitlement to benefits if a relapse occurs. It anticipates someone may not be fully recovered from his or her injuries and relieves against the situation (as sometimes occurred in the previous legislation) where valiant attempts to resume schooling or employment failed within a relatively short time period. Section 16(3) provides that if an otherwise entitled person "attends school" the insurer need not pay benefits.
I agree with the Director's interpretation of section 16(3) and its operation within the general scheme of the Schedule. I find that the Applicant has established her entitlement to weekly benefits under section 13 of the Schedule for the period February 18, 1992 to December 21, 1992. Section 16(3) relieves the insurer of the obligation to pay a weekly benefit under section 13 for any week in which the insured person attended school.
When the accident occurred, the Applicant was enrolled in the winter term, which ran from January 1992 to April 30, 1992, inclusive of examinations. The Applicant testified that she returned to school within seven days of the accident and estimates that she missed approximately 40 per cent of her classes in total. The Applicant was unable to recall whether she missed more whole days of classes or weeks of school and was unable to obtain any attendance records from the school to assist her.
The Applicant returned to school in the hopes of completing her semester, which she did. I therefore conclude that the Insurer is relieved of paying weekly benefits for the first week of the Applicant's disability under section 13(8)(a) of the Schedule and is further relieved of paying weekly benefits for the remaining school weeks from February 18, 1992 to the end of the school term (April 30, 1992), under section 16(3) of the Schedule.
The Applicant remained substantially disabled until December 21, 1992. The Insurer is therefore responsible for the payment of weekly benefits for the period May 1, 1992 to December 21, 1992, plus accumulated interest as set out under section 24 of the Schedule.
Is the Applicant entitled to a Special Award:
The Applicant is seeking a special award against the Insurer under section 282(10) of the Insurance Act which states:
(10) If the arbitrator finds that an insurer has unreasonably withheld or delayed payments, the arbitrator, in addition to awarding the benefits and interest to which an insured person is entitled under the No-Fault Benefits Schedule, shall award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.
The Applicant testified that she contacted her insurer within several days of her accident, explained her injuries, and requested whatever assistance was available. The Insurer's representative encouraged her to return to her studies.
As the Applicant's health problems and academic difficulties worsened, the Applicant testified that she informed the Insurer's representative of her situation, and begged for help. The representative of the Insurer took the position that, since the Applicant was a student at the time of the accident and continued to attend school, the Insurer could do nothing for her.
When the Applicant's problems persisted beyond the end of the school term, she continued to discuss her situation with her Insurer. She advised that she could neither work nor study due to her injuries. The Insurer informed her that they could do nothing for her. The Applicant became more and more unhappy with the Insurer's ongoing denial of benefits. In the summer of 1992, the Applicant consulted a lawyer. In a letter dated August 4, 1992 (Exhibit 7), the representative of the Insurer responded to the Applicant's lawyer as follows:
Please note that at the time of the motor vehicle accident, your client was a student at Humber College. The Ontario Automobile policy OPF #1 specifically states under Section 2.391 "the insurer is not required to pay any weekly benefits under section 2.29 for any week for which the insured person attends school". The reason your client is no longer attending class is due to the fact that her term has ended.
The Applicant submitted medical reports and forms to the Insurer, including a Form 4 report filled out by the Applicant's family physician, Dr. S. Mehmi, signed September 20, 1992 (Exhibit 1, Tab 3) and a Form 4 report filled out by a neurologist, Dr. G. Sawa, dated 19/10/92 (Exhibit 1, Tab 2). The Insurer received these reports shortly after they were prepared.
Both these reports referred to significant injuries sustained by the Applicant as the result of the accident of February 11, 1992. Dr. Mehmi's report detailed severe neck and back pain, sleep disturbances, reactive neurosis, and reported that the Applicant felt unable to work and was emotionally upset. In response to the question on the Form 4 regarding the duration of the Applicant's disability, Dr. Mehmi wrote "not sure at present". Dr. Sawa's report recorded: "whiplash (extension/flexion injury) -cervical, soft tissue injury-lumbar". In response to the question on the Form 4 regarding the duration of the Applicant's disability, Dr. Sawa wrote "Feb/92 to present" [October 19, 1992].
The Insurer provided no evidence to establish that it initiated any inquiry or follow-up concerning the Applicant's injuries and their effect upon her following receipt of the Form 4 medical reports. The Insurer apparently sought no further medical opinion to clarify the nature and extent of the Applicant's injuries and whether she was substantially disabled. Despite the medical opinions expressed in the two Form 4 reports, the Insurer relied upon the simple fact that the Applicant had attended school after the accident to support its denial of weekly benefits long after the school term had ended.
The appeal decision in the case of Levenson (supra) considered the claim of a full-time student for weekly benefits under section 13 of the Schedule. At pages 12 and 13 of the appeal decision, the Director of Arbitrations observed:
The Insurer paid benefits and embarked on an inquiry into the appellant's abilities as related to her occupation. In so doing, it had to consider that physical attendance at school, of itself, was only one aspect of the overall entitlement matter.
Accordingly, medical reports were considered and further reports requested.
Permitting the insurer to rely on s. 16(3) as interpreted above is, therefore, not unfair to the appellant...What is unfair is to categorically deny a benefit based on the appellant's efforts to mitigate her situation by attempting to participate in student life at the earliest possible time.
In the present case, I find that the Insurer has acted unfairly towards the Applicant. The Applicant's uncontroverted evidence is that the Insurer encouraged her to pursue her studies, despite her reported injuries and difficulties. On her part, the Applicant demonstrated tremendous effort and determination to mitigate her situation by returning to her studies at the earliest possible time. After the school term ended, the Insurer continued to rely upon the Applicant's return to school to deny weekly benefits to the Applicant. The Insurer made no inquiry into the Applicant's medical condition even after medical reports were submitted by the Applicant which should reasonably have prompted such inquiry.
The Insurer is entrusted with the responsibility of making front-line decisions concerning the entitlement to and delivery of accident benefits to its own insureds under the Schedule. This responsibility carries with it an obligation to make a reasonable inquiry into the facts and issues pertinent to a decision.
A request for benefits under section 13 of the Schedule requires a reasonable inquiry into the extent of the injury suffered and its effect upon the insured person's ability to perform their essential tasks. A medical report which, on its face, suggests the presence of disability requires some consideration and reasonable inquiry, particularly in the absence of any other medical opinion. Such consideration does not appear to have occurred in this case. Accordingly, I find that the Insurer has failed to carry out its responsibility to the Applicant and has unreasonably denied her weekly benefit payments.
Under the provisions of section 282(10) of the Insurance Act, I may award a lump sum of up to 50 per cent of the amount to which the Applicant was entitled at the time of the award, together with interest as payable under section 24 of the Schedule.
In the decision Larry Erickson v. The Guarantee Company of North America, Commission File No. A-000560, July 16, 1992, Senior Arbitrator Rotter awarded a special award expressed as a percentage of the arrears outstanding as at the date of the hearing. In the decision Wayne Allan Plowright and Wellington Insurance Company, Commission File No. A-003985, October 29, 1993, Arbitrator Palmer awarded a special award expressed as a lump sum dollar figure. I also prefer to express the special award in this case as a lump sum dollar figure. I award the sum of $1,000 to the Applicant because of the unreasonable denial of benefits. The amount outstanding from May 1, 1992 to December 21, 1992 is approximately $6,290, excluding interest (34 weeks x $185.00 = $6,290.00). The award of $1,000 is less than 20 per cent of the total amount awarded to the Applicant, and well within the 50 per cent limit.
I have awarded considerably less than the full 50 per cent in this case because I find no evidence of deliberate misconduct or bad faith on the part of the Insurer. Rather, there may have been some confusion concerning the application and effect of section 16(3) upon a claim for weekly benefits, which contributed to the Insurer's unsatisfactory approach to this claim.
Counsel for the Applicant also requested a special award on the basis that the Insurer unreasonably withheld or delayed payment of rehabilitation benefits claimed by the Applicant under section 6 of the Schedule. The issue of the Applicant's entitlement to and the amount of rehabilitation benefits is not before me in this arbitration.
The Applicant conceded that she was promptly reimbursed for rehabilitation expenses up to June 1992. Shortly thereafter she retained the services of a lawyer who submitted various rehabilitation expenses on her behalf. The Insurer established prompt payment in connection with the bulk of these expenses. The Insurer submitted that the entitlement to and the amount of some of the rehabilitation expenses requested by the Applicant are disputed by the Insurer. As the substantive issues in connection with these benefits are not before me, it is premature for me to make a determination whether the Insurer unreasonably withheld or delayed payment in respect of rehabilitation benefits.
Is the Applicant entitled to her expenses?
Ms. Dugas claims her expenses in the arbitration. An award for expenses may be made under section 282(11) of the Insurance Act. The prescribed expenses and maximum amounts are set out in Schedule 1 of the Dispute Resolution Practice Code and in Ontario Regulation 664 (R.R.O. 1990), Dispute Resolution Expenses.
The Applicant was largely successful in her claim. The medical evidence submitted was helpful and pertinent to the issues. I find this is an appropriate case for the exercise of my discretion to award Ms. Dugas her expenses in the proceeding.
Order:
The Applicant is entitled to weekly benefits under section 13 of the Schedule.
Section 16(3) of the Schedule relieves the Insurer of the obligation to pay weekly benefits under section 13 of the Schedule from February 18, 1992 to April 30, 1992. The Insurer is required to pay benefits from May 1, 1992 to December 21, 1992.
The Applicant is entitled to payment of a lump sum special award in the amount of $1,000 under section 282(10) of the Insurance Act.
The Applicant is entitled to interest on any outstanding amounts owing and her expenses incurred in the hearing.
February 10, 1994
Janice Mackintosh Arbitrator
Date
SCHEDULE 1
List of Exhibits
Exhibit 1 Document Brief of Applicant, containing 12 tabs plus additions
Exhibit 2 Bundle of 5 Applications for additional Accident Benefits for expenses
Exhibit 3 Pictures of rear bumper of Applicant's car following collision
Exhibit 4 Application for Accident Benefits form, dated July 14, 1992
Exhibit 5 Pre-Accident - excerpts from clinical notes and records of Dr. Mehmi
Exhibit 6 Post-Accident - excerpts from clinical notes and records of Dr. Mehmi
Exhibit 7 Assessment of Claim by Insurer form, dated July 7, 1993, with attached letter from Insurer, dated August 4, 1992
Documents before Arbitrator
Report of Mediator, dated February 12, 1993
Application for Appointment of an Arbitrator, dated February 28, 1993
Response by Insurer, dated March 19, 1993
Pre-hearing letter, dated May 28, 1993