Neutral Citation: 1994 ONICDRG 118
File No. A-001880
ONTARIO INSURANCE COMMISSION
BETWEEN:
BARBARA CAPUTO
Applicant
and
HARTFORD INSURANCE COMPANY OF CANADA
Insurer
DECISION
Issues:
The Applicant, Barbara Caputo, was injured in a motor vehicle accident on April 30, 1991. She applied for and received statutory accident benefits from the Insurer, payable under Ontario Regulation 6721. Weekly benefits were paid to Mrs. Caputo under section 13 of the Schedule and were terminated by the Insurer as of December 5, 1991. Mrs. Caputo felt that she continued to be entitled to weekly benefits up to May 1, 1993. The parties were unable to resolve their dispute through mediation and the Applicant applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The issue in this hearing is:
- Is Mrs. Caputo entitled to receive weekly benefits pursuant to section 13 of the Schedule between December 6, 1991 and May 1, 1993?
Mrs. Caputo also claimed interest on weekly benefits and her expenses of the arbitration proceeding.
Present at the Hearing:
Applicant:
Barbara Caputo
Applicant's
Brent Vickar
Representative:
Barrister and Solicitor
Insurer's
Zenon Fedorowycz
Representative:
Barrister and Solicitor
Insurer's
Denise Owens
Officer:
Witnesses:
Mrs. Barbara Caputo
Dr. Gerald Kirsh
Ms. Denise Owens
Translation Services were provided in the English and Italian languages by Mr. Michael Vasta.
Exhibits:
Nine exhibits were filed at the hearing. The exhibits and other documents before the arbitrator are detailed in Appendix A.
Result:
Mrs. Caputo is not entitled to weekly benefits under section 13(1) and (4) of the Schedule between December 6, 1991 and May 1, 1993.
Mrs. Caputo is entitled to her expenses incurred in respect of the arbitration proceeding.
Hearing:
The hearing was held in North York, Ontario, on June 22, 1994, before me, Suesan Alves, arbitrator. The hearing was re-opened on August 19, 1994. Written submissions were provided by counsel on September 21, 1994 and September 29, 1994.
Mrs. Caputo's Essential Tasks:
On April 30, 1991, Mrs. Caputo's car was rear-ended while she was stopped at a pedestrian crossing. At the time of the accident, Mrs. Caputo was a homemaker. Counsel agreed that the essential tasks in which Mrs. Caputo normally engaged prior to the motor vehicle accident were the following: On a daily basis, she cooked three meals for three family members and herself, washed dishes three times, did laundry, mopped and washed the floors, shook out carpets, vacuumed, cared for her eight year old son, Vincenzo, and for Anna, her adult daughter who is developmentally delayed. Mrs. Caputo helped Anna with bathing and getting dressed. She washed and combed Anna's hair, made her bed and took her on walks. In addition to those daily tasks, Mrs. Caputo used to wash and hang curtains three times per year, clean the furnace filters once each month, and wash the bathroom and the kitchen walls between six and 12 times per year.
Counsel agreed that if Mrs. Caputo was entitled to weekly benefits for the period in issue she would also be entitled to benefits under section 13(4), and that there was no issue as to time limits raised in this arbitration. The only disputed issue is whether Mrs. Caputo was entitled to weekly benefits between December 6, 1991 and May 1, 1993.
Pre-accident Medical Condition:
It is clear that Mrs. Caputo had significant medical complaints prior to the motor vehicle accident. In her oral evidence, Mrs. Caputo candidly acknowledged her pre-accident complaints as recorded by her family doctor, Dr. Gerald Kirsh, in his clinical notes and records between June 1987 and May 1993. In the 24 months prior to the motor vehicle accident, Dr. Kirsh recorded 27 visits during which Mrs. Caputo complained of anxiety, 13 visits in which she complained of headaches, cervical and neck problems, 7 visits in which she complained of joint pain diagnosed as osteoarthritis, and 3 visits in which she complained of shoulder pain. Mrs. Caputo testified that the complaints were serious or she would not have seen a doctor about them. She testified both in her evidence-in-chief and in cross-examination that her medical problems had not affected her ability to carry out her homemaking and childcare responsibilities prior to the motor vehicle accident.
Dr. Kirsh gave oral evidence at the hearing. Dr. Kirsh's oral and written statements appear to vary as to whether Mrs. Caputo had a pre-existing disability. He acknowledged that his clinical notes and records did not address Mrs. Caputo's ability to perform her housework, either before or after the accident. Dr. Kirsh testified that he was not in the habit of including information about housework in his clinical notes and records. He stated, however, that he knew Mrs. Caputo well, and was testifying from his independent recollection. He stated that he had "no independent recollection of her complaining directly of having problems performing her housework before the accident".
In his Form 4 report dated November 4, 1992, Dr. Kirsh answered "No" to the question "Have you treated this patient for the same or similar condition prior to the accident (including pre-existing conditions which may be exacerbated by the current injury) ?"
In a letter addressed to the law offices of counsel for Mrs. Caputo, dated April 5, 1993, Dr. Kirsh stated:
As stated previously in my letter of Nov.19/92 I feel that Mrs. Caputo has become much more disabled since her MVA April 1991. She did suffer from pre existing neck pain, headaches and anxiety but her MVA definitely exacerbated the problems.
The increase in neck discomfort, headaches, post traumatic anxiety has resulted in much more disability than would have been present without her accident."
[emphasis added]
The evidence before me indicates Mrs. Caputo had been a homemaker for at least two years before the accident. I conclude that in April 1993, Dr. Kirsh could only have been writing about a disability which affected Mrs. Caputo's ability to carry out her homemaking and childcare responsibilities prior to the accident.
Of the various statements, I accept Dr. Kirsh's statement of April 5, 1993. That statement was reduced to writing. It reiterates a statement made by him about Mrs. Caputo's pre-accident status at a time closer to the motor vehicle accident. In addition Dr. Kirsh prepared the letter in response to a question or questions posed in relation to one of his earlier letters. Presumably, before answering, he would have reviewed the earlier letter, considered his initial statement, and responded after reflecting on the question or questions which had been posed. At the hearing, more than three years after the accident, Dr. Kirsh was relying on his memory. In these circumstances, the earlier statement is more likely to accurately reflect Mrs. Caputo's pre-accident status.
Post-accident Medical Condition:
Mrs. Caputo testified that as a result of the motor vehicle accident on April 30, 1991, she developed pain in her neck and right shoulder, her back became more painful, her headaches became worse and she became more nervous. She saw her family doctor for treatment of her injuries.
Dr. Kirsh diagnosed "neck and upper back strain", recommended painkillers, physiotherapy and made a referral to a physiatrist. Mrs. Caputo saw Dr. Kirwin, a physiatrist, in December 1991. In a Form 4 report dated March 17, 1992, Dr. Kirwin described Mrs. Caputo's primary problem as "cervical myofascial strain"; the secondary problem as "right sided supraspinatus tendonitis (? carpal tunnel syndrome)"; and the duration of disability as "unknown". Dr. Kirwin stated that these problems first arose in April 1991.
Mrs. Caputo's Ability to Perform her Essential Tasks Post-accident:
(a) Applicant's Evidence
Mrs. Caputo testified that after the accident she received help with her homemaking and childcare tasks from three family members and from her neighbour. In her examination-in-chief, Mrs. Caputo was asked about her ability, since the motor vehicle accident, to perform each of her essential tasks, with the exception of bathing Anna and making Anna's bed. Mrs. Caputo stated that her ability to wash and hang the curtains, clean the furnace filters, and vacuum was "not the same as before". She stated that she was unable to do her other essential tasks, up to the date of the hearing, because "I can't cope with it. If I stand one hour or sit one hour I feel unwell. I feel pain, I feel pulled." She stated that "using the vacuum, putting up curtains, washing the floor" makes her neck pain worse. When she mops the floors "it pulls from the neck and the right side of her arm and shoulder." Mrs. Caputo testified that she is not better since the motor vehicle accident "unless I take medication". During this portion of her evidence she testified that prior to the accident she used to do the vacuuming every two days.
A defined period of disability was in issue. That period ended more than 13 months before the hearing, yet Mrs. Caputo testified as if she thought she continued to be disabled up to the date of the hearing. Her counsel made a further attempt to elicit from his client her ability to perform her essential tasks for the period in issue. Many of her responses were not specific or did not address the period in issue. For example, when asked about her ability to take Anna for walks as of a year before the hearing, Mrs. Caputo replied, "yes, sometimes we would go".
Dr. Kirsh stated that a claim by Mrs. Caputo that she was substantially unable to perform her essential tasks for the period in issue was "very reasonable". He described Anna, as "a big girl" who requires a lot of physical strength. He described Mrs. Caputo as "a hardworking, industrious lady" and as "a reasonably anxious person who reacts to stresses with anxiety". Dr. Kirsh stated that Mrs. Caputo "had a developmentally delayed daughter, a husband with a major illness and a fair bit of upheaval in her life". He agreed that the motor vehicle accident exacerbated Mrs. Caputo's pre-accident anxiety, that there was a relationship between anxiety and physical problems and that "as an anxious person her injuries were slower to settle down". Dr. Kirsh stated that, post-accident, there had been "a lot of complaints made by Mrs. Caputo about her inability to perform her housework. He could see no reason to doubt her complaints. He attributed her disability for the period in issue to problems with her back and neck rather than to her anxiety.
(b) Insurer's Evidence
Ms. Denise Owens, the supervisor of the Insurer's accident benefit unit, testified that she arranged to have Mrs. Caputo examined pursuant to section 23 of the Schedule by Dr. Fred Langer, an orthopaedic surgeon. These examinations were conducted on September 13, 1991, November 6, 1991, and on December 5, 1991. Ms. Owens terminated Mrs. Caputo's weekly benefits as of December 5, 1991, based on Dr. Langer's opinion that Mrs. Caputo was able to perform the essential tasks in which she would normally engage. Further examinations of Mrs. Caputo were conducted at the request of the Insurer by Dr. Lyndon Mascarenhas, on April 8, 1992, and by Dr. E.J. White, orthopaedic surgeon on November 30, 1992. Ms. Owens testified that these reports confirmed Dr. Langer's opinion that Mrs. Caputo was able to perform her essential tasks. Ms. Owens stated that after reviewing the clinical notes and records of Dr. Kirsh, she concluded that most of Mrs. Caputo's problems pre-dated the motor vehicle accident and that her ongoing anxiety related to family and relationship issues and not to the motor vehicle accident of April 30, 1991.
In his report of September 13, 1991, Dr. Langer stated that Mrs. Caputo "denied problems prior to the motor vehicle accident of April 1991 and told me that she was otherwise in perfect health". He anticipated that she would return to her normal activity schedule in six weeks. On November 6, 1991, he concluded that Mrs. Caputo "is fit now but two weeks of rest would help her psychologically, I feel, to assume her full responsibilities". Dr. Langer's report in relation to his re-evaluation of December 5, 1991, indicated that Mrs. Caputo's symptoms were "minor and not disabling in any fashion".
In his report dated November 30, 1992, Dr. White states "[s]he looks after her house and does her own housework, but not like I used to. I try, but I was with more energy before'". Dr. White stated that given her "previous history...and some recurrent ongoing symptoms prior to her accident, it is suspected that her post-accident symptoms in part at least could be related to her pre-accident conditions". In his opinion, "[c]ertainly she is quite physically fit to carry on with her everyday normal activities and housework and care of her family".
Conclusion:
I do not accept Mrs. Caputo's view that she was substantially disabled as a result of her injuries from the motor vehicle accident during the period in issue. Two aspects of her evidence trouble me. Firstly, much of her evidence did not specifically address her ability to perform the essential tasks in which she would normally engage for the period in issue. This is the basis of any entitlement to weekly benefits. Secondly, her evidence that she had no pre-existing disability conflicts with that of her family doctor.
I have found, on the basis of Dr. Kirsh's written statement of April 5, 1993, that Mrs. Caputo had a pre-existing disability. However, I was provided with no medical evidence which evaluated the extent or degree of that pre-existing disability in relation to her performance of her homemaking and childcare responsibilities before the accident.
The conflicts in the evidence adduced on behalf of Mrs. Caputo as to whether the accident exacerbated her pre-existing conditions were not explored or explained in the course of the hearing. Other than Mrs. Caputo's evidence, I heard little evidence about the extent to which the motor vehicle accident caused or contributed to any disability. Dr. Kirsh attributed some of Mrs. Caputo's pre-accident complaints of pain in her neck and shoulder to anxiety, tension and possibly to trauma. Any disability during the period in issue could be attributable to one or more of these causes or to the motor vehicle accident. Dr. White, who examined Mrs. Caputo at the request of the Insurer pursuant to section 23 of the Schedule, noted that it is likely that Mrs. Caputo's pre-accident conditions contribute at least in part to her post-accident complaints. I accept Dr. White's view.
In my view, there were enough gaps and conflicts in the evidence called on behalf of the Applicant, that, in general, that evidence cannot be found to be reliable. I am not persuaded on the evidence before me that Mrs. Caputo has established on a balance of probabilities that the injuries she sustained in the motor vehicle accident of April 30, 1991, caused or significantly contributed to any disability during the period in issue. I have concluded that the Applicant has failed to discharge the burden on her in this arbitration.
The only medical evidence which remains for consideration, in my view, is that of the Insurer as set out in the reports of Dr. Langer and Dr. White. Neither doctor was cross-examined. Dr. Langer was of the opinion that by November 6, 1991, Mrs. Caputo was able to perform the essential tasks in which she would normally engage. His opinion appears to be based, at least in part, on his understanding that Mrs. Caputo was perfectly healthy before the accident and did not have any pre-existing medical conditions or disability. Certainly the weight of the medical evidence is that Mrs. Caputo was substantially able to perform her essential tasks during the period in issue in this arbitration.
Expenses:
The Applicant seeks an award of her expenses. An arbitrator has a discretion to award these expenses pursuant to the Insurance Act, R.S.O. 1990, c.I.8, section 282 (11). In exercising my discretion I have considered the intent and purpose of the legislative scheme, the circumstances of this case and the submissions of counsel. The Applicant is entitled to her expenses as set out in Schedule 1 of the Dispute Resolution Practice Code. In the event that the parties cannot agree on the amount of expenses, I remain seized of this issue and a party may apply for assessment of the expenses before me.
Order:
Mrs. Caputo is not entitled to weekly benefits under section 13(1) and (4) of the Schedule between December 6, 1991 and May 1, 1993.
Mrs. Caputo is entitled to her expenses incurred in respect of the arbitration proceeding.
December 19, 1994
Suesan Alves Arbitrator
Date
APPENDIX A
EXHIBITS
Exhibit 1
Report of Dr. F. Langer re Barbara Caputo dated September 13, 1991
Exhibit 2
Report of Dr. F. Langer re Barbara Caputo dated November 6, 1991,
Exhibit 3
Report of Dr. F. Langer re Barbara Caputo dated December 10, 1991
Exhibit 4
Report of Dr. Lyndon F. Mascarenhas, re Anna Caputo dated April 8, 1992
Exhibit 5
Report of Dr. Ernest J. White re Barbara Caputo dated November 30, 1992
Exhibit 6(a)
Copy of the clinical notes and records of Dr. G. Kirsh in relation to Barbara Caputo from June 10, 1987 to May 4, 1993
Exhibit 6(b)
Transcribed copy of the clinical notes and records of Dr. G. Kirsh in relation to Barbara Caputo from June 10, 1987 to May 4, 1993
Exhibit 7
Form 4 of Dr. Pierre J. Kirwin re Barbara Caputo dated March 17, 1992
Exhibit 8
Form 4 of Dr. Gerald Kirsh re Barbara Caputo dated November 4, 1992
Exhibit 9
Letter to Domenic Trotta, Longley/Vickar from Dr. Gerald Kirsh re Barbara Caputo dated April 5, 1993
OTHER DOCUMENTS BEFORE THE ARBITRATOR
Report of Mediator
Application for the Appointment of an Arbitrator
Response by Insurer
Submissions of Counsel for the Applicant
Submissions of Counsel for the Insurer