Neutral Citation: 1994 ONICDRG 119
File No. A-006515
ONTARIO INSURANCE COMMISSION
BETWEEN:
M.C.W.
Applicant
and
THE DOMINION OF CANADA GENERAL INSURANCE COMPANY
Insurer
DECISION
Issues:
The Applicant was injured in a motor vehicle accident on March 29, 1991. She applied for and received statutory accident benefits from the Insurer, payable under Ontario Regulation 6721. The Insurer paid the Applicant weekly income benefits under section 13 of the Schedule until September 28, 1991. Weekly income benefits were reinstated on March 26, 1993, and terminated again on September 30, 1993.
The Applicant claimed entitlement to ongoing weekly income benefits from the time of the accident. The Insurer took the position that she was not entitled to weekly income benefits after September 28, 1991. The Insurer did not claim repayment of benefits paid to the Applicant during the period of reinstatement. 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 under section 13 of the Schedule for any period of time after September 28, 1991?
Is the Applicant entitled to 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 income benefits from September 29, 1991 to March 29, 1992, at the rate of $185 per week, and to interest on this amount under section 24(4) of the Schedule.
The Applicant is not entitled to weekly income benefits after March 29, 1992.
The Applicant is not entitled to a special award.
The Applicant is entitled to her reasonable expenses incurred in respect of this arbitration.
Hearing:
The hearing was held in North York, Ontario, on June 20 and June 21, 1994, before me, Asfaw Seife, arbitrator. The exchange and filing of written submissions regarding the interpretation of section 13(8) of the Schedule was completed on August 31, 1994.
Present at the Hearing:
Applicant:
M.C.W.
Applicant's Representative:
Thilosewa Pelpola Barrister and Solicitor
Insurer's Representative:
William A. McClelland Barrister and Solicitor
Insurer's Officer:
Barbara Smith
Witnesses:
M.C.W., applicant Dr. A. Kachooie, specialist in rehabilitation medicine F.W., applicant's husband Barbara Smith, claims representative Shirley Mossman, senior rehabilitation consultant
Exhibits:
Listed at Appendix A
BACKGROUND:
The Applicant is a 54 year old homemaker who lives with her retired husband. The Applicant and her husband have five adult children and nine grandchildren, five of whom were born after the accident. The Applicant has been a homemaker since she left her employment as a cook several years prior to the accident. The Applicant's husband retired from his employment as a carpenter about one year after the accident.
Pre-accident Medical Condition:
The Applicant testified that at the time of the accident, she was not in good health. Her medical history prior to the accident is extensive and well documented. During the two year period prior to the accident, she was diagnosed with a variety of medical problems, including depression, chronic alcoholic pancreatitis, alcoholic cirrhosis and associated ascites (accumulation of body fluid in the abdominal cavity), viral infections, anorexia, migraine headache, arthritis in both knees, and chronic bladder infection. She had a slip and fall accident which resulted in fractured ribs. Some of these conditions required hospitalization for several days at a time. She also attended an alcohol rehabilitation clinic.
On February 8, 1991, approximately six weeks before the accident, the Applicant was hospitalized for eight days for increasing ascites and edema, with complaints of generalized weakness, and weakness in her legs. She had difficulty lifting herself up and walking upstairs. The Applicant was described by the doctors who examined her as weak and emaciated, weighing 38 kilograms. The Applicant testified that at the time of the accident, she was under considerable stress and was on medication for pain and other medical conditions.
The Accident:
The accident occurred on Highway 401, near Chatham, Ontario, when the car in which the Applicant was a passenger rear-ended another car. The Applicant's husband was driving. The Applicant was seated in the passenger seat. The Applicant testified that upon impact, she was thrown forward, striking her head against the dashboard, and her knees against the glove compartment. When she was thrown back to the seat, her left shoulder and arm took the force of the backward motion. It is not clear from the evidence whether or not the Applicant was wearing her seat belt at the time of impact.
WEEKLY INCOME BENEFITS:
As a person who was not in receipt of income from employment or self-employment at the time of the accident, the Applicant's claim for weekly income benefits is governed by the provisions of section 13 of the Schedule. In order to establish entitlement to weekly income benefits, the Applicant must prove, on the balance of probabilities, that as a result of the injuries she sustained in the accident, she suffered from a substantial inability to perform the essential tasks in which she would normally engage.
In addition, in order for the Applicant to be entitled to weekly income benefits for any period in excess of 156 weeks, it must be established that the injury continuously prevents her from engaging in substantially all of the activities in which she would normally engage. [Section 13(8) of the Schedule]
Essential Tasks:
In E. Cowie and The Non-Marine Underwriters, Members of Lloyd's, March 9, 1993, OIC File No. A-001159 (under appeal), Arbitrator Janice Mackintosh considered the meaning of the words "essential" and "task", in the context of section 13(1) of the Schedule. She referred to the Concise Oxford Dictionary, Eighth Edition (1990), for the ordinary meaning of these words. According to the Concise Oxford Dictionary, "essential" means:
- absolutely necessary; indispensable. 2. fundamental, basic. 3. of or constituting the essence of a person or thing.
And, "task" means: a piece of work to be done or undertaken.
I accept these definitions for the purposes of determining the Applicant's entitlement to weekly income benefits.
The Applicant and her husband testified about the Applicant's pre-accident activities. At the time of the accident, the Applicant's husband was employed as a carpenter on a full time basis. The Applicant was solely responsible for the housekeeping, grocery shopping, preparation of meals, laundry and other household chores. The Applicant did not drive at the time of the accident. She did some gardening, bicycle riding, bowling and sewing; however, she did not consider these activities essential tasks.
In addition to her responsibilities as a homemaker, the Applicant testified to a long standing devotion to caring for children, as a mother, grandmother and foster parent. At the time of the accident, she was no longer involved in foster parenting; however, she stated she provided care to her grandchildren, who came to live with her from time to time. She included babysitting, lifting and carrying small children and playing with them as part of her essential tasks.
At the time of the accident, the Applicant stated she was providing care to one grandchild, who was living with her. However, she admitted that the mother of the child also lived with her and her husband, during the relevant period of time, and was fully able to provide care to the child. The Applicant only assisted in caring for the child. I acknowledge the importance and social significance of the Applicant's involvement with her grandchildren; however, I do not find this activity qualifies as the Applicant's essential task.
Accordingly, I find the Applicant's essential tasks at the time of the accident were:
self-care: personal hygiene, bathing, dressing, grooming;
housekeeping: general cleanup, washing dishes, washing floors, vacuuming, dusting, laundry, ironing and bed making; and
grocery shopping and meal preparation.
No evidence was presented in this hearing that the Applicant's pre-accident medical condition imposed any significant limitations on her ability to carry out her essential tasks. I accept the Applicant's testimony, corroborated by her husband, that she was able to perform her essential tasks without assistance from anyone, except for the periods of time when she was confined in hospital. I find that despite her poor health, the Applicant was able to substantially perform the essential tasks described above.
MEDICAL EVIDENCE:
Period from March 29, 1991 to March 26, 1993:
After the accident, the Applicant was taken by ambulance to St. Joseph's Hospital in Chatham, Ontario. She complained of neck and back pain, pain in the left shoulder area, and numbness of the index and middle fingers of her left hand. Extensive investigations were conducted, including multiple tests for her non-accident-related medical conditions. X-rays of her chest, thoracic and lumbosacral spines, left shoulder, and the pelvic area showed no abnormalities. She was treated with bed rest, and discharged 48 hours later with a cervical collar and pain medication.
The hospital discharge diagnosis (Exhibit 5) states:
MVA with multiple contusions, hypertension, type II diabetes mellitus, recurrent kidney infection, alcoholic liver disease with cirrhosis, chronic diarrhoea of unknown etiology, third degree burns of long-standing. Past history of splenectomy and chronic alcohol abuse.
Two days after she was released from the hospital, the Applicant saw Dr. Ann M. Gergely, her family physician of several years. Dr. Gergely did not testify at the hearing; however, her clinical notes and records were filed as Exhibit 5.
Dr. Gergely's notes of April 3, 1991, state that the Applicant complained of severe head pain, drowsiness, blurred vision, headaches, nausea, pain in the left shoulder, numbness of the left arm and second and third fingers of the left hand, poor memory, and pain with coughing, all of which started after the accident. On examination, Dr. Gergely found that the Applicant had bruising on the right temporal region, tenderness over the trapezoid muscles and decreased sensation in the thumb, index and middle fingers of the left hand. X-rays of her cervical spine were negative.
Dr. Gergely referred the Applicant to Dr. Jogindra Singh, a specialist in physical medicine and rehabilitation. Dr. Singh's report dated April 16, 1991 (Exhibit 6), indicates that the Applicant made the same complaints as to Dr. Gergely. Dr. Singh recommended physiotherapy. The Applicant started attending physiotherapy sessions on April 16, 1991.
On May 6, 1991, the Applicant applied for statutory accident benefits. In the Medical/Psychological Report accompanying the application, Dr. Gergely listed the diagnosis as "straining of the facet joint between C5-6, C6-7. Spraining of ligaments. Possible C6 nerve root" (Exhibit 17). Dr. Gergely was unable to estimate the duration of the Applicant's disability.
The Insurer paid the Applicant her weekly income benefits. On September 11, 1991, the Insurer sent the Applicant to the Personal Injury Clinic for examination by Drs. Michael Weinstock and Stephen McLoughlin.
The Applicant's complaints to both Dr. Weinstock and Dr. McLouglin were substantially the same as those she had made to her family doctor and Dr. Singh. She reported no improvement in her condition since the accident.
Dr. Weinstock's examination confirmed that the Applicant had sustained soft tissue injuries to her left neck and left shoulder girdle region, and "coincidental damage to the C6, C7 nerve root of the left brachial plexus" (Exhibit 8).
Dr. Weinstock discussed with the Applicant her tasks as a homemaker and the limitations imposed by the injuries. He stated in his report:
She cannot lift anything heavy such as a full pot on a stove. She cannot vacuum and she can't make her bed. She is unable to carry laundry and needs help when she goes grocery shopping.
...she was unable to lift her granddaughter....She was unable to sew.
Inspite of all this, she says that she is coping somewhat better than she did in the initial post-traumatic stage because she has learned ‘some tricks'.
He noted that the Applicant is right-handed.
Dr. Weinstock recommended continuation of physiotherapy and further investigation with an EMG, "if there was no improvement over the next few months". He remarked:
I was very impressed by this feisty woman, who did not feel sorry for herself, but, rather, was making the best of a bad situation.
Dr. McLoughlin's findings and treatment were the same as those of Dr. Weinstock. He was of the view that the Applicant's recovery should be full "within the next six months". With regard to the Applicant's functional ability, Dr. McLoughlin felt that she had "no real restrictions as to duties and tasks that she is able to perform in the household" (Exhibit 10). There is no indication in Dr. McLoughlin's report that he discussed the Applicant's essential tasks.
The reports of Dr. Weinstock and Dr. McLoughlin were received by the Insurer on September 27, 1991, along with a letter from Dr. E.P. Urovitz, one of the Directors of the Personal Injury Clinic, who reviewed the reports and agreed with the doctors' findings and recommendations (Exhibits 8, 10 and 11).
Mrs. Barbara Smith, the Insurer's claims representative, testified that these reports indicated to her that the Applicant was no longer substantially unable to perform her essential tasks. Therefore, she decided to terminate the Applicant's weekly income benefits, effective September 28, 1991.
Mrs. Smith stated that she first communicated the termination to the Applicant on October 2, 1991, over the telephone. Mrs. Smith stated that the Applicant was very upset and angry when she heard the decision. The Applicant told her that she continued to be disabled.
The Insurer confirmed the termination of weekly income benefits to the Applicant by a letter dated November 25, 1991 (Exhibit 9), some two months after the fact. The letter provided the reasons for termination, and also advised the Applicant that her supplementary medical and rehabilitation benefits were not affected.
The Applicant continued to attend physiotherapy sessions twice a week until October 17, 1991, when she was discharged. The physiotherapy report dated the same day (Exhibit 5) states, in part:
At the day of discharge the pain, numbness and burning sensation in the left shoulder and hand was still strong and persistent. Functional use of the left arm was greatly limited. All daily living activities were aggravating above mentioned symptoms. At this point therapy was discontinued as we could not manage the severity of pain by physiotherapy measures.
In my opinion, patient should consult a specialist as soon as possible.
In October and November 1991, the Applicant underwent several tests, including EMG, bone flow scan, and CT scan, none of which revealed any abnormalities. She had two neurological consultations with Dr. M.B. Goldman who was uncertain whether the Applicant's symptoms were functional or organic.
The Applicant's medical file shows no new or significant activity, until March 29, 1992, when she was admitted to Toronto East General and Orthopaedic Hospital after slipping and falling down several stairs in her house. Dr. Appell, the physician who examined her at the hospital, stated in his report (Exhibit 5):
She was admitted with her falls and generalized weakness. It was felt to be secondary to underlying cirrhosis. It was obvious as well that there was some underlying functional problems. She is having a great deal of difficulty coping at home. She was seen by Dr. Wyndowe, Psychiatry Division, and some follow up was felt necessary. She complained continuously of her legs hurting her.
She was discharged the next day after diagnoses of alcoholic cirrhosis, ascites and peripheral edema, osteoarthritis and depression, and soft tissue injuries as a result of the fall. She was fitted with a neck brace and given a prescription for Tylenol #3 and other medication.
In her testimony, the Applicant attributed her fall to the left hand injuries she sustained in the car accident. She stated that she fell when "my left hand let go of my grip on the edge of the door," as she was going down the stairs.
There is no mention in Dr. Appell's report of the Applicant telling him about how she fell, her problems with her left hand or left shoulder, or any injuries from the car accident. When this was brought to her attention in cross-examination, the Applicant stated that she did tell the doctor how she fell, perhaps "he must have missed" including it in his report.
Having considered the Applicant's testimony and the medical evidence, I find that the Applicant did not tell Dr. Appell that the injuries she sustained in the car accident caused her fall. I accept Dr. Appell's assessment that the Applicant's functional problems at this time were due to underlying cirrhosis, a condition that pre-dated the car accident. I find no evidence to establish a causal link between the injuries she sustained in the car accident and her slip and fall accident. The Applicant had a second slip and fall accident on May 14, 1992, for which she saw Dr. Gergely and Dr. Singh. Dr. Singh is the same doctor who examined her two weeks after the accident. Dr. Singh recorded in his report that the Applicant complained of neck pain, "which she started having more after a fall from a crouching position" (Exhibit 6, report dated May 19, 1992). Dr. Singh states in his report that the Applicant was having significant neck pain prior to this slip and fall accident. He notes that she was still wearing the neck brace when she attended at his clinic.
Dr. Singh's opinion was that the pain in the neck and scapular region appeared to be due to over-exertion of the muscles. He stated: "The muscles are so weak that she even can not hold her neck properly."
X-ray results of the Applicant's cervical spine taken after this fall were compared to those conducted two weeks after the accident. The x-ray report dated May 19, 1992, suggests that the Applicant could have suffered significant new soft tissue injury to her neck since the date of her last x-ray examination.
In her testimony, the Applicant denied her injuries from this fall were serious, claiming that she went to see her doctor after falling out of bed. Dr. Gergely's notes of May 19, 1992, appear to suggest "poor balancing" as the cause for this fall.
On June 10, 1992, Dr. Gergely noted that the Applicant came to see her after falling at her home again. She noted that the Applicant had multiple scrapes and bruises to her back and ribs. When asked about this fall, the Applicant stated she could not recall it.
On February 23, 1993, Dr. Evans, an orthopaedic surgeon, examined the Applicant after she was referred to him by Dr. Gergely. He found that the Applicant had full range of movement of her neck, and, "a good range of shoulder movement with only slight limitation of elevation". He felt the discomfort in the shoulder was "probably related to rotator cuff tendonitis".
Dr. Evans remarked:
Although she appears to be concerned about the left arm and shoulder she appears to have a serious underlying problem accounting for the emaciation, weight loss and enlarged liver.
He found no specific treatment measures were necessary (Exhibit 5, report dated February 25, 1993).
On March 5, 1993, just two weeks before the reinstatement of her weekly income benefits, the Applicant had her fourth fall. Dr. Gergely's notes of the same day indicate that the Applicant had lacerations in her left shin area and complained of severe pain in her left leg. The Applicant could not recall this incident.
The Applicant admitted to drinking after the motor vehicle accident, "but not as much as before the accident". It is not clear from the evidence whether the Applicant had been drinking at the time of her slip and fall accidents.
From the medical evidence and the Applicant's testimony, I find that none of the slip and fall accidents relate to the injuries she sustained in the motor vehicle accident.
It appears from the medical evidence that the Applicant's general medical condition worsened when she was diagnosed with full-blown diabetes in August 1993. The Applicant has been taking insulin injections since that time.
On November 11, 1993, approximately one year after weekly income benefits were terminated, the Insurer received a call from the Applicant's husband who stated that the Applicant was having problems performing her housekeeping tasks. He stated that this was due to the injuries she sustained in the accident and requested reinstatement of her weekly income benefits.
The Insurer decided to investigate this claim, and wrote to Dr. Gergely, asking for a report of the Applicant's current medical condition and any restrictions on her normal tasks. On March 26, 1993, the Insurer received a response from Dr. Gergely stating that the Applicant complained of left hand weakness, pain and numbness in left arm, neck pain, and left shoulder pain. The doctor indicated that the Applicant was experiencing difficulties in lifting and carrying objects, and performing general housework. Dr. Gergely indicated in her report that the duration of the Applicant's disability "is difficult to assess or predict".
The Insurer reinstated weekly income benefits immediately upon the receipt of Dr. Gergely's report and retained Crawford and Company to help in the rehabilitation of the Applicant and to arrange for an independent medical examination.
Period after March 26, 1993:
Mrs. Shirley Mossman, a supervisor with Crawford and Company, testified that she was first assigned to the Applicant's file on May 6, 1993. She arranged for the Applicant to be seen by Dr. Welsh, orthopaedic surgeon. She visited the Applicant at her home and interviewed her about her daily activities. Mrs. Mossman also interviewed Dr. Gergely and Dr. Evans, and prepared reports summarizing the information she obtained in her interviews. Dr. Gergely and Dr. Evans have signed the reports of their interview (Exhibits 14, 15 and 16). Dr. Welsh issued his own report, dated August 5, 1993 (Exhibit 7).
In his report, Dr. Welsh concluded that he could not see any medical "reason why [the Applicant] should not function at a level consistent with that which she enjoyed prior to the motor vehicle accident".
Dr. Gergely was also of the opinion that by May 1993, the Applicant was "99% functionally recovered from the soft tissue injuries she sustained as a result of the motor vehicle accident"; however, Dr. Gergely stated she would defer an objective decision regarding this possible recovery to a specialist such as Dr. Evans.
Dr. Evans had seen the Applicant again on May 17, 1993. He confirmed that his conclusions were the same as indicated in his February 1993 report. He stated that, aside from any aches and pains, the Applicant seemed to have recovered from the injuries she sustained as a result of the accident.
The Insurer received the reports on August 30, 1993, and terminated the Applicant's weekly income benefits as of September 30, 1993.
On April 8, 1994, more than three years after the accident, the Applicant was examined by Dr. Kachooie, a rehabilitation specialist of her own choosing. Dr. Kachooie testified in the hearing. His report dated April 8, 1994, was filed in evidence along with an EMG report of the Applicant's left upper extremity and a CT Scan report of her cervical spine (Exhibits 1, 2 and 3).
Dr. Kachooie testified that the Applicant complained of persistent pain and stiffness in the cervical spine, spreading to the left upper extremity, intense pain to the left shoulder and left shoulder blade area, pain to the left arm and forearm with numbness, tingling, and pins and needles sensation at the 1st, 2nd, and 3rd fingers. The Applicant told Dr. Kachooie that she had these symptoms since the car accident, with little improvement over the years.
The Applicant also told Dr. Kachooie that she had pain in the lower parts of her back and mid-back. She complained of persistent pain in her knee joints, which was aggravated by kneeling, climbing stairs, and walking distances. She told him her knee problems pre-dated the accident. She reported that her pains intensified at night and she had difficulty sleeping.
Dr. Kachooie testified that the Applicant told him that she experienced difficulty pulling and picking objects, and mild difficulty lifting and reaching, and that she was experiencing marked depression, which limited her ability to perform household tasks.
At the time of the hearing, the Applicant was enrolled in an active exercise programme at the Y.M.C.A., recommended by Dr. Kachooie. This three-hours-a-day, five-days-a-week programme includes swimming on a regular basis, cardiovascular fitness exercises, stretching, bending and pain management techniques.
At the hearing, Dr. Kachooie demonstrated the Applicant's limitations of movement in her left shoulder and the areas of pain she experienced. Dr. Kachooie's opinion was that the Applicant was suffering from post-whiplash fibromyalgia which caused her steady pain, with flare-ups, and sleep disorder. His diagnosis was that the Applicant suffers from a mild to moderate chronic pain syndrome.
Dr. Kachooie stated that the Applicant's functional limitations were due to pain in the use of her left upper extremity, from injuries he attributed to the accident.
In cross-examination, Dr. Kachooie admitted that when he examined the Applicant he did not have her medical records, and relied on her completely to tell him about her medical history. He stated he was not aware of the Applicant's slip and fall accidents, or about the earlier tests performed. His diagnosis and opinion about causation was based on his own examination of the Applicant and her subjective complaints.
Dr. Kachooie admitted that his lack of knowledge of the Applicant's prior medical problems and physical injuries could make his conclusions questionable. Accordingly, I do not accept Dr. Kachooie's opinions as reliable evidence that the Applicant's disabilities in April of 1994 were the result of the injuries she received in the car accident.
Post-accident Activities:
The Applicant and her husband testified that the Applicant did not do any physical work during the eight weeks following the accident. She resumed her functions gradually, starting with the lighter tasks. It is not clear from the evidence at what point the Applicant resumed her pre-accident activities, or to what extent she was able to perform them; however, there is little dispute that since September 1991, she has been performing a number of her essential tasks, with varying degrees of success.
The Applicant testified that she cannot use her left arm and hand to perform any household tasks because of weakness, numbness and sudden loss of grip. Despite this, she said she managed to perform many tasks which would normally involve the use of both hands because she is stubborn and cannot tolerate any need for assistance. However, she functions at a much slower pace, and with modifications. She requires twice as much time now to do certain things. She finds this very frustrating.
The Applicant is able to groom and dress herself without assistance, but has difficulty pulling sweaters on and off her head, putting up her hair and using the blow dryer. She can cook simple meals on the stove, but cannot open cans or jars by herself. She can reach and open overhead kitchen cabinets to retrieve articles, but has difficulty bending to retrieve things on the floor or under the counter, and getting back up.
She can wash the dishes, with frequent breaks. She can vacuum carpets and sweep floors, but must allow herself twice the length of time she needed before the accident. She has difficulty vacuuming drapes or washing floors. She finds bed-making difficult, as she cannot tuck in the bed sheet under the mattress.
The Applicant manages to do the family laundry herself, but needs help to carry the laundry basket to the basement. As far as grocery shopping is concerned, she is able to walk about in the store, push the shopping cart, and put items in and out of the cart, but she cannot lift or carry anything requiring two hands.
The Applicant's husband testified that since his retirement, he has been doing 80 to 85 per cent of the house work, and that other family members help the Applicant in completing her tasks.
Findings:
It has been held in a number of arbitration decisions that "substantial inability" means not some disability and not total disability, but a sizable inability which prevents an applicant from carrying out essential tasks to some significant extent. Pain is compensable only if it is disabling to the degree required by the Schedule.
The Insurer's position is that any disability that the Applicant has had after September 28, 1991, is attributable to injuries or health problems unrelated to the accident. The Applicant maintains that her disability was caused by injuries resulting from the accident and that it has continued uninterrupted from the date of the accident.
It is not disputed that as a result of the accident the Applicant sustained soft tissue injuries to her neck, left shoulder, and left hand. I find that when the Insurer terminated the Applicant's weekly income benefits on September 28, 1991, she was still symptomatic, complaining of constant pains in her left neck, left shoulder and left arm.
I accept the findings of the physiotherapist that in October 1991, the Applicant was experiencing strong and persistent pain, numbness and burning sensation in her left shoulder and hand, and that engaging in her daily activities aggravated her symptoms. I find her disabilities lasted until March 29, 1992, when the Applicant was seen by Dr. Appell after her first slip and fall accident. At that time, she complained of difficulties coping with her daily activities; however, she did not mention her left shoulder or left hand problems, or any restrictions she might have had because of the injuries she sustained in the car accident.
I accept Dr. Appell's conclusion that, at that time, the causes of the Applicant's inability to carry out her essential tasks were her other medical problems. There is no evidence that her injuries from the car accident were in any way responsible for or contributed to the aggravation of her pre-existing conditions.
On the balance of probabilities, I find that the Applicant suffered from a substantial inability to perform her essential tasks from the date of the accident up to March 29, 1992, as a result of the injuries she sustained in the car accident. Accordingly, she is entitled to weekly income benefits of $185, from September 29, 1991 to March 29, 1992.
I find that by the time she saw Dr. Singh in May 1992, the Applicant's injuries arising from the accident had largely resolved. Between this time and March 1993, when the Applicant's husband contacted the Insurer, I find that the Applicant's general health condition had deteriorated significantly, exacerbated by the physical injuries she suffered in the slip and fall accidents. I find that any disabilities that the Applicant may have after March 29, 1992, are not attributable to the injuries from the car accident.
The Insurer has paid the Applicant weekly income benefits during periods in which I have found there was no disability as required by the Schedule. The Insurer has not claimed a repayment of any benefits. Accordingly, the Applicant is entitled to receive the above amount without any deductions.
Special Award:
The Applicant submits that the Insurer should be ordered to pay a special award because of the manner in which the Insurer processed her claim. Section 282(10) of the Insurance Act states:
282(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 Statutory Accident 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 issue, therefore, is whether the Insurer "unreasonably withheld or delayed payments".
The finding by an arbitrator that the Insurer is liable to pay benefits does not in itself lead to a conclusion that the Insurer has unreasonably withheld payment of benefits. To reach this conclusion, the entire circumstances of the case must be considered.
In this case, the Insurer's decision to terminate weekly income benefits on September 28, 1991, was made after reviewing medical reports of the doctors which suggested that the Applicant was no longer disabled from her tasks. After receiving Dr. Gergely's report of November 1993, the Insurer immediately reinstated benefits, with no retroactive effect, pending its own independent investigation. Given the nature and complexity of the case, I find nothing improper or unreasonable in the Insurer's handling of the claim.
The Insurer advised the Applicant of the immediate termination of her benefits orally and provided her with a written confirmation of retroactive termination several weeks later. I find this conduct is not in accordance with the provisions of section 24(8) Schedule, which require the Insurer to give written notice forthwith of refusal to pay benefits. However, I also note that the Applicant herself did not take any action to protest the Insurer's actions, until a year after her receipt of the written notice.
While I am concerned about the lack of proper notice of termination, I do not find that the Insurer's handling of the claim or its termination of weekly income benefits constitutes an unreasonable withholding or delay of payments.
Accordingly, I conclude that no special award should be ordered in this case.
Order:
The Applicant is entitled to weekly income benefits from September 29, 1991 to March 29, 1992, at the rate of $185 per week, and to interest on this amount under section 24(4) of the Schedule.
The Applicant is not entitled to weekly income benefits after March 29, 1992.
The Applicant is not entitled to a special award.
The Applicant is entitled to her reasonable expenses incurred in respect of this arbitration.
December 19, 1994
Asfaw Seife Arbitrator
Date
APPENDIX A
Exhibits:
Exhibit 1
Report of Dr. A. Kachooie, dated April 8, 1994
Exhibit 2
Report of Dr. A. Kachooie, dated May 5, 1994
Exhibit 3
Report from The Salvation Army Scarborough Grace Hospital, Department of Diagnostic Imaging, prepared by Dr. J.R. Russell, dated April 21, 1994
Exhibit 4
Handwritten note dated June 4, 1994
Exhibit 5
Medical reports and notes from Dr. Ann M. Gergely, the Applicant's family physician
Exhibit 6
Medical reports and notes from Dr. Jogindra Singh, physical medicine and rehabilitation specialist
Exhibit 7
Report from the Orthopaedic and Arthritic Hospital, dated August 5, 1993
Exhibit 8
Report from the Personal Injury Clinic, dated September 16, 1991
Exhibit 9
Letter from Beverly Marks, Claims Adjuster, to the Applicant, dated November 25, 1991
Exhibit 10
Report from the Personal Injury Clinic, dated September 20, 1991
Exhibit 11
Report from the Personal Injury Clinic, dated September 23, 1991
Exhibit 12
Handwritten report, dated March 26, 1993, to Dominion of Canada Gen. Ins. Co. from Dr. Ann Gergely
Exhibit 13
Handwritten memorandum, dated April 12, 1993
Exhibit 14
Report from Crawford & Company Health and Rehabilitation, dated May 31, 1993
Exhibit 15
Report from Crawford & Company Health and Rehabilitation, dated July 2, 1993
Exhibit 16
Job Analysis Form Worksheet" from Crawford & Company Health and Rehabilitation, dated June 15, 1993
Exhibit 17
"Ontario Automobile Insurance Medical or Psychological Report" prepared by Dr. Ann Gergely, dated May 6, 1991
OTHER DOCUMENTS BEFORE THE ARBITRATOR
Agreed Statement of Facts (regarding periods in which weekly income benefits were paid)
Report of Mediator, dated October 29, 1993
Application for Appointment of an Arbitrator, dated November 29, 1993
Response by Insurer, dated January 7, 1994
Pre-hearing letter, dated March 28, 1994