Neutral Citation: 1994 ONICDRG 140

File No. A-003005

ONTARIO INSURANCE COMMISSION

BETWEEN:

MARGHERITA MENONNA

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

DECISION

Issues:

The Applicant, Margherita Menonna, was injured in a motor vehicle accident on August 24, 1991. She received statutory accident benefits from the Allstate Insurance Company of Canada ("Allstate"), payable under Ontario Regulation 672¹. Allstate stopped paying weekly income benefits on July 14, 1992. Mrs. Menonna maintains that she is entitled to continuing weekly benefits after that date. The parties were unable to resolve the dispute through mediation and Mrs. Menonna applied for arbitration under the Insurance Act, R.S.O. 1990, c. I.8. as amended.

The issues in this hearing are:

1. Is Mrs. Menonna's claim for weekly benefits considered under section 12 or section 13 of the Schedule?

2. Is Mrs. Menonna eligible for weekly benefits after July 14, 1992?

Mrs. Menonna also claims interest on any outstanding amounts owing, a special award and her expenses incurred in the hearing.

Result:

1. Mrs. Menonna's claim for weekly benefits is considered under section 13 of the Schedule.

2. Mrs. Menonna is not eligible for weekly benefits after July 14, 1992.

3. Mrs. Menonna is not entitled to a special award.

4. Mrs. Menonna is entitled to her expenses of the arbitration.

Hearing:

The hearing was held in North York, Ontario, on January 17, 20, and 21, 1994, before me, Fred Sampliner, arbitrator.

Present at the Hearing:

Applicant: Margherita Menonna

Applicant's Representative: Steven Bellissimo Barrister and Solicitor

Insurer's Representative: Grant R. Dow Barrister and Solicitor

Witnesses: Margherita Menonna - Applicant Antonio Menonna - Applicant's son Nicola Menonna - Applicant's daughter Nancy Kline - Claims Representative Irene Vrkovnik - Occupational Therapist Frank Brundia - Private Investigator

Exhibits:

Exhibit 1 Surveillance photographs

Exhibit 2 Job description and earnings summary

Exhibit 3 Surveillance videotape

Exhibit 4 Joint Medical Brief

Exhibit 5 Surveillance photographs

Exhibit 6 Two letters from Toronto Occupational Therapy to Mrs. Menonna

Evidence and Findings:

Background:

Mrs. Margherita Menonna was a 41 year old homemaker and mother of three at the time of the August 24, 1991 motor vehicle accident. She was riding in the front seat of the family car, driven by her husband, when the collision occurred. On impact, Mrs. Menonna reached out to the dashboard with her right arm to brace herself. Mrs. Menonna's arm and upper body were jarred by the collision.

Mrs. Menonna did not experience pain at the time of the accident and she did not seek immediate medical attention, but over the weekend following the accident Mrs. Menonna felt increasing pain in her neck, right chest, right shoulder and collarbone.

Mrs. Menonna saw her family physician, Dr. Mohamed Jinnah, on August 28, 1991. Dr. Jinnah diagnosed that Mrs. Menonna was suffering from acute cervical strain, right shoulder pain, headaches and anxiety due to the accident.

Allstate began paying weekly benefits to Mrs. Menonna under section 13 of the Statutory Accident Benefits Schedule, after it received Dr. Jinnah's medical report. Section 13 provides a weekly benefit to insured persons who do not qualify as employed or self employed at the time of the accident. The insured person is eligible to receive weekly benefits if he or she suffers a substantial inability to perform their essential daily tasks. Mrs. Menonna received weekly benefits from Allstate until July 14, 1992, the date Allstate felt that she was fit to resume her household duties.

Full-time Homemaker or Part-time Employee?

In addition to her homemaker duties at the time of the accident, Mrs. Menonna was employed as a part-time lunchroom supervisor at a local school. Each weekday she walked to the school, and spent approximately one hour monitoring students in the cafeteria. She missed about two weeks work after the accident. Upon her return to work, Mrs. Menonna was able to perform her part-time job duties.

Mrs. Menonna was paid $9.00 an hour for her work at the school. She earned a total of $1,857.60 in 1991, $2,022.34 in 1992 and $1,583.21 for 1993. Mrs. Menonna did not disclose her part time employment and post accident income to Allstate until arbitration. At the hearing, Mrs. Menonna's counsel acknowledged that Allstate may deduct her post-accident income from her weekly benefits pursuant to section 15 of the Schedule.

Allstate argues that because Mrs. Menonna was employed at the time of the accident, her claim for weekly benefits must be considered under section 12 of the Schedule. Section 12 provides weekly benefits to insured persons who are considered employed or self-employed at the time of the accident. Mrs. Menonna cannot be eligible to receive weekly benefits under both section 12 and section 13. Mrs. Menonna contends that she is a homemaker.

Facts similar to Mrs. Menonna's claim were addressed in Theresa Walicki and Security National Insurance Company, January 27, 1993, OIC File No. A-001403. In that case, the Applicant was a homemaker and also delivered newspapers part time. In finding that the claim properly fell within section 13, Arbitrator Palmer considered that the small number of hours Ms. Walicki worked and her nominal remuneration placed her at the extreme low end of the employment spectrum. She concluded that Ms. Walicki was primarily a homemaker.

Mrs. Menonna's employment appears likewise nominal. She worked only one hour per day, and the job paid her less than $100.00 per week. This small amount of time and pay are indicators that Mrs. Menonna's part time job was not her primary vocation. As a result, I find that Mrs. Menonna was primarily a homemaker at the time of the accident, and that her claim falls within section 13 of the Schedule.

Eligibility

Mrs. Menonna kept house for her husband, two sons and daughter at the time of the accident. She testified that she usually did the vacuuming, floor cleaning, dusting, laundry, ironing, changing linens, cooking, dishwashing, and yardwork. I accept this evidence, and find these to be Mrs. Menonna's essential tasks.

Mrs. Menonna testified about her continuing symptoms: pain in her right shoulder, right side of the neck and right ear, and right arm from the top of the shoulder to the elbow. Mrs. Menonna said she is right handed, and is not dextrous with her left arm and hand.

According to Mrs. Menonna, the pain in her right arm and shoulder has prevented her from performing most of her household tasks. She testified that she has not washed floors, dusted, vacuumed, made beds, cleaned the bathrooms or windows, cut the lawn, taken out the garbage, shovelled snow, done laundry, ironing or grocery shopping since the accident.

Mrs. Menonna said she can accomplish some household chores, but not well. She testified that she uses cooking utensils "as far as I can reach". She said she cannot lift pots or pans, stir or cut food items because she is fearful of dropping them. However, sometimes Mrs. Menonna is able to dust with her left hand and she washes a few dishes. Her husband and sons also help out. According to Mrs. Menonna, she sometimes stops in the middle of a task to rest, and does not return to complete the job.

Mrs. Menonna's husband, Antonio Menonna, testified that his wife injured her shoulder and arm in the car accident. He confirmed his wife's testimony about her inability to do the housework. Mr. Menonna said that since the accident he and the children have helped his wife cook, clean the bathrooms, vacuum, iron and do laundry. He took over the yardwork after the accident. Mr. Menonna characterized his wife as only a little better now than after the accident. He indicated that his wife currently washes some dishes, vacuums a bit, performs limited general cleaning, and is able to load and unload the washer and dryer.

Ms. Nicola Menonna, the applicant's eldest child, was fifteen years old at the time of the accident. She testified that her mother could not lift her arm to perform housecleaning after the accident. Nicola stated that the children and her father hardly ever did household chores before her mother's injury. Since the accident the family has had to do all of the laundry, vacuuming, dusting, ironing, yardwork, bathroom and kitchen cleaning.

The testimony concerning Mrs. Menonna's ability to do the housework is inconsistent. The daughter said that Mrs. Menonna could not do any housework. However, Mr. Menonna stated that his wife could change the bed linens, make some of the family meals, wash dishes, launder clothes and do some of the other general housecleaning. As a result of the contradictions, I do not find either Mr. Menonna or Nicola Menonna's evidence reliable.

The clinical notes and records of Dr. Jinnah also conflict with Mrs. Menonna's description of her abilities after the accident. Mrs. Menonna's September 17, 1991 visit to Dr. Jinnah's office yielded the following clinic note, "Has to do housework alone and hurts more afterwards." October 22, 1991 - the note reads, "Was much better so on 18-10-91 raked leaves and that night had pain R side of neck,...". On November 5, 1991 the doctor wrote, "On 30-10-91 went shopping with carrying grocery bags had neck pain and then dizziness, violent dizziness and assoc with nausea-called ambulance, but did not go to hosp". The November 22, 1991 entry reads in part, "Able to do simple chores in the house, avoids too much cleaning and wiping." On December 31, 1991 the notes begin, "Yesterday cleaned small window, after that washed dishes....". Further on the note from the same visit says, "...doing more housework-boys and husband don't do too much...". On June 16, 1992 Dr. Jinnah wrote, "R side of neck still hurting but less, not too painful if she does light housework, but more pain after mopping floors". The July 14, 1992 clinic note says that Mrs. Menonna reported recurrence of her pain after doing housework, and at the August 11, 1992 office visit Dr. Jinnah noted that Mrs. Menonna was having problems vacuuming.

I accept that Mrs. Menonna was in pain after the accident, and sustained debilitating symptoms for a time. But Mrs. Menonna's evidence that she did almost no household work is simply not plausible in light of Dr. Jinnah's clinical notes and records, and the conflicting evidence from her family. Considering the conflicting evidence from the Menonna family, I find Dr. Jinnah's statements in his clinical notes are a more accurate reflection of Mrs. Menonna's household activities.

In addition, Dr. Jinnah's clinical notes and records provide me with a history of Mrs. Menonna's treatment. Her family physician recorded continuous complaints of tenderness in the right side of Mrs. Menonna's neck and the right trapezius (shoulder) muscles for several months after the accident. In the same period, Dr. Jinnah found that rotation and abduction of Mrs. Menonna's right arm and neck were restricted.

By November 1991 Dr. Jinnah referred Mrs. Menonna to a neurologist, Dr. Sawa, who completed nerve conduction studies of her hands. Dr. Sawa concluded that Mrs. Menonna had bilateral carpal tunnel syndrome, which was more evident on the right wrist. Mrs. Menonna agrees that her wrist problems (carpal tunnel syndrome) are unrelated to the accident.

Dr. Jinnah issued a second report to Allstate on December 12, 1991. At that time Mrs. Menonna had been attending physiotherapy two or three times a week for almost three months. The report states, "She has mentioned that since the accident she has confined herself to light housework such as cooking and dishwashing which also cause pain. She has left vacuuming and moving furniture to her husband and her teenage sons". Dr. Jinnah recommended that Mrs. Menonna avoid heavy household work.

By the spring of 1992 Dr. Jinnah found that Mrs. Menonna's symptoms had not diminished significantly. Dr. Jinnah's April 10, 1992 medical report to Allstate relates that Mrs. Menonna still had pain in her right shoulder and neck, and that elevation of her right arm and neck flexion were restricted. The report cautions Mrs. Menonna to refrain from rapid neck rotation and strenuous repetitive use of her right arm. Curiously, Dr. Jinnah's April 7, 1992 clinic note (the same week he wrote the report) also says that extension and rotation were almost full and pain free.

Allstate referred Mrs. Menonna to the Canadian Back Institute (CBI), where she was examined. The April 6, 1992 CBI report indicates cervical (neck) strain and mild rotator cuff (shoulder) tendonitis, similar to the diagnosis of Dr. Jinnah. CBI recommended a 6-8 week exercise program to gradually improve function.

The examining nurse at CBI made the following remarks in the report:

She performs all of the household duties, such as cooking, cleaning and laundry, however, does these at a slower pace. She states that her children and husband are quite helpful and often assist with these tasks.

In her evidence, Mrs. Menonna admitted that this statement was true. The CBI report coupled with Dr. Jinnah's clinical notes and records persuade me that in April 1992 Mrs. Menonna was able to accomplish the household chores, but with assistance.

Allstate maintains that Mrs. Menonna was fit to resume her housework by July 14, 1992. Nancy Kline, Allstate's claims representative visited Mrs. Menonna at her home on July 8, 1992 to review the rehabilitation progress. She testified that Mrs. Menonna said she could do more of her housework since completion of the CBI program. She said Mrs. Menonna told her she could do all of her housework alone, except moving heavy furniture and vacuuming. Ms. Kline told Mrs. Menonna that she did not qualify for further weekly benefits.

Dr. Jinnah's clinical notes all so indicate that Mrs. Menonna was doing the housework. Between September 17, 1991 and July 14, 1992, Dr. Jinnah's notes state that Mrs. Menonna raked leaves, mopped floors, cleaned windows, grocery shopped, vacuumed, washed dishes, and did general housework. Based upon the CBI report, Dr. Jinnah's notes and Nancy Kline's evidence, I find on a balance of probabilities that Mrs. Menonna no longer suffered a substantial inability to perform the household chores after July 14, 1992.

Mrs. Menonna did not agree with Allstate's decision to terminate her weekly benefits. She requested and Allstate agreed to re-evaluate her eligibility. Dr. John Corless examined Mrs. Menonna on August 27, 1992. His report concluded that Mrs. Menonna "really is only coping with about 50 per cent of her ordinary household chores at the present time." I find that Dr. Corless' terminology "coping with" is not specific enough for me to base a finding that Mrs. Menonna could not do her work.

The functional abilities evaluation performed by the Toronto Occupational Therapy Associates ("TOTA") on October 16, 1992 does not support a continuing disability either. Irene Vrckovnik, the occupational therapist who performed the half day of testing on Mrs. Menonna, prepared a report, which states in part:

Mrs. Menonna reported to the evaluator that she was now able to cook, wash dishes, mop the floors and do the laundry. She reported being unable to vacuum, or move the furniture. This is understandable in light of her level of strength.

Mrs. Menonna demonstrated endurance for continued activity, as a result did not require rest periods. She frequently used her right hand for activity, while supporting herself with the left upper extremity. She had full active range of movement of both upper extremities. She is right hand dominant. She did not display pain behaviours, unusual movement patterns or cardiorespiratory changes.

Based upon the physical tests that Mrs. Menonna completed, Ms. Vrckovnik reported that Mrs. Menonna appeared capable of performing all of her household duties except the heavier labour.

In addition to the report, Ms Vrckovnik testified at the hearing. She said that Mrs. Menonna did not complain after repetitive lifting with her right arm. The physical tests demonstrated to Ms. Vrckovnik that Mrs. Menonna's abilities were adequate to handle all her household tasks except vacuuming and moving heavy items, such as outdoor equipment and cumbersome furniture.

Conclusion:

I am persuaded, that by July 14, 1992 Mrs. Menonna was doing virtually all of her household tasks, although with pain. However, pain is not the criteria for recovery of weekly benefits, and Mrs. Menonna's remaining inability to move heavy objects is not, in my opinion, substantial enough to qualify her for benefits under section 13 of the Schedule. Mrs. Menonna is not eligible for weekly benefits after July 14, 1992

Special Award:

I received no submissions from Mrs. Menonna on her request for a special award. An arbitrator has authority to grant a special award under section 282(10) of the Insurance Act where the insurer has unreasonably withheld or delayed payment of statutory accident benefits. In the present case, no additional weekly benefits have been ordered, and there is no basis for a special award.

Expenses:

Mrs. Menonna has requested, and I exercise my discretion, to award her the expenses of the arbitration in accordance with the Dispute Resolution Practice Code.

Order:

1. Mrs. Menonna is not entitled to weekly benefits after July 14, 1992.

2. Mrs. Menonna is entitled to her expenses of the arbitration.

Fred Sampliner Arbitrator

Date

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