Neutral Citation: 1994 ONICDRG 30

File No. A-003863

BETWEEN:

ERIC SIMPSON

Applicant

and

ROYAL INSURANCE COMPANY OF CANADA

Insurer

DECISION

The applicant, Eric Simpson, was injured in a motor vehicle accident on March 24, 1992. He applied for and received accident benefits from the insurer, Royal Insurance Company of Canada, payable under Ontario Regulation 672¹, enacted under the Insurance Act, R.S.O. 1990, c. I.8.

Weekly benefits were paid until July 28, 1992, when they were terminated. Mediation was unsuccessful in resolving the dispute between the applicant and the insurer, and the applicant applied for arbitration under the Insurance Act.

The issues in this hearing are:

Is Mr. Simpson entitled to receive weekly benefits from July 28, 1992?
Is Mr. Simpson entitled to a special award?

Mr. Simpson also claims interest on any outstanding amounts owing, and his expenses incurred in the arbitration.

Mr. Simpson is not entitled to weekly benefits after July 28, 1992.
Mr. Simpson is not entitled to a special award.

Mr. Simpson is entitled to his expenses incurred in the arbitration.

The hearing was held in North York, Ontario, on August 23 and 24, 1993, before me, Nancy Makepeace, arbitrator.

Present at the hearing were:

Applicant:

Eric Simpson

Applicant's

Representative:

Altor Shields, Barrister and Solicitor

Insurer's

Representative:

Wayne Edwards, Barrister and Solicitor

Witnesses were:

Eric Simpson, the applicant

Patricia Simpson, the applicant's wife

Dr. Robert J. Sales, the applicant's family doctor

Exhibits introduced into evidence and other documents on the record are listed in Appendix 1 to this decision.

WEEKLY BENEFITS

Eligibility for weekly benefits

Eligibility for weekly benefits for a person not employed at the time of the accident is set out in section 13(1) of the Schedule, as follows:

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.

Mr. Simpson received weekly benefits under section 13 until July 28, 1992, when Royal terminated his benefits on the basis of the June 15, 1992 report of Dr. Michael Hall. Mr. Simpson is entitled to weekly benefits after July 28, 1992 if after that date he continued to be substantially unable to perform the essential tasks in which he would normally engage.

Essential tasks

Mr. Simpson and Mrs. Simpson testified about Mr. Simpson's activities before the accident. I found them to be forthright and candid in their demeanour. Their evidence was substantially consistent, and there was no attempt to exaggerate Mr. Simpson's pre-accident activities or his post-accident difficulties. I accept their evidence about Mr. Simpson's pre-accident activities.

Mr. Simpson is 63 years old and has been retired for some time. He and Mrs. Simpson and their two sons, aged 18 and 28, live in a two-storey townhouse. Mrs. Simpson is a nurse, and she normally works every day except Tuesdays and Thursdays, though her days off may vary. She leaves home around 1:15 p.m. and works from 3:00 to 11:00 p.m., returning home around midnight. Before the accident, Mr. Simpson would rise around 8:00 a.m., get dressed, and join his wife for breakfast downstairs. Mrs. Simpson testified that after doing the dishes in the morning, Mr. Simpson would go down to the basement to do his woodworking and come up again at lunch-time and dinner-time for something to eat. He would work until 7:00 or so in the evening.

Mr. Simpson testified that on days when his wife worked, he would spend the morning cleaning the bathtub and bathroom sink, making the bed, and vacuuming the house. After she left for work, he would spend the afternoon on his woodworking in the basement. He would have something to eat around 4:30 or 5:00 p.m., clean up the dishes, and sometimes go back to his woodworking in the evening.

Mr. Simpson described his woodworking hobby in detail. He builds wooden tables and undertakes other woodworking projects. At the time of the accident, he was building some shipping crates. He does not sell what he makes, but it is used by the family. The tools he uses regularly are: a radial arm saw, a circular saw, a router, hammers and screwdrivers, an electrical and a manual drill, and a sander. After his daily woodworking activity, he cleans and vacuums the work area and puts his tools away.

On his wife's days off, Mr. Simpson would do the laundry. There was some variation in the testimony given by Mr. Simpson and Mrs. Simpson about how they divided up the laundry tasks, but I place no significance on these differences. I accept that doing the laundry, either alone, or with his wife, was an essential task in which Mr. Simpson normally engaged. He also helped with meal preparation. He would peel and cook the vegetables for their meals and Mrs. Simpson would prepare the meat. Mr. Simpson would also pick up any groceries his wife needed.

Before the accident, Mr. Simpson attended Bible school on Tuesday or Thursday evening. He and his wife would walk to class, usually leaving around 6:30 or 7:00 p.m. The classes would last one and one-half hours, and Mr. and Mrs. Simpson would walk back home around 9:30 p.m. After church service on Sunday morning, Mr. Simpson would canvass door-to-door through his neighbourhood, talking to people about his faith.

Mr. Simpson described his activities coaching a cricket team two evenings a week, "as often as possible," between April and September. He testified that he was an experienced player and that he coaches a team of mostly experienced adult players. He stressed that while he did not play himself, coaching involves demonstrating the moves, not just talking. He would take the bus to the cricket field or be picked up by one of the players. He testified that cricket coaching was also a social occasion and an opportunity for him to talk to people about his faith. I find that Mr. Simpson's cricket-coaching activity was primarily social in character, and that demonstrating the moves was not an essential part of Mr. Simpson's involvement.

Once a week, Mr. Simpson and his wife did the main grocery shopping. They would walk to the supermarket and choose things together. He would unload the cart at the cashier, bag the groceries, then pull the bundle buggy home. He estimated the walk would take about 15 minutes. He would take the bundle buggy into the house and help his wife unload the groceries. Other activities included cutting the grass about twice a week in the summertime.

On behalf of the insurer, Mr. Edwards submitted that Mr. Simpson's woodworking and cricket coaching activities were not "essential tasks" under section 13 because of their voluntary, recreational character. He submitted that Mr. Simpson's housework activities were not "essential tasks" because Mr. Simpson's role was limited to assisting Mrs. Simpson, who was primarily responsible for the housework. It is not necessary for me to decide these issues because I conclude that even if all Mr. Simpson's pre-accident activities were "essential tasks," his injuries did not render him substantially disabled from performing these tasks, after July 28, 1992.

The accident and its effect on the applicant's activities

Mr. Simpson and Mrs. Simpson testified about the accident and its effect on Mr. Simpson's activities. The following is a summary of their evidence.

On March 24, 1992, a vehicle struck Mr. Simpson on his left thigh or left knee as he walked across an intersection. He remembers putting his hands out and then finding himself on his back. He tried to get up but someone told him to stay down.

He was taken by ambulance to North York General Hospital. The hospital emergency report (Exhibit 1, Tab 1) noted that he complained of pain in the left knee and found "diffuse boney tenderness on patella and about knee." Knee x-rays were negative. Mr. Simpson was given ice and a cane, and told to elevate his knee. The emergency report also records a complaint of neck and back pain.

Mr. Simpson testified that when the insurance adjuster visited the next day, he had a puffy knee, and was sore all over. As the days went by, he had pain in his left neck and shoulder, as well as headaches. He also has left palm pain, which makes gripping difficult. He described a severe needle-like pain radiating from his wrist, up the inside of his arm.

Mr. Simpson testified that he was unable to perform any of his pre-accident activities in the first few weeks after the accident because of daily headaches, sleeplessness, and severe swelling of his knee, which prevented him from walking or using the stairs. For the first two weeks after the accident, his wife had to help him bathe, because of his neck, back, and knee pain. He is now able to look after himself, although he experiences some discomfort, and gripping (wringing a washcloth) causes him problems.

He missed Bible classes the first few weeks after the accident. After that time, he began walking to classes again. Whereas the walk had taken about 20 minutes before the accident, it took about an hour afterwards. Occasionally, his son would drive him to and from classes.

He was not active in cricket at the time of the accident, which occurred in March. Mr. Simpson testified that he has not been able to resume his cricket activities since the accident because of his knee problems.

Between July and August 1992, he started to make the beds again and to use the vacuum, which is a light upright that can be operated with one hand. However, he could not vacuum the stairs because that requires two hands.

By December 1992, he would put a few things in the laundry, but could not lift and carry a heavy laundry basket as he could before the accident.

At the time of the hearing, he was able to wash the dishes, except for the heavy pots, because he cannot grip them with his left hand while washing with the right. He does occasional errands by bicycle, about once a week. He still cannot do his woodworking, because when using the tools, it is necessary to grip the wood or the tool with the left hand while operating the tool with the right. Because of the pain in his left hand, he can no longer carry the laundry basket upstairs and only helps with the light part of the laundry. His wife now does the Saturday morning grocery shopping alone, because pulling the bundle buggy requires changing hands periodically. He can no longer pull with his left hand. He cannot cut the grass and his son now does this job. He cannot clean the bathtub because kneeling bothers his left knee and his upper back.

Medical evidence

The insurer terminated benefits on the basis of the June 15, 1992 report of Dr. Michael C. Hall, orthopaedic surgeon, who examined Mr. Simpson at the insurer's request (Exhibit 3). On physical examination, Dr. Hall stated that symmetrical (75%) restriction of the range of movement of the neck and back on rotation "suggests that this is a voluntary inhibition." It was also Dr. Hall's opinion that Mr. Simpson's grip difficulties with the left hand are voluntary. He noted "point tenderness over the medial meniscus" of the left knee, suggesting "some specific pathology." Dr. Hall said that, "Physical examination does not really show any reliable objective signs of impairment." In his opinion, Mr. Simpson is quite fit now to resume all his former activities, which Dr. Hall described as minimal.

The medical reports and clinical notes of Mr. Simpson's family doctor, Dr. Robert J. Sales, were entered into evidence, and Dr. Sales testified at the hearing.

On initial examination by Dr. Sales on March 31, 1992, Mr. Simpson complained of deep knee pain and a sore left palm. Dr. Sales noted minimal swelling in the left knee, with no breaks or subluxation, and bruises on the left palm. X-rays of the left hand and left knee were negative. In Dr. Sales opinion, the knee problem was not serious enough to justify arthroscopic surgery, and should improve with physiotherapy. Mr. Simpson had full range of movement in his hand, and was able to make a fist, but could not lift or grip as he could before the accident. Dr. Sales opined that bruising and tendonitis could cause this discomfort. In his testimony at the hearing, Dr. Sales added that Mr. Simpson also complained of diffuse pain. Dr. Sales recommended Tylenol for the headaches and referred Mr. Simpson to Premier Treatment Centre for massage, heat and acupuncture three times a week.

Mr. Simpson visited Dr. Sales on April 14, April 28, June 2 and July 15, 1992, reporting a slow improvement in his left knee pain, though he continued to have difficulty, especially going up and down stairs. Mr. Simpson testified that the bruising of the left knee went away after a few weeks. In his testimony, Dr. Sales agreed with counsel for the insurer that the left knee swelling must have subsided by April 22, 1992, since he examined the knee on that date and no swelling is noted in his clinical notes. In his testimony at the hearing, Dr. Sales speculated that Mr. Simpson may have had pre-existing arthritis in his knee which was aggravated by the accident.

Dr. Sales testified that the bruising of the left hand had subsided by June 1992. However, Mr. Simpson continued to complain of problems with the left hand. Dr. Sales' note for July 28 says he "can't lift himself up," and his note for September 18, 1992, says he "can't grip anything." Mr. Simpson reported neck pain on July 15, 1992, after riding a bicycle; Dr. Sales recommended an ice pack. In subsequent reports (October 29, 1992, Exhibit 1, Tab 4, and June 28, 1993, Exhibit 1, Tab 5), Dr. Sales reported that Mr. Simpson continued to complain of neck pain which allowed him to sit for only a limited time.

Low back pain was reported in Dr. Sales' notes on July 28, 1992. X-rays of June 9, 1993, indicated that Mr. Simpson suffered from degenerative disc disease in the cervical and lumbar spine. Dr. Sales' opinion, given in his testimony, was that the accident aggravated pre-existing asymptomatic problems.

On January 12, 1993, Dr. Sales met with Joy Stothers, an independent adjuster acting on behalf of Royal. Their discussion was confirmed in a letter dated February 25, 1993, and signed by Dr. Sales on March 3, 1993 (Exhibit 2). The letter recounts the history of treatment, and continues, "We discussed the definition of disabled within the meaning of the auto policy." Section 13 is quoted. The letter goes on as follows:

In this case, it is necessary to ascertain if Mr. Simpson suffers a substantial inability to perform the essential tasks in which he would normally engage. Substantial is defined as 50% or more. It is our understanding, as a result of our recent meeting, that you do not feel Mr. Simpson meets this criteria, as he was not employed at the time of the accident and not engaged in any physically demanding activity 50% or more of his time.

In Dr. Sales' final medical report, dated June 28, 1993 (Exhibit 1, Tab 5), he stated that he had "met with the insurer and confronted [him] with the 50% threshold question," and he declined to state an opinion as to whether Mr. Simpson was substantially unable to perform the essential tasks in which he would normally engage.

I do not accept the definition of disability put forward in Ms. Stothers' confirmation letter. Nothing in section 13 restricts entitlement under that section to those who were employed at the time of the accident. Indeed, subsection 13(2) precludes insured persons who were employed at the time of the accident from receiving section 13 benefits, unless their employment was restricted to self-employment in the home. Nor is section 13 restricted to those who were engaged in physically demanding activities at least 50% of the time. Section 13 benefits are payable for the period in which the insured person suffers "substantial inability to perform the essential tasks in which he or she would normally engage." The requirements for entitlement under section 13 were discussed by Senior Arbitrator Susan Naylor in the decision Norman Downs and Allstate Insurance Company of Canada, Commission File No. A-00064, dated July 18, 1991, as follows:

To establish entitlement to weekly benefits, evidence must be adduced that the effects of the injury, to some significant extent, prevent an applicant from carrying out the necessary and key tasks that were normally performed before the accident. It requires an individualized inquiry into the circumstances of the particular applicant, in order to identify the activities of daily living prior to the accident and compare them with the post-accident activities.

I agree with these comments. While not every activity of an insured person is an "essential task", the plain language of section 13 indicates that both subjective and objective factors determine the essential tasks in which the insured person would normally engage. Accordingly, I place no reliance on Ms. Stothers' understanding of the test for entitlement under section 13 or on Dr. Sales' opinion based on it.

A report prepared by orthopaedic surgeon Dr. D.J. Ogilvie-Harris, dated July 16, 1993, was entered into evidence (Exhibit 1, Tab 7). On review of the recent x-rays, Dr. Ogilvie-Harris found minor degenerative disc disease of the cervical and lumbar spines, and no abnormalities in the left knee or left hand. Though the cervical and lumbar areas were tender, there was no spasm, and range of movement was full. There were no objective findings for the hand and knee. No neurological abnormalities were noted. Dr. Ogilvie-Harris accepted that Mr. Simpson remains disabled from most of his usual activities as a result of substantial soft tissue injuries sustained in the accident. Recovery of the back injuries would be prolonged because the accident aggravated a pre-existing condition.

Conclusion

I accept that Mr. Simpson has difficulties with his neck, lower back, left knee, and left hand resulting from the accident. The injuries claimed are consistent with the history of the accident. Though Mr. Simpson had pre-existing osteoarthritic changes in his neck and back and possibly in his knees, I heard no evidence that he suffered any disabling symptoms before the accident. I heard no evidence that Mr. Simpson had any problem with his left hand before the accident. I find that the accident contributed significantly to his neck, back, left-knee and left-hand problems.

However, I am not persuaded that these problems rendered him substantially unable to perform the essential tasks in which he would normally engage, after July 28, 1992.

While Mr. Simpson's difficulties, particularly his problems with his left hand, interfere with his activities, I am not satisfied that he is substantially unable to engage in these activities. He is unable to lift or carry heavy loads of laundry, but he is able to lift and carry light loads, put laundry into the washer and dryer, and fold it afterwards. He cannot grip heavy pots with his left hand, but he can wash and dry the other dishes. Mr. Simpson testified that he cannot pull a loaded bundle buggy with his left hand, but he admitted that he can pull it with his right hand, if he takes frequent rests. He can vacuum the house, except for the stairs, where a two-handed grip is required. For the same reason he cannot cut the grass. He cannot clean the bathtub because it involves kneeling. However, he can clean the basin and do other general cleaning around the house. He is able to prepare meals as he did before the accident. He is able to look after his self-care.

He attends his religious functions, though he walks more slowly, and his son occasionally drives him if the weather is bad. Though he has not resumed his cricket coaching, he is able to attend games and engage in the social aspect of this activity, despite the accident.

I accept Mr. Simpson's evidence that he continues to have difficulty doing his woodworking because gripping or pressing with the left hand causes him pain. In determining whether an insured person is substantially unable to perform the essential tasks in which he would normally engage, it is appropriate to compare his pre-accident activities and post-accident activities as a whole. In the arbitration decision Chor Ting Lui and Wellington Insurance Company, Commission File No. A-001894, dated April 28, 1993, Arbitrator Janice Mackintosh held that section 13 should be given an interpretation consistent with section 12, in order to ensure that people with similar injuries are treated similarly whether they were employed or not employed at the time of the accident. I agree with this approach. The words, "substantial inability to perform essential tasks", should be given consistent interpretation wherever they appear, in accordance with the normal rules of statutory interpretation. This approach also seems fair from a policy point of view. Whereas the employer generally determines the essential tasks of an employee, and how they will be accomplished, a person who is not working has much more flexibility in deciding what his tasks are and how he will accomplish them. This is especially the case with the division of household chores within a family. In my view, it is appropriate to recognize this flexibility by considering whether the insured person's pre-accident essential tasks could be accomplished with reasonable and practical modifications. I find that, with reasonable and practical modifications, Mr. Simpson is substantially able to perform his pre-accident activities, with the exception of the woodworking.

As has been stated in a number of arbitration decisions, a substantial inability is a "significant" or "sizable" inability. The Schedule does not compensate accident victims for pain and suffering, or the loss of enjoyment of life. I accept that Mr. Simpson could not engage in his woodworking activities for some time after benefits were terminated. However, considering the voluntary, recreational character of this activity, and given my finding that he was no longer substantially unable to perform his other activities, and particularly his housework tasks after July 28, 1992, I find that he was not substantially unable to perform the essential tasks in which he would normally engage, considered as a whole, after July 28, 1992.

Special Award

Mr. Simpson claims a special award on the basis of Ms. Stothers' description of the test for substantial disability set out in her February 25, 1993 confirmation letter to Dr. Sales.

A special award is payable under subsection 282(10) of the Act, which provides as follows:

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 [now the Statutory Accident Benefits Schedule - Accidents before January 1, 1994], 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.

Given my finding that Mr. Simpson is not entitled to further benefits, no special award is payable.

Expenses

Mr. Simpson claims his expenses in the arbitration. An award for expenses may be made under section 282(11) of the Insurance Act, which provides as follows:

The arbitrator may award to the insured person such expenses incurred in respect of an arbitration proceeding as may be prescribed in the regulations to the maximum set out in the regulations.

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.

Although Mr. Simpson was not successful in his claim, I find this an appropriate case in which to exercise my discretion to award the applicant his expenses. I remain seized of the issue of expenses. If the parties are unable to agree on the amount payable, either party may bring the matter before me for an assessment.

Order

Mr. Simpson is not entitled to weekly benefits after July 28, 1992.
Mr. Simpson is not entitled to a special award.

Mr. Simpson is entitled to his expenses incurred in the arbitration. I remain seized of any dispute about the amount of expenses payable.

April 6, 1994

Nancy Makepeace Arbitrator

Date

APPENDIX 1 - EXHIBITS

Exhibit 1

Applicant's Document Brief

Tab 1

Report of North York General Hospital, dated March 24, 1992

Tab 2

Form 4 report of Dr. Robert J. Sales, dated March 31, 1992

Tab 3

Report of Dr. Sales, dated October 4, 1992

Tab 4

Report of Dr. Sales, dated October 29, 1992

Tab 5

Report of Dr. Sales, dated June 28, 1993

Tab 6

Clinical notes of Dr. Sales

Tab 7

Report of Dr. D.J. Ogilvie-Harris, dated July 16, 1993, and C.V.

Tab 8

Medical and progress report of Don Fitz-Ritson, dated April 16, 1992

Tab 9

Report of initial consultation, Kyle Baumanis and Norm Forman, dated April 21, 1992

Tab 10

Progress report of Don Fitz-Ritson, dated May 22, 1992

Tab 11

Progress report of Don Fitz-Ritson, dated June 30, 1992

Tab 12

Progress report of Don Fitz-Ritson, dated August 27, 1992

Exhibit 2

Letter of Joy Stothers to Dr. Sales, dated February 25, 1993, signed by Dr. Sales, March 3, 1993

Exhibit 3

Report of Dr. Michael C. Hall, dated June 15, 1992, and C.V.

Footnotes

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

Eric Simpson v. Royal Insurance Company of Canada, 1994 ONICDRG 30

Case Summary