Neutral Citation: 1994 ONICDRG 40
File No. A-005547
ONTARIO INSURANCE COMMISSION
BETWEEN:
RUTH ANN RYAN
Applicant
and
PILOT INSURANCE COMPANY
Insurer
DECISION
Issues:
The Applicant, Ruth Ann Ryan, was injured in a motor vehicle accident on January 8, 1992. She applied for and received statutory accident benefits from the Insurer, Pilot Insurance Company, payable under Ontario Regulation 672.1 She claims weekly income benefits for the period February 13 - March 17, 1993, and housekeeping expenses from September 15, 1993. The Insurer disputes her entitlement to these benefits. 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.
The issues in this hearing are:
Is Mrs. Ryan entitled to weekly income benefits between February 13 and March 17, 1993?
Is Mrs. Ryan entitled to housekeeping expenses of $40 per week from September 15, 1993?
Mrs. Ryan also seeks interest on any overdue benefits and her expenses in the arbitration.
Result:
Mrs. Ryan is not entitled to weekly income benefits between February 13 and March 17, 1993.
Mrs. Ryan is not entitled to housekeeping expenses after September 15, 1993.
Mrs. Ryan is entitled to her expenses in the arbitration.
Hearing:
The hearing was held in Chatham, Ontario, on April 27, 1994, before me, Nancy Makepeace, arbitrator.
Present at the hearing:
Applicant: Ruth Ann Ryan
Applicant's Representative: William Ryan (Applicant's husband)
Insurer's Representative: Grant Black, Barrister and Solicitor
Witnesses were Mrs. Ryan and Dr. David Evans.
Exhibits and other documents on the record are set out in an appendix to this decision.
Background facts:
As a result of a motor vehicle accident on January 8, 1992, Mrs. Ryan suffered a soft tissue "whiplash" injury to her neck and shoulder. She was unable to return to her pre-accident occupation as a real estate agent until May 6, 1992. Pilot paid weekly income benefits between January 15, 1992 and May 6, 1992. During this period, Mrs. Ryan saw her family doctor, Dr. David Evans, and had physiotherapy treatment at Woodall Physiotherapy Clinic, where she was referred by Dr. Evans. After returning to work, Mrs. Ryan continued to have difficulty performing certain heavy housekeeping tasks, including vacuuming, scrubbing floors, and gardening. She hired others to do this work for her. Pilot paid housekeeping expenses of $40 per week between January 15, 1992 and September 15, 1993. Mrs. Ryan contends that as a result of the accident, she still needs help to do her heavy housework.
On February 17, 1993, Mrs. Ryan had surgery to correct an umbilical hernia. After her surgery, she was unable to return to work until March 17, 1993. She contends that the hernia was caused or aggravated by the physiotherapy she was undergoing for her whiplash injury and, accordingly, that she is entitled to receive weekly income benefits for this four-week period.
Weekly income benefits:
Weekly income benefits are payable under subsection 12(1) of the Schedule, which provides as follows:
12.(1) The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident a weekly income benefit during the period in which the insured person suffers substantial inability to perform the essential tasks of his or her occupation or employment if the insured person meets the qualifications set out in subsection (2) or (3).
In section 2 of the Schedule, "accident" is defined as follows:
"accident" means an incident in which the use or operation of an automobile causes, directly or indirectly, physical, psychological or mental injury or causes damage to any prosthesis, denture, prescription eyewear, hearing aid or other medical device; [emphasis added]
Accordingly, in order to determine whether Mrs. Ryan is entitled to weekly income benefits for four weeks following her February 17, 1993 surgery, I must determine whether her umbilical hernia resulted "directly or indirectly" from her motor vehicle accident.
Mrs. Ryan testified that she felt something "pop" in the umbilical area while doing pulling exercises at physiotherapy. She began to experience pain, and the lump on her abdomen became larger. Though she finished physiotherapy in May 1992, she first saw Dr. Evans about the problem in January 1993. Mrs. Ryan explained that she had tried to ignore the problem, hoping it would go away.
Mrs. Ryan relies on the March 5, 1993 letter of Dr. Evans (Exhibit 7), which states, "Mrs. Ryan had surgery for an umbilical hernia, caused by physiotherapy for a neck sprain due to a whiplash injury." In his oral testimony, Dr. Evans stated that he had no information to support the opinion set out in the letter, and he could find no basis for it in his notes. He said the letter had probably been drafted by his secretary at Mrs. Ryan's request, and signed by him without looking at it closely. He stated that his secretary often drafts such letters for his signature at the request of his patients. Dr. Evans' clinical notes and records (Exhibit 3) make no reference to the cause of the hernia. The pre-operative history sheet prepared by Dr. Mather (who acted as locum for Dr. Evans) (Exhibit 8) states that Mrs. Ryan has "a strong family history" of umbilical hernia. Mrs. Ryan testified about the incidence of umbilical hernia in her extended family, and expressed the view that it did not establish a strong family history.
I heard no expert evidence which would allow me to assess the role Mrs. Ryan's family history may have played in the development of her hernia. I accept that Mrs. Ryan believes that her hernia was caused or aggravated by her physiotherapy. However, the only expert evidence in support of her claim is the March 5, 1993 letter of Dr. Evans, which he disavowed in his testimony at the hearing. I find plausible Dr. Evans' explanation that the letter was probably prepared for him and signed without careful review. The applicant bears the onus of proving, on a balance of probabilities, that she is entitled to the benefits claimed. In the absence of expert opinion connecting the umbilical hernia with the physiotherapy, I am not satisfied that the accident directly or indirectly caused the hernia.
Housekeeping expenses:
Mrs. Ryan claims ongoing housekeeping expenses of $40 per week. Pilot paid these expenses between January 15, 1992 and September 15, 1993. These benefits may be payable under paragraph 6(1)(f) of the Schedule, which provides as follows:
6.(1) The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident all reasonable expenses resulting from the accident within the benefit period set out in subsection (3) for,
(f) other goods and services, whether medical or non-medical in nature, which the insured person requires because of the accident.
In order to determine whether Mrs. Ryan is entitled to housekeeping expenses after September 15, 1993, I must determine whether the expenses claimed are reasonable expenses required because of the accident.
Mrs. Ryan saw her family doctor, Dr. Evans, on January 9, 1992, the day after the accident. In his standard form (Form 4) report of January 24, 1992 (Exhibit 1), Dr. Evans noted that Mrs. Ryan reported pain and stiffness of the left neck and shoulder. He found that her neck and shoulder muscles were tender, and noted that range of motion in the cervical spine was limited. X-rays of the cervical spine and left shoulder were negative. Dr. Evans diagnosed a soft tissue whiplash injury and post-traumatic rotator cuff tendinitis in the left shoulder. He prescribed analgesic and anti-inflammatory medication. Mrs. Ryan received chiropractic treatment, but when there were no results, Dr. Evans referred her to Woodall Physiotherapy Clinic, where she was treated with TENS, traction and a strengthening exercise program.
In Dr. Evans' Form 4 report of April 2, 1992 (Exhibit 2), he reports that Mrs. Ryan is "unable to do heavy housework. Prolonged sitting standing or other activity aggravates." She continued to have tender neck and shoulder muscles, and pain at the extremes of movement. Mrs. Ryan's difficulties with heavy housework, including vacuuming and yard-work, are also reported in Dr. Evans' notes for May 7 and June 16, 1992. Dr. Evans stated in his letter of June 16, 1992 (Exhibit 4), that Mrs. Ryan "is still unable to cope with heavy housework."
Mrs. Ryan completed her physiotherapy in May 1992. The final progress report of Woodall Physiotherapy Clinic (Exhibit 10) states that Mrs. Ryan has been pain free for the past 3 weeks. All active and passive movements are full and pain free. Palpation revealed a mild pain over C6. She has been progressing through a strengthening exercise program over the past 6 weeks and has done very well with this.
After Dr. Evans saw Mrs. Ryan on June 16, 1992, he did not see her again until January 19, 1993, when she again reported pain and stiffness after doing heavy work. It was on this visit that Mrs. Ryan first complained about the umbilical hernia. The subsequent visits of January 27, February 16, 1993, and March 4, 1993 concerned the hernia and other matters unrelated to whiplash. After January 19, 1993, Mrs. Ryan next reported difficulties doing housework on August 23, 1993. Dr. Evans' note for this visit states "range of motion OK, pain on extremes, no neurological signs". Dr. Evans has not seen Mrs. Ryan since August 23, 1993. His Form 4 report of September 6, 1993 (Exhibit 5), and his letter of December 16, 1993 (Exhibit 6), both of which support Mrs. Ryan's need for housekeeping assistance, were based on the August 23, 1993 visit.
In her testimony at the hearing, Mrs. Ryan described her ongoing difficulties with heavy housework. She stated that when she went back to work in May 1992, she increased her level of housework activity, but found that vacuuming, scrubbing floors, moving furniture, or gardening would disable her from work for two or three days. Until February 1994, her sister, Marsha Tewkesbury, did the heavy housework for her. Since February, others have been hired to replace Ms. Tewkesbury. Receipts totalling $553.50 for work done since September 15, 1993, were entered into evidence (Exhibit 11).
Mrs Ryan returned to her work as a real estate agent in May 1992. She testified that her job duties include prolonged standing and sitting, walking, driving, and putting up signs. Her hours are variable. She testified that she has not worked the same hours since the accident as she had before, and that her husband helps her to put the signs in her trunk. However, she does not claim that she is substantially unable to perform her essential tasks as a real estate agent. Moreover, she has not sought medical attention for her symptoms since the fall of 1993.
I found Mrs. Ryan to be forthright and candid in her testimony. Her subjective reports of pain were accepted by Dr. Evans, who testified that he could find no reason to doubt the genuineness of her complaints. I accept that Mrs. Ryan continues to have residual problems resulting from the accident, and that certain housekeeping tasks aggravate her pain and stiffness. The Applicant bears the onus of proving that she is entitled to the benefits claimed. I am not persuaded that she requires housework assistance as a result of the accident.
Ongoing benefits:
There was reference in the Applicant's submissions to possible future claims for ongoing statutory benefits. It would be premature for me to determine what, if any, benefit entitlement Mrs. Ryan may have in future, and I have no jurisdiction to do so.
Expenses:
Mrs. Ryan claims her 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.
I find this an appropriate case in which to exercise my discretion to award Mrs. Ryan her 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:
Mrs. Ryan is not entitled to weekly income benefits between February 13 and March 17, 1993.
Mrs. Ryan is not entitled to housekeeping expenses after September 15, 1993.
Mrs. Ryan is entitled to her expenses in the arbitration.
May 4, 1994
Nancy Makepeace Arbitrator
Date
APPENDIX - THE RECORD
Exhibits:
Exhibit 1 Standard form (Form 4) report of Dr. Evans, dated January 24, 1992
Exhibit 2 Standard form (Form 4) report of Dr. Evans, dated April 2, 1992
Exhibit 3 Clinical notes and records of Dr. Evans
Exhibit 4 Letter from Dr. Evans, dated June 16, 1992
Exhibit 5 Standard form (Form 4) report of Dr. Evans, dated September 6, 1993
Exhibit 6 Letter from Dr. Evans, dated December 16, 1993
Exhibit 7 Letter from Dr. Evans, dated March 5, 1993
Exhibit 8 Hospital records of Public General Hospital, Chatham
Exhibit 9 Clinical notes and records of Dr. H.C. White
Exhibit 10 Clinical notes and records of Woodall Physiotherapy Clinic
Exhibit 11 Housekeeping expense receipts
Further documents on the record:
Report of Mediator, dated August 31, 1993
Application for Appointment of an Arbitrator, dated October 31, 1993
Response by Insurer, dated November 18, 1993
Reply by Insured Person, dated December 2, 1993
Pre-hearing letter, dated December 17, 1993