Neutral Citation: 1994 ONICDRG 7
File No. A-003688
ONTARIO INSURANCE COMMISSION
BETWEEN:
DEBRA H. MACPHERSON
Applicant
and
PILOT INSURANCE COMPANY
Insurer
DECISION
Issues
The applicant, Debra H. MacPherson, was injured in a motor vehicle accident on June 30, 1990. She applied for statutory accident benefits from the insurer, Pilot Insurance Company, payable under Ontario Regulation 6721.
Ms. MacPherson entered the University of Western Ontario in September of 1990. She is currently a part-time student living in residence. She contends that she had planned to commute to classes from her home in Ingersoll and that as a result of injuries she sustained in the accident it is necessary for her live in residence while attending university. She claims reimbursement of her residence fees. Pilot paid Ms. MacPherson's residence fees for 1990-91 and 1991-92, and does not dispute her entitlement for those years. Pilot contends that Ms. MacPherson's disability has not prevented her from living at home and commuting to classes since that time. Alternatively, Pilot contends that it is entitled to deduct from any residence fees payable the cost of commuting and meal expenses that Ms. MacPherson would have incurred as a non-resident student.
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 Ms. MacPherson entitled to reimbursement of her residence fees after the 1991-92 school year?
Is Pilot entitled to deduct the cost of commuting and meal expenses Ms. MacPherson would have incurred as a non-resident student?
Ms. MacPherson also seeks interest on overdue benefits and her expenses in the arbitration.
Result
Ms. MacPherson is entitled to reimbursement of her residence fees of $4,835 for 1992-93 and $5,168 for 1993-94.
Pilot is not entitled to make any deductions from the amount of residence fees payable.
Interest is payable on the amount owing under subsection 24 of the Statutory Accident Benefits Schedule. Ms. MacPherson is entitled to her expenses in the proceeding.
Hearing
The hearing was held in London, Ontario, on October 4 and November 18, 1993, before me, Nancy Makepeace, arbitrator.
Present at the hearing were:
Applicant:
Debra MacPherson
Applicant's
Representative:
Barbara Legate
Barrister and Solicitor
Applicant's
mother:
Dianne MacPherson
Insurer's
Representative:
Rudolph Lobl
Barrister and Solicitor
Robert Besunder
Barrister and Solicitor
(first day of hearing only)
Witnesses were:
the applicant, Debra MacPherson;
the applicant's mother, Dianne MacPherson; and
Dr. Robert W. Teasell, a physiatrist.
Exhibits introduced at the hearing and other documents on the record are listed in Appendix 1 to this decision.
Preliminary issue
At the outset of the hearing, the parties adduced a number of medical reports as exhibits to be entered into evidence. Among the reports adduced by the insurer were several reports of medical examinations carried out at the insurer's request by Dr. John C. Clifford, physiatrist. Dr. Clifford's reports dated July 31, 1992, September 3, 1992, and June 17, 1993 were entered into evidence without objection (Exhibit 3, Tabs 12, 15 and 19).
However, the applicant's counsel objected to the introduction of a fourth report by Dr. Clifford, dated July 9, 1993. Ms. Legate introduced into evidence a letter, dated May 28, 1993, in which Mr. Keven Reimer, Regional Benefits Officer with Pilot, advised her that a medical examination had been arranged with Dr. Clifford. The letter contains the following paragraph:
Please be advised that disability benefits will not be paid beyond the 25th of June, 1993 as that is the 156 week limitation. Once we have received Dr. Clifford's report we will be reviewing his report and the other reports we have on file and determine whether or not your client qualifies for further disability benefits beyond the 156 week period.
The Report of Mediator in this matter is dated May 6, 1993, and the Application for Appointment of an Arbitrator May 13, 1993. The issue of Ms. MacPherson's entitlement to weekly benefits was not before me.
I ruled orally that Dr. Clifford's July 9, 1993 medical report would be excluded from the evidence before me. My reasons follow.
Subsection 23(2) allows an insurer to require an insured person to attend a medical examination "in respect of claims under Part IV". In my view, subsection 23(2) requires not only that the insured person has made a claim for weekly benefits; it also requires that the examination requested be in respect of a claim for weekly benefits. In this case, Mr. Lobl did not dispute that Ms. MacPherson's consent to the examination was obtained with the insurer's express statement that the purpose of the examination was to determine Ms. MacPherson's entitlement to weekly benefits after 156 weeks. Though Ms. MacPherson had already applied for appointment of an arbitrator with respect to her entitlement to residence fee expenses, Mr. Reimer did not refer to that issue in his letter concerning the proposed medical examination. In my view, Ms. MacPherson was entitled to assume that the purpose of the examination was as stated by Mr. Reimer. I find that she agreed to an examination with respect to her claim for weekly benefits, and did not agree to an examination in respect of her claim for residence fees.
If the July 9, 1993 report is excluded, the prejudice to the insurer is minimal, as three earlier reports by Dr. Clifford, the most recent being the June 17, 1993 reassessment report, were entered into evidence without objection. The insurer could have called Dr. Clifford as a witness, but chose not to. On the other hand, to admit the July 9, 1993 report into evidence would result in substantial prejudice to the applicant by allowing the insurer to do indirectly what the Schedule prevents it from doing directly - requiring an insured person to attend a medical examination with respect to a claim for rehabilitation expenses. In these circumstances, I find it appropriate to exercise my discretion to control proceedings by excluding the July 9, 1993 report of Dr. Clifford.
Background facts
Debra MacPherson is 22 years old. At the time of the motor vehicle accident, she lived with her parents in Ingersoll, Ontario. She had just completed Grade 13, and planned to begin full-time university studies in September, 1990 at the University of Western Ontario in London. She contends that her plan was to live at home and commute to class, using her mother's car. The incontroverted evidence of the applicant's mother was that the round-trip distance between Ingersoll and the UWO campus in London is about 74 kilometres. Mrs. MacPherson testified that the trip takes about 45 minutes each way, depending on traffic and the weather.
On June 30, 1990, Ms. MacPherson was the passenger in a pick-up truck that struck a vehicle that was going through a stop sign without stopping. The truck then ran into a parked vehicle. Ms. MacPherson suffered a "whiplash"-type injury. She contends that as a result of the accident she suffers ongoing neck, shoulder and upper and lower back pain, as well as headaches and occasional numbness in her arms.
Ms. MacPherson began her first year of university in the fall of 1990, as planned, with a full course load of five courses. However, after the first few weeks of school, she reduced her course load to three as a result of the injuries sustained in the accident.
Ms. MacPherson contends that because of her injuries she was unable to live at home while attending classes, as planned, but had to take a room in residence. She claims that she must live in residence because as a result of her injuries she is unable to drive between Ingersoll and London on a daily basis. In addition, she claims that because of her pain and headaches, she needs a place near her classes to rest periodically throughout the day.
Ms. MacPherson is currently in her third year of studies, and she has lived in residence during the school year for all three years. In her first three years, she completed three courses each year, and she is enrolled in three courses this year. She is currently in her fourth year as a part-time student in residence, taking one second-year course and two third-year courses. She plans to continue her studies as a part-time student in residence. Based on her current course-load, she will need another two or three years to complete her degree. On completion of her degree, she plans to become a teacher.
The insurer reimbursed Ms. MacPherson for the cost of her residence fees for her first two years in residence - 1990/91 and 1991/92 - but contends that by the beginning of the 1992/93 year, it was no longer necessary for Ms. MacPherson to live in residence. Alternatively, the insurer contends that the commuting and meal expenses Ms. MacPherson would have incurred, if she had commuted between Ingersoll and London as originally planned, should be deducted from any residence fees found payable.
The test for entitlement
Entitlement to medical and rehabilitation benefits is set out in subsection 6(1) of the Statutory Accident Benefits Schedule. Where an insured person suffers "physical, psychological or mental injury as a result of an accident", the insurer will pay "all reasonable expenses resulting from the accident" within the first ten years after the accident.
Residence fees are not specifically mentioned in the list of covered expenses, but paragraph 6(1) (f) provides for reimbursement of "other goods and services, whether medical or non-medical in nature, which the insured person requires because of the accident". Some related types of expenses are referred to in subsection 6(1): paragraph 6(1)(c) provides for "rehabilitation, life-skills training and occupational counselling and training", and paragraph 6(1)(e) provides for "home renovations to accommodate the needs of the insured person". As has been stated in a number of arbitration decisions, the legislative purpose underlying section 6 was to assist the insured person to return to as much of his or her pre-accident level of function as is reasonably possible. It is to be given a broad and liberal interpretation in keeping with the remedial character of the statutory accident benefits scheme.
The insurer did not dispute that it is reasonable for Ms. MacPherson to continue her university education. Ms. MacPherson has successfully completed her second year of studies, and I heard no evidence that would suggest she will not complete her degree as planned. In the circumstances, it is reasonable to expect that Ms. MacPherson will eventually be able to support herself in her teaching career.
I find that university residence accommodation provides a package of non-medical goods and services which may come within paragraph 6(1) (f) of the Schedule. In order to establish entitlement to payment of her residence fees, the applicant must show: (i) that as a result of the accident, she must live in residence in order to continue with her studies, and (ii) that her residence fee expenses are reasonable.
The applicant's pre-accident plans
Debra MacPherson and her mother, Dianne MacPherson, testified that before the accident they planned for Debra to live at home in Ingersoll, and to commute to her classes at the university. She would drive her mother's car. As the family has two cars, and Debra's mother and father work in adjacent buildings in Ingersoll, there would be no need to buy another car. Debra and her mother testified that the decision that Debra should move into residence was made on the recommendation of Dr. Rechner and Dr. Teasell.
At the time of the accident, Debra did not have a driver's licence but only a learner's permit. She had tried to get her driver's licence in June, 1990, before the accident, but had failed the test. She finally got her licence in May, 1993. Debra's name was added to the insurance policy on Mrs. MacPherson's car in the summer of 1990, was later removed from the policy, and was added to the policy again in May, 1993. Debra and her mother admitted that Debra was inexperienced with city driving.
On behalf of Pilot, Mr. Lobl suggested that Ms. MacPherson's difficulties in obtaining a licence and her inexperience in driving throw doubt on her claim that she planned to commute to school in the fall of 1990.
I accept that Ms. MacPherson's plan before the accident was to commute to classes. The reports of Dr. Teasell, and the early reports of Dr. Rechner (August 3, 1990 - Exhibit 3, Tab 1, and August 31, 1990 - Exhibit 3, Tab 3, p. 2) and Dr. Goldenberg (August 30, 1990 - Exhibit 3, Tab 2, p. 3) suggest that the residence accommodation arrangements were made in August 1990. Dr. Teasell confirmed in his oral testimony that he had advised Ms. MacPherson to move into residence and to remain in residence. I also accept Mrs. MacPherson's evidence that she would have driven Debra to and from classes if Debra had failed to get her licence by September. Given the distance between London and Ingersoll and the cost of residence accommodation, I find it plausible that Ms. MacPherson would have planned to live at home while attending university.
Post-accident activities and condition
Ms. MacPherson testified about the injuries she suffered in the accident. Immediately after the accident, she felt pain in her neck, back, shoulders and left arm. She was seen in Alexandra Hospital in Ingersoll that evening. As the accident occurred on a long weekend, she saw her family doctor, Dr. Shelley J. Rechner, on the following Tuesday. At that time, she had pain on both sides of her neck, across her shoulders and down her back, as well as headaches.
Ms. MacPherson described her current condition as having changed little since the accident. She testified that she has constant neck, shoulder and back pain, and constant headaches. She has trouble sleeping because of pain and headaches. For a time after the accident, she was having nightmares before driving, but this doesn't happen so much any more. She has also occasionally lost feeling in an arm or a leg. She can only sit for about 20 minutes because of her back pain. Her headaches make it difficult to concentrate. They are sometimes associated with dizziness and nausea.
Ms. MacPherson attends classes Monday through Thursday each week. She described a typical day of classes. After getting up, getting dressed, and having breakfast, she has a rest before going to her morning class. It starts at 10 and lasts one or two hours. Sitting in class aggravates her pain and headache. After class, she rests again for about an hour. She then has lunch, and after lunch she works on her notes for about a half an hour. Her afternoon class lasts one and one-half hours. She rests again afterwards for about a half an hour. After dinner, she works on assignments. She reads and writes in bed, rather than at her desk or in the library, because she cannot sit for more than about 20 minutes. She can read for about half an hour, then rests for about half an hour. She takes two Tylenol 2's or 3's every three or four hours throughout the day, and uses either a heating pad or ice while taking her periodic rests throughout the day.
On Fridays, Ms. MacPherson has no classes, and uses the day to work on assignments. She spends most of the day in her room, reading and writing, taking intermittent breaks through the day.
She goes home to Ingersoll every weekend or every other weekend, depending on her study schedule. Her mother picks her up on Thursday evening or Friday, and drives her back to London on Sunday evening.
Ms. MacPherson and her mother testified about Debra's social and recreational activities before and after the accident. Ms. MacPherson testified that she had bought a horse, "Tika", about a year before the accident. The horse is boarded at a nearby farm. Before the accident, she was involved in competitive jumping, and was very active in grooming, exercising and showing her horse. Debra's mother testified that Debra has been involved with horses since childhood. Since the accident, Ms. MacPherson has not been able to ride her horse because of back pain and the risk of further injury. She is not able to groom the horse any more because of her shoulder pain; her mother has taken over most of this work. However, she continues to visit her horse every weekend. Ms. MacPherson's distress in testifying about her decreased activity with her horse was evident.
At the time of the accident, the applicant had just finished high school. She had worked at a pet store during the school year and during the summer, but had left that job when the business was sold, and had taken a part-time painting job. She was unable to continue with the painting job as a result of the accident.
Ms. MacPherson testified that at the time of the hearing she did volunteer work a couple of times a week as a visitor in a nursing home. Last year, she spent one hour a week teaching a child to read.
Ms. MacPherson and her mother testified that Debra's social life is now restricted because of her physical and psychological disabilities resulting from the accident.
Ms. MacPherson testified that since the accident she has been unable to drive for longer than about 10 minutes. Sitting in one position causes her pain, as does turning her neck in order to turn the car, park, check her blindspots, or reverse. On weekends when she is home, she takes a five-minute drive to visit her horse every day. Whenever she takes a longer trip (to Woodstock, for shopping, or to London, for doctor's appointments), she has headaches and a "very sore" back. She is able to stay only a short time, and has a rest and sometimes a hot bath when she gets home.
Ms. MacPherson testified that she could not drive to London on a daily basis, and then go to class. On arrival in London, she would be very sore and unable to concentrate. The headaches are her greatest concern. She testified that she certainly could not commute without having a place to rest on campus between driving and attending class. She also needs a place to rest throughout the day.
Medical evidence
The parties introduced into evidence a number of reports prepared by Ms. MacPherson's treating doctors and by doctors who examined her at the insurer's request.
Ms. MacPherson first saw Dr. Shelley J. Rechner, her family doctor, on July 3, 1990. Dr. Rechner noted "a markedly reduced range of motion of her neck, tenderness and spasm in her neck, shoulder and left upper arm (triceps) muscles." On examination on July 17, 1990, these problems continued, and Ms. MacPherson complained of headaches, anxiety, nightmares and poor sleep, as well as left arm, shoulder and neck pain. Dr. Rechner found reduced range of motion in the neck and left arm, and tenderness in the paraspinal muscles of the upper back. Dr. Rechner noted that "by July 31, 1990, the spasm of muscles and limited range of motion had spread to her lumbar area". The lumbar, neck and shoulder pain was worse on August 27, 1990, and Ms. MacPherson complained of loss of appetite, poor sleep and very severe headaches. In reports dated August 3, 1990, August 31, 1990 and August 31, 1992, Dr. Rechner stated that Ms. MacPherson was unable to commute between Ingersoll and London on a daily basis because sitting would worsen her neck and back spasm, and would "seriously impair her rehabilitation".
Dr. Rechner referred Ms. MacPherson to Dr. Robert W. Teasell, a physiatrist. Dr. Teasell saw Ms. MacPherson on October 10, 1990, November 20, 1990, December 11, 1991, September 9, 1992, and June 23, 1993. His written reports were introduced into evidence, and he gave oral testimony at the hearing.
Dr. Teasell testified that Ms. MacPherson suffered a "classic" whiplash injury, and that her complaints are typical for whiplash patients. On initial examination in October, 1990, she complained of constant posterolateral neck pain and pain from the shoulder blade into her lower back, as well as headaches, difficulty sleeping, and a dread of driving. Physical examination showed tenderness and reduced range of motion in the neck, shoulder, and cervical and lumbar spine. There was no evidence of bony injury or neurological involvement (though "a questionable impingement sign on the left shoulder" was noted). His reports indicate that there has been very little change in her condition since the accident.
It is Dr. Teasell's opinion that Ms. MacPherson remains unable, since the accident, to commute between her home in Ingersoll and the university in London on a daily basis. He testified that driving bothers whiplash patients because it requires sitting in one position and moving the neck in a way that involves the affected muscles. In addition, these muscles will become more tense if the person is stressed by driving, and damp or cold weather aggravates the discomfort. In the case of Ms. MacPherson, Dr. Teasell felt that the stress factor was especially important because of her post-traumatic stress syndrome.
Dr. Teasell testified that whiplash patients who develop chronic pain have a limited reservoir of energy. If they take on too much, they may "decompensate" by becoming inactive. It was for this reason that Dr. Teasell advised Ms. MacPherson to reduce her course load to three courses. In his opinion, she is still unable to carry a full course load. It was Dr. Teasell's opinion that Ms. MacPherson is "doing relatively well", considering her injuries, and that she is currently functioning at her maximum. In his opinion, adding a daily commute to Ms. MacPherson's daily activities would likely exacerbate her pain, headaches and difficulties concentrating, and could mean she might be unable to complete her degree.
Ms. MacPherson was also seen by Dr. John H. Kreeft, a headache specialist. In his report of August 12, 1993, he stated that her headaches were post-traumatic headaches "caused by soft tissue injuries to the neck suffered in the car accident of June 1990."
Ms. MacPherson has been treated with analgesics, anti-inflammatories, muscle relaxants, and medication for her headaches and sleep problems. She has also received physiotherapy and occupational therapy, and undertook an exercise and swimming program.
Ms. MacPherson saw Dr. Sol Goldenberg, a trauma consultant, at the request of the insurer on August 30, 1990, February 13, 1991 and July 3, 1991; a further report is dated September 10, 1991. Dr. Goldenberg opined that Ms. MacPherson remained unable to commute between Ingersoll and London on a daily basis and recommended that she live in residence.
Dr. John C. Clifford, a physiatrist, examined Ms. MacPherson at the request of the insurer on July 31, 1992 and June 17, 1993. His reports dated July 31, 1992, September 3, 1992 and June 17, 1993 were introduced into evidence and relied upon by the insurer.
Dr. Clifford agreed with Ms. MacPherson's treating doctors that she had suffered a soft tissue "whiplash" type injury with no bony injury or neurological involvement. He also diagnosed chronic pain syndrome. He agreed with Dr. Teasell that there was no evidence that Ms. MacPherson was malingering or exaggerating her symptoms. The functional restoration approach, which emphasizes restoration of function rather than pain control, was accepted by both Dr. Clifford and Dr. Teasell. They also agreed that Ms. MacPherson would likely have permanent problems because of the accident.
However, while it was Dr. Teasell's opinion that Ms. MacPherson will be unable to return to full-time studies, Dr. Clifford opined that "with appropriate education and psychological support, it is reasonable to expect that this patient will improve to the extent that she can return to regular studies on a full time basis." Though Dr. Clifford identified some psychological factors in Ms. MacPherson's ongoing disability, he did not dispute that her complaints are genuine and that they are related to the accident.
Dr. Clifford offered no opinion as to whether Ms. MacPherson would be able to drive between home and school on a daily basis, but in his September 3, 1992 report, he recommended that Ms. MacPherson avoid "prolonged positioning of the head and neck".
At the insurer's request, Ms. MacPherson was examined by Dr. A.I. Margulies, a psychiatrist, on September 4, 1991. In his reports of September 11, 1991 and October 2, 1991, Dr. Margulies said that Ms. MacPherson suffers from post-traumatic stress disorder resulting directly from the motor vehicle accident, and characterized by nightmares, flashbacks, and driving phobia, as well as anxiety and hypervigilance in connection with car trips. He stated that the symptoms have remitted with time, and could be expected to diminish further. It was his opinion that Ms. MacPherson would be unable to commute on a daily basis between London and Ingersoll because of the post-traumatic stress disorder. He recommended therapy and predicted that the therapy would be brief, with an excellent prognosis.
On Dr. Margulies' recommendation, Dr. Rechner referred Ms. MacPherson to Owen J. Garrett and Michael R. MacDonald, psychologists. Their May 29, 1992 report to the insurer was introduced into evidence. In their opinion, Ms. MacPherson "suffers from chronic pain with anxiety, depression and post-traumatic stress syndrome, all of which are directly related to her motor vehicle accident". They recommended individual psychotherapy and rehabilitation counselling and anticipated a prolonged program of treatment.
Dr. Teasell testified that he also recommended psychological counselling because he was concerned about Ms. MacPherson's anger and depression. In his opinion, psychological treatment would have reduced Ms. MacPherson's emotional suffering, but would not likely have reduced her pain. The purpose of treatment would be to help Ms. MacPherson to accept her limitations. In addition, treating the post-traumatic stress disorder would reduce her muscle tension while driving.
Ms. MacPherson testified that she has not undertaken psychological or psychiatric treatment because she was not ready to talk about the accident and found it upsetting to do so. However, in June, 1993, she was assessed by Dr. Shapiro, a psychologist at the University Hospital pain management clinic, and she expects to begin treatment at the clinic shortly.
Conclusion
I accept Ms. MacPherson's evidence that she suffers from recurrent headaches and neck and back pain aggravated by sitting in one position, and by repeatedly turning her neck while driving. I also accept that she has suffered post-traumatic stress disorder and other psychological difficulties. I accept her evidence that as a result of these disabilities, she is unable to commute between Ingersoll and London on a daily basis, and needs a room near her classes so that she can take rest breaks throughout the day.
Ms. MacPherson's evidence about her disabilities was supported by Dr. Rechner, Dr. Teasell, and Dr. Kreeft, her treating doctors, and was substantially consistent with the opinions given by Dr. Clifford, Dr. Goldenberg, Dr. Margulies and psychologists Garrett and MacDonald, who examined her at the insurer's request.
I accept Dr. Teasell's opinion that Ms. MacPherson remains unable, in the 1992/93 and 1993/94 school years, to commute between Ingersoll and London, and must live in residence. I found Dr. Teasell's evidence to be cogent and persuasive, and his opinion was well supported by his findings. Dr. Clifford's reports, on which the insurer relied, did not address Ms. MacPherson's ability to commute to classes. However, Dr. Clifford's findings are substantially consistent with Dr. Teasell's in other respects, as noted above.
Mr. Lobl made much of Ms. MacPherson's failure, until recently, to undertake psychological counselling. However, all of the doctors who have examined Ms. MacPherson have attributed her psychological difficulties to the accident, and I heard no evidence to suggest that psychological counselling would have improved Ms. MacPherson's physical condition. I found Ms. MacPherson to be distressed by her disability and well motivated to rehabilitate herself. Her persistence in continuing her university studies attests to her motivation.
With respect to Ms. MacPherson's admitted inexperience as a driver, I am satisfied that this factor has contributed in only a minor way to her inability to commute. Her physical and psychological injuries resulting from the accident are the more significant factors limiting her ability to drive long distances. Moreover, I find that she requires residence accommodation not only because of her difficulties in driving, but also because she needs a room near her classes so that she can take rest breaks throughout the day.
Further, although Ms. MacPherson admits that she is able to drive short distances, on an occasional basis, for recreational purposes, I am not persuaded that she would be able to drive to classes on a daily basis, attend classes and study all day, and then drive home again at night.
Mr. Lobl suggested that Ms. MacPherson should have approached the university's student services office to find out whether a rest area might be provided for her in a student lounge or elsewhere. Ms. MacPherson admitted that she had not explored this possibility. Two pamphlets about services for disabled students were entered into evidence; neither refers to the kind of rest area Ms. MacPherson needs.
I find that taking a room in residence was a reasonable way for Ms. MacPherson to avoid commuting, reduce her stress load, and ensure that she had a place to rest throughout the day. While cost is a consideration in determining whether a particular rehabilitation expense is reasonable, section 6 of the Schedule does not require an insured person to exhaust all other possibilities before incurring an expense. Ms. MacPherson is not required to jeopardize her health and her academic progress by attempting to continue her studies as a non-resident student, against the advice of all her doctors.
Ms. MacPherson's residence fees were $4,835 in 1992/93 and $5,168 in 1993/94, exclusive of Sundents' Council and Student Activity fees. I heard no evidence to suggest that these fees represent an excessively high cost for accommodation and meals in London. Considering all the circumstances, I find these fees reasonable.
Commuting and meal expenses
On behalf of Pilot, Mr. Lobl submitted that if Ms. MacPherson is entitled to be reimbursed for her residence fees, the amount payable should be reduced by an amount representing commuting and meal expenses Ms. MacPherson would have incurred as a non-resident student. In Mr. Lobl's submission, payment of Ms. MacPherson's residence fees without deduction would be a windfall to the applicant and her family which could not have been intended by the drafters of the Statutory Accident Benefits Schedule.
Mr. Lobl proposed that a reasonable rate, representing all the expenses of commuting - insurance, gasoline, maintenance, and parking - would be $.24 per kilometre, the rate provided for witnesses under the Legal Aid Tariff and the Rules of Civil Procedure. Other options were discussed in his submissions. With regard to meal expenses, Mr. Lobl introduced into evidence a letter from the university estimating that the meal portion of a student's residence fees is about $2,335 for the 1993/94 academic year (Exhibit 2, Tab 6). The cost of the university's lunch meal plan for non-resident students was $708.37 for the full 1992/93 academic year (Exhibit 2, Tab 2).
On behalf of Ms. MacPherson, Ms. Legate submitted that section 6 of the Statutory Accident Benefits Schedule does not provide for the deduction of "ceasing expenses" from reasonable rehabilitation expenses. Moreover, she submitted that Ms. MacPherson's additional expenses resulting from the accident far exceed what was claimed in residence fees, and that the principles of quantification of damages applicable in civil litigation are not appropriate in a statutory scheme which does not fully compensate for economic loss. Finally, Ms. Legate submitted that the insurer should not benefit from the MacPherson family's planned subsidization of Debra's education.
I do not accept that any deductions should be made from the residence fees payable to Ms. MacPherson. The evidence about what Ms. MacPherson's commuting and meal expenses would have been, but for the accident, is speculative. The accident occurred early in the summer before Ms. MacPherson's first year of university, and it is clear from the testimony of Debra and her mother that they had not discussed the financial arrangements in any detail. Debra had not yet obtained her driver's licence. Her mother testified that if she had not passed her test by the time school started, she would have driven Debra to classes.
The insurer asked me to deduct a notional amount representing additional vehicle maintenance costs. I heard no evidence to establish what, if any, would have been the additional maintenance cost involved in Mrs. MacPherson's car being driven between Ingersoll and London four or five times a week rather than the current average of twice every week or every other week. Moreover, with Debra in residence, Mrs. MacPherson is able to use her car during the week.
There would have been no change in car loan payments. Mrs. MacPherson testified that the family had had two cars for years, and there was no plan or need to buy another car so that Debra could commute to classes.
There would have been no parking costs if Mrs. MacPherson had driven Debra to classes. I am unwilling to speculate as to what, if any, parking costs would have been incurred if Ms. MacPherson had lived at home while attending classes.
Ms. MacPherson and her mother testified that the only expenses Debra would have incurred if she had commuted to classes would have been the $94.72 additional insurance premium levied when Debra's name was added to the policy, and the cost of buying gasoline "as needed". However, Ms. MacPherson is paying these expenses currently, since she uses the car recreationally when she is at home. I am unable to determine what, if any, additional gasoline expenses would have been incurred if Debra had lived at home while attending classes.
With regard to meal expenses, I heard no evidence to suggest that Ms. MacPherson planned to eat at the university cafeterias rather than bringing her lunch from home. Moreover, Mrs. MacPherson testified that although grocery savings might be expected when a child moves away from home, she was unable to say whether the family are in fact saving any money. Accordingly, I am not persuaded that Ms. MacPherson or her family would have incurred additional meal expenses if she had attended university as a non-resident student.
Finally, I heard evidence about additional expenses which are incurred by Ms. MacPherson as a resident student, are not included in residence fees, and are not claimed from the insurer - for example, the cost of having a phone in her room, and laundry expenses.
The testimony of Debra MacPherson and her mother was plausible and consistent. I found them both to be straightforward in their demeanour, and I accept their testimony about their plans for Debra's education and their costs and financial arrangements.
I am not persuaded that Debra MacPherson or her family have saved money by Debra's living in residence. If anything, the evidence suggests that payment of Debra's residence fees will not fully compensate her or her family for their additional expenses resulting from her living in residence. If there have been any savings, I find that they are minimal and speculative, and they do not justify a deduction from the residence fees.
EXPENSES
Ms. MacPherson claims her expenses in the arbitration. An award for expenses may be made under section 282(11) of the Insurance Act. 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.
Ms. MacPherson was successful in her claim. I find this an appropriate case for the exercise of my discretion to award Ms. MacPherson her expenses in the proceeding.
Order:
Ms. MacPherson is entitled to be reimbursed for the cost of her residence fees for the academic year 1992/93, in the amount of $4,835, and for the academic year 1993/94, in the amount of $5,168, with interest as provided under section 24 of the Statutory Accident Benefits Schedule.
Pilot is not entitled to make any deductions from the amount of residence fees payable.
Ms. MacPherson is entitled to her expenses incurred in respect to the arbitration. I remain seized of the issue of expenses. If there is any dispute about the amount of expenses payable, the parties may bring the matter before me.
January 31, 1994
Nancy Makepeace
Arbitrator
Date
APPENDIX 1
The following documents were introduced into evidence at the hearing:
Exhibit 1
Applicant's medical brief
Tab 1
Dr. Shelley J. Rechner, medical reports dated August 31, 1990 and August 31, 1992
Tab 2
Dr. Andy Brockway, notes and records December 30/31, 1992 - January 1, 1993
Tab 3
Dr. John H. Kreeft, medical report dated August 12, 1993
Tab 4
Dr. Robert W. Teasell, medical reports dated: October 11, 1990; July 24, 1992; September 9, 1992 (outpatient note); January 8, 1993; and July 22, 1993
Exhibit 2
Expense documents productions brief submitted by the insurer
Tab 1
Huron College, Tuition and Activity Fees Schedule – 1991
Tab 2
Huron College, Tuition and Activity Fees Schedule - 1992-93
Tab 3
Schedule "A" - Expenses if driving
Tab 4
Student time
Tab 5
Letter to Michael Sheridan, Huron College, September 30, 1993
Tab 60
Letter from Mr. Sheridan, October 1, 1993
Exhibit 3
Insurer's medical brief
Tab 1
Dr. Rechner, letter dated August 3, 1990
Tab 2
Dr. Sol Goldenberg, medical report dated August 30, 1990
Tab 3
Dr. Rechner, medical report dated August 31, 1990
Tab 4
Dr. Goldenberg, medical report dated February 13, 1991
Tab 5
Dr. Goldenberg, medical report dated July 3, 1991
Tab 6
Dr. A.I. Margulies, medical report dated October 2, 1991
Tab 7
Dr. Goldenberg, opinion letter dated September 10, 1991
Tab 8
Dr. Margulies, medical report dated September 11, 1991
Tab 9
Dr. Rechner, medical report dated January 23, 1992
Tab 10
MacDonald & Bryant, psychological rehabilitation report dated May 29, 1992
Tab 11
Dr. Teasell, medical report dated June 24, 1992
Tab 12
Dr. John C. Clifford, medical report dated July 31, 1992
Tab 13
Dr. Rechner, letter dated August 31, 1992
Tab 14
Dr. Teasell, outpatient report dated September 9, 1992
Tab 15
Dr. Clifford, medical report dated September 3, 1992
Tab 16
Canadian Back Institute, report of Jack Miller dated November 25, 1992
Tab 17
Canadian Back Institute, summary report dated December 8, 1992
Tab 18
Dr. Teasell, medical report dated January 8, 1993
Tab 19
Dr. Clifford, reassessment report, dated June 17, 1993
Tab 20
Dr. Teasell, out-patient report dated June 23, 1993
Tab 21
[excluded]
Tab 22
22 Dr. Teasell, medical report dated July 22, 1993
Exhibit 4
Letter from Mr. Keven Reimer, Regional Benefits Officer, Pilot Insurance Company, to applicant's counsel, dated May 28, 1993
Exhibit 5
Mileage calculation documents (applicant)
Exhibit 6
Mileage calculation documents (insurer)
Exhibit 7
Student services pamphlets: "A Faculty Guide to Academic Accommodations for Students with Chronic Illnesses", and "Services for Students with Disabilities"
Other documents which were part of the record were:
Report of mediator, dated May 6, 1993
Application for appointment of an arbitrator, dated May 13, 1993
Response by insurer, dated June 21, 1993
Letter of pre-hearing arbitrator Christine Gooderham, dated August 16, 1993
