Neutral Citation: 1994 ONICDRG 76

File No. A-006756

ONTARIO INSURANCE COMMISSION

BETWEEN:

FRANK DONOHUE

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Frank Donohue, was injured in a motor vehicle accident on December 30, 1992. He applied for and received statutory accident benefits from the State Farm Mutual Automobile Insurance Company ("State Farm"), payable under Ontario Regulation 672.¹ Weekly benefits were terminated by State Farm on April 21, 1993. The parties were unable to resolve their disputes through mediation, and Mr. Donohue applied for arbitration under the Insurance Act.

The issues in this hearing are:

1. Is Mr. Donohue entitled to weekly benefits under section 13 of the Schedule from April 21, 1993, onwards?

2. Mr. Donohue also claims interest on any outstanding amounts owing, and his expenses incurred in the hearing.

Result:

1. Mr. Donohue is entitled to weekly benefits of $185 per week from April 21, 1993 to June 8, 1993, plus interest calculated according to section 24 of the Schedule.

2. Mr. Donohue is entitled to his expenses related to the arbitration.

Hearing:

The hearing was held in North York, Ontario, on June 6 and 7, 1994, before me, David R. Draper, arbitrator.

Present at the Hearing:

Applicant: Frank Donohue

Applicant's Representative: Michael Gillen Barrister and Solicitor

Insurer's Representative: Eric Grossman Barrister and Solicitor

Insurer's Officers: Scott Ford Claims Specialist

Carl Von Holstein Claim Superintendent

Witnesses:

1. Frank Donohue, Applicant
2. Linda Donohue, Applicant's daughter

Exhibits:

The exhibits introduced in this hearing and the other documents before the arbitrator are listed in Appendix A to this decision.

Reasons for Decision:

1. The factual background

Mr. Donohue is 70 years old and has been divorced for many years. He has three adult children, Linda (46), and twins, Patrick and Patricia (41)². He also has several grandchildren. Mr. Donohue worked at General Electric for over 35 years as a spray painter. During his working life, he had to cope with a seizure disorder that was incompletely controlled by medication. He also missed work for six weeks on two separate occasions due to a "slipped disc".

On October 1, 1983, his sixtieth birthday, Mr. Donohue retired. He explained that he retired at age 60, rather than 65, due to back problems. I find, however, that his back was not a major problem after his retirement. Mr. Donohue has seen the same family doctor, Dr. Baily, since 1983. Dr. Baily confirmed that Mr. Donohue had been treated previously by another doctor for back problems, but testified that he has no records or recollection of any visit prior to the motor vehicle accident in which Mr. Donohue complained of back pain.

After his retirement, Mr. Donohue's major activity was a daily walk. He explained that it got him out of the house and among people. I find that he was known by his family and friends as a walker, and that he took pride in getting out of the house every day, except Sundays, whatever the weather.

Mr. Donohue generally walked to Shopper's World or the Gerrard Square mall. I accept his evidence that he was usually out of the house for two to three hours, and walked approximately two to three miles. I agree with Mr. Grossman's submission, however, that the evidence is not that Mr. Donohue walked this distance without stopping.

Mr. Donohue has lived in the same two-storey, semi-detached house for approximately 12 years. In the years preceding his accident, he generally lived alone. He testified that he looked after himself and his house, although his daughter, Patricia, helped with the laundry, and family members helped him from time to time with heavier jobs.

Mr. Donohue testified that he did some yard work, cutting the grass with an electric mower, raking and bagging the leaves in the fall, and shovelling the snow in the winter. After he turned 65 (in 1988), however, the City shovelled the sidewalk in front of his house. He stated that he planted some flowers, but acknowledged that he was not much of a gardener. He just watered the flowers occasionally and pulled a few weeds.

I find that in the years preceding his accident, Mr. Donohue's activities were not extensive, but he looked after himself and his home, with some assistance from his family, and took daily walks of two to three miles.

The situation changed, however, in the summer of 1992, approximately six months before the accident. Mr. Donohue's daughter, Linda, moved into his home because she was "going through a rough period". I accept Linda's characterization of the arrangement as indefinite - "as long as we were both happy".

Linda assumed many of the household tasks. She explained that this was her way of thanking her father for allowing her to stay with him. In addition, she did not feel that he should have to do the household chores when there was a woman in the house.

Mr. Donohue and Linda described their household duties differently. In my opinion, Linda was better able to focus on the situation during particular periods and, therefore, I prefer her evidence where it conflicts with Mr. Donohue's.

Based on Linda's testimony, I find that Mr. Donohue made his bed "when he got around to it", helped with the laundry, prepared some of his own simple meals, helped with the dishes, and did some of the grocery shopping. Linda testified that her father generally bought his groceries as he needed them, and that they only did a more substantial shopping trip if someone was coming to dinner. He left the house for his walk every day between 12:30 p.m. and 1:30 p.m., and stayed out for two to three hours.

Mr. Donohue testified that prior to the accident, he went by train to see his grandchildren "maybe every couple of weeks", although there was no set schedule. Linda testified that the grandchildren occasionally came to his house, but could not recall him visiting them. Again, I prefer Linda's evidence.

2. The issue

Mr. Donohue was involved in a motor vehicle accident on December 30, 1992. He and Linda were getting a ride home from a friend, when their car collided with a taxi cab. Mr. Donohue remembers being jerked forward, but does not recall hitting anything within the car. They were taken by ambulance to East York General Hospital, where x-rays were taken of Mr. Donohue's back. The x-rays showed a compression fracture of the L4 vertebrae.

On January 18, 1993, Mr. Donohue applied to State Farm for accident benefits, including weekly benefits. Because he was not employed at the time of the accident, his eligibility is determined under section 13(1) of the Schedule, which provides:

13.--(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 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 . . .

State Farm paid weekly benefits of $185 per week for approximately four months. Effective April 21, 1993, however, Mr. Donohue's weekly benefits were terminated on the basis that he was no longer substantially unable to perform his essential pre-accident tasks. Mr. Donohue maintains that he continues to be eligible for weekly benefits. The issue, therefore, is whether he is eligible for weekly benefits from April 21, 1993 onwards.

The disagreement in this case arises in defining Mr. Donohue's "essential tasks in which he ... would normally engage", and in determining whether he was "substantially unable" to perform those tasks.

3. Mr. Donohue's essential tasks

Mr. Donohue's entitlement to weekly benefits depends upon his ability to perform "the essential tasks in which he . . . would normally engage." Therefore, his "essential tasks" must be defined. One of the issues is whether Mr. Donohue's essential tasks include the jobs that Linda did while she lived with him.

State Farm's position is that Mr. Donohue's essential tasks must be determined based on his situation at the time of the accident. In other words, the test is fixed based on a "snapshot" taken at the time of the accident. Using this approach, it was submitted that Mr. Donohue's essential tasks are limited to personal care, such as washing, dressing and bathing, and a daily walk. They do not include the housework that was being done by his daughter.

Mr. Gillen submitted, on behalf of Mr. Donohue, that the test is not so specific, and that the totality of Mr. Donohue's situation must be considered. He pointed to Linda's testimony that before the accident, her father was able to look after himself, but now he cannot.

In my opinion, the test of eligibility in section 13 is not a fluctuating test. It must be determined based on the person's situation at the time of the accident, and remains constant. Continuing eligibility for weekly benefits depends upon the progress of the person's physical and mental condition, not upon changes in his or her duties.

However, the person's essential tasks cannot be based solely on a "snapshot" of what he or she happened to be doing on the date of the accident. For example, it would make little sense to treat a vacationer's essential tasks as limited to his or her duties while on vacation. In my view, the phrase, "in which he or she would normally engage" [emphasis added], means that although the person's essential tasks must be determined at the time of the accident, they must be considered over some reasonable time period.

In the particular facts of this case, I do not feel that I can determine Mr. Donohue's essential tasks without considering Linda's contribution. Her presence in the home at the time of the accident was not an anomaly. She had been living with her father for approximately six months, and the situation was to continue indefinitely. With the advantage of hindsight, I know that Linda remained in her father's home until March 25, 1994, approximately fifteen months after the accident and eleven months after his weekly benefits were terminated.

I do not accept State Farm's submission, however, that Mr. Donohue's essential tasks are limited to personal care and walking. In his discussion with Mr. Fleury of State Farm on February 2, 1993, Mr. Donohue did not mention any other tasks, but he was not asked about his household duties (Exhibit 2, Tab 2). My observation of Mr. Donohue was that he had some difficulty giving complete and clear answers that focused on a particular time period. Therefore, I am not prepared to treat his answers during this telephone discussion as determinative. I prefer the testimony of his daughter, Linda, that he continued to participate in some household tasks.

I conclude that for the purposes of determining Mr. Donohue's entitlement to weekly benefits, his essential tasks are limited to:

• personal care, such as washing, dressing and bathing;

• limited household chores, including making his bed occasionally, preparing some simple meals, light grocery shopping, and helping with the laundry;

• very limited yard work; and,

• a daily walk.

4. Mr. Donohue's ability to perform his essential tasks

It is clear that Mr. Donohue was injured in the accident, which occurred on December 30, 1992. He suffered a fracture of the L4 vertebrae which has resulted in pain in his lower back, radiating down into his right leg. Although the fracture has healed, no one disputes the fact that he continues to experience pain related to this injury.

The issue is whether, as a result of his injury, Mr. Donohue is substantially unable to perform his essential pre-accident tasks, as defined above. Previous arbitration decisions have clearly and consistently held that section 13 does not provide compensation for pain and suffering, unless the pain substantially prevents the person from doing his or her essential pre-accident activities (e.g. Sharon Lee and Unifund Assurance Company, September 14, 1993, OIC File No. P-000078 (Elisabeth Sachs, Director of Arbitrations)).

In my view, the medical records indicate that Mr. Donohue's condition improved slowly, but steadily. On February 7, 1993, his family doctor, Dr. Baily, noted "minimal improvement", but that Mr. Donohue had started doing some walking. On February 8, 1993, Dr. Baily found that Mr. Donohue had approximately a 20 degree range of motion at the waist, but this improved to 75 degrees by March 2, 1993. On March 23, 1993, approximately three months after the accident, Dr. Baily noted that Mr. Donohue was approximately "50% better". Dr. Baily's clinical notes for the next few months indicate that Mr. Donohue was increasing his walking, but was sore afterwards.

State Farm arranged for Mr. Donohue to be assessed by Dr. E.P. Urovitz, an orthopaedic surgeon, on February 22, 1993, nearly two months after the accident. Mr. Donohue advised Dr. Urovitz that he could "sit for perhaps 3/4 of an hour but his walking is limited to perhaps 15 minutes, i.e. walking in a mall or walking around the block." Dr. Urovitz concluded:

More likely than not this man sustained a compression fracture at L4 as a result of this accident. In the absence of any pre-history of fracture of the spine, one is certainly left with the clinical scenario of some residual back pain as a result of the fracture which is probably not yet quite healed, coupled with some secondary intermittent muscle spasm producing referred pain into the right lower extremity. There are no signs of actual sciatica or lumbar radiculopathy on the right side.

In light of this man's age and the limited physical requirements for him to carry out the essentials of daily living, I would feel that a further six-week period would be appropriate to allow for further bony as well as soft tissue healing at which time I would presume he would be capable of resuming all pre-accident activities. A short three to four-week program of local physiotherapy including deep heat and ultrasound may also relieve some of the secondary muscle spasm as well as instructions with regard to a light program of stretching. No further treatment beyond this, however, should be required.

Dr. Baily referred Mr. Donohue to East York Physiotherapy Centre, which is in the same building as his office. Dr. Baily testified that he has had good results from this clinic and respects their work, particularly that of the senior therapist, Ms. Ethel Wilson.

Mr. Donohue was initially assessed at East York Physiotherapy Centre on March 24, 1993. In her report to State Farm, dated March 29, 1993, Ms. Wilson stated that the initial phase of Mr. Donohue's therapy would take up to six weeks. She described his needs, as follows:

Mr. Donohue needs to develop the endurance to return to daily walking of up to one mile, and the ability to cope with household duties of shopping, laundry and cooking. He needs to improve his functional capacity for climbing stairs, including two full flights at the subway station.

State Farm terminated Mr. Donohue's weekly benefits on April 21, 1993, presumably based on Dr. Urovitz' opinion. It is not clear to me, however, why his weekly benefits were terminated before the completion of the physiotherapy program.

Mr. Donohue completed his physiotherapy program at East York Physiotherapy Centre on June 8, 1993. In her final report, dated June 28, 1993, Ms. Wilson concluded:

On final re-check exam June 8th, 1993, Mr. Donohue had progressed to the point that he had resumed about 70% of his normal daily regimes. He is now able to walk approximately one mile daily. He participates in light household chores although he still requires family assistance for the heavy yard work.

Mr. Donohue has been discharged on a home programme at this time.

Dr. Baily questioned Ms. Wilson's use of a percentage, although he acknowledged in cross-examination that he used percentages in his clinical notes as a measure of improvement. Mr. Donohue's recollection is that Ms. Wilson asked him if he would place his improvement at 50%, 60%, 70%, etc., and he said his walking was 70% better.

Mr. Donohue testified that at the end of his physiotherapy program, his condition was "much better", "not too bad compared to what it was", but that he was sore after his walks. On cross-examination, he testified that he was "some better." It was suggested to Mr. Donohue that by the end of his physiotherapy program, he was doing most of his pre-accident tasks, but with pain. He responded that he could do some cooking and walked as much as he could, but could not vacuum, make beds, or do yard work. Dr. Baily also felt that although he could do his lighter tasks, he could not do the heavier tasks such as vacuuming and yard work.

In my view, the East York Physiotherapy Centre came the closest to evaluating Mr. Donohue's ability to perform the tasks that I have identified as his essential pre-accident tasks. Although I agree with counsel that eligibility is not a "numbers game", I believe that it is significant that Mr. Donohue felt that he had improved by 70% in his most strenuous activity of walking. In addition, he was discharged from a program that had set relevant goals: increasing his walking endurance up to one mile, and coping with household duties, such as shopping, laundry and cooking.

It is true that there is evidence that Mr. Donohue was walking a substantial amount prior to June 8, 1993. Dr. Baily noted on March 23, 1993, that Mr. Donohue was able to walk approximately one mile. On May 5, 1993, the investigator retained by State Farm observed Mr. Donohue walking, but never for a period of more than 15 minutes.

I conclude, however, that June 8, 1993, the date of Mr. Donohue's discharge from the East York Physiotherapy Centre, is a better estimate of when he was able to substantially perform his essential pre-accident tasks.

This is not to suggest that Mr. Donohue has fully recovered. Every indication is that he will continue to experience pain in his lower back. I accept that he remains somewhat less vigorous than he was prior to the accident, and that he is unable to do some things that he was previously capable of doing. I am unable to conclude, however, that he suffered a "substantial inability to perform the essential tasks in which he would normally engage", as defined above, for any period after June 8, 1993.

5. Expenses

An award for expenses may be made under section 282(11) of the Insurance Act, which provides as follows:

282 (11) 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.

Mr. Donohue was partially successful in this arbitration and, in my view, he should be awarded his expenses, calculated according to Schedule 1 of the Dispute Resolution Practice Code and in Ontario Regulation 664, R.R.O. 1990. The parties are encouraged to reach an agreement as to the expenses. However, if an agreement cannot be reached, I remain seized of this matter and either party may apply for an assessment of the expenses.

Order:

1. Mr. Donohue is entitled to weekly benefits of $185 per week from April 21, 1993 to June 8, 1993, plus interest calculated according to section 24 of the Schedule.

2. Mr. Donohue is entitled to his expenses related to the arbitration.

August 31, 1994

David R. Draper Arbitrator

Date

APPENDIX A

Exhibit 1 Brief of materials prepared by Mr. Donohue's legal representative containing copies of the following documents:

Tab 1 Police report, dated December 30, 1992.

Tab 2 Application of Accident Benefits, dated January 18, 1993.

Tab 3 Report of Mediator, dated November 25, 1993.

Tab 4 Application for Appointment of an Arbitrator, dated November 29, 1993.

Tab 5 Response by Insurer, dated January 5, 1994.

Tab 6 Medical form completed by Dr. Baily on January 18, 1993.

Tab 7 Medical form completed by Dr. Baily on June 2, 1993.

Tab 8 Medical form completed by Dr. Baily on November 14, 1993.

Tab 9 Clinical notes and records of Dr. Baily.

Tab 10 Curriculum vitae of Dr. Mark Baily.

Tab 11 Consultation report of Dr. Barry W. Malcolm, dated November 1, 1993.

Tab 12 Report of Ms. Ethel Wilson of the East York Physiotherapy Centre, dated March 29, 1993.

Tab 13 Report of Ms. Ethel Wilson of the East York Physiotherapy Centre, dated June 28, 1993.

Tab 14 Report of Dr. E.P. Urovitz, dated February 22, 1993.

Tab 15 Report of Dr. E.P. Urovitz, dated March 17, 1994.

Tab 16 Clinical notes of Dr. E.P. Urovitz.

Exhibit 2 Brief of materials prepared by State Farm's legal representative containing copies of the following documents:

Tab 1 Assessment of Claim by Insurer, dated October 12, 1993.

Tab 2 Transcript of taped statement of Mr. Donohue, dated February 2, 1993.

Tab 3 Investigation report of King-Reed & Associates Ltd., dated May 13, 1993.

Tab 4 Investigation report of King-Reed & Associates Ltd., dated August 26, 1993.

Exhibit 3 The curriculum vitae of Dr. Edwin Philip Urovitz.

Exhibit 4 A photograph of Mr. Donohue, dated August 18, 1993.

Exhibit 5 Surveillance videotape.

In addition to the exhibits, the following documents were before the arbitrator from the Ontario Insurance Commission file:

• Report of Mediator, dated November 25, 1993.

• Application for Appointment of an Arbitrator, dated November 29, 1993.

• Response by Insurer, dated January 8, 1994.

• Letter, dated March 2, 1994, confirming the pre-hearing discussion held on February 28, 994.

Cases referred to by the parties

1. John Beenen and The Continental Insurance Company of Canada, December 10, 1992, OIC File No. A-001239 (Senior Arbitrator Naylor).

2. Carlo Caring and The Wawanesa Mutual Insurance Company, February 18, 1993, OIC File No. A-000860 (Senior Arbitrator Naylor).

3. Bahadur Chhokar and Allstate Insurance Company of Canada, December 2, 1993, OIC File No. A-004294 (Arbitrator Makepeace).

4. Edgar Cowie and The Non-Marine Underwriters, Members of Lloyd's, March 9, 1993, OIC File No. A-001159 (Arbitrator Mackintosh).

5. Norman Downs and Allstate Insurance Company, July 18, 1991, OIC File No. A-000064 (Senior Arbitrator Naylor).

6. Sharon Lee and Unifund Assurance Company, August 28, 1992, OIC File No. A-000078 (Senior Arbitrator Rotter).

7. Sharon Lee and Unifund Assurance Company, September 14, 1993, OIC File No. P-000078 (Elisabeth Sachs, Director of Arbitrations).

8. Dana B. Levenson and The General Accident Assurance Company of Canada, February 18, 1992, OIC File No. A-000260 (Senior Arbitrator Naylor).

9. Chor Ting Lui and Wellington Insurance Company, April 28, 1993, OIC File No. A-001894 (Arbitrator Mackintosh).

10. Lily Steele and Zurich Insurance Company, December 3, 1992, OIC File No. A-001024 (Arbitrator Palmer).

11. Selma Taves and The Wawanesa Mutual Insurance Company, August 10, 1993, OIC File No. A-003659 (Arbitrator Palmer).

12. Rekha Vasdani and The Personal Insurance Company of Canada, April 27, 1993, OIC File No. A-002148 (Senior Arbitrator Rotter).

13. Lawrence Whitney and Co-operators General Insurance Company, March 31, 1993, OIC File No. A-001005 (Senior Arbitrator Naylor).

14. and Prudential Assurance, now operating as General Accident Indemnity Company, February 21, 1994, OIC File No. A-002021 (Arbitrator Mackintosh).

Footnotes

1. 1Prior 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.
2. 2For the sake of clarity, Mr. Donohue's adult children are referred to by their first names in this decision.