Neutral Citation: 1994 ONICDRG 98
File No. A-007443
ONTARIO INSURANCE COMMISSION
BETWEEN:
PATRICIA C. CLIMIE
Applicant
and
WELLINGTON INSURANCE COMPANY
Insurer
DECISION
Issues:
The Applicant, Patricia C. Climie, was injured in a motor vehicle accident on February 10, 1992. She received statutory accident benefits from the Insurer, payable under Ontario Regulation 6721. Weekly benefits were terminated by the Insurer on October 21, 1993. The parties participated in mediation but were unable to resolve their dispute. The Applicant then applied for arbitration under the Insurance Act.
The issues in this hearing are:
Is Ms. Climie entitled to weekly benefits under section 13(1) and 13(4) of the Schedule from February 17, 1992 to March 12, 1992, and from October 22, 1993 forward?
Is Wellington Insurance entitled to a set-off with respect to any future weekly benefits to which Ms. Climie might be entitled?
The Applicant also claims interest on any outstanding amounts owing, and her expenses incurred in the hearing.
Result:
Ms. Climie is not entitled to further weekly benefits. Accordingly, there is no amount to be set off.
Ms. Climie is entitled to her expenses incurred in the arbitration.
Hearing:
The hearing was held in Thunder Bay on October 3, 1994, before me, K. Julaine Palmer, arbitrator.
Present at the Hearing:
Applicant:
Patricia C. Climie
Insurer's Representative:
Alex W. Demeo
Barrister and Solicitor
Insurer's Officer:
Frank Castaldo
Witnesses:
Patricia Climie
Kathy Paradis
The parties filed two exhibit books and four other documents at the hearing.
Background
Patricia Climie was injured in a motor vehicle accident on February 10, 1992. The accident occurred when the steering column of Ms. Climie's pick-up truck came loose in her hands. Ms. Climie lost control of her vehicle, which ended up in the ditch.
Ms. Climie's immediate concern was for her two-year old son. She did not believe that she was injured by the accident, except that she had a headache almost immediately.
Later that day, Ms. Climie attempted to seek medical assistance at the community medical clinic in Ear Falls, but no doctor was available, a situation which is not uncommon in Ear Falls. About three weeks after the accident, Ms. Climie was finally able to see a doctor. She complained of a constant headache. She next saw her family doctor in Red Lake, who has treated her since that time. In this arbitration, Ms. Climie is claiming weekly benefits under section 13(1) and child care benefits under section 13(4) of the Schedule for the first few weeks following her accident, and also for the period after October 22, 1993.
I must determine her entitlement to these benefits based on the provisions of the Schedule, which read as follows:
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 if he or she meets the qualifications set out in subsection (2).
(4) The insurer will pay to an insured person who is receiving a weekly benefit under subsection (1), or who but for section 17 would be entitled to the weekly benefit, a benefit of $50 per week if Optional Benefit 3 has not been purchased, or $100 per week if it has been purchased, for each person who at the time of the accident was residing with the insured person and in respect of whom the insured person was the primary caregiver if the person receiving the care was less than sixteen years of age or if the person required the care because of physical or mental incapacity.
The Insurer is not seeking the repayment of any benefits which it has already paid to Ms. Climie.
For the reasons which follow, I have determined that Ms. Climie is not entitled to the further weekly benefits which she seeks.
Ms. Climie initially made the following statements in her application for accident benefits, dated March 16, 1992. In the application, Ms. Climie answered the following question:
If you were not employed at time of accident - do you suffer a substantial inability to perform the essential tasks in which you would normally engage ? Explain.
Not substantial inability but with a constant headache it gets difficult to do housework. The pain sure hurts.
Ms. Climie was treated with physiotherapy beginning April 23, 1992, until February 15, 1993. She obtained a personal TENS unit and used this to control her symptoms, along with exercises and a home traction apparatus.
At his examination of her on September 10, 1992, Dr. D.V. Hoffman, an orthopaedic surgeon, indicated that Ms. Climie had decreased range of movement on left neck rotation by about 50%, but at least 75% movement on right rotation. He found full flexion ability, but neck extension reduced to about half of normal. Dr. Hoffman performed a neurological examination of Ms. Climie's arms, which was normal. This corresponded with an MRI scan which Ms. Climie had undergone and which reported minor changes at C3-4 and C6-7, neither of which was indicative of significant abnormality. Dr. Hoffman also recorded on that visit that Ms. Climie admitted she was improving. He thought that she would go on to satisfactory recovery.
When she was asked at the hearing whether by October 1993 she was able to do her essential daily activities, Ms. Climie replied, "Yes, with one arm, pacing myself." She also wrote to the Insurer on October 25, 1993, stating that, "I do not deny that I carry on my daily essential activities, but with a lot of pain and headaches involved."
Mr. and Ms. Climie have three children living at home. Their youngest son suffers from Hirsch-Sprung megacolon, a disease of the bowel. His diagnosis and treatment has taken place over the same time period as Ms. Climie's recovery from the motor vehicle accident of February 10, 1992. At times, because of her family responsibilities, Ms. Climie felt unable to take advantage of intensive in-patient physiotherapy programs which were offered to her in locations very distant from her home.
However, despite her reluctance to become involved with such a treatment program, Ms. Climie has indicated that she was largely able to carry on her daily tasks at home. It would appear that she performs many of her tasks using only her right hand and she has learned some accommodation techniques, such as pacing and baselining, which have enabled her to carry on.
I find Ms. Climie's essential tasks in which she would normally engage before the accident to include the following: personal care, including bathing and dressing; daily housecleaning chores such as food preparation, cooking, cleaning, vacuuming; child care, including bathing and dressing small children; shopping; and driving a vehicle both short and longer distances. I also find that Ms. Climie engaged in mowing the lawn, shovelling snow, removing garbage, bringing in wood, and moving furniture on an occasional basis.
In March 1993, when Ms. Climie was visited by Kathy Paradis, a rehabilitation caseworker, Ms. Paradis noted that Ms. Climie was excessively guarding her left arm and shoulder. However, when she reviewed Ms. Climie's tasks with her, she was able to do just about everything, with some modification and pacing. At that time, the only things which she could not do were carry in wood and change the bed linen.
In the report of Dr. V. Daniels, specialist in rehabilitation medicine at the Winnipeg Health Sciences Centre, dated March 8, 1994, Dr. Daniels recorded,
As far as we are concerned, she seems to be managing most of her homemaker chores such as cleaning, cooking, child care, etc. The only thing that she says she cannot do is drive a car because the rotation of her neck is limited.
In May 1994, Ms. Climie wrote to the Insurance Commission outlining tasks that she found difficult or could not do after the accident. She confirmed this list of activities and tasks at the hearing on October 3, 1994. In the area of personal care, Ms. Climie can only use her right arm to brush her hair. Dressing and undressing is difficult for her. She cannot wear a brassière, as it irritates her left shoulder. She is able to dust and vacuum by pacing herself, as the pain allows. Her eldest daughter, Karen Climie, helps with the heaviest vacuuming. Ms. Climie stated that she now cooks very simple meals, rather than the more elaborate meals she used to prepare. She cannot prepare vegetables, such as potatoes which need peeling, using only her right hand. Ms. Climie no longer drives long distances, because she has difficulty turning her neck to the left. She is able to do her grocery shopping by using the carry-out services at the store and by having her husband and eldest daughter unload and put away the groceries at home.
Ms. Climie has found it very difficult to bathe her son and her middle daughter. Her husband and eldest daughter have largely taken over this role.
When her dishwasher was functioning, Ms. Climie noted that there was a minimal reduction in coping with the dishes. However, by May of 1994, the dishwasher had broken and she could not cope with the dishes of the family, which were washed by her eldest daughter.
In her letter Ms. Climie also noted a substantial reduction in her ability to cut grass, shovel snow, remove garbage, bring in wood, move furniture, and make beds since the accident. She did not testify in detail about these tasks, except to say that they do not heat their present home with wood. She also noted that her sleep had been disturbed by the accident and that she wakes frequently during the night, even when she takes medication to help her sleep.
Ms. Climie also testified about the effect of the accident on the activities of her family life. She is not able to become involved in games with her children, go on bicycle rides, go skating or tobogganing, or drive to a swimming pool in Balmertown.
Ms. Climie recently had a cortisone shot in her left acromioclavicular joint. This steroid and anaesthetic block was designed both to relieve pain and as a diagnostic test to help confirm that Ms. Climie's symptoms come from the A/C joint. Ms. Climie is attending physiotherapy, once again, in Red Lake, and has recently begun to be able to support objects with her left hand. She can now lift two pounds to shoulder height.
I have outlined above the eligibility test for weekly benefits, which is set out in the Schedule. This test is a rather restrictive one. Applicants must demonstrate more than some inability to perform their tasks after an accident. They must show a sizeable inability. The Schedule may not allow for compensation in the case of a homemaker like Ms. Climie, who has struggled to maintain as normal a function as possible. As other arbitrators have often stated before, the Schedule does not compensate victims of accidents for the pain and suffering which they experience as a result of the accident. It is only if the pain is so great that it impairs their function to a significant degree that weekly benefits are available.
Unfortunately, this is the class of accident victims into which I find Ms. Climie belongs. She appears to me a dignified and honest person who cares deeply for her family and has endeavoured to maintain as normal a family life as possible after her accident. Her treatment and recovery have suffered because of the great lack of convenient medical services in the part of the province in which she lives. Ms. Climie's recovery has been prolonged by the long distance she must travel from Ear Falls to any specialist, and even to her own doctor and to physiotherapy treatments.
However, because she has persevered and has been largely able to carry on in her normal essential daily tasks, although with pain, discomfort, and at a much slower pace, I cannot find that as a result of the accident of February 10, 1992, she was substantially unable to perform these tasks, either for the period in February and March 1992, for which she has claimed, or for the period after October 22, 1993.
Ms. Climie continues to receive supplementary medical and rehabilitation benefits which are available to victims of automobile accidents under section 6 of the Schedule. These benefits are available to her for a period of ten years following the accident. The Insurer continues to cooperate with Ms. Climie in providing such benefits under section 6 of the Schedule. There is no issue between the parties with respect to medical and rehabilitation benefits. I hope that Ms. Climie will soon be able to take full advantage of these benefits and enter into as ideal a treatment program as can be arranged for her.
In conclusion, although I find Ms. Climie to be a most sympathetic applicant, who has suffered tragically after the motor vehicle accident of February 10, 1992, because she has been substantially able to perform her essential tasks, she is not eligible for additional weekly benefits.
Order:
Ms. Climie is not entitled to any further weekly benefits.
Ms. Climie is entitled to her expenses incurred in the arbitration.
K. Julaine Palmer
October 17, 1994
Arbitrator
Date