Jennie E. Turner v. Wellington Insurance Company, 1995 ONICDRG 106

Ontario Insurance Commission

Neutral Citation: 1995 ONICDRG 106 File No.: A-011029

Between:

Jennie E. Turner, Applicant

and

Wellington Insurance Company, Insurer

Decision

The Applicant, Jennie Turner was injured in a motor vehicle accident on March 12, 1994. She applied for statutory accident benefits from the Insurer, payable under the Schedule¹. 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.l.S, as amended.

Issues:

The issues in this hearing are:

1. Is the Applicant entitled to income replacement benefits under section 7 of the Schedule?

2. Is the Applicant entitled to other disability benefits under section 19 of the Schedule?

3. Is the Applicant entitled to transportation expenses under section 36 of the Schedule?

4. Is the Applicant entitled to her expenses incurred in respect of the arbitration?

The Applicant also claims interest on any overdue benefits.

Result:

1. The Applicant is not entitled to income replacement benefits under section 7 of the Schedule.

2. The Applicant is not entitled to other disability benefits under section 19 of the Schedule.

3. The Applicant's transportation expenses have been paid by the Insurer.

4. The Applicant is not entitled to her expenses incurred in respect of the arbitration.

Hearing:

The hearing was held in North York, Ontario, on February 22 and 23, 1995, before me, Suesan Alves, arbitrator.

Present at the hearing:

Applicant: Jennie E. Turner

Insurer's Representative: Gregory P. Heckel, Barrister and Solicitor

Insurer's Officer: James Kempf

Witnesses: Ms. Turner, Ms. Schaefer, Mr. Kemp, Mr. Christie

Five exhibits were filed at the hearing.

The proceedings were recorded by Canadian Verbatim Reporting Service Limited.

Background:

On March 12, 1994, Ms. Turner was involved in an incident in a car wash while operating her car. It is unclear whether her car came off the tracks, or whether it was struck by another vehicle in the car wash. Ms. Turner claimed that she was entitled to receive weekly income replacement benefits, on the basis of a job offer; in the alternative, she claimed other disability benefits. Ms. Turner also claimed transportation expenses for travel to and from various medical appointments.

The Insurer disputed that Ms. Turner was entitled to income replacement benefits, or to other disability benefits. The Insurer contended that Ms. Turner failed to provide details of her transportation expenses, and that it had therefore been unable to calculate the amount to be paid under the Schedule. At the time of the hearing, none of the benefits claimed by Ms. Turner in this arbitration had been paid by the Insurer.

1. The claim for income replacement benefits:

Ms. Turner claimed weekly income replacement benefits on the basis that she had been offered a job at the photo lab in the Loblaws store in Port Credit, and, that as a result of her injuries she was unable to perform the essential tasks of that job.

Ms. Turner's claim was presented under section 7(1)3 of the Schedule. Under this section of the Schedule, Ms. Turner must establish that at the time of the accident she was entitled to start work within one year under a contract of employment that was made before the accident, and, that as a result of the motor vehicle accident, she was substantially unable to perform the essential tasks of that job.

Ms. Turner testified that she applied for a job at the photo lab counter at the Loblaws store in Port Credit on March 20, 1994, eight days after the accident. Ms. Turner testified that the photo lab contacted her by telephone and offered her the job at the photo lab counter.

The Insurer called Ms. Schaefer, the photo lab manager at the Loblaws store, as a witness. Ms. Schaefer testified that she interviewed Ms. Turner by telephone and concluded that she was not suited to dealing with customers. Ms. Schaefer testified that no job was offered to Ms. Turner by her or by Loblaws.

I accept Ms. Schaefer's evidence where it varies from that of Ms. Turner. Ms. Schaefer's evidence as to the company's practices and her dealings with Ms. Turner were specific. Ms. Schaefer gave her evidence in a clear and convincing manner. I find on the basis of the evidence of Ms. Schaefer and of Ms. Turner that no contract of employment was made before the accident. Ms. Turner cannot therefore succeed in her claim for income replacement benefits.

2. The claim for other disability benefits:

(a) Pre-accident condition:

Ms. Turner is 57 years of age. She testified that she had been employed as a stenographer and as a medical secretary, and that she was last employed in 1988. I find that Ms. Turner had a number of pre-existing conditions and complaints. I will set out only those which bear on the complaints made by Ms. Turner following the car wash accident on March 12, 1994.

According to the clinical notes and records of Dr. Miller, a psychologist, in 1988, Ms. Turner was involved in a motor vehicle accident in which she was "knocked out". Ms. Turner's evidence was that she became "psychologically very afraid" following this accident. She stated that she has not yet recovered from this. She had a nervous breakdown, and developed intermittent chest pain and ongoing problems with fatigue.

Following this accident, she lost her job and has not worked since.

In November 1991, Ms. Turner was involved in another motor vehicle accident and developed neck problems of an ongoing nature. She testified that she developed shock, trauma, neck and back problems and anxiety. She described herself as weak, and as not able to walk far. Ms. Turner stated that because of her weakness, in April 1993, she obtained a special parking permit which would allow her to park in spaces designated for the use of persons with handicaps. She stated that she gets her gas at full service stations instead of self-serve stations because of her weakness.

Ms. Turner testified that she had difficulty sleeping, was anxious, and unable to lift things above her head prior to the accident. Ms. Turner denied that she had palpitations prior to the car wash accident; she stated that she had only experienced acute chest pain. I find on the basis of Dr. Crawley's clinical notes and records, tendered as part of exhibit 3, that prior to the car wash accident, Ms. Turner made complaints of palpitations.

About one month before the car wash accident, Ms. Turner claims that as a result of tripping and falling over a telephone directory left on her steps, she hit her head, left arm and left hip. She complained of dizziness. She states that this injury left her disorientated and forgetful, and that she therefore needed someone to drive her car and do her housework until she felt better. In her second statement to the Insurer on April 20, 1994, which she adopted at the hearing, Ms. Turner indicated that she continued to suffer from these problems.

Ms. Turner claimed "other disability benefits" under section 19 of the Schedule to the date of the hearing. Section 19 provides for a benefit payment of $185 per week to an insured person who suffers a partial or complete "inability to carry on a normal life as a result of the accident," and who meets certain other qualifications. Ms. Turner did not specify whether she claimed a weekly benefit due to a partial or a complete inability to carry on a normal life. I will deal with her claim as one based on a partial inability to carry on a normal life, since this test is more easily met.

Ms. Turner must establish that she suffers an "impairment" as a result of the accident, which causes a substantial inability to engage in activities in which she ordinarily engaged before the accident, within the meaning of section 2 of the Schedule. The categories of activities, as set out in section 2 of the Schedule, are personal care activities, mobility activities, household activities, activities which require the exercise of cognitive powers, activities which require the ability to control emotions, or activities that require communication abilities.

(b) Pre-accident activities:

Ms. Turner lives in a small apartment building with two finished units. At the time of the accident, Ms. Turner occupied one unit; her son and his wife lived downstairs in the other unit. She received assistance from her son in carrying out many of her activities. In addition, she received help with her housework from homemakers. She did her own laundry. As the laundry facilities are located upstairs, she would put her laundry in suitcases and other persons would carry the laundry up and down the stairs for her.

The activities in which Ms. Turner ordinarily engaged prior to the accident are set out in her statement given to the Insurer, on March 16, 1994. Ms. Turner adopted this statement at the hearing.

Before the car accident I usually slept until about seven (7) o'clock. I got up, showered, did my hair and made breakfast. Sometimes I clean up the breakfast dishes or leave them until the evening. I sometimes get someone else to do them. At around ten (10) o'clock I get the mail and respond to the mail. I do laundry a couple of times per week. I usually have lunch at around twelve (12) o'clock. I usually have soup or sometimes salads. I sometimes do the dishes then. I usually have cereal in the morning. In the afternoon I go out shopping or for short walks. I do not walk far because I am very weak. I have a special permit so that I can park in the handicap spots ... I do whatever I feel like doing. If I am tired I take a rest. I may visit friends. I usually get home at four (4) or five (5) in the afternoon if I go out. I have dinner at around between five (5) and seven (7) o'clock. Four (4) or five (5) times per week I get my evening meals from my son because he drives a catering truck. I also might grab a muffin or a sandwich during the day if I am out... After dinner I may watch television or read or talk on the phone. Sometimes company might drop in if I have enough energy. About four times per year, I get a major clean up done. I have other people do most of it because I cannot do it and cannot be around a lot of noise.

(c) Post-accident condition:

Ms. Turner complained that she lost consciousness in the car wash accident on March 12, 1994. Following this accident, she complained of neck pain, low back pain, chest pain, headaches, sleep problems, left arm and left wrist pain. She also complained that she experienced anxiety and memory problems. Ms. Turner testified at the hearing that she suffered from additional problems: her fear has increased, she has trouble with concentration, she experiences heart palpitations, dizziness, is more depressed, and her coordination and the alignment of her spine have been adversely affected.

(d) Post-accident activities:

Ms. Turner's statement of March 16, 1994 sets out her ability, following the car wash accident, to perform the activities in which she usually engaged prior to the accident:

I am still able to shower and dress. I can still get my breakfast and clean up. I still go downstairs to my sons. I normally watch T.V. or read. I still read and watch T.V. like before this accident. I can do everything now that I did before my accident on March 12, 1994 except that I do not sleep as well. Everything I did before the car accident that required me to think I can still do. I can communicate now like I did before the accident but it seems like I don't get enough breath. My ability to control my emotions and behaviour is the same. My household activities, my mobility activities and my personal care activities are the same.

At the hearing Ms. Turner agreed that her statement was true and correct. In her statement, she identifies two areas of difficulty: sleeping, and in "not getting enough breath". Ms. Turner testified that she also cannot vacuum or lift things as a result of these problems.

With respect to her difficulty sleeping, in a written statement given to the Insurer on April 20, 1994, Ms. Turner states "I was on medication to help me sleep before the accident.... My sleeping has certainly not improved since this car accident. If I want to sleep I may have to take two (2) sleeping pills instead of one (1)." With respect to her complaints of fear, she agreed that this was the result of the 1988 accident, and that she had not as yet recovered from that problem.

In cross-examination, Ms. Turner acknowledged that she had homemakers who did her housework prior to this car wash accident because of her pre-existing problems. As far as lifting things, she stated that even her purse is "a burden" for her, and that sometimes her keys are too heavy for her. Ms. Turner is shown on surveillance videotape carrying a purse on April 2, 1994.

Ms. Turner testified that she was seeking compensation for pain and suffering. Entitlement to benefits under section 19 of the Schedule, is based on a substantial inability to engage in pre-accident activities. On the evidence before me, Ms. Turner has not established that she is substantially unable to engage in her pre-accident activities within the meaning of the Schedule.

(e) Causation:

I find on the basis of the documentary evidence and Ms. Turner's testimony that Ms. Turner had a number of pre-existing complaints which are similar to those she made following the car wash accident of March 12, 1994. Ms. Turner also states that following the accident, her foot was injured at the Loblaws store on March 20, 1994, when it became entangled in a photographer's wheel. She states that she was involved in another motor vehicle accident on December 21, 1994. The Insurer sought to obtain Ms. Turner's medical records from Dr. Nicol, her family physician, for the period from March 12, 1990 to October 17, 1994. Initially, Ms. Turner consented to the release of the information. She then cancelled her authorization for the release of this information. The Insurer then sought an order dismissing the arbitration. Instead Ms. Turner was ordered to sign consents and a Form 14. Ms. Turner signed the consents as required by the Order, but again countermanded her consents and authorizations for the release of this information.

Ms. Turner's refusal to disclose the information makes it difficult to establish the extent to which any of her complaints are attributable to the accident in the car wash. On the basis of the evidence before me, it is equally probable that her complaints are due to a pre-existing condition or injury, or to the accident. It is also conceivable that some of her complaints could be attributed to either of the accidents which occurred following the accident at the car wash, that is to say, on March 20, 1994 or on December 21, 1994. Accordingly, I conclude that Ms. Turner failed to establish that any disability she may have sustained was the result of the car wash accident on March 12, 1994.

(f) The medical evidence:

Following the car wash accident, Ms. Turner saw Dr. Irvine at a walk-in clinic. No medical documentation was provided with respect to Dr. Irvine's assessment. Ms. Turner's chiropractor, Dr. Choi, provided a health practitioner certificate dated March 31, 1994 in which he states: "light chores can be done". In my view, Ms. Turner's pre-accident activities could reasonably be described as light chores.

Ms. Turner saw Dr. Miller, a psychologist, at her own initiative. On April 19, 1994, Dr. Miller stated "She is not disabled from normal activities." Dr. Sturino, a chiropractor, assessed Ms. Turner at the Insurer's request. Dr. Sturino states that Ms. Turner may have experienced some difficulties as a result of the motor vehicle accident, but they were not so serious as to affect her ability to perform her daily tasks. I conclude that none of the medical evidence before me supports the Applicant's position that as a result of the car wash accident, she is partially or completely unable to carry on a normal life, within the meaning of the Schedule.

3. The claim for transportation expenses:

Ms. Turner claimed transportation expenses for travel, in her own vehicle, to and from various health care practitioners' offices between March 17, 1994 and July 21, 1994 in the amount of $1,700. Under section 36 (1)(g) of the Schedule, the Insurer is required to pay "all reasonable expenses" for travel to obtain medical treatment. Since Ms. Turner used her vehicle, these expenses are limited by section 36(3) to those incurred "for fuel, oil, maintenance, tires and parking".

Ms. Turner's claim sets out amounts of $30, $50 and $60 per trip. On the forms she states that these charges are for gas, maintenance, the risk of accident each time she travelled, chauffeuring herself and pain and suffering. She noted that that she felt these charges were very reasonable, that her charges were cheaper for the Insurer than if she had been taking taxis. Ms. Turner provided no evidence at the hearing which would establish the amounts of the expenses which were incurred by her with respect to the items contemplated by the Schedule.

The Applicant's claim for these expenses came before me with the consent of the Insurer. The claim, dated February 15, 1995, appears to have been faxed to the Insurer on February 17, 1995. Initially the Insurer raised the issue as to whether Ms. Turner's claim was an "application" within the meaning of the Schedule. At the hearing, counsel for the Insurer gave an undertaking that Ms. Turner's transportation expenses would be paid in accordance with the McNutt decision². I accepted his undertaking. In that case, determined under section 6 of the Statutory Accident Benefits Schedule - Accidents Before January 1, 1994, Arbitrator Makepeace found the sum of 30 cents per kilometre to be a reasonable amount.

On February 28, 1995, I received a copy of a letter from the Insurer, dated February 27, 1995, addressed to Ms. Turner, in which the Insurer had measured the distances travelled, calculated the number of kilometres as 564.1, and paid this at the rate of 30 cents per kilometre or $169.23. In the absence of any evidence from Ms. Turner as to her actual expenses for fuel, oil, maintenance, tires and parking, nothing before me would suggest that the amounts paid by the Insurer were other than reasonable.

4. Interest:

Ms. Turner claimed interest on any overdue benefits. I have found that she is not entitled to benefits under section 7 or section 19 of the Schedule. Ms. Turner's claim for transportation expenses was submitted to the Insurer's representative on February 17, 1995. The letter from the Insurer, dated February 27, 1995, enclosing a cheque in the amount of $169.23 appears to have been mailed on February 27, 1995, within the fourteen day time frame contemplated by the Schedule. No interest is therefore payable under the Schedule in respect of the claim for transportation expenses.

Expenses:

The Applicant seeks an award of her expenses incurred in this arbitration. An arbitrator has a discretion to award these expenses under the Insurance Act, R.S.O. 1990, c I-8, s. 282 (11).

In this case, the Applicant refused to disclose essential evidence on one of the main issues in the case to the Insurer, or to bring such evidence to the hearing. I therefore decline to award her expenses in respect of the arbitration.

Order:

1. The Applicant is not entitled to income replacement benefits.

2. The Applicant is not entitled to other disability benefits.

3. The Applicant's transportation expenses have been paid by the Insurer.

4. The Applicant is not entitled to interest.

5. The Applicant is not entitled to her expenses incurred in respect of the arbitration.

August 10, 1995

Suesan Alves Arbitrator

Footnotes

1. 1The Statutory Accident Benefits Schedule - Accidents On or After January I, 1994, called the "Schedule" in this decision. The Schedule is Ontario Regulation 776/93, as amended by Ontario Regulation 635/94.
2. 2David J. McNutt and Metropolitan Life Insurance Company, September 20, 1994, OIC File No. A-006964