Neutral Citation: 1995 ONICDRG 151
ONTARIO INSURANCE COMMISSION
BETWEEN:
JULIA LONG
Applicant
and
PERSONAL INSURANCE COMPANY OF CANADA
Insurer
DECISION
Issues:
The Applicant, Julia Long, was injured in a motor vehicle accident on March 20, 1992. She applied for and received statutory accident benefits from the Insurer, payable under Ontario Regulation 672.1 The Insurer refused to pay Ms. Long weekly benefits; however, it paid her certain supplementary medical and rehabilitation benefits. The parties were unable to resolve their disputes through mediation and Ms. Long applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The issues in this hearing are:
Is Ms. Long entitled to weekly benefits under section 13(1) of the Schedule? If so, for what period of time?
If Ms. Long is entitled to weekly benefits, what is the correct amount of the benefits? Specifically, what is the correct amount of post-accident income the Insurer is entitled to deduct from Ms. Long's weekly benefits, under section 15 of the Schedule? Can the Insurer refuse to pay weekly benefits under section 16(3) of the Schedule for any period of time because Ms. Long attended school after the accident?
Is Ms. Long entitled to housekeeping expenses under section 6(1)(f) of the Schedule?
Ms. Long also claims interest on any amounts owing, and her expenses incurred in respect of the arbitration.
Result:
Ms. Long is not entitled to any weekly benefits under section 13(1) of the Schedule.
Ms. Long is not entitled to housekeeping expenses.
Ms. Long is entitled to her expenses incurred in respect of this arbitration.
Hearing:
The hearing was held in North York, Ontario, on April 10 and 11, 1995, before me, Asfaw Seife, Arbitrator.
Present at the Hearing:
Applicant:
Julia Long
Applicant's
Timothy Law
Representative:
Barrister and Solicitor
Insurer's
Philippa G. Samworth
Representative:
Barrister and Solicitor
Insurer's
Erminio Bellissimo
Officer:
Claims Supervisor
Witnesses:
Julia Long,
The Applicant
Robert Long,
The Applicant's Husband
Exhibits:
Exhibit 1
Insured's Medical Brief
Exhibit 2
Insurer's Book of Documents
Exhibit 3
Claim Statement
Exhibit 4
Letter from Personal to Ms. Long, dated April 13, 1992
Exhibit 5
Photocopies of cheques
Exhibit 6
Letter from Rent-a-wife Inc. to Mr. Long, dated February 14, 1995
Exhibit 7
Photographs of damaged car
Exhibit 8
Letter from Windsor Home Care to Insurer's counsel, dated April 3, 1995
Exhibit 9
Letter from Molly Maid Services to Insurer's counsel, dated April 3, 1995
Exhibit 10
Memorandum from Personal to Dr. Park
Evidence and Findings:
Background:
At the time of the accident, Julia Long was 31 years old, married, and 13 weeks pregnant with her first child. She was a full-time law student in her second year of studies at Osgoode Hall Law School in Toronto. Mr. Long was engaged in full-time employment with Northern Telecom as a computer scientist. They lived in a two bedroom apartment in the campus of York University, where Ms. Long's law school was located.
The accident occurred three weeks before the commencement of Ms. Long's final examinations. On Friday, March 20, 1992, Ms. Long and her husband were driving on Highway 401. Ms. Long was seated in the front passenger seat of the car, wearing her seat belt. Their car was stopped due to traffic congestion when it was rear-ended by another vehicle, and pushed to the front, colliding with the car ahead. Ms. Long testified that as a result of the impact, she hit her head on the headrest of the car. She felt dizzy but she did not lose consciousness. She waited in the car until ambulance arrived.
Ms. Long was taken to the emergency department of Scarborough Centenary Hospital. She testified that at the hospital, she complained of neck, back and abdominal pain as well as shortness of breath. Ms. Long was discharged with instructions to rest. She was given no medication and no x-rays were taken because of her pregnancy. Ms. Long testified that the doctor at the hospital told her that her back pains were due to constipation.
On Monday, March 23, 1992, Ms. Long saw her family doctor, Dr. Hazel Park. The doctor's diagnosis was soft tissue injury to the abdomen, occasioned by the seat belt. Dr. Park reassured Ms. Long that there was no danger to her pregnancy. She prescribed a pain killer for her and told her to "take it easy."
After the accident, Ms. Long continued with her studies, successfully completing her examination and the second year of her law school. In the summer of 1992, she obtained summer employment at a legal aid clinic, where she worked on a full-time basis until the end of August.
Ms. Long gave birth to a healthy baby boy on September 22, 1992. She stayed at home for the first two weeks after the baby was born, and then returned to law school. Mr. Long took an extended parental leave from his employment, from which he subsequently resigned, and stayed home full-time caring for their son while Ms. Long attended school.
Ms. Long continued with her studies and successfully completed her final year at law school in the Spring of 1993. In April, 1993, Ms. Long and her husband moved to Ottawa where they rented an apartment. Ms. Long graduated in June, 1993 with a Bachelor of Laws degree.
During the balance of 1993 and 1994, Ms. Long successfully completed articling, attended Bar Admission courses and examinations, and was subsequently called to the Bar.
After completing her Bar Admission Examinations, Ms. Long spent six months at home with her son, now nearly two years old. On March 6, 1995, Ms. Long started full time employment as an associate in a law firm in Ottawa, where she was working at the time of the hearing.
Weekly Income Benefits:
On July 10, 1992, approximately four months after the accident, Ms. Long applied for statutory accident benefits. The Insurer refused to pay weekly benefits on the grounds that after the accident, Ms. Long continued to attend school successfully, and had been engaged in full-time summer employment.
Ms. Long claims she was substantially disabled from performing her essential tasks as a student, a homemaker and a mother, from the time of the accident up to September 1994.
The Law:
As a person who was not in receipt of income from employment or self-employment at the time of the accident, Ms. Long's claim for weekly benefits is governed by the provisions of section 13 of the Schedule. In order to establish entitlement to weekly income benefits under this section Ms. Long must prove, on the balance of probabilities, that as a result of the injuries she sustained in the motor vehicle accident of March 20, 1992, she suffered a substantial inability to perform the essential tasks in which she would normally engage.
Essential Tasks:
Ms. Long and her husband testified about Ms. Long's pre-accident essential tasks.
At the time of the accident, Ms. Long and her husband had been living in the apartment on campus since September, 1990 when Ms. Long started attending law school. Mr. Long worked full-time, nine to five. Ms. Long was a full-time student.
Ms. Long testified that her student activities took most of her time. Most weekdays, she would go to school at 8 a.m and return home after 5:00 p.m. At the time of the accident, Ms. Long was completing five courses. Her classes were three hours long. She would go to the library every day and would engage in group study sessions, one day in the weekend. She also participated in running the legal clinic, spending about four hours a week supervising students.
Ms. Long spent more than fifty hours per week engaging in her full-time student activities.
Ms. Long and her husband shared the housework duties equally. These tasks included dusting, vacuuming, general cleaning, cooking meals, laundry, ironing, bed making, and garbage removal. According to their testimony, the total amount of time that both Ms. Long and her husband spent performing housekeeping chores was 10.6 hours per week.
Ms. Long accordingly claims she spent 5.3 hours per week in performing her household duties. Outside of school hours, Ms. Long engaged in cycling, skating and aerobics as recreational and fitness activities.
Ms. Long's counsel argued that Ms. Long's essential tasks consisted not only of her tasks as a student and homemaker, but also included those tasks involved in caring for her baby, who was born after the accident. Counsel also asked me to include in Ms. Long's essential tasks her recreational and extra-curricular activities.
In Edgar Cowie and The Non-Marine Underwriters, Members of Lloyd's, March 9, 1993, OIC File No. A-001159 (under appeal), Arbitrator Janice Mackintosh considered the meaning of the words "essential" and "task", in the context of section 13(1) of the Schedule. She referred to the Concise Oxford Dictionary, Eighth Edition (1990), for the ordinary meaning of these words. According to the Concise Oxford Dictionary, "essential" means:
- absolutely necessary; indispensable. 2. fundamental, basic. 3. of or constituting the essence of a person or thing.
And, "task" means:
a piece of work to be done or undertaken.
In the case of Chor Ting Lui and Wellington Insurance Company, April 28, 1993, OIC File No. A-001894, Arbitrator Janice Mackintosh considered the meaning of the phrase "essential tasks in which [an applicant] would normally engage." In that case, she concluded that not every activity performed by an applicant prior to a motor vehicle accident will meet the criteria set out in section 13. She interpreted the words "essential tasks" to refer "to those activities connected to the ongoing business of living, and included the routine tasks performed by a person to maintain themselves, their dependants, and their home." She also included activities which "reflected an element of commitment, a sense of purpose or responsibility to oneself, one's community or dependants."
I agree with the approach taken by Arbitrator Mackintosh in the above cases in interpreting "essential tasks" in the context of a claim under section 13 of the Schedule and adopt it for the purposes of this case.
In this case, I do not include Ms. Long's extra-curricular activities in her essential tasks because I find they do not fall within the parameters of the above definition.
With regard to general child care duties, it is reasonable to expect that a pregnant woman who was not employed or self-employed at the time of the accident, would normally engage in child care duties after the birth of a child. However, having considered Ms. Long's individual circumstances, I feel it would be inappropriate to include general child care duties in her essential tasks. The evidence indicates that after the birth of their son, Mr. Long left his job to look after the baby while Ms. Long continued to attend school. Mr. Long looked after the baby until he returned to work in September, 1994. Then, a nanny was hired to provide child care services while Ms. Long pursued her Bar Admission courses and Mr. Long worked.
Accordingly, I find Ms. Long's essential tasks include:
personal care including bathing, dressing, sleeping, and eating.
school-related activities including attending classes, preparing for classes, studying and completing assignments and examinations. These tasks entail physical activities, such as sitting for long periods, carrying books, and writing, as well as intellectual demands, including comprehension, memory and the ability to concentrate.
housekeeping activities, meal preparation and other household chores.
physical fitness activities, such as walking, cycling.
Medical Evidence:
Ms. Long testified that because of her injuries, she experienced pain in walking, sitting, carrying and lifting. Three years after the accident, she still has an aching feeling in her lower back, aggravated by sitting too long, standing and walking too long. Her neck is very stiff, with limited movement. She has headaches on a daily basis, and a burning sensation in her left shoulder.
Ms. Long testified that she experiences difficulty in concentrating and became short-tempered after the accident.
Since the accident, Ms. Long has received physiotherapy and chiropractic treatment for her complaints of neck, back and abdominal pain. Ms. Long states that she has seen no marked improvement in her symptoms since the time of the accident.
Ms. Long was examined by two physiatrists in March and April of 1993, Dr. C.M. Godfrey and Dr. Gordon Ko. Their reports were filed in evidence. Dr. Godfrey felt that Ms. Long's complaints of back pain "were a compound of weak abdominal and a posterior facet strain," while Dr. Gordon Ko concluded that Ms. Long "has features of post-traumatic myofacial pain involving the neck, shoulder girdle and low back muscles, post traumatic osteoarthritis involving the left lower lumbar facet joints (documented on x-rays) and generalized deconditioning." There is some disagreement as to whether some of the symptoms that Ms. Long complains about, such as the headaches and shoulder pain, arose from the accident; however, I am prepared to accept Ms. Long's evidence about her injuries.
Substantial Inability:
In order to be entitled to weekly benefits, Ms. Long must establish, on the balance of probabilities, not only that she sustained injuries in the accident, but also that because of those injuries she suffers a substantial inability to perform the essential tasks which are outlined above.
It has been held in numerous arbitration decisions that "substantial inability" means not some disability, and not total disability, but a significant inability which prevents an applicant from carrying out essential tasks to a significant extent. (Lily Steele and Zurich Insurance Company, December 3, 1992, OIC File No. A-001024, and Cowie, cited above)
After reviewing the medical evidence and Ms. Long's testimony, I conclude that as a result of the accident, Ms. Long sustained soft tissue injuries as outlined in Dr. Ko's report. However, I find that as a result of these injuries Ms. Long has not suffered a substantial inability to perform her essential tasks, which I have outlined above.
Ms. Long testified that her first attempt at returning to school was five days after the accident, on Wednesday, March 25, 1992. On that day, she was unable to sit through all of her classes because of pain in her abdomen, low back and left side. Ms. Long was unsure whether or not she stayed at home for the remainder of that week. A "Standard Return To School Form" signed by Ms. Long's doctor and dated April 7, 1992, indicates that Ms. Long was unable to attend school due to her injuries from Monday March 23, 1992 to Friday March 27, 1992. No such other notes were filed.
Ms. Long was also provided with a note from her doctor that stated: "Julia is suffering from back pain following a car accident on March 20, 1992. She needs to be able to get up and walk every half hour while writing exams."
Ms. Long testified that she missed most of her classes the week of school immediately following the accident. She stated she returned to school after that as she wanted to salvage" the term. She estimates that she missed approximately 50 per cent of her classes in total. After the accident, her involvement in group studies was drastically reduced and she was unable to go to the library to prepare for her classes and examinations. Ms. Long testified that she completed her studies with great difficulty. She was helped by her classmates who gave her their notes, and by her husband who did some of her library work for her.
Ms. Long testified that whenever she performed any of her school or home tasks, she experienced considerable pain, and suffering afterwards. At home, most of her household chores were performed by her husband.
Ms. Long testified that it was a struggle to keep up with reading, preparing for examinations and completing assignments. Every task took her much longer than usual. Ms. Long attributed all of her difficulties to the accident.
I accept that the soft tissue injuries Ms. Long sustained in the accident of March 20, 1992, caused her pain and discomfort and limited her level of functioning. However, as indicated above, to be entitled to weekly benefits, an applicant must establish not only that his or her continuing problems relate to the accident, but that they render the applicant substantially unable to perform his or her essential tasks. Pain and suffering are not compensable unless they result in a substantial inability.
To her credit, Ms. Long persevered with her schooling after the accident, notwithstanding that she was in pain and discomfort. Despite the fact that she missed a considerable number of school days, she was able to successfully complete her studies. Her grades after the accident were comparable to her grades before the accident. She managed to attend The Bar Admission courses on a full-time basis, and to engage in a 40-hour week summer employment, and complete a busy articling year, largely without any interruption.
I heard evidence as to the restrictions that Ms. Long faced relative to her child care duties. The evidence indicates that, after the birth of her baby, Ms. Long found it difficult to accommodate both the demands of going to school full-time, and caring for a baby. It is clear that Ms. Long did not perform much housework or take care of her child's needs. Most of the duties in this regard were performed by Mr. Long.
Although Ms. Long testified that she continued to experience her symptoms while performing her student tasks, the evidence does not indicate that these ongoing problems substantially interfered with her ability to complete her education. In large part due to her own perseverance and determination, and with the help of her husband and friends, as well as with the accommodation and flexibility she was provided with at school, Ms. Long was able to resume and successfully complete her studies after the accident.
I find that during the first few weeks after the accident, Ms. Long might have experienced a reduced level of performing her household tasks because of her injuries; however, the statutory test requires proof of substantial inability to perform essential tasks. Ms. Long's own testimony indicates that before the accident, she spent less than six hours per week performing household chores, and more than 50 hours pursuing her full-time student activities.
Accordingly, I find that Ms. Long has not suffered substantial inability to perform her essential tasks as a student and homemaker, since March 27, 1992.
Housekeeping Expenses:
Ms. Long testified that because of her injuries, she was unable to perform her share of the household tasks; as a result, her husband performed all of her chores from the date of the accident until August 1994, when they moved in to a new home and hired a housekeeper.
Ms. Long claims housekeeping expenses in the amount of $6, 656.80 (calculated at a minimum of $10.00 per hour x 5. 3 hours per week x 125.6 weeks.) under section 6(1)(f) of the Schedule, to compensate her husband for his services in performing her share of the housekeeping tasks.
Section 6(1)(f) of the Schedule states:
The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident all reasonable expenses resulting from the accident within the benefit period set out in subsection (3) for,
(f) other goods and services, whether medical or non-medical in nature, which the insured person requires because of the accident.
A number of Ontario Insurance Commission arbitration decisions have awarded expenses for housekeeping services under section 6(1)(f). The cases have applied three criteria in determining whether a claim for services under this section should be awarded:
(1) the expense must be a reasonable expense resulting from the accident;
(2) the expense must be required by the insured person because of the accident; and
(3) if required by the insurer, a medical practitioner must provide a signed statement that the expense is necessary for the applicant's treatment or rehabilitation, [section 6(4)].
In Giovanna Caputo and Wellington Insurance Company., June 23, 1994, OIC File No. A-000697, former Senior Arbitrator Susan Naylor stated:
Section 6 provides for the recovery of reasonable "expenses" for housekeeping services required by an applicant. Commonly, an injured person will be looked after by their partner, by a relative or a friend, who does so out of love and compassion and not for payment.
At common law, not all services performed by family members are compensable. The Court of Appeal in Dziver v. Smith, (1983) 1983 CanLII 1920 (ON CA), 41 O.R. (2d) 385, held that:
There is a presumption that a member of a family who performs domestic or nursing services for a close relative does so for love or out of a sense of duty and is not entitled to be paid for his or her services, but that presumption is rebuttable. The presumption has been in many cases rebutted, where the services were of an extraordinary nature or where they were performed under a promise by the recipient to pay a reasonable sum if and when possible.
The common law has been modified by statute, to the extent that section 61(2)(d) of the Family Law Act allows close relatives to recover compensation for such services, on their own account.
In my view, the language used in section 6 of the Schedule likewise allows for the payment of benefits for homemaking services performed by family members in some cases. The applicable principle can be distilled as follows: the provision of such services constitutes an expense under section 6 of the Schedule where it is reasonable that payment should be made, given the nature, extent and duration of the services provided and the understanding of the parties. (emphasis added)
I agree with these comments of Senior Arbitrator Naylor, and adopt them for the purposes of this case.
At the time of the accident, Mr. Long was employed full-time, and worked nine to five. After the birth of their baby, Mr. Long first took an extended parental leave, and subsequently resigned from his job and stayed home for some time looking after the baby. In the fall of 1993, he enrolled as a full-time student in the University of Ottawa. He completed his studies there in April 1994 and commenced full-time employment in September 1994.
Ms. Long did not pay her husband any money to perform the household tasks, nor were there any agreements or undertakings between them regarding such an arrangement. Mr. Long did not give up his employment in order to perform Ms. Long's share of the housekeeping tasks. The evidence is that he left his employment after the birth of their child, in order to look after the child, while Ms. Long attended school.
Given the nature of spousal relationship between Ms. Long and Mr. Long, the extent and duration of the services provided, and the absence of any understanding regarding payment between them, I do not find that Mr. Long's services constitute an expense under section 6(1)(f) of the Schedule. I find that he undertook to perform Ms. Long's chores out of love and a sense of duty to his spouse.
I have heard no evidence that Ms. Long required housekeeping services in order to assist her in her rehabilitation. Moreover, it appears to me that Ms. Long's difficulties after the accident in performing the minimal amount of her pre-accident household tasks were precipitated, to a large extent, by the onerous physical and psychological demands of a full-time work load as a law student, combined with her pregnancy and the subsequent demands of caring for a young child, and not necessarily by the injuries she sustained in the accident.
Accordingly, the claim for housekeeping expenses is denied.
Order:
Ms. Long is not entitled to weekly benefits under section 13(1) of the Schedule.
Ms. Long is not entitled to housekeeping expenses.
Ms. Long is entitled to her expenses incurred in respect of the arbitration.
October 20, 1995
Asfaw Seife Arbitrator
Date