Neutral Citation: 1995 ONICDRG 179

File No. A-013283

ONTARIO INSURANCE COMMISSION

BETWEEN:

MS. G.

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

DECISION

Issues:

The Applicant, Ms. G., was injured in a motor vehicle accident on July 3, 1991. She applied for and received statutory accident benefits from the Allstate Insurance Company of Canada ("Allstate"), payable under Ontario Regulation 672.¹

Weekly benefits, pursuant to section 13(1) of the Schedule, and child care benefits, pursuant to section 13(4) of the Schedule, were paid until July 3, 1994, a period of 156 weeks from the date of the accident.

Allstate terminated Ms. G.'s weekly benefits and child care benefits on the basis that she did not meet the post-156 week eligibility test set out in section 13(8)(b) of the Schedule. Ms. G.

claims that she continues to be entitled to weekly benefits and child care benefits.

The parties were unable to resolve their disputes through mediation, and Ms. G. applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended. The issues in this hearing are:

1. Is Ms. G. entitled to weekly benefits under section 13(8)(b) of the Schedule for any period after July 3, 1994?

2. Is Ms. G. entitled to child care benefits under section 13(4) of the Schedule for any period after July 3, 1994?

Ms. G. also claims interest on any amounts owing, and her expenses related to the arbitration.

Result:

1. Ms. G. is entitled to continuing weekly benefits after July 3, 1994.

2. Ms. G. is entitled to child care benefits after July 3, 1994.

3. Ms. G. is entitled to interest on the outstanding benefits payable as a result of this decision.

4. Ms. G. is entitled to her expenses related to this arbitration.

Hearing:

The hearing of evidence in this matter was held in Ottawa, Ontario, on May 10, 11 and 12, 1995, and July 10, 1995, before me, Roger Young, arbitrator. Written argument was received from the Applicant's counsel on July 15, 1995; the written response by the Insurer's counsel was received on August 30, 1995; final written rebuttal was received from the Applicant's counsel on September 26, 1995.

Present at the Hearing:

Applicant:

Ms. G.

Applicant's Representatives:

Stephen Appotive Barrister and Solicitor

Peter Sherlock

Law Clerk

Insurer's Representatives:

William Garay Barrister and Solicitor

Michael Pantalony

Law Clerk

Witnesses:

Ms. G., Applicant

Robert Kay, Applicant's spouse

Dr. David Leduc, Applicant's family doctor

Nancy Jonik, Homemaker/House Cleaning Service provider

Sharon Poirier, Clinical Kinesiologist

Kathy Greene, Occupational Therapist

Angela Christian, Senior Rehabilitation Specialist

Exhibits:

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

Background:

Ordinarily, it is not necessary to reveal the most intimate details of an Applicant's personal life to deal with a claim for accident benefits. Here, it is required in order to explain the basis of the Insurer's argument that it ought not to be liable for the payment of any further weekly benefits to the Applicant past the first 156-week benefit period.

Ms. G. is presently 43 years of age. She has had to contend with many difficulties during her life. During her early childhood, she suffered physical, emotional and sexual abuse from her father and uncles. She left home at age 18, and soon afterwards entered into a bad marriage. During the next three years, she had two children; both she and her two boys suffered further abuse until the youngsters were taken into care by the Children's Aid Society at a time when Ms. G. was depressed and suicidal. The boys were later adopted out. In 1979, at age 27, Ms. G. met and married her second husband. A daughter, Jennifer, was born on July 3, 1981, who continues to reside with the Applicant. This second marriage was, apparently, also an abusive one; it ended in 1985, due to the husband's premature death following a lengthy illness, although the couple had separated a year previously.

During the summer of 1985, Ms. G. was involved in a motor vehicle accident in which she reportedly sustained musculo-skeletal injury with soft tissue tendonitis. Ms. G. was struck by a passing car as she alighted from her own vehicle. She suffered whiplash and neck pain, causing her to be off work for some months. She eventually returned to part-time employment (up to 30 hours per week), until she took an early retirement "buy-out" in 1989. This followed an incident where she was raped by a co-worker, causing her further emotional distress. Although she was asked by her employer to stay on in another position, Ms. G. felt that the offer was insincere, so she left. After that, she worked in other part-time employment until early 1991.

Meanwhile, in December 1989, Ms. G. had met her third husband. This marriage was no better than the first two. The couple separated in June, 1990.

On July 3, 1991, her daughter's tenth birthday, Ms. G. was badly injured in the motor vehicle accident giving rise to this arbitration. Ms. G. and Jennifer were on their way to their vacation trailer, a two-hour drive west of Ottawa, when her Ford Bronco collided with a tractor-trailer transport, severely damaging the front end, particularly on the driver's side. While Jennifer escaped serious injury, Ms. G. was not as fortunate. A photograph of the wreck of her vehicle was submitted as Exhibit 2.

The injuries suffered by Ms. G. in this second accident consisted of a fractured left femur, torn ligaments in the left knee, compound fractures of the right knee, fractured right leg and right ankle, chest and abdominal contusions, scalp lacerations and some internal bleeding. She was rushed to hospital where she underwent an emergency laparotomy (negative); the bones in her legs were re-set with the use of rods and pins, and her cuts were sutured. Two days after these emergency procedures, Ms. G. was transferred to a ward. Her condition quickly deteriorated, and the following day she went into acute respiratory distress. She was returned to intensive care. It was felt that Ms. G. likely had suffered a fat embolism.

For the next six weeks, she remained in intensive care, semi-conscious, dependent upon a respirator, and having undergone a tracheotomy. She developed sepsis, and was put on a "vast number" of antibiotics. She was diagnosed with Adult Respiratory Distress Syndrome ("ARDS"). She suffered a "mild failure of the right heart", secondary to the ARDS. "Against all expectations", she finally improved. She was discharged home on crutches on September 5, 1991.² 11 days later, Ms. G. was examined by her family physician, Dr. Leduc, who noted retained fluid in her legs, dependant swelling, and shortness of breath. He diagnosed acute congestive heart failure and immediately sent Ms. G. back to hospital.

Following her subsequent release from hospital, Ms. G. returned home to convalesce. In fact, she and Jennifer soon moved from their own residence outside Ottawa back into the metropolitan area to be with her friend, Robert Kay, whom she has since married. As well as placing her closer to needed services and treatment, this move has allowed Mr. Kay to devote much care and attention to the Applicant. Ms. G. first met Mr. Kay over Christmas 1990. They dated and became close friends in the months before her accident.

Issues to be Decided:

The narrow issue to be decided in this arbitration, is whether the injuries suffered by Ms. G. in the 1991 accident continuously prevent her from engaging in substantially all of the activities in which she would normally engage before the accident, within the meaning of section 13(8) of the Schedule. There is no question that weekly benefits and child care benefits were owed to and received by Ms. G. for the first 156 weeks following the motor vehicle accident. The Insurer does not dispute that the Applicant was incapacitated and substantially unable to perform those essential tasks in which she would normally have engaged during that period. It is not necessary to dwell at length upon Ms. G.'s efforts at recovery during this period, nor to relate in great detail the extensive rehabilitation support, exercise equipment and household services which the Insurer provided to her.

The test of eligibility for post-156 week benefits relates to the continuous inability to engage in substantially all of a person's normal activities. It is undoubtedly a more stringent test, and the Applicant clearly has the onus of meeting it. I will not dwell on previous cases which have already clearly distinguished the difference between "essential tasks" and "activities." The latter term is much broader in scope. It becomes necessary, therefore, to compare the Applicant's ability to engage in activities immediately prior to the accident, and her ability to do so at 156 weeks following the accident.

Applicant's Evidence of Ability to Engage in Activities Prior to the 1991 Accident:

Immediately prior to her 1991 motor vehicle accident, Ms. G. was unemployed, although she was looking for part-time work. She had recently (within the past six months) held several part-time jobs before moving to a new home in Rockland, Ontario. There is no evidence that she was unemployable in 1991; her last, previous, full-time work had ended about a year and one-half earlier. She used her computer skills to do payroll and bookkeeping. She was skilled at data entry. She could put in a six-hour work day, and worked as many as 30 hours a week, although for a while after her 1985 accident, she did have trouble sitting for more than three hours at a time.

According to her personal physician, Dr. Leduc, Ms. G. had been treated in the two months prior to the 1991 accident for iron deficiency anaemia, anxiety disorder, chronic neck pain and headaches. However, she was "fully capable of independent living", and "making good progress in her therapy, both physically and emotionally". Her doctor noted that her mental state had improved:

... with a slow resolution in the chronic depression that she had been suffering from for several years. She was demonstrating good coping skills in her interpersonal relationships. She was able to deal with situations on her own without the reliance on others.³

Ms. G. was solely responsible for the care of her dependent daughter, Jennifer, then aged 10. She played games with Jennifer such as tag, throwing and catching a baseball, and "shooting hoops" with a basketball; they went swimming, boating and water skiing. Ms. G. was able to interact with Jennifer, and to assist her with her school work. She was involved in parent-teacher dialogue and generally spent a great deal of time with Jennifer. Family outings, picnics, sporting activities, aerobics, dancing, bowling: all were part of an active life style. Driving was not a problem, nor was housekeeping, which Ms. G. did both by herself and with the aid of a cleaning lady.

Ms. G. enjoyed dancing and socializing; she played cards and darts. She participated in an active sexual liaison with Mr. Kay. She maintained a garden and had no difficulty living in a two floor duplex, going up and down stairs to get to and from the laundry room and the bedrooms. Ms. G. did the laundry and the shopping, as well as preparing all meals. She maintains that she was "in good physical shape", had "lots of energy" and worked out on her home exercise equipment several times a week. She was interested in popular and contemporary music as well as 'rock and roll'; she read music and played the organ. She was solely responsible for managing the family finances.

Post-156 Weeks:

(a) Evidence of Ms. G.:

Ms. G. testified at length about the extent of her suffering and about her efforts to rehabilitate herself after the accident. What is most relevant here is her condition on July 3, 1994, 156 weeks after the date of the motor vehicle accident. The evidence of Ms. G. and her husband, Mr. Kay, suggests that, although her physical injuries may have healed, Ms. G. has been left with a lack of strength and stamina, substantially affecting her ability to participate in the lifestyle and activities which she previously enjoyed.

Ms. G. testified that she suffers mental or psychological symptoms and intermittently from a "dissociative state". This leaves her lost and unable to cope with life, often without memory of what she has done or any sense of where she is, or has been. For some time following the accident, Ms. G. was afraid to go outside, although she now uses taxis and buses to make short trips.

Ms. G. has difficulty with her immediate memory and retention of information. She has lost her computer keyboarding and typing skills. She often forgets to do things around the house such as turning off the stove; she sometimes loses track of what she is preparing for dinner. She has been unable to return to work; she lacks the ability or energy to do even two hours of volunteer work a day at a local library. This condition continues despite efforts on her part to prove her doctors wrong and to resume her former lifestyle. She is unable to help her daughter with her school work. In fact, Jennifer's teachers have gone so far as to suggest that Ms. G. no longer attempt to assist her daughter with homework. Ms. G. was providing incorrect instruction and the result was proving frustrating to both mother and daughter. Also, Jennifer now finds relating to her mother very difficult because Ms. G. cannot remember the next day what she and Jennifer had been discussing the evening before.

Ms. G. is able to walk now, slowly, and with the use of a cane. She uses her exercise equipment to assist with her rehabilitation, but what should take 15 minutes to complete takes her 45 minutes. She cannot play basketball or shoot hoops. She no longer plays the organ because of memory lapses. She has tried to dance on one or two occasions, but "paid for it" the next day because the pain was so great she could hardly move. She tried to bowl once, but only managed one frame — i.e., three balls. She can play catch with Jennifer so long as Jennifer tosses the ball directly to her; if she misses it, she has great difficulty in bending to pick the ball up, and is unable to run after and fetch it. Her endurance is limited to a few moments of such activity. She often has accentuated muscular pain after such exertion. Lake swimming is difficult because the cold water makes her legs ache. Ms. G. is no longer able to do aerobics. She has great difficulty squatting down, and if she does, she is unable to get up again by herself.

Around the house, Ms. G. is able to do light sweeping of the kitchen floor, but can not wash it. She can tidy up in the kitchen, but her husband and daughter share the major chores in order to assist her. Her husband washes windows and does any outside cleaning. She can put out small amounts of garbage, but her ability to carry things is restricted. She does light vacuuming, but is unable to mend clothes and has difficulty ironing. Ms. G. can pull the covers up on the bed, but requires help from her husband to change sheets or to properly make up the bed. She can do light cleaning in the bathroom, but has difficulty washing the tub or cleaning toilets and floors. She has tried to use a long-handled sponge but finds that she does not have the strength to apply the pressure needed to really clean anything. Mr. Kay stated that when Ms. G. does do such jobs, they are often incomplete, and not done well. Ms. G. used to keep a neat and tidy house; she is unable to maintain those former standards today.

Ms. G.'s ability to socialize is limited now; she and her husband do not often entertain either family or friends at home as her ability to participate is curtailed. Ms. G. no longer likes to drive; she finds the effort tiring and stressful. She has driven perhaps four times in the past year, always accompanied by her husband. She no longer gardens or does much outside her home.

In terms of personal care, Ms. G. can look after her own needs. She avoids showering or bathing if her husband is not present, in case she has trouble getting out of the tub. When she uses her stove, Ms. G. must put the overhead light on to remind herself that she is cooking something. At times she forgets this, or that she has put something in the microwave. She finds tightening the cap on a thermos flask extremely difficult. She has difficulty doing up her shoe laces and must use a long-handled lace puller. She has lost, or at least not yet regained, the dexterity of her fingers.

Ms. G. has simplified her wardrobe. By "dressing down" in loose-fitting, elasticized, non-buttoning clothes she is more easily able to dress herself. She uses a "reacher" to help her put on her underwear and track pants. She uses the reacher to put clothes into and take them from the washer or dryer. She can carry small loads of laundry, but it is a slow, labourious process. Sometimes Ms. G. can hardly even get herself up or down a flight of stairs; she overcomes this by backing herself up and down the steps on her bottom, much as small children do. Ms. G. is unable to handle heavy groceries or large items. She depends on Mr. Kay for the majority of the grocery shopping. She makes only short trips to the store alone, for small items. Meal preparation is restricted to simpler forms of cooking such as "pot meals."

Of greatest concern are Ms. G.'s "dissociative state" experiences. On occasion, she has gone shopping but does not remember where, or what she bought; only that her closets are suddenly full of new clothes. She has no ability to do banking or handle the family finances on her own. She requires the assistance of clerks and tellers to do what is necessary, and relies upon them to do honestly as she asks. Ms. G. is often absent-minded about what she is doing or has just done. At times, she has called her physiotherapist and booked the same appointment eight or nine times in the same day. When she becomes overwhelmed, she simply locks herself in her house and takes to her room.

Ms. G. testified that she has tried to accomplish the tasks suggested to her by her therapist Kathy Greene. Her evidence is that when she told Ms. Greene that she had "done" something, it really is more accurate to say that she had "tried" to do it. Ms. Greene had tried to help her build up her confidence; she encouraged Ms. G. to think positively. Ms. G. is eager to try to regain her former state; she often reads "recovery" books.

(b) Evidence of Mr. Kay:

Ms. G.'s husband, Robert Kay, described his wife as having good days and bad. On her good days she might struggle to do some housework and a few other things; on her bad days she simply remains in bed and does nothing. Mr. Kay observed that Ms. G.'s "dissociative" condition related directly to the amount of domestic support she received. The more tired she became, the more easily she became overwhelmed. The evidence of Ms. G. and her husband was that Ms. G. has done her best to cooperate with her therapists and to resume her former lifestyle. She has tried out various aides and household equipment to help her overcome her limitations, including bee mops, reachers, daily diaries, and the like.

Mr. Kay testified that the Applicant was prone to underestimating or downplaying her disabilities. Only recently had she begun to come to terms with how deficient she actually was; the effect of this awareness was to increase her level of frustration and depression. According to Mr. Kay, Ms. G. is not very effective or proficient around the house; also, she is limited in the parental role which she can have with her daughter. Ms. G. has great difficulty functioning on her own outside the house; her role inside is a shadow of its former self. Social activities both inside and outside the home have become curtailed. Their sex life has been compromised and changed as a result of the 1991 accident. Mr. Kay now has to assist his wife in organizing her life; he looks after almost all financial matters as she is unable to manage them on her own.

(c) Other Evidence:

Nancy Jonik, a homemaker employed by the Insurer to assist Ms. G. prior to July 1994, testified that Ms. G. could not, on her own, keep up a house to normal standards; she did not have the strength to do many of the standard cleaning chores, even when using the aides suggested by therapist, Kathy Greene. Ms. Jonik stated that she witnessed Ms. G. become exhausted and disoriented after trying for 10 or 15 minutes to do laundry or dishes. Ms. G. seemed to suffer from obvious emotional and psychological stresses; these seemed to increase when the cleaning services which she provided to Ms. G. were cut back. That is, the added work placed upon Ms. G. seemed to drain her and drag her down.

Sharon Poirier, kinesthiologist, made a functional capacity evaluation of Ms. G. in October/November 1994. Testing, which is normally done over a three day period, had to be done over eight days because of the Applicant's low energy levels. The results showed consistent and lasting limitations in all areas of performance. Strength in trunk and lower limbs was very poor. Ms. G. also had a serious problem with fatigue, resulting in emotional stress and loss of mental attention. Pain on exertion was also a limiting factor. Ms. Poirier felt Ms. G. did not have the capacity to do repeated household tasks. She might be able to accomplish one task in a day, but to attempt more would likely be beyond her abilities. Although Ms. G. put a great deal of effort into trying to recover and improve her physical strength, she also required more than normal assistance even to help her focus on instructions.

Angela Christian, a senior rehabilitation specialist hired by the Insurer, confirmed much of the above. She was in charge of Ms. G.'s overall rehabilitative program; she coordinated the many services being used to help the Applicant recover from her injuries. Ms. Christian found Ms. G. to be highly motivated, but unable to cope on her own with an independent lifestyle, including looking after her home, her daughter and her husband. Ms. G.'s greatest continuing problem was fatigue; she was unable to participate in her normal activities and tasks in any sustained manner without risking serious detriment to her health.

Ms. Christian confirmed that Ms. G. underestimated her limitations and overestimated her abilities; her claims to have regained abilities were often exaggerated. This was demonstrated by the negative impact on Ms. G.'s condition brought about by the cutback in Ms. Jonik's homemaker assistance. Ms. Christian felt that Ms. G. required on-going multi-disciplinary support to assist in her continued recovery. Because of Ms. G.'s inability to perform tasks and enter into her former activities on a sustained basis, Ms. Christian did not feel that the Applicant had returned to anywhere near her pre-accident state.

Insurer's Position:

Counsel for the Insurer challenged the relevance and reliability of many of the foregoing observations. He argued that they were in contrast with what the Applicant had stated about herself to these same people, and suggested that Ms. G. should be held to her earlier statements.

The Insurer referred to evidence (Exhibits three to ten) about the extent of the Applicant's injuries sustained in the 1985 accident, the state of her physical recovery thereafter and problems relating to depression between 1986 and 1991. The Insurer also referred to the medical report by Dr. Mohr which I deal with more extensively in the conclusions which follow.⁴

The Insurer argued that Ms. G. has not been continuously prevented from engaging in substantially all of the activities in which she would normally engage. It was submitted that: a) if the Applicant was indeed suffering some limitations to her lifestyle, they were as a result of her first accident in 1995, not the second; b) the cause of her "dissociative state", which was the greatest impediment in her life today, pre-dated the 1991 accident, and was related to the psychiatric problems flowing from her abused childhood and marital background; and c) the Applicant's own evidence demonstrated that she was once again engaging in many of her pre-1991 accident activities. The Insurer argued that it was not the quality or extent of Ms. G.'s participation in activities which must be measured, but whether or not she had attempted them at all, even if only slowly or for a short while. It was her "functional capacity" which had to be assessed, not the quality of her enjoyment.

The Insurer claimed that Ms. G. was presently able to carry out most of her pre-accident tasks and to enjoy many of her same pre-July 1991 activities, though with some obvious "impairment." Mr. Garay argued that the fact that it takes her longer to carry out the tasks, and the fact that she suffers fatigue (and some pain) is not relevant to the analysis. Pain and fatigue, to be relevant, must be such as to basically totally debilitate the person and more or less totally impair that person's ability to carry out essentially all activities. The fact that an injured person had to carry out tasks or activities in a "modified" manner did not mean that the person was substantially unable to engage in those tasks or activities. Counsel for the Insurer cited certain Commission cases in support of this argument.⁵

The Insurer noted that on May 11, 1992, Dr. Bouchard, the orthopaedic surgeon who treated Ms. G., had stated that the:

... prognosis is good for her return to activities of daily living and probably return to work ... she can essentially perform all the activities that she wants without restrictions. However, she has limited pulmonary capacity and her stamina will be sub-optimal ... I do believe that Ms. G. will be able to return to her usual activities of daily living, housekeeping and child care.⁶

Also, the Insurer noted that Dr. Gillen, psychiatrist, stated on September 22, 1992, that Ms. G. had reported making supper each day, doing a lot of reading, as well as some outside activities such as grocery shopping and riding on buses. There was no mention of any "dissociative state". By her own report, the Applicant had said that she was independent in her activities of daily living.⁷

Further to the report of Dr. Tardif, psychiatrist, dated November 20, 1992, "'further testing in psychology showed that [Ms. G.'s] major problem might not be due to a head injury but rather a "dissociative state" possibly secondary to her past history of being a victim of abuse."⁸

The Insurer then pointed to the fact that Ms. G.'s own family physician, Dr. Leduc, had stated on November 7, 1994 in answer to the question: "is she unable to perform substantially all of her pre-accident activities?", that:

... Physically, she has been making a good functional recovery. She is able to ambulate fairly well with discomfort and effort. She can perform the activities of daily living that she was doing before the accident. Her prospects of working though are greatly diminished by her physical handicap. At the time of her accident she was at the point where she could have been working. On the psychiatric side, she continues to have dissociative spells. These spells can happen at any time but are much more common at times of emotional stress and have only been present since the accident. They have left her with very limited abilities to cope with stress ... It is these spells that are causing her the greatest problem with her complete recovery and represent the only real impediment to her performing substantially all of her pre-accident activities safely and effectively.⁹

Counsel argued that no causal relationship had been shown linking the Applicant's "dissociative states" to the 1991 motor vehicle accident. Counsel submitted that it was more likely that these were caused by Ms. G.'s attempts to "escape" from memories of her past abuse. Counsel also suggested that Dr. Leduc had reversed himself in a subsequent report, written only nine days later, when he suggested that Ms. G. was "unable to reasonably and safely perform substantially all of her pre-accident activities."¹⁰ It was clear that the Applicant's problems were not so much physical, but rather cognitive. Her lapses of memory impaired Ms. G.'s ability to organize her affairs and carry out her daily activities. Her own evidence was that she experienced both good days and bad; on good days she could get domestic chores and other things done. The Insurer submitted that the evidence showed that Ms. G. had suffered from chronic depression dating back at least to 1984.

The Insurer placed great reliance on two reports by Kathy Greene, occupational therapist.¹¹ Ms. Greene reported in June and September/October 1994, respectively, that Ms. G. was independent in her activities of daily living, requiring assistance only with such matters as budgeting, banking, grocery shopping and planning her schedule. She was reported as being able to bathe, dress herself, go for walks, do light housework, make meals, do the laundry, tidy up, make beds, sweep floors, do light vacuuming and clean bathrooms, using specialized utensils when and where necessary. At worst, the Insurer argued, Ms. G.'s abilities were "impaired" by her lack of energy or chronic fatigue, but she was not prevented in any continuous manner, as a result of her 1991 accident, from carrying out these activities. Her fatigue and depression could be shown to pre-date that accident.

Counsel for the Applicant cited a number of decisions which he suggested relevant to the outcome of this matter. These cases are listed in Appendix B.

Counsel argued that all of Ms. G.'s pre-accident activities, regardless of their nature or purpose, must be examined and considered, including hobbies, social events and other pastimes. He suggested that a proper application of section 13(8)(b) involved "an analysis of the impact that the motor vehicle injury had on the insured's quality of life", and cited, Kathy Crouter and Economical Mutual Insurance Company, January 3, 1995, OIC File No. A-007284, regarding the eligibility test for section 13(8)(b) benefits.

Conclusions:

I find that the evidence adduced clearly establishes that, while Ms. G.'s physical injuries from the 1991 accident have healed, she continues to suffer impairments and disabilities as a result of those injuries. Although she is ambulatory, with slowness and discomfort, she has continuing loss of movement, flexibility, dexterity, strength and stamina in her body and limbs. Mentally, she suffers from memory deficits, as well as on-going spells of absent-mindedness or lapses in concentration. In addition to all of this are her chronic depressive and intermittent "dissociative states ", which continue to affect and undermine her daily life.

I reject the Insurer's argument that Ms. G.'s present physical impairments and limitations are the result of the previous, 1985, accident. I base this conclusion upon a review of the medical examination reports which followed that accident, in particular Exhibits three through ten, as well as of the Applicant's evidence as to her pre-1991 accident activity. Further, Dr. Bouchard stated in May 1992, that "Ms. G.'s "limited pulmonary capacity [and] sub-optimal stamina" are a "direct result" of her 1991 accident."¹²

As for the origin of the cognitive deficiencies and "dissociative states" which presently affect upon the Applicant's ability to engage in her normal activities, I found the opinion of Dr. Mohr, to be most illuminating. Test results determined Ms. G. to have low average intellectual abilities; memory-wise, she was found to be very low average to deficient. The following passages from Dr. Mohr's report seemed to me to be most relevant:

The etiology of these problems is clearly a very complex issue. We are not only dealing with more than one car accident, but with an extremely traumatic life history, all of which could by itself have produced the current picture. The personality profile ... certainly suggests that Ms. G.'s psychiatric status contributes to the current profile.

Against this very complex background, there are nevertheless a number of significant events which may help in disentangling the respective contributions ...

There can be no question that this woman's current status is influenced by her very difficult history. Further, I could find no evidence in the report pertaining to the first accident, which would suggest the presence of a closed head injury. Ms. G. also appears to have functioned at least marginally adequately after the first accident, suggested by the fact that she was gainfully employed after the accident and that she reasonably managed her affairs subsequent to this accident. However, after her second accident she appears to have suffered considerable problems in her activities of daily living, some of which appear related to her attention/concentration and executive difficulties and her problems in the retention of information. While this configuration of problems could certainly be explained by her personal and psychiatric history, there are good indications that these neuropsychological problems, if existent at all (and I could find no reference to this in the record), were very much less, if present at all.

Based on this, it is my opinion that Ms. G. suffered a minimal head injury in the accident of July 1991, but that the consequences of a superimposition of a relatively minor injury on her existing marked personal and psychiatric problems were major and have left her with an appreciable disability. Ms. G. is in my opinion not employable at this time and given the time elapsed since the accident (almost four years), it is unlikely that there will be any major change in her condition in the future.¹³

The evidence before me established that Ms. G. also suffered from depression following her first accident, and that this accentuated her problems at that time. The additional stress of her injuries, at that time, seemed to encourage a latent predisposition to withdrawal. That pattern seems to be repeating itself now. The additional stress of physical impairment and its limitation upon Ms. G.'s ability to function as she might wish are reflected in further depression and dissociation.

I am persuaded, therefore, that one of the activities in which Ms. G. has been continuously prevented from engaging, as a result of her 1991 accident, is that of employment. Another is her ability to interact socially with friends and family, which has been severely curtailed, as has her parental role and relationship with her daughter. Further, Ms. G.'s ability to enjoy an active sex life with her spouse has been compromised.

The Insurer claims that Ms. G. is, however, able to engage in a number of other activities, including some of her previous, after-work pursuits such as playing "catch", "shooting hoops", bowling, dancing and doing a number of chores around the house such as cooking, light cleaning, laundry, making beds, and the like. All of this really begs the question of what is meant by the words "engage/engaging in?" Counsel for the Applicant would have me interpret the term in a "qualitative" fashion, relating it to the "enjoyment" of one's lifestyle. Counsel for the Insurer argues that the threshold of eligibility for section 13(8)(b) benefits is one of complete inability to engage in an activity, not a partial or modified ability.

After a review of all of the evidence adduced, and applying the relevant case law cited thereto, I have reached the conclusion that this application for post-156 week benefits under section 13(8)(b) must be allowed. I am of the view that Ms. G. has demonstrated that the injuries she suffered as a result of her 1991 accident do continuously prevent her from engaging in substantially all of the activities in which she would normally engage. Ms. G. is still at the point where she is attempting, with limited success, to re-engage in her former activities. I do not believe that rolling three balls down an alley on one, isolated occasion constitutes a return to or "engagement in" the sport of bowling. Nor does making an attempt to dance at one's brother's wedding, but being laid up for days afterwards as a result, equate to being able to "party." Nor does catching a ball on a few occasions (only if and when it is tossed directly to one) constitute "engagement in" the game of catch. Surely, an essential part of that game is being able to bend down to pick up the ball which is dropped, or to run after those which are missed.

I find that, Ms. G. is now able to do some limited chores around the house. Even at that, she often requires assistance to complete many of these tasks. That is, she is unable to engage in doing of them as she formerly did, without the aid of another person. On her good days, she lacks the strength and stamina to do much at all; on her bad days, nothing gets accomplished. Far from being "engaged in" her former activities around her home, I find Ms. G. is struggling to cope, and not really getting by. She requires the use of memory aids because her attention wanders; she is incapable of keeping her finances straight without depending on others. Even her use of specialized equipment such as mops and "reachers" does not allow her, effectively, to "engage in" or perform to any comparable degree, those tasks which she previously was able to do. "Going through the motions" does not, in my view, constitute what a reasonable person would define as "engaging in" the activities under review. Surely, the test of eligibility contemplated by the Schedule is more than just an exercise of ticking off the comparative boxes of what was "done", previously, and what is being "attempted", today.

I do not believe that the Applicant has recovered from her 1991 accident to the point where she is able once again to "'engage in" substantially all of the activities in which she would normally engage. I find that on any objective view, it is reasonable to conclude that this is not the case. Perhaps, she will resume her former activities some day; in my view, she has not, as yet. To cite Simpson, supra, the Applicant's ability to engage in her former activities has been compromised beyond "reasonable and practical modifications;" to cite Clark, supra, her ability to engage in activities has been more than "modestly compromised." These cases suggest that the test, if it is not the "qualitative" one proposed by the Applicant's counsel, is at least a practical one. In that sense, it is a matter of degree as to how "effectively" one is able to "re-engage in" one's former activities.

For all of the above reasons, I would grant the Applicant's claim to continuing entitlement to weekly benefits under section 13(8)(b) and section 13(4) of the Schedule.

Order:

1. The Applicant is entitled to continuing weekly benefits pursuant to section 13(8)(b) of the Schedule after July 3, 1994.

2. The Applicant is entitled to child care benefits pursuant to section 13(4) of the Schedule after July 3, 1994.

3. The Applicant is entitled to interest on the outstanding benefits payable to her, retroactively, as a result of this decision.

4. The Applicant is entitled to her expenses related to this arbitration.

Dec.7, 1995

Roger Young Arbitrator

Date

APPENDIX A

Exhibits:

Exhibit 1

Joint Medical Brief, Tabs 1 - 25

Exhibit 2

Photograph of damage to Applicant's vehicle, result of accident July 3, 1991

Exhibit 3

Report of Dr. Jovaisas, July 29, 1987

Exhibit 4

Report of Dr. Jovaisas, August 22, 1988

Exhibit 5

Report of Dr. Agarwala, February 3, 1986

Exhibit 6

Report of Dr. Day, September 23, 1986

Exhibit 7

Report of Dr. Day, October 29, 1986

Exhibit 8

Report of Dr. Gear, September 2, 1986

Exhibit 9

Report of Dr. Harris, September 3, 1985

Exhibit 10

Report of Dr. Marcovitch, July 8, 1987

Other Documents Before Arbitrator:

Report of Mediator, November 21, 1994

Application for Arbitration, November 24, 1994

Response by Insurer, January 23, 1995

Pre-hearing letter, March 7, 1995

Notice of Hearing, April 7, 1995

Notice of Roster Arbitrator Appointment, April 10, 1995

Notice of Change of Hearing Location, May 4, 1995

Argument of the Insured, Ms. G., brief submitted by Hamilton/Appotive/Callan, dated July 13, 1995

Argument of the Insurer, Allstate Insurance Company of Canada, brief submitted by Garay and Associates, dated August 25, 1995

Reply of the Insured, brief submitted by Hamilton/Appotive/Callan, dated September 18, 1995

APPENDIX B

Cases Referred to by Counsel for the Insurer and by Counsel for the Applicant:

1. Campbell and Canada Life Assurance Company (1990), 1990 CanLII 11298 (MB CA), 45 C.C.L.I. 73 (Man. C.A.)

2. Florence T.M. Clark and Federation Insurance Company of Canada, March 21, 1995, OIC File No. A-002941

3. Kathy Crouter and Economical Insurance Company, January 3, 1995, OIC File No. A-007284

4. Dale and Commerical Union Assurance Company (1980), I.L.R. 1036

5. Vincenza Di Censo and Wellington Insurance Company, August 31, 1994, OIC File No. A-004198

6. Louise-Ann Dugas and Wellington Insurance Company, February 10, 1994, OIC File No. A-003517

7. Foden and Cooperators Insurance Association (1978), 1978 CanLII 1622 (ON HCJ), 20 O.R., (2d), 728

8. Susan Grout and Pilot Insurance Company, May 4, 1995, OIC File No. A-004805

9. Sabita Johnson and Halifax Insurance Company, September 1, 1994, OIC File No. A-005216

10. Chor Ting Lui and Wellington Insurance Company, April 28, 1993, OIC File No.A-001894

11. Eric Simpson and Royal Insurance Company of Canada, April 6, 1994, OIC File No. A-003863

12. Martin Wilson and Jevco Insurance Company, January 13, 1995, OIC File No. A-008409

Footnotes

1. 1Prior to January 2, 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. 2These quotations and information are taken from the report of Dr. J. Bouchard, attending hospital physician, Exhibit 1, tab 3.
3. 3Exhibit 1, tab 15.
4. 4Exhibit 1, tab 25.
5. 5Simpson and Royal Insurance Company of Canada, April 6, 1994, OIC File No. A-003863 Grout and Pilot Insurance Company, May 4, 1995, OIC File No. A-004805 Clark and Federation Insurance Company of Canada, March 21, 1995, OIC File No. A-002941
6. 6Exhibit 1, tab 5.
7. 7Exhibit 1, tab 6.
8. 8Exhibit 1, tab 8.
9. 9Exhibit 1, tab 15.
10. 10Exhibit 1, tab 16.
11. 11Exhibit 1, tabs 18 and 19.
12. 12Exhibit 1, tab 25.
13. 13Exhibit 1, tab 25, page 7.