Neutral Citation: 1995 ONICDRG 24
File No. A-003567
ONTARIO INSURANCE COMMISSION
BETWEEN:
JULIETTE LAPLANTE
Applicant
and
PILOT INSURANCE COMPANY
Insurer
DECISION
Issues:
The Applicant, Juliette LaPlante, was injured in a motor vehicle accident on December 11, 1990. She applied for and received statutory accident benefits from the Insurer, Pilot Insurance Company ("Pilot"), payable under Ontario Regulation 6721. Weekly income benefits were terminated by Pilot on January 14, 1992. Ms. LaPlante claims she continued to be eligible for weekly income benefits until December 11, 1993.
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.I.8, as amended.
The issues in this hearing are:
- Is Ms. LaPlante entitled to weekly income benefits under section 12 of the Schedule, from January 15, 1992 to December 11, 1993?
Ms. LaPlante also claims interest on any amounts owing, and her expenses incurred in the hearing.
Result:
Ms. LaPlante is not entitled to weekly income benefits from January 15, 1992 to December 11, 1993.
Ms. LaPlante is entitled to her expenses relating to the arbitration.
Hearing:
The hearing was held in London, Ontario, on May 12, 1994, before me, Shemin Manji, arbitrator. Present at the Hearing:
Applicant:
Juliette LaPlante
Applicant's
Michael Stahr
Representatives:Fiona Porter
Insurer's
Grant Black
Representatives:
Barrister and Solicitor
Grace Pang
Barrister and Solicitor
Witnesses:
Juliette LaPlante
Ryner F. Stoetzer
Colleen Motten
Exhibits:
Nine exhibits were filed. A list of the exhibits and other documents before me is appended as Schedule A.
The parties relied on several arbitration decisions. These are listed in Schedule B.
1. The factual background and issues:
Ms. LaPlante is 31 years old and resides in London, Ontario. On December 11, 1990, while walking across a street, she was hit by a car. She sustained numerous lacerations and a concussion, as well as injuries to her back, neck and left foot. She was taken by ambulance to Victoria Hospital where she was admitted and seen by a resident in neurosurgery. She was discharged from Victoria Hospital the next day with instructions to see her family physician.
After the accident, Ms. LaPlante applied to Pilot for statutory accident benefits, including weekly benefits. Her eligibility for weekly benefits was determined under subsection 12(1) of the Schedule.
Pilot paid weekly income benefits from December 18, 1990 to January 14, 1992. Weekly income benefits were terminated on January 14, 1992, on the basis that Ms. LaPlante was no longer substantially unable to perform the essential tasks of her pre-accident occupation or employment. Ms. LaPlante claims she continued to be eligible for weekly income benefits until December 11, 1993.
In order to be entitled to weekly income benefits during the period January 15, 1992 to December 11, 1993, Ms. LaPlante must prove, on a balance of probabilities, that she suffered "substantial inability to perform the essential tasks of her occupation or employment".
2. Essential Tasks
(a) "Occupation or Employment"
Ms. LaPlante testified that after graduating from the University of Western Ontario in 1988 with a Bachelor of Arts degree in Music, she embarked on a musical career. Her musical career consisted of three components: (1) her work as a performing artist; (2) her work as a vocalist; and, (3) her work as a vocal teacher. Ms. LaPlante claimed that in the year prior to the accident she had worked in all three areas, although she only earned income as a vocal teacher.
At the time of the accident, Ms. LaPlante was self-employed as a vocal teacher. She testified that although she did not earn an income from her work as a performing artist and vocalist, her non-profit performances were important. They were important because they provided her with learning experience and an opportunity to expose her talents and receive recognition. They were "résumé building projects" which would lead to other performances and a profitable career.
In determining whether Ms. LaPlante is entitled to weekly income benefits under subsection 12(1) of the Schedule, I am required to identify the essential tasks of her occupation or employment. The word "employment" is not defined in the Schedule or the Insurance Act. It has many dictionary definitions, but ordinarily refers to work or activity for which one has been engaged and is being paid a salary or wage by an employer. Similarly, the word "occupation" is not defined in the Schedule or the Insurance Act. The word "occupation" does not necessarily connote service under an employer. It, too, has many dictionary definitions, including for example, "what occupies or engages one's time and attention". According to this definition, the duties of a homemaker would amount to an "occupation". However, words and particularly general words cannot be read in isolation. Their meaning is derived from the context.
The headings to section 12 ("Income Benefit") and section 13 ("Benefit If No Income"), which are part of the Schedule, as well as other subsections of section 12 and section 13, are relevant to the construction of the words in subsection 12. In my view, in order for an applicant to meet the definition of "employment" or "occupation" for the purposes of subsection 12(1) of the Schedule, he or she must be engaged in work for income, i.e., salary, wages, profit, remuneration, or return capable of being estimated in monetary terms, at the time of the accident. The inclusion of the word "occupation" in subsection 12(1) suggests to me that the Lieutenant Governor in Council intended to cover an insured person who is engaged in work for income, but who might not be properly characterized as an "employee", such as a self-employed person or an independent contractor. A self-employed person or an independent contractor earns an income directly from his or her business, trade or profession rather than a specified salary or wages from his or her employer.
My interpretation of subsection 12(1) of the Schedule is consistent with that of Senior Arbitrator Susan Naylor in Donna Hemming and Wawanesa Mutual Insurance, April 28, 1992, OIC File No. A-000406. In Flemming, in the context of the application of subsection 12(1), Senior Arbitrator Naylor stated:
The regulations contemplate inability to perform the duties of remunerative work. The performance of essential tasks must incorporate the ability to perform such tasks in a manner, at a speed or for a time that renders such performance capable of being remunerative. [page 16]
Based on my interpretation of subsection 12(1) of the Schedule, I find that Ms. LaPlante's work as a vocal teacher qualifies as her "occupation". I find that Ms. LaPlante's work as a performing artist or vocalist, which was distinct from her work as a vocal teacher, does not qualify as her "employment" or "occupation". Ms. LaPlante was not engaged in either type of work for salary, wages, profit, remuneration, or return capable of being estimated in monetary terms.
In determining whether Ms. LaPlante is entitled to weekly income benefits under section 12(1) of the Schedule, during the period January 15, 1992 to December 11, 1993, I must consider her ability or inability to perform the essential tasks of her occupation as a vocal teacher.
Ms. LaPlante and Mr. Ryner F. Stoetzer testified about her work as a vocalist. Mr. Stoetzer is a friend of Ms. LaPlante's and has watched her perform as a vocalist before and after the accident. Ms. LaPlante also testified about her work as a performing artist. Had Ms. LaPlante been eligible for weekly benefits under section 13(1) of the Schedule, her work as a performing artist and/or vocalist could potentially have been considered in determining her essential tasks. Because this is a claim under section 12(1) of the Schedule, Ms. LaPlante's ability or inability to perform her work as a vocalist or performing artist is relevant only to the extent that this work correlates with and sheds light upon her ability to perform the essential tasks of her occupation as a vocal teacher. Section 12 of the Schedule does not compensate an insured person for loss of career opportunity.
(b) Ms. LaPlante's essential tasks
Ms. LaPlante testified that she commenced her business as a vocal teacher in September 1990. She solicited clients by putting out posters in libraries and at the workplaces of friends. She placed ads in newspapers. She also spoke to people, including her clients, and asked them to recommend her vocal teaching services to those who might be interested. It is important to note that I heard no evidence at the hearing to the effect that Ms. LaPlante's work as a performing artist or vocalist provided her with clients.
Ms. LaPlante testified that she did not teach every day. Her "studio" was open three days a week. The rest of her time was devoted to her work as a performing artist. There were discrepancies in Ms. LaPlante's evidence about the number of clients she had prior to the accident. At the hearing, Ms. LaPlante testified that between September 1990 and the date of the accident (December 11, 1990), she was gradually building her business. She had more clients in November 1990 than in September 1990. She was unable to recall the number of clients she had before the accident, and kept no records until February 1992. Ms. LaPlante felt that, prior to the accident, she had been capable of handling up to 15 clients in one day, although, she did not remember teaching 15 clients in a day. In the Application for Accident Benefits which Ms. LaPlante submitted to Pilot shortly after the accident, she stated that "(i)ncome has varied from 2 students per week to 15 as of November minus 3 months. No student June to August - then to non-profit performance.". And, on February 17, 1992, Ms. LaPlante informed Dr. Sol Goldenberg, a specialist in general surgery, whom she saw at the request of Pilot, that she normally taught 45 students a week.
Ms. LaPlante did not explain these discrepancies. I find that the statement that Ms. LaPlante made in her Application for Statutory Accident Benefits about the number of clients she had prior to the accident is more reliable because it is consistent with other evidence submitted at the hearing, such as Ms. LaPlante's 1990 income tax return which sets out her income in 1990. Accordingly, I find that the number of clients that Ms. LaPlante had prior to the accident varied between 2 to 15 clients a week. She did not expect to have any clients in the summer because of holidays.
Evidence about what was typically involved in a lesson given by Ms. LaPlante came from Ms. LaPlante and Ms. Coleen Motten. Ms. Motten was a student of Ms. LaPlante's both before and after the accident.
Ms. LaPlante and Ms. Motten testified that each lesson was 40 minutes in duration. The lesson started with vocal exercises. The rest of the time was spent on singing musical arrangements. I accept Ms. LaPlante and Ms. Motten's evidence about what was involved in a typical lesson and I find, for the purposes of determining Ms. LaPlante's entitlement to weekly income benefits, that the essential tasks of her occupation were first, marketing her services. This entailed placing advertisements in newspapers or putting out posters. This also entailed calling people she knew and asking them to recommend her services.
Her second essential task was providing instruction in the proper techniques of singing by verbal instruction and demonstration, for 40 minutes at a time, to up to 15 students a week. Part of her instruction involved explaining to her students the principles of breathing and showing them how to apply these principles. This required that Ms. LaPlante have the ability to breathe properly during each lesson including the ability to take and hold large breaths while singing. Singing is a physically demanding activity which requires energy and endurance. Part of Ms. LaPlante's instruction also involved explaining and demonstrating to students the elements of good posture, in order to prevent bodily tension, since tension affects the quality of the voice.
3. Ms. LaPlante's ability to perform the essential tasks:
Ms. LaPlante submitted that although she returned to vocal teaching at some time in March 1991, she continued to suffer substantial inability to perform the essential tasks of her occupation as a result of the accident after January 14, 1992.
Ms. LaPlante testified that during the period January 15, 1992 to December 11, 1993, her energy level and endurance were significantly lower and she was constantly in pain. The pain was localized in her lower spine with radiation into the mid-back, shoulders and neck. She testified that the pain inhibited her breathing and affected her concentration. She also had headaches brought about by the pain. The pain worsened with prolonged sitting and standing.
Ms. LaPlante testified that her lower energy level and endurance, and the pain and the resultant difficulties that she experienced in breathing and concentrating, prevented her from performing the essential tasks of her occupation in a manner and to the extent that she had performed them prior to the accident.
Ms. LaPlante testified that after she returned to teaching, she was unable to teach by demonstration. She reduced the length of each lesson, from 40 minutes to 35 minutes, and did not book appointments consecutively. Further, she was forced to cancel lessons. Ms. LaPlante also testified that after the accident, she did not teach as many students as she had before the accident.
The medical evidence supports Ms. LaPlante's testimony that, during the period January 15, 1992 to December 11, 1993, she continued to suffer from pain and stiffness as a result of the soft tissue injuries that she sustained to her neck and mid-back in the accident. However, the medical evidence also indicates that during this period Ms. LaPlante was capable of continuing her work as a vocal teacher, on a part-time basis, provided that the work did not involve prolonged sitting, prolonged standing, bending or lifting. I heard no evidence at the hearing to the effect that a lesson necessitated prolonged sitting, bending or lifting. Ms. LaPlante testified that she was accustomed to standing when giving a lesson. However, I heard no evidence to the effect that Ms. LaPlante was required to stand throughout a lesson.
In her clinical notes and records of January 6, 1992, and in her report of January 21, 1992, Dr. Dorli Herman, Ms. LaPlante's family physician, noted that Ms. LaPlante had resumed teaching in September 1991 and "...says she is currently working at about 50% of her capacity, mainly limited by her pain." Dr. Herman's clinical notes and records indicate that while her neck and back pain and discomfort continued, Ms. LaPlante's condition improved throughout 1992, and that by September 10, 1992, she was at 75% of her capacity. Ms. LaPlante was learning to cope with her neck and back pain and continued to do well during the rest of 1992 and 1993. In her report of May 10, 1993, Dr. Cathryn Candusso, the doctor who replaced Dr. Herman while she was on maternity leave, stated:
At present, she [Ms. LaPlante] states that she has regained about 75% of the function of her back. She continues to have pain with prolonged sitting or standing or with doing repetitive activities such as vacuuming.
In a report to the Ministry of Community and Social Services dated November 11, 1993, Dr. Herman stated that Ms. LaPlante's physical condition allowed her to return to her previous occupation on a part-time basis, for 4 to 5 hours a day. She stated that the work must not involve prolonged sitting, standing, lifting and bending.
Following Ms. LaPlante's visit to Dr. Herman, on January 6, 1992, Dr. Herman referred her to the Downtown Clinic for physical rehabilitation and to learn pain management techniques. Ms. LaPlante attended regularly at the Downtown Clinic from January 29, 1992 to January 6, 1994. The clinical notes and records of the Downtown Clinic indicate that throughout 1992 and 1993, Ms. LaPlante complained of tightness and discomfort in her thoracic spine and scapular region. The notes indicate that in April and June 1992 this tightness and discomfort affected Ms. LaPlante's breathing. However, the clinical notes and records of the Downtown Clinic also indicate that Ms. LaPlante continued to work as a vocal teacher, on a part-time basis, in 1992 and 1993. The clinical notes and records of the Downtown Clinic contain a number of notations about Ms. LaPlante's work hours. Her work hours varied throughout 1992 and 1993. The clinical notes and records document that at various times through 1992 and 1993 certain activities or tasks aggravated Ms. LaPlante's condition, however, there is no indication that Ms. LaPlante's teaching itself was aggravating her condition. There is also no indication that Ms. LaPlante's breathing difficulties in April and June 1992 restricted the number of hours she worked during these months.
In their report of May 2, 1994, Ms. Gloria Gilbert and Ms. Brenda Lipson, physiotherapists, at the Downtown Clinic, opined that almost all of Ms. LaPlante's pre-accident activities had been "compromised" because of the irritability in her thoracic spine. In respect of Ms. LaPlante's teaching, Ms. Gilbert and Ms. Lipson opined:
Juliette's ability to maintain the physical stress and strain related to teaching as well as pursuing her own performance career has been compromised because of the irritability and decreased range in the thoracic region.
Unfortunately, Ms. Gilbert and Ms. Lipson did not, in their report, comment on the extent to which Ms. LaPlante's ability to teach was compromised after January 14, 1992.
Ms. Motten testified about Ms. LaPlante's ability to conduct voice lessons after the accident. She testified that Ms. LaPlante experienced difficulties when teaching and complained of pain for some time following the accident. However, Ms. Motten also indicated, that notwithstanding the difficulties and pain that she experienced, Ms. LaPlante continued to teach classes.
Ms. Motten testified that, following Ms. LaPlante's accident, she resumed her lessons with Ms. LaPlante, at Ms. LaPlante's residence, in the spring of 1991. She continued to attend these lessons once a week until August 1993. Each lesson continued to be 40 minutes in duration. Ms. Motten testified that Ms. LaPlante occasionally cancelled lessons because she was exhausted or had had a rough day at physiotherapy. It is unclear from Ms. Motten's testimony if these cancellations occurred in the period immediately following the accident or during the period January 15, 1992 to December 11, 1993. Ms. Motten could not recall the dates.
Ms. Motten testified that, after the accident, Ms. LaPlante experienced difficulty providing instruction by demonstration. However, Ms. Motten indicated that the quality of the instruction that she received from Ms. LaPlante after she resumed her lessons in the spring of 1991 was no less than before the accident. She testified that Ms. LaPlante was "very competent in her field". Ms. LaPlante filed her "logbook" for the period February 1992 to December 1993. The logbook lists the names of her clients in each month and the fees paid by each client. The logbook is not helpful in determining the extent to which Ms. LaPlante's ability to teach was reduced after January 14, 1992, because it does not record the names of all of Ms. LaPlante's clients. Ms. LaPlante testified, on cross-examination, that the logbook does not record the names of clients who did not pay her for her services. I note that the logbook shows that Ms. Motten only attended for lessons in March 1992 and May 1993. However, Ms. Motten's testimony at the hearing was that after resuming her lessons with Ms. LaPlante in the spring of 1991, she attended, once a week, until August 1993. I also note that while the logbook shows that Ms. LaPlante had eight clients in February 1992, Ms. LaPlante informed Dr. Goldenberg on February 17, 1992 that she was teaching 15 students a week.
The income tax returns/assessments filed by Ms. LaPlante indicate that she earned little income from her vocal teaching in 1992 and 1993. In 1992, her gross business income was $2,473.00 and in 1993, it was $2,755.00. Ms. LaPlante contended that in 1992 and 1993 she was unable, as a result of the accident, to perform the essential tasks of her occupation "...in a manner, at a speed or for a time that render(ed) such performance capable of being remunerative." Although Ms. LaPlante did not make much money from her occupation as a vocal teacher after the accident, she had earned even less money as a vocal teacher in 1990. In any event, the weight of the evidence indicates that, during the period January 15, 1992 to December 11, 1993, Ms. LaPlante was substantially able to perform all of the essential tasks of her occupation to the same extent as before the accident, albeit with pain and discomfort.
Conclusion
After reviewing all of the evidence, there is no doubt in my mind that Ms. LaPlante continued to suffer from pain and discomfort after January 14, 1992, as a result of the injuries that she sustained in the accident. Further, the evidence indicates that the pain and discomfort affected her functioning. However, the pain which is compensable under section 12 of the Schedule is pain which substantially interferes with an insured person's ability to perform the essential tasks of his or her employment or occupation. Pain which is not disabling in that sense is not compensable (Sharon Lee and Unifund Assurance Company, September 14, 1993, OIC File No. P-000078 (Elisabeth Sachs, Director of Arbitrations)). Thus, the issue that I am required to determine in this case is whether, during the period January 15, 1992 to December 11, 1993, Ms. LaPlante's pain and discomfort substantially interfered with her ability to perform the essential tasks of her part-time occupation as a vocal teacher. Based on the evidence before me, I am not satisfied that it did.
4. Expenses
Ms. LaPlante seeks an award of the expenses she has incurred in this arbitration. An award for expenses may be made under section 282(11) of the Insurance Act, which provides as follows:
The arbitrator may award to the insured person such expenses incurred in respect of an arbitration proceeding as may be prescribed in the regulations to the maximum set out in the regulations.
The prescribed expenses and amounts are set out in Ontario Regulation 664 (R.R.O. 1990) and in Schedule 1 of the Dispute Resolution Practice Code.
In Ralph McCormick and Economical Mutual Insurance Company, October 2, 1991, OIC File No. A-000139, Senior Arbitrator Susan Naylor discussed appropriate criteria guiding the exercise of an arbitrator's discretion to award an applicant his or her expenses. In that decision, she stated, at page 24:
The discretion to award expenses should be exercised, having regard to the intent and purpose of the legislative scheme. The arbitration process has been established under the Insurance Act, as amended, in order to facilitate applicants' access to relatively inexpensive, speedy and informal adjudication of disputes regarding no-fault benefits. The discretion to award expenses should be exercised in accordance with this objective, having regard to the individual circumstances of each case.
Accordingly, it is appropriate to award an applicant his or her expenses, unless, in the circumstances of the particular case, it is determined that the application for appointment of an arbitrator was manifestly frivolous or vexatious, or that the applicant's conduct unreasonably prolonged the proceedings.
The Director of Arbitrations approved these criteria in the appeal decision in Vito Luigi Calogero and The Co-Operators General Insurance Company, February 13, 1992, OIC File No. P-000251.
Having regard to the criteria set out in McCormick, I find that Ms. LaPlante is entitled to an award for expenses, as prescribed in Ontario Regulation 664, and Schedule 1 of the Dispute Resolution Practice Code. I remain seized of this matter in the event that there is a dispute in regards to the amount of expenses claimed.
Order:
Ms. LaPlante is not entitled to weekly income benefits for the period January 15, 1992 to December 11, 1993.
Ms. LaPlante is entitled to her expenses incurred in respect to the arbitration.
March 15, 1995
Shemin Manji Arbitrator
Date
SCHEDULE A - Documents Before the Arbitrator
Exhibits:
Exhibit 1
Document Brief of the Applicant
Tab 1
The Downtown Clinic
Report dated May 2, 1994, and Curriculum Vitae of Gloria Gilbert
Letter to Dr. Herman, dated February 18, 1992
Progress Notes
Tab 2
Dr. Herman
Report to Pilot, dated April 29, 1994
Report to Whom It May Concern, dated January 21, 1992
Application to the Ministry of Community and Social Services, dated November 11, 1993 Clinical Notes and Records
Tab 3
London Rehabilitation Services
Letter to Michael Stahr, dated May 9, 1994
Report to Pilot, dated December 16, 1991
Report to Pilot, dated September 18, 1991
Clinical Notes and Records
Tab 4
Log Books of Ms. LaPlante
January 1992 - December 1993
Tab 5
Income Tax Returns of Ms. LaPlante
1989 - 1993
Tab 6
Loss of Income Summary
January 1992 to December 1993
Exhibit 2
Brief of Documents of Insurer
Tab 1
Page 3 of Ms. LaPlante's Application for Accident Benefits
Tab 2
Ms. LaPlante's 1989 income tax assessment
Tab 3
Ms. LaPlante's 1990 income tax assessment
Tab 4
Ms. LaPlante's 1991 income tax assessment
Tab 5
Ms. LaPlante's 1992 income tax assessment and 1992 income tax return
Tab 6
Ms. LaPlante's 1993 income tax return
Tab 7
Ms. LaPlante's letter to Pilot, dated January 16, 1992
Tab 8
Ms. LaPlante's statements of income for February 1992, March 1992, April 1992, May 1992 and June 1992
Exhibit 3
Report of Dr. Goldenberg to Pilot, dated July 12, 1991
Exhibit 4
Report of Dr. Goldenberg to Pilot, dated February 17, 1992
Exhibit 5
Curriculum Vitae of Dr. Goldenberg
Exhibit 6
Curriculum Vitae of Mr. Stoetzer
Exhibit 7
Excerpt from a newspaper, dated August 10, 1990 (re: Diapers) Excerpt from a newspaper (not dated) (re: Diapers)
Exhibit 8
Excerpt from a newspaper, dated November 14, 1990 (re: Hoodwinked)
Exhibit 9
Report to Dr. Herman from Diagnostic Imaging Associates, dated January 8, 1992
Documents before the Arbitrator, but not marked as exhibits;
Report of Mediator, dated March 2, 1993
Application for Appointment of an Arbitrator, dated October 21, 1993
Response by Insurer, dated December 14, 1993
Letter confirming pre-hearing discussions, dated February 18, 1994, from Suesan Alves, arbitrator
SCHEDULE B
Norman Downs and Allstate Insurance Company of Canada, July 18, 1991, OIC File No. A-000064
Donna Flemming and Wawanesa Mutual Insurance, April 28, 1992, OIC File No. A-000406
Mohamed K. Khan and Pilot Insurance Company, January 27, 1993, OIC File No. A-000984
Sharon Lee and Unifund Assurance Company, August 28, 1992, OIC File No. A-000078
Ralph McCormick and Economical Mutual Insurance Company, October 2, 1991, OIC File No. A-000139