Neutral Citation: 1995 ONICDRG 27
File No. A-002941
ONTARIO INSURANCE COMMISSION
BETWEEN:
FLORENCE T. M. CLARK
Applicant
and
FEDERATION INSURANCE COMPANY OF CANADA
Insurer
DECISION
Issues:
The Applicant, Florence Clark, was injured in a motor vehicle accident on April 17, 1992. She applied for statutory accident benefits from the Insurer, payable under Ontario Regulation 6721, but received no weekly benefits from the Insurer. She did receive some supplementary medical and rehabilitation benefits. Mrs. Clark felt that she was entitled to receive weekly benefits. The parties were unable to resolve their disputes through mediation and Mrs. Clark applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The issues in this hearing are:
Is Mrs. Clark entitled to weekly benefits under section 13 of the Schedule from April 24, 1992 ongoing?
Is Mrs. Clark entitled to payment of the supplementary medical and rehabilitation expenses which she claims, under section 6 of the Schedule?
The Applicant also claims interest on any outstanding amounts and her expenses incurred in the hearing.
Result:
Mrs. Clark is not entitled to weekly benefits under section 13 of the Schedule.
Mrs. Clark is entitled to $816.38 in supplementary medical and rehabilitation expenses, under section 6 of the Schedule.
Mrs. Clark is entitled to her expenses of the arbitration.
Hearing:
The hearing was held in Ottawa, Ontario, on January 9 and 10, 1995, before me, K. Julaine Palmer, arbitrator. The hearing reconvened on January 13, 1995, by teleconference to hear submissions from counsel. On January 20, 1995, I received two further exhibits from the Applicant's counsel, by prior agreement with the parties.
Present at the Hearing:
Applicant: Florence T. M. Clark
Applicant's Representative: Linda A. Hanson Barrister and Solicitor
Insurer's Representative: Pasquale Santini Barrister and Solicitor
Insurer's Officer: D'Arcy O'Malley Claims Supervisor
Witnesses:
Florence Clark, Sam Ha, Joanne Clark-Bastien, Lionel Bastien
The parties filed two briefs of medical documents and 12 other exhibits at the hearing.
Evidence and Findings:
Mrs. Clark, now age 60, was injured in a motor vehicle accident on April 17, 1992. She claimed weekly benefits from the Insurer after the accident, because she felt she had "suffered a substantial inability to perform the essential tasks in which she would normally engage", within the meaning of section 13 of the Schedule.
Mrs. Clark has a lengthy and complicated medical history. She suffers from chronic obstructive pulmonary disease. The Insurer contends that Mrs. Clark is as capable now of performing her essential tasks as she was before the accident. Alternatively, it alleges that if she has any inability to perform her essential tasks, it is not as a result of the accident, but as a result of her other health problems.
Conversely, Mrs. Clark contends that, except for occasional periods, before the accident she was living independently. She states that this accident has caused her severe, disabling back pain.
The following table is a chronology of Mrs. Clark's major hospital admissions since 1982.
| DATE | INCIDENT |
|---|---|
| 1982 | Thyroidectomy |
| May 8, 1989 | Triple by-pass heart surgery |
| July 14, 1989 | Colostomy |
| April 6, 1990 | Colostomy reversed; readmission to hospital for upper GI bleeding |
| March 7, 1992 | Laparotomy for bowel blockage |
| March 16, 1992 | Foot fracture (while in hospital) |
| April 17, 1992 | Motor vehicle accident (subject of dispute) |
| May 1992 | Montford Hosp.: abdominal pain and bleeding |
| November 1992 | Riverside Emergency - back pain |
| February 1993 | Riverside Emergency - back and chest pain |
| February 1994 | Admission to Ottawa General Hospital for loss of feeling in legs |
| March 1994 | Riverside Emergency for back pain, then to Ottawa General Hospital |
At the time of the accident, Mrs. Clark was living in the upper apartment of a duplex on Cyrville Road in Gloucester. Mrs. Clark's daughter, Joanne Clark-Bastien, and her husband, Lionel Bastien, lived with their children on the main floor. Mrs. Clark had lived in her own apartment since 1990. Between 1986 and 1990, Mrs. Clark lived with her daughter Joanne and her children in their home. Before 1986, she had lived in her own apartment in Trenton, where her son also lived in the same building.
In order to be eligible for weekly benefits under section 13 of the Schedule, the insured person must suffer an injury in an accident which causes a "substantial inability to perform the essential tasks in which he or she would normally engage". As many arbitrators have pointed out in the past, the test is not some inability to perform essential tasks, but a substantia] or sizeable inability to perform those tasks. Arbitrators have also dealt with the distinction between "essential tasks" and "other activities" in which a person would normally engage. Thus, I must have evidence of the insured person's essential tasks at the time of the accident, her injuries, and the effects that these injuries had on her ability to perform her essential tasks. In addition, arbitrators have also commented that the experience of pain itself is not compensated under the Schedule, except in the case where pain impairs function to such a degree that the person is substantially unable to perform her essential tasks.
In Mrs. Clark's case, the fact that at the time of the accident she was recuperating from a broken foot and from abdominal surgery is an additional complicating factor. Her abdominal surgery took place about six weeks prior to the accident and her doctor's evidence is that it would have taken approximately three months for Mrs. Clark to regain her previous level of activity after these two injuries.
Tasks Before Accident
In her evidence, Mrs. Clark outlined her tasks and activities before the accident. She was living in her own two-bedroom apartment, which she cleaned herself. She was accustomed to washing and waxing the floor of her kitchen on her hands and knees. She vacuumed and dusted regularly. She prepared meals for herself and regularly included her daughter's family as guests. She baked pies, cakes and donuts regularly.
Mrs. Clark did her own washing, ironing and putting away of her clothes and linen. The washing machine and dryer were located in the basement of the building. Mrs. Clark was able to climb up 18 steps to her own apartment. She occasionally cut grass outside, planted flowers, and trimmed around the building with a weed-eater. In winter, she would clean snow from the landing near her apartment and the steps. She carried her own garbage to the curb, 20 to 30 feet from the building.
For recreation, Mrs. Clark enjoyed going to bingo several times each week prior to the accident. She took the bus to visit her sons in Trenton and Cobourg. She enjoyed bowling, walking, and fishing with her grandchildren.
After the accident, Mrs. Clark moved into the apartment on the main floor, with her daughter and son-in-law and the children. She no longer cleans the apartment or prepares entire meals. Mrs. Clark admits that she is independent in caring for herself and can bathe and shower. She still attends bingo once or twice a week. However, she says that she cannot wash the floor on her hands and knees, and she cannot put dishes into the dishwasher, because she cannot bend. She can only dust from the waist to shoulder level. She uses a reaching aid to assist her in picking up items from the floor. Her lifestyle has become very sedentary.
On cross-examination, Mrs. Clark admitted that she can do most things since the accident, but they take a little longer. She said that she accepted her son-in-law and daughter's invitation to live with them, so that they could keep an eye on her, because they knew she was foolish enough to try to do things like washing the floor on her hands and knees.
I accept that Florence Clark has occasional intense back pain since the motor vehicle accident of April 17, 1992. However, I am not charged with diagnosing her symptoms, but with making a functional inquiry as to her ability to perform her essential tasks, as a result of any injury she might have received in the motor vehicle accident.
I accept that Mrs. Clark did not have back problems prior to the accident and now has pain which she did not experience before. Yet her doctors are unable to state, with any degree of certainty, whether her back problems arise from the motor vehicle accident.
Mrs. Clark was sent to Dr. Jean M. Dennery, neurosurgeon, by her family doctor, Dr. Joseph Clarke. In his report of August 16, 1994, Dr. Dennery wrote as follows:
On examination, this patient has diffuse tenderness from L4-S1 mainly on the left side. She has difficulty to stand and walk, or sit for any length of time. There is moderate weakness of the legs in general and decreased left ankle jerk. Straight leg raising is also 80 degrees left with a positive Lasegue's sign.
The CT scan of this patient was reviewed. She has 2 disc herniations at L4-L5 and L5-S1 causing secondary stenosis in the lower lumbar region.
Whether or not her present condition is directly the result of her accident of 1992, is better established by two facts:
that her symptomatology followed de novo her accident, which I am sure you can document better than I can;
that basically her problem is due to the herniated lumbar disc rather than degenerative stenosis which seems to be the case.
Dr. Dennery wrote again on September 26, 1994 to Dr. Clarke. He commented:
The aggravation of her symptoms is compatible with the history, although the basic degeneration of the discs in the neck and lower lumbar region is actually age related.
Since the accident, Mrs. Clark's own sense of self-protection has been further enhanced following an incident in the spring of 1993 with her heart. Since then, Mrs. Clark has been under the impression that she is to "do nothing" and it would appear that she has complied, although I see no reiteration of those instructions in any of the many letters from Dr. Niznick, her cardiologist, following the incident in March 1993. In fact, Dr. Niznick seems to attribute that incident to musculoskeletal origin, not cardiac problems.
In his letter of October 27, 1993, Dr. Niznick comments that Mrs. Clark has "severe chronic obstructive pulmonary disease. Her general cardiorespiratory condition would limit her to doing normal daily activities which involve minimal physical activity." Dr. Niznick wrote to Joanne Clark on July 22, 1994, describing Mrs. Clark's condition before the accident.
There is a handwritten consult dated April 5, 1990 which indicates that your mother has what we call class II dyspnea which means she can walk several blocks without symptoms....there is absolutely no relationship between your mother's cardiac condition and the bulging of discs in her back. If her disability is entirely back related then it bears no relationship to her heart or lungs.
Dr. W. Ryan has cared for Mrs. Clark as her family doctor since September 1992. Dr. Ryan stated in his letter of January 2, 1995,
At present, I am unaware of any medical limitations on her activities. In fact, I would encourage her to try to be active to maintain her posture and mobility. I feel that in the long run this would prove most beneficial for her. At present, she lives a sedentary lifestyle and as such her physical condition has been reduced.
Most of the reports relating to Mrs. Clark's post-accident condition summarize her subjective reports of pain. Only a few of the reports talk about the tasks which Mrs. Clark is able to accomplish. She has been examined by at least three physiatrists: Dr. R. El-Sawy, Dr. F. Racine, and Dr. L. MacGregor. Dr. Racine and Dr. MacGregor have commented on Mrs. Clark's ability to function. Dr. Racine noted limitations of sitting for more than an hour, standing for more than 50 minutes, or walking more than 150 feet before stopping and sitting. Dr. MacGregor, in January 1993, five months prior to the examination by Dr. Racine, reported that Mrs. Clark
...is managing well from her activities of daily living. She is able to do her own washing, bathing, dressing and tying her shoes. She has some difficulty with applying her socks. Emotionally she reports that she is quite stable and is not on any anti-depressant medications and reports no liability. In the home, she is not doing any heavy cleaning, cooking or any of her banking and is quite sedentary. She does go in the car shopping but remains in the car and does go to Bingo on a regular basis. She was unable to go on the family camping expedition this year.
Dr. MacGregor recommended that Mrs. Clark increase her general activity level by walking and swimming several times per week in a warm community pool. Dr. MacGregor agreed with the purchase of aids for helping Mrs. Clark dress, the Obus form, and the walker. However, she did not feel that she needed a special electric bed.
I find, after weighing all the medical evidence, and Mrs. Clark's testimony in this case, that her ability to perform her essential tasks has been modestly compromised by the injuries from the motor vehicle accident of April 17, 1992. Mrs. Clark maintained a rather sedentary lifestyle prior to the accident, although she was able to perform household tasks which required frequent bending without difficulty. Now, performing such tasks as bending to clean the bathtub, toilet, and scrubbing floors, has been made painful enough to cause her not to attempt them. However, she admitted that she can do her laundry and vacuum for short periods of time and, in my view, it is fair to say that with pacing techniques, Mrs. Clark could carry on with the majority of her homemaking tasks.
In summary, then, although I accept that Mrs. Clark does suffer from intermittent low back pain as a result of the injury she received in the motor vehicle accident of April 17, 1992, I do not find that the injury is of such a disabling nature as to qualify Mrs. Clark to "have suffered substantial inability to perform the essential tasks in which she would normally engage", as a result of that injury.
Supplementary Medical and Rehabilitation Expenses
Mrs. Clark's claim for supplementary expenses, such as mileage and parking, is marred by a general lack of records and receipts. Furthermore, at the hearing the witnesses did not testify in any detail about these claims. I received only three pages of parking receipts, for the three months: December 1992, and January and February 1993. Only one of the receipts has any notation as to which doctor was being visited - Dr. Keene - January 13, 1993: $1.61. Dr. Keene is a neurologist to whom Mrs. Clark was referred by Dr. Ryan. His only note in the material filed at the hearing seems to indicate that he saw Mrs. Clark, once, on March 8, 1993.
Mrs. Clark has claimed for 65 visits to Dr. Ryan since April 17, 1992, 25 visits to Dr. Carr, five visits to Dr. King, six visits to Dr. El-Sawy, one visit to Dr. Fayek, six visits to Dr. Gillen, four visits to Dr. Moonje, one visit to Dr. MacGregor, one visit to Dr. Racine, nine visits to Dr. Niznick, 18 visits to Dr. Clarke, and four visits for the doppler testing. I have no information as to how Mrs. Clark-Bastien determined the exact number of visits. Only a summary sheet was provided to me and the dates of the visits are not recorded.
As well Mrs. Clark has claimed for 24 trips to Montford Hospital, 16 visits to General Hospital, 13 visits to Riverside Hospital, four trips to Montford Physio, and five trips to Orleans Physio.
Apparently all of these mileage claims were submitted to the Insurer prior to the hearing. Certainly some of the mileage should have been paid, for example, for the trips to physiotherapy and for the visits to Dr. MacGregor (who was the physiatrist chosen by the Insurer for the Applicant to attend). Mileage expenses of $116.00 were paid, at some point, but I have no indication of what those trips were for.
On the other hand, it does not appear to me to be reasonable that the Insurer should be required to pay for trips to Dr. Niznick, the cardiologist, when Mrs. Clark was a patient under his care long before this accident. It is true that Mrs. Clark has suffered chest pain since the accident, but although this has been determined to be musculoskeletal in origin, no expert has related it to the motor vehicle accident. In addition, I have no information with respect to Mrs. Clark's visits to other doctors, such as Dr. Ryan, for example, whether these attendances concerned her general state of health or her injuries in the motor vehicle accident.
Claims are made for six trips by ambulance to Montford Hospital, Riverside Hospital, and General Hospital. No explanation was offered for four of these hospital visits, and the dates were not provided, except in the case of the invoices from Riverside Hospital for March 5, 1994 and Ottawa General for February 6, 1994. Those I am prepared to allow, because they relate to back pain which Mrs. Clark experienced following the accident. I have hospital emergency records relating to only four visits, set out in the table at page four, above.
Mrs. Clark claims the cost of television while she was in hospital from February 8 to 12, 1994, undergoing investigations for her back pain. I feel that amount is reasonable ($22.14 + $19.84 = $41.98).
The slip-on stocking aid and the reaching device should have been paid for by the Insurer after its receipt of Dr. MacGregor's report. These total $83.95 on an invoice dated March 10, 1993. Similarly, the Obus forme costing $69.95, should have been paid for.
A claim has been advanced for personal hygiene expenses while in hospital, for such items as slippers, nightgowns, underwear, hand lotion, toothpaste, and "novelties". It is apparent that these are not expenses which resulted from the accident; they are not eligible to be reimbursed.
I make the following order for expenses which have been proven at the hearing, as set out in the table below. I suspect that many more of the expenses claimed may have been valid, however, they have not been proven. Although our arbitration process is a simplified one, a certain standard of proof is required when claims are contested. This is especially true when the parties are each represented by lawyers who have an understanding of the means by which such items of expense may be proven.
| CLAIM | VISITS ALLOWED | AMOUNT CLAIMED | AMOUNT PROVEN |
|---|---|---|---|
| Parking | Various | $ 1,147.00 | 0 |
| Mileage | |||
| Dr. Carr | 4 | $ 162.50 | $ 24.00 |
| Dr. Ryan | 28 | $ 478.50 | $210.00 |
| Dr. Keene | 1 | $ 17.50 | $ 3.50 |
| Dr. El Sawy | 3 | $ 54.00 | $ 27.00 |
| Dr. Fayek | 1 | $ 8.00 | $ 8.00 |
| Dr. Latter & Dr. Gillen | $ 42.00 | 0 | |
| Dr. Moonje | 1 | $ 30.00 | $ 7.50 |
| Dr. MacGregor | 1 | $ 8.00 | $ 8.00 |
| Dr. Racine | 1 | $ 4.00 | $ 4.00 |
| Dr. Niznick | $ 85.50 | 0 | |
| Dr. J. Clarke | 9 | $ 189.00 | $ 94.50 |
| Doppler test | 4 | $ 72.00 | $ 72.00 |
| Hospital Mileage | |||
| Montford, General, Riverside | 3 Riverside allowed | $ 290.50 | $ 25.50 |
| Montford and Orleans Physiotherapy | $ 46.50 | $ 46.50 | |
| Ambulance | |||
| Montford, General(x1), Riverside(x1) | $ 360.00 | $ 90.00 | |
| Assistive Devices, etc. | |||
| Obus forme, Sock-put-on, Pick-upper | $ 173.94 | $153.90 | |
| Television while in hospital | $ 249.64 | $ 41.98 | |
| Personal hygiene exp., nightgowns, etc. | $ 199.94 | 0 | |
| TOTAL ALLOWED | $816.38 |
Schedule 1 to the Dispute Resolution Practice Code provides for payment of expenses of an arbitration, including items such as hospital records. In this arbitration, I would have found it extremely helpful to review Mrs. Clark's records from the three hospitals which she has attended regularly since the accident. In the absence of those records, without other cogent evidence, I cannot order that payment be made for every visit which has been claimed.
Finally, I wish to reiterate that although Mrs. Clark is not eligible for weekly benefits as a result of the injuries she sustained in the accident of April 17, 1992, she remains entitled to benefits under section 6 of the Schedule, for supplementary medical and rehabilitation expenses, as a result of those injuries, until April 17, 2002.
Expenses:
Mrs. Clark 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 Schedule 1 of the Dispute Resolution Practice Code and in Ontario Regulation 664, R.R.O. 1990, Dispute Resolution Expenses.
In Ralph McCormick and Economical Mutual Insurance Company, October 2, 1991, OIC File No. A-000139, Arbitrator Susan Naylor made the following comments about expenses, with which I agree:
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 this statement of the principles guiding an award of expenses in the appeal decision in Vito Luigi Calogero and The Co-Operators General Insurance Company, February 13, 1992, OIC File No. P-000251.
Mrs. Clark is entitled to her expenses as set out in Schedule 1 of the Dispute Resolution Practice Code. In the event that the parties cannot agree as to the total amount of expenses, I remain seized of this matter and a party may apply for assessment of the expenses before me.
Order:
Mrs. Clark is not entitled to weekly benefits under section 13 of the Schedule.
Mrs. Clark is entitled to $816.38 in supplementary medical and rehabilitation expenses, under section 6 of the Schedule.
Mrs. Clark is entitled to her expenses of the arbitration.
March 21, 1995
K. Julaine Palmer Arbitrator
Date