Neutral Citation: 1995 ONICDRG 78
File No. A-008927
ONTARIO INSURANCE COMMISSION
BETWEEN:
FILOMENA FURTADO Applicant
and
YORK FIRE & CASUALTY INSURANCE COMPANY Insurer
DECISION
Issues:
The Applicant, Filomena Furtado, was injured in a work-related accident on July 5, 1992, and in a motor vehicle accident on August 26, 1992. She applied for statutory accident benefits from the Insurer, York Fire & Casualty Insurance Company, payable under Ontario Regulation 6721. The Insurer denied that the Applicant was entitled to such benefits. The parties were unable to resolve their dispute 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 Mrs. Furtado entitled to weekly income benefits under subsection 12(1) of the Schedule?
If Mrs. Furtado is entitled to such benefits, for what time period is she so entitled?
If Mrs. Furtado is entitled to such benefits, what is the weekly amount of such benefits?
The Applicant claims interest on any amounts owing, and also seeks her expenses incurred in the hearing.
Result:
The Applicant is entitled to weekly income benefits.
The Applicant is entitled to such benefits for the period from March 19, 1993, until May 3, 1993.
The Applicant is entitled to the amount of $26.60 per week for the period from March 19, 1993 to May 3, 1993.
The Applicant is entitled to interest on the amounts owing.
The Applicant is entitled to be reimbursed for her expenses in the proceeding.
Hearing:
The hearing was held in Toronto, Ontario, on May 15 and 16, 1995, before me, M. Guy Jones, arbitrator.
Present at the Hearing:
Applicant: Filomena Furtado (present May 15 only)
Applicant's Representative: Antonio Azevedo Barrister and Solicitor
Insurer's Representative: Brian Atherton Barrister and Solicitor
Insurer's Officer: Ray Schostak
Witnesses: Filomena Furtado, the Applicant Filomena Medeiros Margaret Francis, Highland Farms Limited Dr. M. Cloth, family physician
Exhibits:
33 exhibits were filed with the arbitrator.
Entitlement to Weekly Income Benefits:
Background:
Prior to her unfortunate accident, Mrs. Filomena Furtado was a 38-year old mother of one, who had been working as a grocery store cashier at Highland Farms Limited ("Highland") for approximately five years. There was no dispute as to the essential tasks of her employment, which included the following:
- picking up the cash till;
- going to cash register and serving customers. An electronic scanner is used to register the cost of purchases;
- packing bags;
- occasionally putting bags into buggies at customer's request;
- cleaning and clearing stall at the end of the day; and
- some cleaning in the store if business is slow.
The Applicant's evidence indicated that the heaviest bags weighed up to ten kilograms, but most were less than that. In addition, she indicated that the work was done standing up.
Unfortunately, Mrs. Furtado was injured at the workplace on July 5, 1992. She was sitting on two milk containers which apparently gave way and she fell, striking the floor and the edge of a stair. She injured her neck, left shoulder, lower back, and right leg. In addition, she suffered headaches as a result of the accident. She was off work continuously from the date of the first accident until the motor vehicle accident of August 26, 1992. She has not yet returned to work.
She received temporary disability benefits from the Workers' Compensation Board from the date of her first accident until May 3, 1993.
Mrs. Furtado testified that her injuries had improved somewhat prior to the motor vehicle accident, however, she was still not capable of returning to work, and did not know when she would be able to do so. She did indicate, however, that she was able to drive her car again prior to the motor vehicle accident and she was doing some of her chores at home, including providing some care to her year-old baby between the first and second accident. She was assisted in these chores by her niece, who was staying with her for the summer. In addition, her mother provided some assistance during this time.
On August 26, 1992, Mrs. Furtado was driving her motor vehicle when it was hit by another motor vehicle. She suffered injuries to exactly the same parts of her body as in the first accident. In both instances the injuries were described by the family doctor as muscle strains.
As a result of the second accident, Mrs. Furtado testified that she felt much worse. In his testimony, her family physician, Dr. Cloth, confirmed that shortly after the motor vehicle accident, the Applicant complained of feeling much worse in the same areas of her body that were injured in the first accident. Dr. Cloth felt that the motor vehicle accident had aggravated her pre-existing difficulties and worsened them to a point where it likely prolonged her period of disability.
The Applicant continued to suffer from her injuries through to March 1993, at which time the Workers' Compensation Board, which had been paying her total temporary disability benefits in conjunction with her employer, arranged for her to return to work at a modified job. Despite the fact that the Applicant felt that she was not yet ready to return to work, she attended at Highland on March 16, 17, and 18, 1993. At that time, she apparently spent most of her time putting together cardboard cake boxes. Before the end of the third day, she felt that she could no longer continue, and she therefore left work. She has not returned to work since. Mrs. Furtado testified that she was unable to continue to work because of pain in her neck, lower back, left shoulder, right leg, and headaches.
Mrs. Furtado further testified that while she has been able to cope with the chores at home, including cleaning, cooking, and taking care of her young daughter, she does things more slowly than she did prior to the accident. She also indicated that she still receives some assistance from her mother who occasionally visits and helps with the house cleaning and child care.
It is worthy of note that Mrs. Furtado has suffered a number of problems in addition to the two accidents. These problems include a miscarriage in late 1992, as well as having been beaten by her husband in January 1993. In addition, she underwent a thyroid operation in November 1993.
The beating suffered by Mrs. Furtado apparently resulted, according to Dr. Cloth, in a slight aggravation to her lower back problem. It also caused Mrs. Furtado to move in with her mother, where she stayed for approximately 14 months. During the time that Mrs. Furtado stayed at her mother's, she testified that her mother, Mrs. Medeiros, did most of the house cleaning. While Mrs. Furtado has suggested that this was primarily because of her injuries, I am of the view that Mrs. Medeiros did the house cleaning because this was what she was used to doing. I observed Mrs. Medeiros testify about how she cleaned her own house, and it was clear to me that Mrs. Medeiros takes great pride in cleaning her own house.
In any event, Mrs. Furtado moved back into her own home as a result of a formal separation agreement in early 1994. Since that time, she has largely done her own house cleaning, cooking, and child care, although her mother comes over occasionally to assist her. As indicated above, the Applicant's mother, Mrs. Medeiros, testified at the hearing. She indicated that she had helped her daughter after the work-related accident by cleaning up around the home and caring for the child. She also indicated that a niece, who had been staying at her daughter's home, also helped out in the summer of 1992. Mrs. Medeiros continued to help at her daughter's home through the fall of 1992, although relations between her and her son-in-law were strained, so she did not visit or stay at the Applicant's home as often as she might have otherwise.
Ms. Margaret Francis of Highland also testified. She confirmed that the Applicant had worked at Highland for approximately five years prior to the accident, with the exception of the period from May 25, 1991 to January 20, 1992, when she was off on maternity leave. Ms. Francis also testified that Highland was prepared to make modified work available to Mrs. Furtado and indeed had set up a modified work program in March 1993. The program involved Mrs. Furtado working approximately four hours per day and initially involved her performing very light work, putting together cardboard boxes for cakes made at the grocery store bakery. The plan had been to gradually increase the number of hours worked and duties performed by the Applicant, so that she would eventually be back at her regular full-time duties. Unfortunately, Mrs. Furtado left early on the third day of her return to work, because of the pain.
Dr. M. Cloth testified at the hearing that Mrs. Furtado was his patient since 1984. He treated her for her injuries suffered in both accidents and continues to treat her. In light of the importance of his testimony, I will deal with Dr. Cloth's evidence in greater detail further on in my decision.
In addition to the above noted testimony, numerous medical reports as well as clinical notes and records were filed as exhibits. I will refer to these as necessary below.
Findings and Analysis:
In order to be entitled to weekly income benefits, the Applicant must show that she suffered a substantial inability to perform the essential tasks of her occupation or employment. This is, of course, somewhat complicated in this particular case in that there were two accidents with overlapping injuries. In several decisions, arbitrators have stated that the applicant does not have to show that the motor vehicle accident was the only cause of her disability. The test is whether the accident "significantly" or "materially" contributed to the insured person's disability. I find it appropriate in this case to apply the significant contribution test.
It is clear, based on all of the evidence, that the motor vehicle accident did significantly or materially contribute to the Applicant's disability. In addition to Mrs. Furtado's evidence, Dr. Cloth testified that she suffered muscle strains to the exact same parts of her body that she injured in the work accident, being the neck, lower back, left shoulder and right leg. He further indicated that the motor vehicle accident aggravated her pre-existing condition and worsened it. Furthermore, Dr. Ogilvie-Harris, who examined Mrs. Furtado at the request of her lawyer, in his report of November 11, 1994, confirmed that the second accident caused further damage. Dr. O'Reilly, in his report for the Insurer of September 15, 1994, also indicated that her condition was "probably aggravated by the collision of August 26, 1992".
I conclude that the motor vehicle accident undoubtedly aggravated Mrs. Furtado's symptoms. I must then decide for what period of time the Applicant suffered a substantial inability to perform the essential tasks of her occupation or employment as a result of the motor vehicle accident, as opposed to the work-related accident. In a case with conflicting evidence and opinions, it is a difficult question to answer.
Dr. Cloth, the family physician, took the position that the Applicant was off work from the motor vehicle injuries from approximately early September 1992 until the present. In support of this position, the Applicant's counsel filed a report from Dr. Cloth to the Workers' Compensation Board dated August 17, 1992, in which he indicated that the Applicant might be able to return to work in approximately 20 days. On the other hand, it became clear that Dr. Cloth had also provided the Workers' Compensation Board with numerous other reports indicating different possible return to work dates. For example, on July 8, 1992, Dr. Cloth felt Mrs. Furtado might return to work in approximately seven days. On July 15, 1992, he felt she might return to work in approximately ten days. Dr. Cloth finally admitted that these were target dates only and that he could not be sure when the Applicant could return to work.
Dr. Cloth also testified that he continued to certify to the Workers' Compensation Board that Mrs. Furtado was totally disabled as a result of the workplace accident, for the purposes of receiving workers' compensation benefits through March 1993. Indeed, on April 1, 1993, he wrote to the Workers' Compensation Board indicating that she should remain off work and return to work on approximately May 3, 1993. Interestingly, however, on April 2, 1993, Dr. Cloth was contacted by telephone by a Workers' Compensation Board worker, and he advised that worker that Mrs. Furtado was not disabled, and should attempt to return to work with modified duties.
I am troubled by Dr. Cloth's sending reports to the Workers' Compensation Board indicating a continuing total disability arising from the work-related accident until at least March 1993, and his subsequently taking the position that the motor vehicle accident may have been responsible for the inability to work commencing in approximately September 1992.
Mrs. Furtado also relied upon the report of Dr. Ogilvie-Harris who examined her on October 31, 1994. He was of the opinion that the first accident would cause a disability of approximately six months to a year and that the second accident would aggravate the situation for a total of approximately two to three years. He felt at the time he saw her that she needed a work hardening program.
While I give considerable weight to the opinion of Dr. Ogilvie-Harris, I am of the view, based on all the evidence, that the effects of the motor vehicle accident, to the extent that it caused a substantial inability to perform the essential tasks of the Applicant's employment, were finished by approximately May 3, 1993.
A number of factors have assisted me in arriving at this conclusion. To begin with, the Applicant saw Dr. S. Khoury, a specialist in rehabilitation medicine on March 4, 1993. In her report of that date, Dr. Khoury advises that the Applicant indicated that "in general [she] feels that her neck and back symptoms are now almost the same as the one [sic] she had prior to the motor vehicle accident". Dr. Khoury went on to indicate that it was her impression that the Applicant should become more active at home and attempt to go back to work. She went on to recommend that the Applicant resume work commencing March 16, 1993, initially for four hours per day for three weeks followed by six hours per day for the next four weeks. At that time she would then resume regular hours while restricting heavy lifting, repetitive bending and alternate sitting with standing. It is worthwhile to point out that the employer was prepared to and did provide such modified work.
I have also had the opportunity to review the medical assessment report of Dr. Ian Katz, dated November 25, 1992, filed as exhibit #15. In the report, Dr. Katz indicates that the Applicant was improving and should continue physiotherapy for a further eight to 12 weeks at which time she should try returning to part-time cashiering. He then goes on to suggest modified duties for approximately six to eight weeks. While the assessment performed by Dr. Katz was done in late November 1992, the timeframes set out for a return to work are very close to those suggested by Dr. Khoury.
In addition, Dr. O'Reilly, in his report on September 15, 1994, for the Insurer, noted that:
Finally, although I am quite certain, as a result of my examination, that this lady had discomfort such as she describes, in my opinion, her continuing symptoms can not reasonably be attributed to the motor accident alone. I also believe that since she is now in fact quite able to manage her household and the care of her three year old daughter totally without outside assistance, she is probably also quite capable of the requirements of her normal work as a grocery store cashier.
In summary, I find that the Applicant was not suffering a substantial inability to perform the essential tasks of her occupation or employment after May 3, 1993. This is not to say that she has not had considerable pain and suffering both prior to and after that date. Indeed I believe that she has. However, as noted in numerous arbitration decisions, the Schedule does not compensate for pain and suffering.
Quantum of Benefits:
Mrs. Furtado was not working in the four weeks prior to the motor vehicle accident. Accordingly, the amount of her benefits is calculated based on her gross weekly income in the 52 weeks preceding the accident, pursuant to section 12(7)(1)(ii) of the Schedule. Mrs. Furtado was on maternity leave from May 25, 1991, until January 20, 1992. Her income, according to the T4 form filed with her income tax, was $11,285.08. Despite the submissions of the Insurer that her income should be $10,653 for the 52 weeks preceding the accident, I am satisfied that the T4 accurately sets out her income and accordingly the calculation should be calculated on the higher amount.
A considerable amount of time was spent by counsel during submissions as to whether calculations required to be made pursuant to section 12(7) (1) of the Schedule should be based on the entire 52 weeks preceding the accident or the 24 weeks that she actually worked. This issue has, of course, been the subject of numerous arbitration decisions. Senior Arbitrator Naylor in Vincenzo Scavuzzo and Canadian Home Assurance Company, March 18, 1992, OIC File No. A-000626, took the position that the calculation should be based on the weeks actually worked. This decision was upheld on appeal by the Director's delegate. The opposite approach, basing the calculation on the entire 52 weeks, was taken by Arbitrator Draper in Chuong Vo and Maplex General Insurance Company, October 4, 1993, OIC File No. A-002777.
Arbitrator Makepeace in Rajbir Singh and Wellington Insurance Company, June 24, 1994, OIC File No. A-004139, took the position that the language of section 12(7) was somewhat ambiguous and should be given the interpretation which most accurately reflects the applicant's pre-accident financial circumstances.
I have had the opportunity of reviewing the various arbitration decisions on this point, as well as the decision of Judge Forget in Descarie v. The Personal Insurance Company of Canada (Ontario Court of Justice - General Division), unreported. As Judge Forget indicated in his decision, if the Legislature had meant "weeks actually worked" those words could very easily have been used by the drafter of the Schedule.
Counsel for the Insurer also brought to my attention the decision of Gaudet v. Co-operators Insurance Company of Canada (1993), 1993 CanLII 1500 (PE SCTD), 17 C.C.L.I. (2d) 185, a decision of the Prince Edward Island Supreme Court. In that case, the insured claimed no-fault benefits for loss of income under a standard automobile insurance contract. The insured had only worked part of the time in the 52 weeks preceding the accident and the court was faced with the question of whether to calculate the income by dividing it over the 52 weeks or the number of weeks actually worked in the preceding year. The court decided that the weekly income should be determined by the amount paid for each week worked rather than by averaging over the entire 52 week period. The court went on to note, however, that:
In order to interpret the language as suggested by the defendant, it would be necessary to read additional words into the policy. There would have to be inserted the word "average" before the words "gross weekly income", or after "gross weekly income" the words "calculated by averaging the weekly income from employment over a 52 week period".
It is interesting to note that the word "average" is in fact found in section 12(7) (1) of the Schedule, reinforcing my view that the entire 52 weeks must be used in arriving at the correct figure.
While I have considered the submissions by the Applicant's counsel with regard to the definition of "average" as found in the Oxford English dictionary, I am not persuaded by those submissions. Accordingly, I am of the view that the approach adopted by Arbitrator Draper in Chuong Vo and Maplex General Insurance Company is the correct one and Mrs. Furtado's income must be averaged over the entire 52 weeks preceding the accident. Accordingly, Mrs. Furtado's gross weekly income amounts to $217.02. 80 percent of this is $173.61. In light of section 12(7)(1)(iii), Mrs. Furtado is entitled to $185.60 per week in weekly income benefits. Mrs. Furtado, however, received workers' compensation benefits of $317.50 to March 18, 1993, and then $159 per week until May 4, 1993. As Mrs. Furtado received more in workers' compensation benefits than she would have received in weekly income benefits until March 18, 1993, it is not necessary to determine the precise date in which the motor vehicle accident caused her a substantial inability to perform the essential tasks of her occupation or employment. She is, however, entitled to $26.60 per week in weekly income benefits for the period from March 18, 1993 through May 3, 1993. She is also entitled to interest on the amounts owing.
Expenses:
Mrs. Furtado is entitled to her expenses of the arbitration under section 282(11) of the Insurance Act and Ontario Regulation 664.
Order:
The Applicant is entitled to weekly income benefits under section 12(1) of the Schedule.
The Applicant is entitled to such benefits from March 19, 1993 until May 3, 1993.
The Applicant is entitled to the amount of $26.60 per week for weekly income benefits.
The Applicant is entitled to interest on the weekly income benefits owing.
The Applicant is entitled to her expenses incurred in respect to the arbitration.
June 22, 1995
M. Guy Jones Arbitrator