Neutral Citation: 1995 ONICDRG 81
File No. A-007295
ONTARIO INSURANCE COMMISSION
BETWEEN:
HELEN F. WINFIELD
Applicant
and
ELMA MUTUAL INSURANCE COMPANY
Insurer
DECISION
ISSUES:
The Applicant, Helen F. Winfield, was injured in a motor vehicle accident on August 20, 1991. She applied for and received statutory accident benefits from the Insurer, payable under Ontario Regulation 6721. Weekly income benefits were terminated by the Insurer on August 17, 1992. 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. Prior to the hearing, the parties settled the question of Mrs. Winfield's entitlement to weekly income benefits until August 27, 1994.
The issue in this hearing is:
- Is Mrs. Winfield entitled to weekly income benefits after August 27, 1994 according to the provisions of section 12(5)(b) of the Schedule, in that the injury she received in the accident "continuously prevents [her]... from engaging in any occupation or employment for which ... she is reasonably suited by education, training or experience"?
The Applicant also claims interest on any amounts owing, and her expenses incurred in the hearing.
RESULT:
Mrs. Winfield is entitled to weekly income benefits under section 12(5)(b) of the Schedule from August 27, 1994. The parties have agreed that the amount of those benefits is $79.59 per week.
Mrs. Winfield is entitled to interest according to the provisions of section 24(4) of the Schedule.
Mrs. Winfield is entitled to her expenses of the arbitration.
Hearing:
The hearing was held in Barrie on May 31, 1995 before me, K. Julaine Palmer, arbitrator.
Present at the Hearing:
Applicant:
Helen F. Winfield
Applicant's Representative:
G. William Corby Barrister and Solicitor
Insurer's Representative:
Chris Blom Barrister and Solicitor
Insurer's Officer:
Fran McCleave
Witnesses:
Dr. William N. Grieve, Helen Winfield, David Winfield
The parties filed two document briefs and two other exhibits at the hearing.
Evidence and Findings:
Helen Winfield was 28 years old when she suffered a closed head injury in a motor vehicle accident on August 20, 1991. She was first treated at Listowel Memorial Hospital, but transferred almost immediately to Victoria Hospital in London, where she remained in a coma for five days.
Mrs. Winfield has been left with some residual deficits following the motor vehicle accident. The Insurer agreed just prior to the hearing that the injuries the Applicant suffered in the accident were such that she would meet the test of section 12(1) of the Schedule, that she "suffered substantial inability to perform the essential tasks of .... her occupation or employment" until August 27, 1994. Accordingly, the only issue in dispute between the parties at the hearing was Mrs. Winfield's entitlement to weekly income benefits under the more strict test set out in section 12(5)(b) of the Schedule. That section provides as follows:
12(5) The insurer is not required to pay a weekly benefit under subsection (1) ......
(b) for any period in excess of 156 weeks unless it has been established that the injury continuously prevents the insured from engaging in any occupation or employment for which he or she is reasonably suited by education, training or experience.
Mrs. Winfield is presently receiving canada pension plan disability benefits which affect the amount of weekly income benefits, under section 12(4)(b) of the Schedule. The parties agreed that Mrs. Winfield would be entitled to $79.59 per week from the Insurer, if I found that she met the test for entitlement to benefits under section 12(5)(b).
Dr. W. Norman Grieve testified at the hearing. Dr. Grieve is a specialist in family practice and has been Mrs. Winfield's family physician since December 1992. Dr. Grieve testified that he had seen Mrs. Winfield 44 times since she first became his patient, as well as informally on other occasions when she had brought one of her children to see him. In Dr. Grieve's report of May 18, 1995, he wrote as follows:
I have attended the above named patient in the role of family physician since December of 1992. Her initial visit was for the assessment of pregnancy, however, at the occasion of her initial visit she gave me clear and concise history of her MVA and of her continuing post concussion headaches.
Since that time I have seen the patient regularly and consistently and the overwhelmingly common cause of her visits has been for continuing analgesic control of her chronic headaches. She uses approximately 30 to 50 tylenol with codeine per month. As well, she has been tried on tricyclic antidepressants as a co-therapeutic agent for chronic pain. We have also tried other non narcotic analgesics without success. She continues to experience two to three disabling headaches per week. These cause her to be relatively immobilized and dysfunctional. She is unable to do any housework or to be ambulatory such as driving a car at the times of these headaches.
I believe that as a result of these continuing severe post traumatic headaches, that she would be unable to work full-time or consistently at any type of employment for which she may be suited by virtue of education or training.
Dr. Grieve elaborated that he did not feel that the symptoms Mrs. Winfield described for her headaches were those of any typical migraine or any typical tension headache. He remarked that she had had "plenty of investigations" by specialists to determine the source of the headaches. Dr. Grieve appeared to emphasize his role in trying to control the pain that Mrs. Winfield suffers, and he spoke about "making deals" with her with respect to Tylenol No. 3. Dr. Grieve is concerned about the addictive properties of this drug and has discussed his concerns with Mrs. Winfield. He does not believe that she is currently addicted to it, since she takes it on days when she has a headache and not on other days.
Dr. Grieve testified that Mrs. Winfield reports that she receives temporary relief from her pain through chiropractic treatment and massage therapy. Dr. Grieve doubted that these techniques would cure the headaches. He did not feel that Mrs. Winfield would never work. He simply indicated that at his perceived level of the severity of the pain, she is not presently able to work. In his view, she cannot perform to any reasonable standard at any job when she has a headache.
Helen Winfield described the effects of the headaches on her. She said that the headaches begin without any pattern, sometimes three times a week or four times a week, and sometimes only once per week. She said that she could feel them in the top of her head. In the daytime she can often take a Tylenol No. 3 and "feel okay"; however, occasionally she will wake in the night with such pain that she takes two Tylenol No. 3 and cries from the pain. Mrs. Winfield testified that her headaches are very severe. When she has a severe headache, she asks her husband to take the day off work to care for their son, and she lies down in a dark room. Mrs. Winfield testified that if she gets a headache while her husband is at work, she takes a Tylenol No. 3 and rests, often playing a Walt Disney movie to occupy her son, who rests with her. Mrs. Winfield said that Tylenol No. 3 makes her drowsy and dozey, but she insisted that she "has to take them" to deal with the headaches, although she becomes more like a vegetable for the rest of the day.
Mrs. Winfield testified about her previous education and her employment. At the time of the accident, she had been working for almost three months with a company known as Spinrite Yarns and Dyers Limited, producers of bouquet hand-knitting and craft yarns and accessory products in Listowel. Mrs. Winfield also filed letters from her employer at Spinrite containing a job description of her activity as a "Spinning Operator". She described her work, for which she was paid on a piece-work basis, running 120 spinning machines, and the process involved in changing bobbins on those machines. She also described in detail her previous employment with Formatic Inc., a custom metal fabricating company, and filed a letter about that employment.
The President of Formatic wrote as follows:
During her employment with us, she was trained as a machine operator. She often worked on piece work, manufacturing small precision metal parts. This required a great deal of dexterity. Helen always excelled and was able to earn extra money for her efforts. As she gained experience, she was able to set up machinery, read blueprints, inspect first off parts prior to production. We relied extensively on her abilities, especially her ability to complete complicated reports for quality control purposes.
Mrs. Winfield also described her other jobs, either in testimony before me, or in her reports to health professionals who have assessed her. These jobs have included stints as a waitress, driving a coffee truck, working on an assembly line putting blades on snowblowers, soldering chips on circuit boards for an electronics firm, packing boxes of books and printing transfers on t-shirts.
Mrs. Winfield gave detailed testimony as to why she could not do both the spinning and machine operator jobs. She also testified about her inability to work at her previous jobs as a coffee truck driver, on the snowblower assembly line, in the electronics plant, packing books, and as a waitress.
With respect to the t-shirt transfer job, she indicated that she could probably do that job if she did not have a headache.
Mr. David Winfield also testified. Mr. Winfield is self-employed as the marketing partner of a software development firm. He has known Helen Winfield for about ten years and casually dated her for five or six years before her accident. He visited her in the hospital after the accident, then began dating her again when she returned to Southern Ontario in the summer of 1992. They have lived together since October 1992 and were married in March 1993. They are the parents of a son who will be two years old in July 1995.
Mr. Winfield described in detail the changes in his wife's personality and abilities since the accident. He described his wife's behaviour when she has a bad headache, including crying on the couch, and becoming "incapacitated". He described his wife wanting to stay in the dark and be by herself. Mr. Winfield described Helen's difficulties with memory and her use of a daytimer-organizer, which she regularly uses, but often forgets to take with her when she travels to town. Mr. Winfield indicated that his wife has difficulty "multi-tasking". She is able to do one thing at a time, but can become distracted and move from job to job, never finishing anything. He described the pattern of mornings at the Winfield household, where he arranges his daughter's breakfast, makes her lunch, organizes her school knapsack and drives her to the bus stop. In his view, his wife is not able to coordinate all those activities and deliver his daughter to the bus stop for 7:30 a.m.
The parties do not dispute that Mrs. Winfield now suffers some motor difficulties and cognitive deficits as a result of the accident. Those difficulties are summarized in the report of Dr. Gary Snow, a neuropsychologist who assessed Mrs. Winfield at the Insurer's request in January 1995. In his report of March 22, 1995, he made the following comments with respect to Mrs. Winfield's condition:
One area where her performance has consistently been impaired across the three assessments is in the domain of motor functioning. The examination of her motor functioning was a little more detailed at present than it was previously, and her performance was consistently impaired across all motor measures. The degree of bilateral impairment seen on these measures goes beyond what one typically sees in many individuals with head injuries who have shown the recovery displayed by Ms. Cole [now Winfield], and some of her motor impairment could be motivational in nature. I cannot, however, rule out the possibility of some ongoing bilateral motor impairment as a result of her accident. However, I do think that the deficits she displays in her right hand could be a function of residual brain dysfunction in her case.
With respect to cognitive impairment, Dr. Snow commented as follows:
However, I do think there are some deficits (such as her circumstantiality, subtle disinhibition, and impaired word fluency) which cannot be attributed to premorbid factors or stress. Thus, looking at her neuropsychological profile, I do think there is evidence of ongoing mild bifrontal cerebral dysfunction.
Dr. Snow provided the following opinion about Mrs. Winfield's ability to do any job for which she was reasonably suited by education, training or experience:
In terms of her current ability to work at other types of jobs, I would conclude that many of Ms. Cole's cognitive abilities remain unchanged from what they would have been premorbidly. Looking at the types of jobs she held prior to her accident, many of these were general labour types of jobs and would likely not require significant cognitive abilities. Thus she would have the basic neuropsychological abilities, in my view, to do these types of jobs. At the same time, I do think that her residual motor impairments would likely slow her performance on some of the jobs which depend heavily on manual skills. In other words, the types of deficits which impair her ability to perform her most recent job would also have a bearing on her ability to perform other jobs where speed and dexterity is important. Thus, although she has the necessary cognitive abilities, I do think she would have some difficulty in doing those types of jobs which emphasize motor speed and performance.
Dr. Snow also stressed that he was not, in his conclusion, "making any comments about the effect of pain or stress on her ability to work."
From the material filed, it is clear to me that Mrs. Winfield has consistently complained of headaches since she suffered a closed head injury in the motor vehicle accident of August 20, 1991. She became the patient of Dr. Arnold Kim, in Thunder Bay, on December 19, 1991 and reported recurrent headaches to him. She complained of recurrent headaches to Dr. Garry Hawryluk, neuropsychologist, in May and June of 1992.
When she moved to Southern Ontario, and was referred to Dr. W. M. Franks, specialist in physical medicine and rehabilitation, she complained to him of headaches. Dr. Franks proceeded to investigate her head injury with CT scan, MRI scan and SPECT scan. Dr. Franks commented in his report of December 23, 1992 as follows:
I suspect on impact of the two vehicles she was flung to the left such that she struck the left side of her head against the interior of the car. This would explain her right sided symptoms, especially the aphasia and hemiparesis. The left side of the brain controls the right side of the body related to motor function.
She has subsequently developed throbbing headaches which would be compatible with post-traumatic migraine. In my experience these headaches, which are secondary to instability of the neuro-vascular system, tend to arise from sites of contusion, or bruising of the brain.
I am satisfied on the evidence before me that Helen Winfield suffers from debilitating, unpredictable headaches as a result of the head injury which she received in the motor vehicle accident of August 20, 1991. Although Mrs. Winfield testified that the headaches can be partially controlled with medication, such as Tylenol No. 3, the side effects of the medication make her drowsy and unable to fully function.
It is clear to me that Mrs. Winfield could not consistently attend, as required in any employment situation. Accordingly, she has proven that the injury she received in the accident "continuously prevents [her] .... from engaging in any occupation or employment for which [she] .... is reasonably suited by education, training or experience", which is the test set out in section 12(5)(b) of the Schedule.
Expenses:
The Applicant 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.
The Applicant 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. Winfield is entitled to weekly income benefits under section 12(5)(b) of the Schedule from August 27, 1994. The parties have agreed that the amount of those benefits is $79.59 per week.
Mrs. Winfield is entitled to interest according to the provisions of section 24(4) of the Schedule.
Mrs. Winfield is entitled to her expenses of the arbitration.
June 26, 1995
K. Julaine Palmer Arbitrator
Date