Neutral Citation: 1995 ONICDRG 85

File No. A-011046

ONTARIO INSURANCE COMMISSION

BETWEEN:

JUDITH M. SANDS

Applicant

and

DOMINION OF CANADA GENERAL INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Judith M. Sands, was injured in a motor vehicle accident on November 16, 1992. 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 May 15, 1994. 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:

1. Is Mrs. Sands entitled to ongoing weekly benefits at the rate of $185 per week, pursuant to section 13 of the Schedule, from May 15, 1994 to June 15, 1995?

2. Is Mrs. Sands entitled to reimbursement of $174.06 in gas expenses, pursuant to section 6 of the Schedule?

The Applicant also claims interest on any amounts owing, and her expenses incurred in the hearing.

Result:

1. Mrs. Sands is not entitled to ongoing weekly benefits at the rate of $185 per week, pursuant to section 13 of the Schedule, from May 15, 1994 to June 15, 1995.

2. The issue of whether Mrs. Sands was entitled to reimbursement of $174.06 in gas expenses pursuant to section 6 of the Schedule, was settled by the parties during the course of the hearing.

3. The Applicant is entitled to her expenses incurred in respect to the arbitration.

Hearing:

The hearing was held in Kingston, Ontario, on June 14 and 15, 1995, before me, Joyce Miller, arbitrator.

Present at the Hearing:

Applicant:

Judith M. Sands

Applicant's

John T. Zuber

Representative:

Barrister and Solicitor

Kevin Wolf

Articling Student

Insurer's

William A. McClelland

Representative:

Barrister and Solicitor

Insurer's

Mavis Haws

Officer:

Claims Unit Manager

Witnesses:

Judith M. Sands

Maureen McBratney

Court Reporter:

Sandy Kelloway

Professional Court Reporters

Exhibits:

Eight exhibits were filed. Mr. Zuber filed a case brief.

Preliminary Matters:

At the commencement of the hearing, three adjournment requests were made, two by Mr. Zuber and one by Mr. McClelland.

Mr. Zuber requested an adjournment on the basis that the Applicant was scheduled for further medical examinations². Since his reasons for the adjournment were the same as two previous requests³ he had made to the Registrar, Mr. Jim Malcolm, and which had been denied, I did not grant the adjournment. I noted that I had read the correspondence in the file, that I agreed with Mr. Malcolm's reasons and that it would be redundant to go over the same matter.

Mr. Zuber then requested an adjournment on the basis that he had just received Dominion's documentary brief that morning.

I declined to grant the adjournment request for the following reasons.

The Ontario Insurance Commission has a clear adjournments policy which is sent out to all counsel with each pre-hearing letter. The policy reminds counsel that the Commission has a statutory mandate to conduct arbitrations in an efficient and expeditious manner. The Dispute Resolution Practice Code provides that arbitrations must be conducted within the timeframes set out. Once a date has been set for the hearing, adjournments will be granted sparingly.

Mr. Zuber was aware as early as the pre-hearing, which was on March 15, 1995, that Mr. McClelland had agreed to provide him with the index to the document brief. He was further reminded of this by letter of March 24, 1995 and another letter of June 6, 1995. Yet he waited until the late afternoon of June 12, 1995, less than two days before the hearing, to request the document brief. In my view, this was both unreasonable and irresponsible on the part of counsel.

Mr. Zuber knew the hearing was scheduled for June 14, 1995. It was, therefore, incumbent on him to take reasonable steps to prepare himself for this case. If he did not receive a response to his April 4, l995 letter, a letter Mr. McClelland stated he never received, he should have pursued it promptly.

This is not a situation in which the opposing lawyer has been uncooperative in providing the required documents, but one where counsel has not taken reasonable steps to procure these documents. To grant an adjournment because counsel has delayed in preparing his case until the last minute would go against the very purpose and aim of the arbitration process which is mandated to be efficient and expeditious.

Mr. McClelland requested that Mrs. Sands be required to sign the Authorizations, as was originally intended; as well, that he be given the opportunity to respond to any clinical notes and records received, either by written submissions or by an adjournment to allow for cross-examination of the doctors regarding their records.

While Mr. McClelland struck me as being efficient and conscientious, and although I believe him when he said he did not receive Mr. Zuber's letter of April 4, 1995, I nevertheless declined to grant his request. I note that although Mr. McClelland originally made his request for the Authorizations on March 24, 1995, he did not follow this up until June 6, 1995, less than two weeks before the hearing. I believe he had ample time from the pre-hearing until the hearing date to pursue his original request. Taking into consideration the Commission's policy for adjournments, as noted above, I therefore declined to grant his request for an adjournment.

Evidence

The Accident and its aftermath

Mrs. Sands is a 42-year old homemaker, married, with no children, who lives in southeast rural Ontario. On November 16, 1992, while travelling to the local airport to meet her mother, who was taking flying lessons, Mrs. Sands' car went off the road into a ditch. A man living nearby helped her out of the car, and gave her a ride to the airport. She stayed at the airport for a couple of hours and then called the OPP who advised her to call a tow truck. She returned to the accident site and made a report to the OPP.

Mrs. Sands did not go to the hospital or seek medical attention after the accident. She did, however, attend at the Sharbot Lake Medical Centre two days later. She saw Dr. Parker who prescribed Tylenol #3 and no follow-up treatment. In his report to the insurance company, dated December 2, 1992⁴, Dr. Parker noted that Mrs. Sands had a left-sided muscular back strain and a pinched nerve in the left index finger. He indicated in the report that the expected duration of disability was one week.

Shortly after seeing Dr. Parker, Mrs. Sands went to see her chiropractor, Dr. Wilcox, in Perth, which was approximately 40 miles away from where she lived. She complained of pain in her neck, shoulder and lower back. She saw Dr. Wilcox three days a week for a few weeks and then twice a week for some time period, and then once a week until March or April 1993. She stated that the treatment did not help her.

Mrs. Sands also saw her family physician, Dr. Patterson, who has been her doctor since she was about four years old. She saw Dr. Patterson about once a month.

In the late spring of 1993, with the assistance of Dominion, Mrs. Sands was assessed by the Canadian Back Institute in Ottawa⁵. Recommendations were made for physical therapy.

In July 1993, with the assistance of Dominion, Mrs. Sands was enroled in a physiotherapy program in Belleville at the Harbourview Physiotherapy and Sports Injury Centre under the direction of Rosaleen O'Connell. She attended for treatment at this clinic five days a week from July 5, 1993 to September 22, 1993.

Since Belleville was 80 miles from her home, Dominion provided Mrs. Sands with a rental car for this period so that she could commute from her parents house which was 15 or 20 miles outside of Belleville. As well, every weekend she drove home because she needed to assist her husband in his work⁶.

Mrs. Sands stated that although she felt better after a treatment, on the whole the treatment did not help her because she still had her pain.

With the assistance of Dominion, Mrs. Sands spent three weeks in Ottawa receiving treatment from the Canadian Back Institute from October 18, 1993 to November 5, 1993. Mrs. Sands stated that the treatment did not do her any good, in fact she felt that the prescribed exercises hurt her.

Shortly after she returned from Ottawa, she was followed up at home by In Motion Physiotherapy for six weeks until December 17, 1993. In Motion supervised her home exercises and made recommendations for devices which would help her. As a result of recommendations made by In Motion, Dominion purchased a light vacuum cleaner, an office chair and a stool.

Mrs. Sands testified that the exercises she did at home did not help her, in fact they hurt her. Neither did she find the vacuum cleaner nor the chair helpful. She said she got good use of the stool for dusting on the higher shelves.

On December 9, 1994 Mrs. Sands, on the recommendation of Dr. Patterson, saw an orthopaedic surgeon, Dr. Ling. In his report of December 16, 1994⁷, Dr. Ling stated in his conclusion that Mrs. Sands,

... appears to have sustained a chronic pain/myofascial pain secondary to her injuries sustained in the car accident. ... I encouraged her to be active. Often times the progress is slow. Certainly, she has undergone comprehensive treatment. I have no further suggestions. I cannot comment whether there is any permanent damage. I cannot see any reason why she could not experience improvement of her symptoms.

On May 15, 1994, Dominion discontinued Mrs. Sands' weekly benefits on the basis of reports from the Canadian Back Institute, In Motion and Rehabilitation Services of Canada, which all noted an improvement in Mrs. Sands' physical situation. As well, a representative from Dominion met with Dr. Patterson on April 29, 1994, and Dr. Patterson indicated that Mrs. Sands could carry out her daily activities.

In the "sign back letter⁸" of the April 29, 1994 meeting, it was noted that Dr. Patterson believed that Mrs. Sands was able to carry out her daily activities, although she needed to pace herself and sometimes alter how these tasks were completed. Dr. Patterson indicated that in his view Mrs. Sands was not "...'substantially disabled' from her essential tasks of daily living." The letter also notes that Dr. Patterson understood that his opinion would alter the monetary benefits that Mrs. Sands was receiving from Dominion.

On August 12, 1994, Dr. Patterson prepared a letter "To whom it may concern" at the request of Mrs. Sands, who was preparing for her application for mediation on accident benefits. The concluding line in the letter states: "Although she is capable of activities of daily living as I mentioned above, these activities have to be varied greatly to accommodate her injuries. She remains disabled in that respect."

A report⁹ of May 4, 1995, prepared by Maureen McBratney of Associative Rehabilitation at the request of Mrs. Sands, notes that "Dr. Patterson has released the client to return to work provided her physical limitations are taken into account"¹⁰.

Ms. McBratney testified at the hearing. Ms. McBratney has a B.A.(Hons) in Psychology and Sociology. She has been a manager in Kingston for Associative Rehabilitation for three years. She testified that she bases her report and the recommendations on an interview she had with Mrs. Sands on May 10, 1995, contact with Dr. Patterson, a review of two reports from the Canadian Back Institute, and Dr. Ling's report. Ms. McBratney's conclusion that Mrs. Sands needed further rehabilitation to substantially be able to perform her pre-accident activities will be discussed below in the "Analysis and Findings".

Because I did not find Mrs. Sands' testimony on her essential tasks before and after the accident to be credible, her testimony on this matter will also be discussed in the "Analysis and Findings".

Analysis and findings

1. Credibility

I found Mrs. Sands to be deliberately vague and evasive on matters which she should have been clearly aware of. For example, Mrs. Sands testified that her health was fine before the accident and that she had no problems. However, when presented with a medical report¹¹ prepared by Dr. Wilcox which stated that, "Yes, I have treated this patient for low back pain prior to the accident", she was evasive in her response and stated she did not believe she had low back pain before the accident. When she was presented with a report¹² which indicated that Dr. Wilcox treated her for low back pain in June 1991, she responded that she did not remember seeking this treatment.

She also claimed not to remember telling Ms. Christian of Rehabilitation Services that she experienced lumbar related difficulties as a result of her employment with both Tumbledown Lodge (1989-1990), where she was head housekeeper, and IGA (1991), where she worked as a secretary¹³. She denied that she resigned from Tumbledown Lodge because of the heavy nature of the employment which included "sweeping, vacuuming, cleaning refrigerators and stoves". She also denied working as a secretary at IGA. She stated that she had worked in the Deli Department at IGA and that she did suffer an injury to her shoulder as a result of lifting a heavy tub of cole slaw.

I choose to believe Dr. Wilcox and Ms. Christian's report, as there is no reason why they should invert the facts as they were stated. Dr. Wilcox has been Mrs. Sands' chiropractor since 1984¹⁴, he could have been called as a witness on her behalf, but he was not. I, therefore, find that Mrs. Sands did not have the problem-free health status that she claims she had before the accident.

Mrs. Sands testified that driving a car was an essential task for her, because she lived in a rural area. Mrs. Sands stated that as a result of the accident, she could not drive in a car for longer than 10 or 15 minutes. However, the evidence shows that from July 5 to September 22, 1993 she, alone, drove a car rented for her by Dominion¹⁵ and accumulated approximately 2,400 miles (converted from kilometres) in mileage. During this period, each weekend she drove home, 80 miles each way, to help her husband with his business¹⁶. I, therefore, do not find her testimony that she was unable to drive for longer than 10 or 15 minutes after the accident credible.

I also did not find Mrs. Sands credible when she testified that she was a co-owner of her husband's business and that she worked 30 to 40 hours a week in the business.

Mrs. Sands testified that in filling out her application for accident benefits, she was assisted by her father, who is in the insurance business, and also by a friend of her father. In this application¹⁷, which was filled out on November 28, 1992, she notes that she was a "housewife" and her essential tasks were "you name it H/W does it".

In a report¹⁸ dated April 8, 1993, for Rehabilitation Services of Canada, Mrs. Sands' tasks of daily living were described as including "intermittent" duties in her husband's business. However, at the hearing, Mrs. Sands testified that she worked 30 to 40 hours per week in her husband's printing business, and was a co-owner who did not draw a salary, but shared in the income.

In my view, Mrs. Sands deliberately exaggerated her role in her husband's business in order to expand the essential tasks¹⁹ she was engaged in before the accident. I therefore do not believe that Mrs. Sands was a co-owner of her husband's printing business, and that she worked 30 to 40 hours per week in this business. Instead, I find her principal occupation at the time of the accident was what she first stated in her application for accident benefits, namely, that she was a "housewife".

Even if I were to believe that Mrs. Sands was a co-owner of the printing business, her work activities for the printing business cannot be considered as essential tasks under section 13. As I stated in Palumbo²⁰, to include an applicant's occupational activities as essential tasks under section 13(1) is to do away with the fundamental distinction between section 13 and section 12. I therefore find that for the purposes of section 13 only, Mrs. Sands' ability to perform the essential tasks that she would normally engage in as a homemaker should be evaluated.

2. Eligibility for Section 13 Benefits

I find that Mrs. Sands is not eligible for section 13 benefits.

In order to be eligible for weekly benefits under section 13(1) 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". The test is not some inability to perform essential tasks, but a substantial or sizeable inability to perform these tasks²¹.

The applicant's substantial inability is considered in relation to those activities that are determined to be the essential tasks in which the applicant would normally engage, rather than the complete range of activities, pastimes and pleasures pursued by the applicant prior to the accident²².

The Schedule is not intended to replace general damages under the tort law system and does not compensate individuals for loss of enjoyment of life or a reduction in the general quality of life²³. The experience of pain itself is not compensated under the Schedule, except in a case where pain impairs function to such a degree that the person is substantially unable to perform his or her essential tasks²⁴.

Except for Dr. Ling's report, and a "To whom it may concern" letter written by Dr. Patterson for the purposes of a mediation application, Mrs. Sands did not present any objective medical evidence regarding her health before or after the accident. For the most part she relied on her own testimony about her health. However, as I noted above, this testimony was not reliable.

I find it significant that Mrs. Sands did not call either Dr. Patterson or Dr. Wilcox, who have been treating her for many years, including the period after the accident, to testify on her behalf. Instead, she called Ms. McBratney, whom she met for the first time in May 1995. Ms. McBratney testified that it was her opinion that Mrs. Sands needed further rehabilitation to be substantially able to perform her pre-accident activities.

I give no weight to Ms. McBratney's conclusion. Aside from the fact that her recommendation is based largely on one interview she had with Mrs. Sands, she has no medical qualifications that would enable her to come to such a conclusion. I note that neither Dr. Patterson nor Dr. Ling made any recommendations for further rehabilitation. In fact Dr. Ling notes that Mrs. Sands has undergone comprehensive treatment and he did not see any reason why she could not experience improvement in her symptoms²⁵.

Since, for the most part, I found Mrs. Sands' testimony to be unreliable regarding her health, I have put more weight on the objective evidence in coming to my decision.

The evidence shows that Mrs. Sands has undergone a comprehensive rehabilitation program. Although Mrs. Sands claims that it did not do her any good, I choose to believe the reports from the Canadian Back Institute²⁶, Rehabilitation Services of Canada²⁷ and In Motion²⁸ that her condition improved as a result of the therapy she received.

It is my view, that by the summer of 1993, Mrs. Sands, although with pain, was able to resume her essential tasks as a homemaker. I note that in her testimony, Mrs. Sands stated that her parents were away for a month while she was living in their house, and that she performed the basic activities needed to take care of herself and the house. A report by Rehabilitation Services of Canada²⁹ notes that during her stay at her parents', she was performing light housekeeping duties for her mother, which included, watering the garden, doing dishes, and general tidying.

The car rental receipts³⁰ show that she was able to drive a car for about 2,400 miles during her 10 week stay at her parents' house. A handwritten note³¹ by Mrs. Sands indicates that she went home on the weekend to help out her husband in his business.

Mrs. Sands testified that in the fall of 1993 she no longer needed the services of a housekeeper.

In April 1994, Mrs. Sands' family doctor, Dr. Patterson, who has known her since she was four years old, and who was aware that her benefits would be affected by what he said, stated that she was "... able to substantially perform her pre-motor vehicle collision essential tasks of daily living."³² As noted above, Dr. Patterson could have been called as a witness to refute this conclusion, however he was not called to testify.

For all of the above reasons, I come to the conclusion that when Dominion terminated Mrs. Sands' benefits on May 15, 1994, she was no longer substantially disabled from performing the essential tasks in which she would normally engage in.

Order:

1. Mrs. Sands is not entitled to ongoing weekly benefits at the rate of $185 per week, pursuant to section 13 of the Schedule, from May 15, 1994 to June 15, 1995.

2. The issue of whether Mrs. Sands was entitled to reimbursement of $174.06 in gas expenses pursuant to section 6 of the Schedule, was settled by the parties during the course of the hearing.

3. The Applicant is entitled to her expenses incurred in respect to the arbitration.

June 29, 1995

Joyce Miller

Arbitrator

Date

Footnotes

1. 1Prior to January 1, 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. 2The appointments for the medical examinations were made at the end of May, several weeks before the hearing.
3. 3Letters dated June 2, 1995 and June 7, 1995
4. 4Exhibit 6, Tab 2
5. 5Exhibit 6, Tab 21
6. 6Exhibit 5 at p.5
7. 7Exhibit 5 at p. 34
8. 8Exhibit 7
9. 9Exhibit 5 at p. 39
10. 10Exhibit 5 at p. 40
11. 11Exhibit 6, Tab 4
12. 12Exhibit 8
13. 13Exhibit 6, Tab 7 at p. 6
14. 14Exhibit 8
15. 15Exhibit 6, Tab 28
16. 16Exhibit 5 at p. 5
17. 17Exhibit 6, Tab 1
18. 18Exhibit 6, Tab 17
19. 19Mrs. Sands stated that the essential tasks she performed for the printing business included: invoicing, bookkeeping, answering the phone, stapling, collating, binding, artwork, numbering and deliveries.
20. 20Carmen Palumbo and Dominion of Canada General Insurance Company, April 13, 1995, OIC File No. A-007314
21. 21Lily Steele and Zurich Insurance Company, December 3, 1992, OIC File No. A-001024
22. 22Chor Ting Lui and Wellington Insurance Company, April 28, 1993, OIC File No. A-001894
23. 23Edgar Cowie and The Non-Marine Underwriters - Members of Lloyd's, March 9, 1993, OIC File No. A-001159 (under appeal)
24. 24Norman Downs and Allstate Insurance Company of Canada, July 18, 1991, OIC File No. A-000064
25. 25Exhibit 5 at p. 35
26. 26Exhibit 6, Tabs 22 and 23
27. 27Exhibit 6, Tab 16
28. 28Exhibit 6, Tab 27
29. 29Exhibit 6, Tab 10 at p. 2
30. 30Exhibit 6, Tab 28
31. 31Exhibit 5 at p. 5
32. 32Exhibit 7