Neutral Citation: 1995 ONICDRG 92

File No. A-013612

ONTARIO INSURANCE COMMISSION

BETWEEN:

THERESA ANNA KELLER

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Theresa Anna Keller, was injured in a motor vehicle accident on March 8, 1993. She applied for and received statutory accident benefits from the Insurer, payable under Ontario Regulation 672¹. Weekly benefits were terminated by the Insurer on March 26, 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:

1. Is Mrs. Keller entitled to weekly benefits under section 13 of the Schedule from March 27, 1993 and ongoing?

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

Result:

1. Mrs. Keller is not entitled to weekly benefits under section 13 of the Schedule from March 27, 1993.

2. Mrs. Keller is entitled to her expenses.

Hearing:

The hearing was held in Guelph, Ontario, on June 26 and 27, 1995, before me, Joyce Miller, arbitrator.

Present at the Hearing:

Applicant:

Theresa Anna Keller

Insurer's Representative:

Gregory P. Heckel Barrister and Solicitor

Witnesses:

Mrs. Theresa Keller

Mr. Joseph Keller

Mr. Kottman,

Ms. Fern McCannell

Mr. Alan Reinhardt

Exhibits:

Two exhibits were filed. Mr. Heckel presented a case brief.

The proceedings were recorded by Madeline Morrow of Madison Discoveries

The Evidence

Mrs. Keller's Medical History Prior to the March 8, 1993 Accident

Mrs. Keller, who is now 66 years old, was a very hardworking farm wife for over 40 years. She raised seven children and she was an active partner with her husband in running their farm. Along with the normal household chores, Mrs. Keller regularly tended the market garden, took produce to market, assisted in the harvesting, drove the tractor, chopped wood and generally helped her husband with other farm chores when needed.

Before 1989, Mrs. Keller had a few mishaps which hurt her neck and shoulder. In March 1988, she slipped and fell while pushing a wheelbarrow.² This resulted in pain radiating on the left side of her neck and extending to her left shoulder and left arm. In January 1989, she fell on the ice and hurt her right shoulder.³

On March 20, 1989, Mrs. Keller's world dramatically changed when she was involved in a car accident which caused her severe neck and shoulder pain. As a result of the accident, she was no longer able to do any of her normal household and farm activities. Her market garden business had to be abandoned. Her busy, active life came to a stop.

X-rays taken of Mrs. Keller's neck on the day of the accident also showed the presence of "generalized advanced degenerative disease and degenerative disc disease."⁴

A medical report, prepared in October 1991, notes that while the accident did not cause or accelerate the degenerative disease:

The accident ... did serve to function as the initiator of onset of subjective pain and secondary symptoms at a time earlier than what normally might have been expected had the accident not occurred. The accident also appears to have served to give rise to continuing enhanced levels of activity of the underlying degenerative disease over a 2 1/2 year interval up to the date of my examination, and in turn this is generating, in part, the identified clinical impairment/disability.⁵

On January 15, 1993, Mrs. Keller's family doctor, Dr. Gaffney, notes in his records that he had seen Mrs. Keller that day and her neck was "still painful". He also notes that he is referring her to a Dr. Caldwell regarding her chronic pain.⁶

On March 8, 1993, Mrs. Keller went to see her chiropractor for an adjustment.⁷ She stated that the real purpose of her visit was to tell Dr. Dubler that she was not going to see him any more. She stated that she was feeling much better and was able to do some basic household chores and some sporadic, light farm tasks mostly limited to a two week period in the fall during harvesting.

The March 8, 1993 Accident

The accident, which is the subject of this arbitration, occurred when Mrs. Keller was stopped in a driveway preparing to proceed onto the road. Just at that same time two cars travelling on the road collided and slid into her car hitting her right bumper.⁸ After the accident, Mrs. Keller did not seek medical attention. She finished some errands and then she drove home.

On March 10, 1993, she spoke with Fern McCannell, an insurance adjuster at Wawanesa. Mrs. Keller told Ms. McCannell that "... she had no injuries other then a sore neck which she has all the time due to an accident that happened March 20th, four years ago."⁹

On March 15, 1993, Mrs. Keller visited her doctor and complained of neck and shoulder pain which she stated was worse than before the second accident.¹⁰

On April 15, 1993, Mr. and Mrs. Keller visited the Wawanesa adjuster, Fern McCannell. Mr. Keller told Ms. McCannell that "Theresa hasn't worked since the last accident and still can't."¹¹ He also told Ms. McCannell that he had been doing the housework since the 1989 accident.¹²

On April 22, 1993, Mrs. Keller signed a statement prepared by Alan Reinhardt where she stated that three weeks after the March 8, 1993 accident, she was able to resume her limited pre-accident activities.¹³

A medical report by Dr. Gaffney to Mr. Keller on April 19, 1994¹⁴ regarding Mrs. Keller's conditions states:

In summary, this woman has chronic neck pain syndrome which was somewhat exacerbated by her MVA of March, 1993. It is not possible to say from my notes for sure when her chronic neck pain status was back to her pre-March, 1993, level. Her prognosis for recovery from this chronic neck strain is poor and I feel she will be disabled permanently to some degree. However, I believe her state is currently the same as it was prior to the accident of 1993. I note from your letter that she says this is keeping her from carrying on her normal duties as a farmer but I do not believe she was able to work much as a farmer prior to March, 1993, because of her previous injury. [emphasis added]

Analysis and Finding

The issue in this case is whether the March 8, 1993 accident substantially disabled Mrs. Keller from carrying out her essential tasks.

I find that the pain that Mrs. Keller suffers, which substantially disables her from performing her household and farm activities, is as a result of the first accident on March 20, 1989 and not the March 8, 1993 accident.

The medical evidence and the testimony of Mr. and Mrs. Keller shows that Mrs. Keller was not doing very much before the second accident. The evidence also shows that she had returned to the light essential tasks she was performing before the second accident.

While there may have been some exacerbation to her pain caused by the March 8, 1993 accident, I find that this exacerbation limited her from carrying out her pre-March 8, 1993 essential tasks for about three weeks after the accident¹⁵. It is my view that the evidence, as noted above, clearly shows that the chronic pain that she is now suffering stems from a combination of her degenerative disc disease and the accident of March 20, 1989.

For all of the above reasons, I find that Mrs. Keller is not entitled to section 13(1) benefits.

Expenses:

Mrs. Keller seeks an award of the expenses she has incurred in this arbitration. In accordance with section 282(11) of the Insurance Act and the case law that has evolved, I find that Mrs. Keller 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:

1. Mrs. Keller is not entitled to weekly benefits under section 13 of the Schedule.

2. Mrs. Keller is entitled to her expenses.

July 7, 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. 2Exhibit 1, Tab 14
3. 3Ibid.
4. 4Exhibit 1, Tab 4 at pp. 6-7
5. 5Exhibit 1, Tab 4 at p. 11
6. 6Exhibit 1, Tab 15
7. 7Exhibit 1, Tab 14
8. 8In her testimony Mrs. Keller said she was hit on the left side, however, the evidence shows that it was on the right side. See exhibit 1, Tabs 1 and 14
9. 9Exhibit 2 and testimony of Fern McCannell
10. 10Exhibit 1, Tab 15
11. 11Exhibit 2 and the testimony of Ms. McCannell
12. 12Ibid.
13. 13Exhibit 1 at Tab 16
14. 14Exhibit 1, Tab 9
15. 15Exhibit 1, Tab 16