Neutral Citation: 1996 ONICDRG 104

OIC A-012345

ONTARIO INSURANCE COMMISSION

BETWEEN:

JOANNE SACCO

Applicant

and

ZURICH INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Joanne Sacco, was injured in a motor vehicle accident on October 31, 1992. She applied for and received some statutory accident benefits from Zurich Insurance Company ("Zurich"), payable under Ontario Regulation 672.¹ However, Mrs. Sacco never received weekly income benefits. The parties were unable to resolve their dispute through mediation and Mrs. Sacco 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. Sacco entitled to weekly income benefits under section 12(1) of the Schedule from November 6, 1992 to November 6, 1995, or for any portion of that period?

2. To what amount of weekly income benefit is Mrs. Sacco entitled?

3. Is Mrs. Sacco entitled to transportation expenses in the amount of $0.30 per kilometre?

4. Is Mrs. Sacco entitled to benefits under section 6(1)(f) or section 7 of the Schedule to pay her husband for acting as her chauffeur/companion for out-of-town medical appointments and regular physiotherapy treatments?

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

Result:

1. Mrs. Sacco is not entitled to weekly income benefits under section 12(1) of the Schedule from November 6, 1992 to November 6, 1995, or for any portion of that period.

2. It is unnecessary to decide the amount of weekly income benefit.

3. Mrs. Sacco is entitled to transportation expenses in the amount of $0.27 per kilometre.

4. Mrs. Sacco is entitled to certain benefits under section 6(1)(f) of the Schedule, as set out in the decision (108 hours at the adult minimum wage rate), to pay her husband for acting as her chauffeur/companion for out-of-town medical appointments.

Hearing:

The hearing was held in Barrie, Ontario, on May 30 and 31, 1996, before me, K. Julaine Palmer, Arbitrator.

Present at the Hearing:

Applicant:

Joanne Sacco

Mrs. Sacco's Representative:

Paul D. Wessenger Barrister and Solicitor

Zurich's Representative:

James E. Dunn Barrister and Solicitor

Witnesses:

Joanne Sacco

Dominic Sacco

Sadie Edelstein

Angie Smith

Carol Dobson

Paul Larmond

The parties filed a brief of medical evidence and 30 other exhibits.

Evidence and Findings:

Joanne Sacco was injured by a motor vehicle on Saturday, October 31, 1992. She was standing in a private driveway, at about 6:30 p.m., waiting for her children who were trick-or-treating, when she was struck on her left side and knocked to the ground by a vehicle turning into the driveway. Mrs. Sacco was bruised and her right hand was sore, however, she did not go to hospital. The accident was not reported to the police until the next evening. Mrs. Sacco visited her family doctor, Dr. H.A. Kassam, on Monday, November 2, 1992. He recorded his physical findings as follows:

Left anterior chest — pain

Right wrist pain / Left thigh soft tissue bruising

Dr. Kassam recorded that he advised Mrs. Sacco to attend physiotherapy and that he would see her again after that treatment. He estimated that she would return to work or normal activities within three to six weeks.

From the outset of this claim, confusion has existed over two points:

1. whether Mrs. Sacco should be treated as a section 12 (employed) claimant, or a section 13 (benefit if no income) claimant, and

2. whether Mrs. Sacco's injuries disabled her to the requisite degree to be entitled to a weekly benefit.

The Applicant asked to be treated as an employed person under section 12 and I find that she can be so viewed, since she worked for her husband's business—an Ontario numbered company, carrying on business as DJ Meats.

Early History of the Claim

The claim was first reported to the Insurer on November 18, 1992 by Mrs. Sacco's insurance broker, who had delayed reporting until a copy of the police report was received. Carol Dobson, a former Zurich senior claims representative who handled the claim in its early stages, testified that she telephoned Mrs. Sacco that same day. Mrs. Sacco explained how the accident had occurred and that the police hadn't been called, since she did not think she was hurt. She also told Ms. Dobson that she worked for her husband's deli meat business at a flea market in St. Catharines on weekends, that they were self-employed and had no drug coverage. Mrs. Sacco reported that she had seen her doctor on the Monday after the accident and that her left leg was sore. She stated that she did her own housework, but it was taking a little longer.

Ms. Dobson sent Mrs. Sacco a package of accident benefit forms. At some point, she received an application back from Mrs. Sacco, partially completed, and neither dated nor signed. In answer to a question on that form relating to employment, Mrs. Sacco drew a line through the box where the answer should be written. Instead she answered the following question:

If you were not employed at Time of Accident — Do you suffer a substantial inability to perform the essential tasks in which you would normally engage? Explain

Yes — moved slow — up and down stairs — slowed down

Mrs. Sacco also checked a box indicating she had not returned to work/studies/normal activities since the accident. Where the choices relating to employment indicated categories including employed, self-employed, unemployed, and unpaid homemaker, Mrs. Sacco checked the box for unpaid homemaker. In my view, because she never received a wage from the business, Mrs. Sacco herself demonstrated confusion as to her employment status.

On December 1, 1992, Ms. Dobson called the Cedar Pointe physiotherapy office; she had not yet received the application for accident benefits by that time. Her next recorded contact on the file notes is another call to Cedar Pointe physiotherapy on January 21, 1993 to confirm Mrs. Sacco's attendance there and her compliance with the program. She learned Mrs. Sacco was attending regularly. That day Ms. Dobson also called Mrs. Sacco, who reported her arm was beginning to feel better, that she was still working with her husband in the deli meat business, that the physiotherapy was of some help and that she did not think she would need it much longer.

The Insurer did not pay any weekly benefits to Mrs. Sacco, although it paid for physiotherapy treatment, medication, and a transportation allowance. In order to be entitled to a weekly benefit, Mrs. Sacco would have to suffer "substantial inability to perform the essential tasks of ... her occupation or employment" according to section 12(1) of the Schedule, or suffer "substantial inability to perform the essential tasks in which ....she would normally engage" if the proper test were under section 13(1) of the Schedule. Ms. Dobson received a telephone call from Mr. Sacco on February 11, 1993 stating that he wanted to know about weekly payments and informing her that someone was coming in to his home every day to help with the housework and children.

Ms. Dobson testified that she telephoned the physiotherapist who related that the only problem Mrs. Sacco had mentioned regarding her housework was a problem getting up and down stairs quickly. The physiotherapist reported Mrs. Sacco's request to attend only once per week. This same telephone conversation is recorded in the physiotherapist's notes as follows: ..."I reported to her the only restriction I had heard from Joanne were that she had difficulty going up and downstairs too fast and with lifting arms overhead."

Later that same day Ms. Dobson wrote to Dr. Kassam asking him to clarify this matter. Her letter read as follows:

On October 31, 1992, Ms. Sacco was struck by a vehicle and suffered a fairly minor injury.

We have been paying for physiotherapy for Joanne since the beginning of December and felt there was no other problem connected with this. We have received a phone call on today's date [February 11, 1993], from her husband who indicates Joanne is and has been, totally disabled since the date of the accident.

We therefore, would ask you, for a medical report indicating the nature of her injury, her present condition and prognosis. Joanne is employed at home, working with her husband in a meat business and she indicated to me that she had missed no work and was still carrying on with her duties. However, her husband feels that she is suffering a total disability and as such, should be entitled to a weekly benefit. The policy wordings are that the person must suffer a substantial inability to perform the essential tasks of their occupation. With this in mind, would you kindly send me your report, along with your fee account.

In response to this request, she received the following handwritten report, dated March 5, 1993:

Joanne is receiving physiotherapy at Cedar Pointe (705) 722-7585 — When last in at my office in February 18th/93 she still [complains of] left under arm pain on lifting and in the left anterior chest area. She is also experiencing pain on deep breathing in the chest area.....Tender areas of left 3,4,5, ribs and left latissimus dorsi. She is continuing physiotherapy at this time.

Dr. Kassam offered no comment or opinion on the question of substantial inability.

Mrs. Sacco was eventually diagnosed as suffering from meralgia paresthetica² in her left leg and underwent a decompression of the left lateral femoral cutaneous nerve of her thigh on March 29, 1996. This was reported by the neurosurgeon, Dr. A. Guha, to have improved her sensory complaints by "at least 20 to 50%" in a report of May 7, 1996, six weeks after surgery.

However, throughout the time that concerns me, with respect to her claim for weekly income benefits, none of the evidence discloses that the Insurer received any information from any health care practitioner, or Mrs. Sacco herself, that Mrs. Sacco was substantially disabled. There had been only a single telephone call with Mr. Sacco on February 11, 1993. In a telephone conversation of October 25, 1993, Ms. Dobson testified that Mrs. Sacco related that she knew the physiotherapy was taking a long time, but that she found it and the massage therapy helpful; Mrs. Sacco also related that she did not walk a great deal, that she took a bus to physiotherapy and that she was still going to the market in St. Catharines and also to the Elmvale market once a week during the summer.

By March 31, 1994 Dr. Kassam reported to the Insurer that:

Joanne still continues to complain of inability to climb a flight of stairs due to pain in left thigh. She also complains of difficulty in lifting any weights, walking for 2 - 3 hours or shopping, or standing for too long causes pain in that leg. Vacuuming or bending down to clean floors is also a difficult task. (...)

She was receiving Physiotherapy at Cedar Pointe with limited success. She was referred to Dr. R.J. Moulton at St. Michael's Hospital who thinks that she might have muskuloskeletal (sic) pain and had advised to see orthopedic surgeon. Cedar Pointe Physiotherapy has suggested for her to see Dr. Amandola (ortho) in London and the appointment is booked for October 17th, 1994 at 10:30.

In May 1994, the Insurer sent Mrs. Sacco for an evaluation by Dr. Phillip A. Bright who reported that Mrs. Sacco told him "the problem with her left thigh has interrupted her life style, some what. She presently finds that she has trouble performing her housework and needs to take a lot longer to do this than she used to and requires frequent rest breaks." Dr. Bright felt Mrs. Sacco's case to be a "diagnostic dilemma" and recommended E.M.G. studies and an appointment with Dr. Amandola. The Insurer also asked Amanda Bentz, Occupational Therapist, to assess Mrs. Sacco. The therapist was not able to observe Mrs. Sacco at her home, so had to rely largely on verbal reporting by Mr. and Mrs. Sacco. The therapist recorded some limitations on Mrs. Sacco's ability to stand at the stove, grocery shop, carry laundry up and down stairs, wash floors and vacuum. She also recorded Mr. Sacco's assessment that his wife was no longer able to help load or unload the truck or put items into the cooler. He stated that his wife accompanied him still to the Market but could only assist with light purchases. He claimed that, due to his wife's low sitting tolerance, he had had to hire an accountant to provide bookkeeping services that his wife previously performed.

Mrs. Sacco received some injections into various trigger points by Dr. Kathryn R. Wilkins, a specialist in physical medicine and rehabilitation, in the fall of 1994, to no effect. Finally by November 20, 1995, Dr. Amendola had diagnosed meralgia paresthetica (entrapment of the left femoral cutaneous nerve) and recommended Mrs. Sacco be seen by Dr. A. Guha, a peripheral nerve surgeon.

Essential Tasks

Just prior to the accident on October 31, 1992, Mrs. Sacco testified she had been helping in the family business of DJ Meats in several capacities. She worked at the "diner" in Beeton (which closed its doors October 30, 1992) as a cook, server, cleaner, and bookkeeper on a casual basis; she prepared for and attended the St. Catharines' Flea Market each Sunday to work behind the DJ Meats' counter; and she attended daily to sales from the house, answered the telephone and did the basic bookkeeping for the business. Mrs. Sacco also helped unload boxes from delivery trucks into the warehouse which she was also responsible for cleaning. She kept the business' equipment clean, especially the slicing machine.

Despite this activity, Mrs. Sacco never received a wage from the business. However, both she and her husband testified that the business' proceeds were paid into a joint account. In my view, Mrs. Sacco would be best categorized as a self-employed person, as a partner in the family business. Accordingly, the tasks which must be considered in determining Mrs. Sacco's entitlement to weekly income benefits are the tasks she performed at the time of the accident for DJ Meats.

Apart from her work in the DJ Meats business, Mrs. Sacco was the family housekeeper, with all the usual household cleaning, laundry and cooking for five people as her responsibility. She also mowed the lawn and enjoyed gardening.

On her own evidence, Mrs. Sacco has been "slowed down" by the effects of the accident of October 31, 1992, but she has carried on. She has been disrupted in her ability to contribute the same amount of work, without great effort, to the family business and to her household. However, in my view the evidence at the hearing and the documentary evidence filed falls short of proving a "substantial" inability to perform the essential tasks of her occupation or employment.

I accept that Mrs. Sacco could not have performed a busy shift of 10 to 12 hours on her feet at the diner after the accident. This had been one of her duties, on a casual basis, in the months leading up to the accident. However, "at the time of the accident" the essential tasks of her employment no longer comprised this aspect of DJ Meats business, because the restaurant was no longer operating.

Mrs. Sacco's major complaint to her doctor and to the physiotherapist in the weeks following the accident was her inability to go up and down stairs quickly, especially with a loaded laundry basket. However, doing the family laundry was not an "essential task" of Mrs. Sacco's employment with DJ Meats.

I also accept that after the accident, Mrs. Sacco might have had difficulty with handling boxes of meat delivered to the business. However, I heard absolutely no evidence as to how often such deliveries occurred, how heavy the boxes were, how many boxes were delivered, whether the deliverymen unloaded the boxes, whether Mr. Sacco dealt with most of the deliveries himself before the accident and after the accident, and numerous other elements of proof with respect to this task.

A further difficulty in the presentation of the Applicant's evidence concerns the lack of definition of job duties in a small, family-run business. I accept that Mrs. Sacco has had some difficulty fulfilling her tasks in the months since the accident. However, at the same time, her children have grown older and assumed more responsibility in the family operation. In my view, this assumption of tasks by the teenage children is likely to have occurred, in the normal course, whether or not the accident had intervened. The fact that the children do some of the jobs formerly done by Mrs. Sacco is not, in itself, necessarily, evidence of her inability to do the task.The Schedule requires an individualized inquiry into Mrs. Sacco's essential tasks "at the time of the accident." Those are the duties, described above, which I have attempted to understand and upon which I must determine the impact of her injuries. However, the evidence has not been clear, because of the fluidity of tasks in this small business.

The evidence before me does not indicate that Mrs. Sacco has even missed any time away from the business with the exception of one or two physiotherapy attendances each week. Thus, it is difficult or even impossible to determine if the time has been "stolen" from her housekeeping time, her leisure time, or her JD Meats' time.

The only witnesses who testified that Mrs. Sacco had difficulty performing her job after the accident were herself and her husband. Mr. and Mrs. Sacco both have a financial interest in the outcome of the hearing. Accordingly, their evidence is subject to more scrutiny than, for example, the evidence of an "independent" witness, with no interest in the outcome. Mrs. Sacco admitted under cross-examination that she had exaggerated in her evidence with respect to falling, in contrast to the reports she gave to the physiotherapist shortly after the occurrences. This admission concerns me, since it strengthens my impression that in her testimony Mrs. Sacco has also exaggerated the extent of her disability. For example, I do not find credible Mrs. Sacco's insistent evidence that her daughter has done most of the cooking in the household since the accident. Repeated references in the comprehensive physiotherapy notes speak of Mrs. Sacco being engaged in gardening activity, the business at the flea market, cooking and household chores. Rather than showing a pattern of substantial inability, these references point to a woman who struggled to carry on as normally as possible after the accident.

Frequently, Mr. Sacco's testimony, particularly with respect to financial matters pertaining to his business, was evasive and vague, although in other aspects of his testimony, especially where his wife's activities were concerned, he testified with great precision and detail. I received the distinct impression from the evidence that Mr. Sacco is a shrewd businessman whose testimony was, in this case, designed to increase the possibility of his wife receiving a weekly income benefit from the Insurer.

The oral evidence of the witness, Angie Smith, a fellow vendor at the flea market, is totally unreliable because it contrasts completely with a statement she gave to an investigator in the fall of 1994. The investigator testified at the hearing, and I find that Ms. Smith made the statements he attributed to her. The evidence of the witness, Sadie Edelstein, did not deal at all with Mrs. Sacco's duties in the business.

Amount of Benefit

Since I have determined Mrs. Sacco is not entitled to a weekly income benefit under the Schedule, it is unnecessary for me to determine what amount of benefit she might have received, based on her prior income, or what the appropriate deductions would be for post-accident income.

Transportation Allowance

The Insurer has paid a mileage allowance to Mrs. Sacco of $0.27 per kilometer for her travel expense to physiotherapy and to medical appointments. According to Ms. Dobson, that was the rate that the Insurer's head office determined was appropriate for its insureds. Mrs. Sacco claims she should receive $0.30 per kilometer; however, I received no evidence at all about the actual expenses relating to her transportation. Accordingly, this claim fails for lack of proof.

Chauffeur/companion Expense

In addition to a mileage allowance, which has already been paid, Mrs. Sacco claims, on behalf of her husband, $15.00 per hour for the time he spent in driving her to physiotherapy and other medical appointments, including his "waiting time." Mrs. Sacco testified that since the accident she has not driven. She also testified that the physiotherapy clinic was too far from her home to walk. (From the mileage claims, it would appear that a return trip to the Cedar Pointe clinic is eight kilometers.) I received no evidence of the cost of taxi or public transport within the City of Barrie, although I understand that the bus runs past Mrs. Sacco's home and passes the Cedar Pointe facility as well. The physiotherapy notes indicate that, on at least some occasions, Mrs. Sacco traveled there by bus.

This claim is advanced under section 6(1)(f) of the Schedule, which provides that a person who sustains injuries as a result of an accident is entitled to all reasonable expenses resulting from the accident, for up to ten years, for "other goods and services whether medical or non-medical in nature, which the insured person requires because of the accident." Where a claim is advanced under section 6(1), the Insurer may require a statement from the insured person's medical practitioner stating that the expense "is necessary for the insured person's treatment or rehabilitation." I heard no evidence in this case that the Insurer had requested such a statement.

In the alternative, the claim is advanced under section 7(1) of the Schedule as a claim for a "care benefit." According to that section, all reasonable expenses resulting from the accident in caring for the injured person are recoverable including "the amount of gross income reasonably lost by a person....in caring for the insured person."

Mr. Sacco testified about the cost of a trip by taxi to London, where Dr. Amendola is located, but I heard no evidence about the cost of traveling there by bus. I heard some evidence from Mrs. Sacco about her lack of confidence to travel alone, at least partly due to two mishaps where she fell or nearly fell on stairs, and about her occasional need to take the arm of her companion when walking. However, I received no medical evidence supporting either the need to travel by private vehicle nor about the necessity for a chauffeur or companion to accompany her. The Insurer did pay Mr. Sacco $15.00 per hour in "lost wages" for 3 trips to see specialists in Toronto and Newmarket in December 1993 and January 1994, in addition to paying parking, and mileage and meal allowances.

No attempt was made in this case to prove any amount of gross income was lost by Mr. Sacco in providing chauffeur service. This may be due to the nature of his work and the apparently poor financial circumstances of his business since 1992. (In 1992 he reported no income from self-employment and in 1993, he reported $3,186.00 in self-employment income.) I also heard no evidence of any "expense" incurred providing these services. I do not accept Mr. Sacco's evidence that he would easily earn $15.00-$20.00 per hour as an employee in a delicatessen. In any event, what he might earn at paid employment is irrelevant to the consideration of what is reasonable in the actual circumstances.

Despite the lack of medical evidence in support of her position, in my view, having regard to the nature of the injury, Mrs. Sacco's personality and the anxiety and long delay in finally diagnosing the problem, it is reasonable to accept Mr. Sacco's services as a chauffeur and companion to his wife for out-of-town trips to specialists.

The following trips are claimed on exhibit 13. Mr. Sacco testified that his son prepared the list, on his instructions, based on the time it took him on each occasion:

Date	Location	Hours Claimed	Hours Allowed
April 29, 1994	Waterloo	9	9
October 17, 1994	London	11	11
January 17, 1995	London	12	12
January 30, 1995	London	12	12
October 30, 1995	London	12	12
November 20, 1995	London	12	12
February 6, 1996	Toronto	9	9
February 13, 1996	Toronto	7	7
March 5, 1996	Toronto	8	8
March 29, 1996	Toronto	34	16
Total		126	108

No one testified about the trip on March 29, 1996 or why 34 hours was claimed. March 29, 1996 was the date of Mrs. Sacco's surgery. According to exhibit two, it was intended that she remain overnight in hospital following the procedure. In the absence of any testimony about the extraordinary number of hours claimed, I am prepared to allow the equivalent of two "average" trips to Toronto to visit specialists or 16 hours. As to the rate of compensation, since I heard no evidence about any gross income lost by Mr. Sacco in driving his wife on these occasions, in my view, he is reasonably compensated for his time at the minimum wage rate for adult workers in force in the province on the date of the travel.

I view the regular trips to physiotherapy, once or twice weekly, differently. For the most part, Mrs. Sacco traveled in her own vehicle to these appointments, for which she was reimbursed a mileage allowance of $0.27 per kilometer. According to exhibit 14, the Insurer would have paid the bus fare for these trips. In the absence of medical evidence or any oral testimony demonstrating the reasonable need for car travel or for a companion or chauffeur, I find this is not a reasonable expense resulting from the accident for a service which Mrs. Sacco requires because of the accident.

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 F of the Dispute Resolution Practice Code-1995 Release and in Ontario Regulation 664, R.R.O. 1990, Dispute Resolution Expenses.

In the McCormick and Economical Mutual Insurance Company case (October 2, 1991), OIC A-000139, Sr. 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 main, in the appeal decision in Calogero and The Co-Operators General Insurance Company (February 13, 1992), OIC P-000251.

I exercise my discretion to allow Mrs. Sacco her expenses as set out in Schedule F of the Dispute Resolution Practice Code-1995 Release. In the event that the parties cannot agree as to the total amount of expenses, a party may apply for assessment of the expenses through the Office of the Registrar.

Order:

1. Mrs. Sacco is not entitled to weekly income benefits under section 12(1) of the Schedule from November 6, 1992 to November 6, 1995, or for any portion of that period, as a result of the accident of October 31, 1992, and accordingly, her claim for these benefits is dismissed.

2. It is unnecessary to decide the amount of weekly income benefit.

3. Mrs. Sacco is entitled to transportation expenses in the amount of $0.27 per kilometre. As these have been paid already at this amount, her claim in excess of this amount is dismissed.

4. Mrs. Sacco is entitled to certain benefits under section 6(1)(f) of the Schedule, as set out in the decision (108 hours at the adult minimum wage rate), to pay her husband for acting as her chauffeur/companion for out-of-town medical appointments.

5. Mrs. Sacco is entitled to her expenses of this arbitration under the provisions of section 282(11) of the Insurance Act, in accordance with the prescribed amounts set out in Schedule F of the Dispute Resolution Practice Code—1995 Release and Ontario Regulation 664, R.R.O. 1990, Dispute Resolution Expenses.

June 21, 1996

K. Julaine Palmer Arbitrator

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. 2Meralgia paresthetica is a disease in which paresthesia, pain and numbness is experienced in the outer surface of the thigh, in the area supplied by the lateral femoral cutaneous nerve, which has become entrapped by the inguinal ligament.