Ontario Insurance Commission

Commission des assurances de l’Ontario

Neutral Citation: 1996 ONICDRG 118

Appeal P-001005

Appellant/ Respondent by Cross-Appeal

and

Respondent/ Appellant by Cross-Appeal

Before:

Elisabeth Sachs

Representatives:

Ms. Catherine Halls (Agent for Lawrence Whitney)

Mr. Stephen Malach (Counsel for Co-operators)

Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

The appeal and cross-appeal are dismissed and the arbitration order dated March 31, 1993 is confirmed.
Mr. Whitney is entitled to his appeal expenses, fixed in the amount of $100.00.

July 10, 1996

Elisabeth Sachs Director of Arbitrations

Date

Lawrence Whitney was injured in a snowmobile accident on February 14, 1991. He received weekly and other benefits from Co-operators General Insurance Company (“Co-operators”), until July 23, 1992 under O. Reg. 672, Statutory Accident Benefits Schedule - Accidents Before January 1, 1994 ( the “Schedule”) when they were terminated.

Mr. Whitney claimed continued entitlement to benefits. An arbitration hearing was held over four days at which ten witnesses testified, including Mr. Whitney’s family doctor.

The arbitrator found Mr. Whitney was not entitled to weekly benefits under subsection 13(1) of the Schedule after July 1992, and did not order a special award under subsection 282(10) of the Insurance Act, R.S.O. 1990, c. I-8 (the “Act”). The arbitrator dismissed his claim to payments for care he received from his common-law spouse, under section 7 of the Schedule, and additional benefits in respect of his dependant children under section 13(4) of the Schedule. However, Mr. Whitney was awarded $149.60, plus interest, for transportation expenses incurred to consult Mitchell Hewson, a registered horticultural therapist, but not the expenses of other goods and services he claimed under section 6 of the Schedule.

Mr. Whitney appealed the order of the arbitrator contending that “the entire hearing was a judicial error in process.” (Notice of Appeal, p.1). He submitted that:

The arbitrator made an error in recording of evidence and based her decision upon this error. The arbitrator changed the meaning of clause 13(1) and based her decision on the word “sizable” which has no meaning to the word “substantial.” The arbitrator based her decision on evidence that was not before her.

Mr. Whitney seeks an order compelling Co-operators to pay all claimed benefits to him, or in the alternative, a new hearing.

Co-operators cross-appealed the arbitrator’s order granting Mr. Whitney his expenses, contending as he was wholly unsuccessful at the hearing, he should not be “rewarded” for bringing what it says was a worthless set of claims forward.

Both parties provided extensive written submissions. As part of his submissions, Mr. Whitney tendered a partial transcript of a criminal proceeding, which, for the reasons set out below, I decline to accept as fresh evidence on the appeal. No full transcript of the arbitration is available, but two excerpts were part of the record: the oral evidence of O.P.P. Constable R.G. Phillips, A. Neustead and P.C. Neustead, and a second, which formed the basis of an unsuccessful judicial review application launched during the hearing by Co-operators. The appeal proceeded on the record, with oral submissions from the parties.

A. Fresh Evidence

Mr. Whitney attempted to introduce a transcript of the oral evidence of O.P.P. Constable R.G. Phillips, sworn before the Honourable Judge L.S. Geiger on April 14, 1992 at Burk’s Falls, Ontario. The case, R. v. Whitney, concerned assault charges under the Canadian Criminal Code. As noted, this officer was a witness at the arbitration hearing. The evidence of Constable Phillips in the court proceeding covers the same occurrence on June 11, 1991, about which he testified at the arbitration. The arbitrator noted much of the evidence surrounding the assault was “not germane to the issue before me - namely whether the Insurer is required to pay ongoing no-fault benefits.” (Decision, p. 19) Except to observe that the officer testified Mr. Whitney was physically capable of knocking him to the ground and pinning him with his knee, I agree with the arbitrator that the evidence is not particularly relevant to the issue of whether Mr. Whitney was able to perform his essential tasks.

I am not accepting the criminal proceedings transcript as new evidence in the appeal, for two basic reasons. The first is that it is essentially the same as the evidence heard by the arbitrator at the hearing, and secondly, it does not meet the criteria for admission as fresh evidence outlined in several appeal cases.¹

B. Meaning of Substantial Inability, Essential Tasks, & Primary Caregiver

Mr. Whitney made extensive submissions about the meaning of the words “substantial inability” and “essential tasks” in subsection 13(1) of the Schedule which reads:

The insurer will pay with respect to each insured person who sustains a physical, psychological or mental injury as a result of an accident, a weekly benefit during the period which the insured person suffers substantial inability to perform the essential tasks in which he or she would normally engage...

The Schedule sets out the scope of evaluation and assessment of the evidence in this test of eligibility for benefits in the section. In some cases, an adjudicator might find that a moderate inability to perform almost every essential task normally carried out by an insured person, coupled with a complete inability to perform a few essential tasks results in a “substantial inability to perform the essential tasks” normally engaged in. In other cases, an adjudicator might find that a substantial inability to perform each essential task is the proper application of the eligibility test. The key feature of the phrase “substantial inability” is the requirement that the disability be “relatively great in size or importance” as Mr. Whitney set out in his submissions using dictionary definitions. The arbitrator stated at p. 14 of the decision:

To qualify for benefits under this test, it is not sufficient to show the Applicant has been prevented from returning to his full pre-accident level of activities, or that he suffers from some remaining limitations as stated in Lily Steele and Zurich Insurance Company, O.I.C. File No. A-001024, dated December 3, 1992 , at page 32:

...it is not some inability to perform key tasks, but a sizeable inability which is compensable. (Emphasis in original)

Mr. Whitney submits the approach must be that he “is either injured or he is not injured. The door is either open or closed.” That is not the test in section 13 of the Schedule. By its terms, the section allows for gradations in ability to perform essential tasks, requiring that the disability, whatever the degree, be substantial. Mr. Whitney argues the arbitrator erred in using as synonyms the words “sizeable inability” for the word “substantial” found in subsection 13(1). In my view, the arbitrator applied the correct test.

Further, when adjudicators determine an insured person’s eligibility for weekly benefits, they must characterize the person’s “essential tasks”, as distinct from the “activities” he or she might engage in. General principles have been developed in arbitration cases defining the words “essential tasks”, with which I agree. These include that to some extent, the inquiry may be subjective as it involves an individualized inquiry into the person’s circumstances in comparing his or her activities before and after the accident, subject to the objective parameters of the section’s wording. Not every activity is a task, and not every task is an essential one. Tasks have been described as involving “an element of commitment, a sense of purpose or responsibility to oneself, one’s community or dependants”, while the qualifying word “essential” also means the task is to be basic, necessary or fundamental.²

The arbitrator outlined, in considerable detail, Mr. Whitney’s individual circumstances, comparing the evidence of his daily activities before the accident and after. She found that of the tasks he did before the accident, he could perform most of them after July 23, 1992, although with residual pain and difficulty. Mr. Whitney was able to care for his personal needs, occasionally look after his children, garden, ice-fish, fish, and travel by vehicle. The arbitrator accepted Mr. Whitney’s evidence that he could not split wood or ride a snowmobile. Mr. Whitney does not dispute the evidence accepted by the arbitrator on what his essential tasks were, or the conclusions she drew, but seeks to include all his daily activities as essential. He objects to the arbitrator’s finding that collectively, the evidence does not adequately demonstrate a “substantial inability to perform .... essential tasks” on his part.

Where the evidence as evaluated and facts found in the arbitration are disputed, the duty of the Director is not to re-try the issues as if they were presented anew, nor is it to interfere with the arbitrator’s findings in relation to that evidence unless the findings have insufficient or no evidence to support them.³

I reviewed the arbitrator’s decision, the arbitral exhibits and the written submissions closely. In my view there was ample evidence to support the arbitrator’s findings about what constituted Mr. Whitney’s essential tasks and his abilities to engage in them after the accident. I find no error in principle or in law in the test the arbitrator applied or the methodology she used.

Mr. Whitney also claimed benefits under subsection 13(4) of the Schedule, which provides for a weekly payment by an insurer:

...for each person who at the time of the accident was residing with the insured person and in respect of whom the insured person was the primary caregiver if the person receiving the care was less than sixteen years of age...

Again, Mr. Whitney takes no issue with the findings of the arbitrator regarding his child care responsibilities. She found that Mr. Whitney was not living with his children at the time of the accident but lived some miles away and on the evidence, could not be their primary caregiver. Mr. Whitney submits a primary caregiver need not necessarily reside with the children. While I accept that in some unusual circumstance it might be possible for a child’s primary caregiver not to reside full-time with the child, on the facts of this case, Mr. Whitney neither physically cared for his children on a frequent basis before the accident, nor provided their principal financial support. Accordingly, the arbitrator concluded, and I agree, Mr. Whitney could not meet the requirements of subsection 13(4) to be entitled to those benefits.

C. Claims Under Paragraph 6(1)(f) of the Schedule

At page 23 of the decision, the arbitrator lists the items claimed by Mr. Whitney under paragraph 6(1)(f) of Schedule, and disputed by Co-operators as reasonable expenses for “other goods and services, whether medial or non-medical in nature, which the insured person requires because of the accident”. These include a ski-doo and trailer, Honda 4x4 trike, tractor, communication device and other items totalling more than $86,635.

The arbitrator found not only were the claims unreasonable, but no medical evidence of any kind was offered to show that the goods and services were required for Mr. Whitney’s treatment or rehabilitation. The only expense allowed by the arbitrator was $149.60 for transportation expenses of Ms. Halls, Mr. Whitney’s spouse, to consult with a horticultural therapist about alternative rehabilitative treatment for him.

As with the factual findings about Mr. Whitney’s ability to perform his essential tasks, the question is whether the arbitrator misdirected herself, or came to conclusions on the evidence which are not supportable. I find no reason to overturn the arbitrator’s findings here or to reverse her conclusions on what is recoverable under paragraph 6(1)(f) of the Schedule.

D. Care Benefits Under Section 7 of the Schedule

Mr. Whitney claimed that Ms. Halls lost “income” as a result of caring for him after the accident. The purported loss happened in an indirect manner. At the time of the accident, Mr. Whitney and Ms. Halls maintained separate residences. Both were receiving social assistance. After the accident they lived together. At page 21 of the decision, the arbitrator notes the financial effect of the post-accident living arrangements:

Ms. Halls did not thereby lose eligibility for benefits. However, the income, expenses and needs of the family unit of which she is a member are considered collectively for the purpose of determining the (family) benefits payable. It is impossible, on the basis of the meagre evidence before me, to establish that Ms. Halls suffered a loss of income solely by virtue of this change in status.

I received no fresh evidence on this point. It is apparent that there is no evidence to conclude otherwise.

E. Insurer’s Cross Appeal on Expenses

Under section 283(3) of the Act, I allowed Co-operators a brief extension of the time required to file its documents. There was no prejudice to Mr. Whitney, and the filing of the cross-appeal was as timely as possible in the circumstances. However, my comments in Singh and Simcoe Erie Group, (February 2, 1992, OIC P-000532), at page 5, are applicable here:

This case is not alone when it comes to the almost automatic filing of cross-appeals in appeals to the Director. This is an unhelpful and futile practice. It adds nothing to a respondent’s case to advance claims which might otherwise not have been pursued because an appeal is brought. Appeals must be based on a real question, in fact or law, or a significant doubt as to the correctness of the arbitrator’s findings given the evidence or a lack thereof.

Co-operators appeals the award of expenses to Mr. Whitney. It submitted the “virtual automatic recovery of expenses” was in error as the case was entirely without merit, with the exception of a claim for $149.60.

The arbitrator has a discretion to award expenses under section 282(11) of the Act and in the final paragraphs of the decision, exercised this discretion in favour of Mr. Whitney without extensive reasoning. However, on other aspects arising in the case, the arbitrator noted at page 17 that she was satisfied Mr. Whitney:

...continues to experience chronic pain, depression and anxiety as a consequence of the accident, and may require treatment for his psychological problems....The Applicant is entitled to the cost of any such treatment as is needed.

She also noted the following, with respect to Co-operators’ conduct at the arbitration:

Regrettably, the Insurer, through its counsel, has taken an adversarial and confrontational approach in these arbitration proceedings. It refused to provide the Applicant with a copy of Dr. Yadav’s report or to advise the Applicant of Dr. Yadav’s recommendations. It took no steps to ensure that the recommendation to pursue a psychiatric evaluation was followed. In so doing, the Insurer improperly placed defence of its case above the Applicant’s right to effective and timely rehabilitation.

Overall, I find the arbitrator used her discretion appropriately, and see no reason to interfere with the award of his reasonable arbitration expenses to Mr. Whitney.

III. EXPENSES OF APPEAL

The appeal and cross-appeal are unsuccessful. Mr. Whitney did raise an important legal issue with respect to the definitions, test and the extent of eligibility for benefits under the Schedule. He is entitled to appeal expenses, restricted to the filing fee of $100.00.