Wellington Insurance Company v. Giovanna Caputo, 1996 ONICDRG 125

Neutral Citation: 1996 ONICDRG 125

Appeal P-000697

Appellant

and

Respondent

Before:

Elisabeth Sachs

Counsel:

Edmund Kent (for Wellington Insurance Company)

Altor Shields (for Giovanna Caputo)

APPEAL ORDER

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

The appeal is dismissed and the arbitration order dated June 23, 1994 is confirmed.
Giovanna Caputo is entitled to her reasonable appeal expenses.

July 25, 1996

Elisabeth Sachs Director of Arbitrations

Date

REASONS FOR DECISION

I. BACKGROUND

Giovanna Caputo was injured in a motor vehicle accident on January 1, 1991. She received weekly benefits from the appellant, Wellington Insurance Company (Wellington) under section 13 of O.Reg. 672, Statutory Accident Benefits Schedule - Accidents Before January 1, 1994 (the Schedule) until they were terminated on August 2, 1991.

Mrs. Caputo claimed continued entitlement to weekly benefits and expenses for household help performed by her family. After a two day hearing at which Mrs. Caputo, her husband and three sons testified, and numerous medical, rehabilitation/physiotherapy reports were filed, the arbitrator found Mrs. Caputo entitled to weekly benefits for a further 18 months. The arbitrator also awarded Mrs. Caputo $7,848 for housekeeping services under paragraph 6(1)(f) of the Schedule, but refused to order a "special award".¹

In its Notice of Appeal, Wellington asked for an order reversing the arbitrator's decision on both the weekly benefits and housekeeping expenses, or in the alternative, a reduction of the benefits and expense awards. Wellington also sought a stay of the arbitral order pending the appeal, which was not granted.

Wellington's position is that the arbitrator misconstrued the medical and rehabilitation evidence in concluding Mrs. Caputo's eligibility for weekly benefits continued until February 1993. In a primarily factual argument, Wellington contends the weight of the evidence militates against the awarding of benefits beyond the termination date.

Wellington also submits the arbitrator erred in her interpretation of what services are payable for Mrs. Caputo's rehabilitation and care under paragraph 6(1)(f) of the Schedule on two grounds: firstly, housekeeping expenses should not be granted when the insured person's essential tasks are the performance of household duties and secondly, where family members provide the service, no recoverable expense is incurred.

II. ISSUES AND ANALYSIS

A. Entitlement to Weekly Benefits

The arbitrator found Mrs. Caputo suffered from chronic pain, depression and anxiety following the January 1991 accident. She accepted that Mrs. Caputo was unable to overcome her pain and sense of despair and consequently, could not cope with the demands of everyday life for a considerable period. However, the arbitrator found Mrs. Caputo's condition had improved with therapy and medication by the end of February 1993. She was able to do much around the home, although she still needed to take rest periods and could not do some of the heavy work. Mrs. Caputo was discharged from physiotherapy that same month. The arbitrator therefore concluded Mrs. Caputo was entitled to weekly benefits until February 28, 1993.

Wellington submits the arbitrator misconstrued the evidence, particularly the report of Dr. Henry Berry dated April 8, 1992 (Exhibit 1, Tab 6). Wellington argues that the arbitrator based her conclusion about Mrs. Caputo's ongoing disability on this report, but if the report had been read properly, it should have led the arbitrator to the opposite conclusion. A review of the decision discloses the arbitrator relied not only on this report, but that of a physiotherapist, several specialists, and a family physician. The arbitrator found Dr. Berry was of the view that at the time he saw Mrs. Caputo, she was still disabled from doing her essential tasks by a combination of physical and psychological problems. Dr. Berry wrote at page 9 of his report:

As a result of the accident, musculoskeletal strain and complicating post-traumatic anxiety state and depression with mild phobic features, she has experienced significant disability over the past months...It is important that she gradually increase her activity and I would take the position that her physical condition is now satisfactory and that she is capable of gradually resuming her former household duties and activities. (Emphasis added)

Wellington submits Mrs. Caputo's physical condition was no impediment to her resuming her essential tasks from at least September of 1991, relying in part on the report of Dr. J. Halpenny dated March 22, 1991 (Exhibit 3) in which he indicated a two to three month period of recovery could be anticipated from that date. However, in a follow up report dated September 11, 1991, Dr. Halpenny noted little improvement, and while physically Mrs. Caputo should be capable of carrying out her essential tasks, other behaviour symptoms were manifest that required intervention.

Wellington also notes the arbitrator's failure to refer to Dr. H. Cameron's report dated February 14, 1992 (Exhibit 1, Tab 5). In the conclusion of his report, Dr. Cameron wrote:

From the physical point of view, I see no evidence of ongoing disability. I think this lady is perfectly capable of carrying out her regular household duties. I think she has been capable of doing this for a long time. I see no need for any further treatments...I think this lady has long since recovered from the effects of this accident.

Wellington urges me to rely on this report to vary the arbitrator's findings on when Mrs. Caputo was able to do her essential tasks.

Further, Wellington submits Mrs. Caputo's psychological state was not a limiting factor in her ability to resume housework. Dr. Zener, in her report of May 7, 1991 (Exhibit 1, Tab 2) stated that with the appropriate support, Mrs. Caputo should "feel much improved in the next 2-4 months and be able to resume her household duties on a fulltime basis." In the next sentence, Dr. Zener wrote: " However, at the present time, it is clear that she is unable to do so."

Wellington dismissed the psychiatric reports of Dr. Gyimah as it submits none of them definitively state Mrs. Caputo was disabled on psychological grounds. The arbitrator, at page 13 of the decision, refers to a letter written by Dr. Gyimah on May 18, 1993 which she felt did not clearly state whether Mrs. Caputo's diagnosed post traumatic stress disorder rendered her incapable of performing her essential tasks. Accordingly, it cannot be said that any substantial weight was placed on Dr. Gyimah's reports alone.

Notwithstanding the lack of reference to Dr. Cameron's report, the arbitrator weighed the impact of more than 20 medical and rehabilitation/physiotherapy reports, along with the oral evidence of Mrs. Caputo and her family. She concluded, at p. 14:

..(T)he totality of her problems had this effect. Her constellation of problems...entrenched in her the perception of her own disability. I believe that Mrs. Caputo genuinely was not able to overcome her pain..and..unable to cope with the demands of every day life for a significant period of time.

The arbitrator made this finding although she noted Mrs. Caputo "minimized her functional abilities and did not always acknowledge the housework that she was, in fact, performing at that time".

The Director's duty on appeal has been extensively canvassed.² The arbitrator hears the witnesses, reviews the documents presented and considers the submissions of the parties in relation to that evidence. The arbitrator must then weigh the evidence, assess its credibility and accept or reject it. It is not my function on appeal to re-try the issues, or interfere with findings made in relation to the evidence presented unless they have insufficient or no evidence to support them. I am not in a position to come to conclusions different from those of the arbitrator where the arbitrator's findings are supportable on a review of the evidence.

In this case, Mrs. Caputo's ability to perform her essential tasks was compromised by a series of physical and psychological factors. Defining precisely the date on which she was able to resume her tasks was difficult for the medical professionals treating her, as it was for the arbitrator. Dr. Berry's report is entirely capable of being interpreted as the arbitrator did. I do not regard the lack of a reference to Dr. Cameron's report in the decision as overly significant in light of the other evidence presented. Taking into account the factors the arbitrator considered, based on my review of the record and exhibits in the absence of a transcript, I cannot conclude the arbitrator made findings unsupported by the evidence. The appeal on this part of the decision therefore fails.

B. Entitlement to Benefits Under Paragraph 6(1)(f)

Mrs. Caputo also claims payment under paragraph 6(1)(f) of the Schedule for housekeeping services performed by her sons. The arbitrator found Mrs. Caputo eligible to receive 11 to 12 hours of such services weekly, at a minimum wage rate, from the date of the accident until February 28, 1993, the same date she held entitlement to weekly benefits ceased.

Wellington submits Mrs. Caputo is not entitled to claim housekeeping expenses on the basis that by receiving weekly benefits under section 13, she is already being compensated for her inability to perform household duties for her family, and undertake homemaking tasks.³ The submission was that if Mrs. Caputo required housekeeping services, either they should be paid for from her weekly benefit amount, or family members should provide them without compensation. In any event, Wellington submits if these services are contemplated under paragraph 6(1)(f), which it says they are not, then they are payable only for outside service providers, not family members.

Section 6 benefits are found in Part II of the Schedule "Supplementary Medical and Rehabilitation Benefits and Care Benefits". Section 13 benefits claimed by Mrs. Caputo are in Part IV of the Schedule, "Weekly Benefits", "Benefits if No Income".

Weekly benefits are payable to an insured person as long as he or she meets the eligibility test of subsection 13(2), the substantial inability to perform essential tasks, whether or not any reasonable expenses result from the accident for services covered by sections 6 and 7 of the Schedule.

Benefits or expenses are payable under section 6 of the Schedule as long as they are reasonable and where required by the insurer, a statement is given by a medical practitioner or psychological advisor that the expense is necessary "for the insured person's treatment or rehabilitation". (Subsection 6(4)). It is common ground Wellington did not request such a statement from Mrs. Caputo's physicians or advisors.

The conditions placed on the receipt of section 13 benefits are completely different from those under section 6. Weekly benefits terminate when the insured person fails to meet the eligibility test, or after 156 weeks, "unless ..the injury continuously prevents the insured person from engaging in substantially all of the activities in which the person would normally engage". Section 6 benefits, on the other hand, are available subject to certain temporal and monetary limits and the opening words of subsection 6(1) which state:

The insurer will pay...all reasonable expenses resulting from the accident...for the enumerated items.

The eligibility tests for benefits under section 6 and section 13 are distinct. Section 6 is concerned with the costs of providing treatment and rehabilitation to an insured person, and is broad enough to include home renovations. At paragraph 6(1)(f), a category which may be called "other" provides for:

other goods and services, whether medical or non-medical in nature, which the insured person requires because of the accident.

Section 13, which only provides for payment of a benefit while an insured person suffers "a substantial inability to perform the essential tasks" normally engaged in, does not correspond to any treatment or rehabilitation expense.

Wellington argues that housekeeping expenses are not medical or rehabilitation expenses, but paragraph 6(1)(f) does not require that the goods and services described have a medical aspect. The paragraph refers to goods and services "whether medical or non-medical". Wellington also argues that the rule of statutory construction known as "ejusdem generis" restricts the words to the same class or genus as those in paragraphs 6(1)(a) to (e). That approach was rejected in the appeal case Plows and Jevco Insurance Company, (May 22, 1992, OIC P-000175, P-000588), and I find this doctrine of construction has no application where, as here, specific provisions are followed by a broad general provision.

In Mrs. Caputo's case, it is entirely coincidental that her essential tasks were largely housekeeping duties. Had they been otherwise, for example, that of a manual labourer or teacher, then her ability to perform these tasks after the accident would have been a measure of her disability. The arbitrator noted that Mrs. Caputo was prevented from doing most of the housework by ongoing chronic arm, back and neck pain. She also recorded the opinion of the psychiatrist, Dr. Gyimah, when responding to the question as to whether the performance of household tasks by her sons "served to assist (her) in connection with her treatment or her recovery" as follows:

Because of her being anxious and also in pain, I would consider it beneficial in her getting assistance from her children in managing her household tasks. She should however try to do most of the work herself as she gets better. (Exhibit 1, Tab 14)

The arbitrator found that for the most part, Mrs. Caputo's condition did not prevent her from taking care of her own needs, but did compromise keeping house for her family. In so doing, the arbitrator differentiated Mrs. Caputo's needs from those of her family. The arbitrator found it reasonable to provide professional homemaking services to clean the home and do laundry for approximately 2 days weekly, or 10 hours in total. This is the length of time the arbitrator determined represented doing cleaning, laundry and dishes for Mrs. Caputo's own benefit. She did not include additional time for meal preparation, as the evidence showed Mrs. Caputo was able to help with cooking to a substantial degree after the accident. Although allowing an additional hour for grocery shopping for Mrs. Caputo's benefit, she disallowed any such time after March 31, 1992. The link between these services and Mrs. Caputo's care or rehabilitation was, in my view, established. Any residual benefit for the other family members was specifically factored out by the arbitrator. In determining a reasonable cost for such services, the arbitrator used a rate close to the provincial minimum wage, considerably less than the $10 hourly claimed.

The fact that the services were not provided by outside professionals in this case, but rather by family members, does not automatically mean they were to be free of charge. Although there appeared to be a "reasonable expectation" Mrs. Caputo's sons would be remunerated for some (but certainly not all) their assistance, this was not a major factor in the outcome. I agree with the arbitrator's analysis, starting at p. 20 of the decision, setting out the general principle as enunciated in Dziver v. Smith, 1983 CanLII 1920 (ON CA), 41 O.R. (2d) 385, and the reasons why the presumption that family members not be paid for their services has been rebutted here. The expenses were reasonable ones, resulting from the accident, and required by Mrs. Caputo for her care or rehabilitation.

III. EXPENSES

Mrs. Caputo was successful in this appeal, and accordingly is entitled to her reasonable expenses. If the parties cannot agree, expenses may be assessed by filing written submissions with the Registrar.

July 25, 1996

Elisabeth Sachs Director of Arbitrations

Date

Footnotes

Section 282(10) of the Insurance Act, R.S.O. 1990, c. I-8. Mrs. Caputo had alleged Wellington unreasonably withheld weekly benefits and piayment for housekeeping services from her.
See Calogero and The Co-operators General Insurance Company, ( February 13, 1992, OIC P-000251) and the subsequent appeal cases applying the principles first enunciated in that decision.
This argument was advanced by the insurer, and dismissed, in the appeal case Chamale and Wellington Insurance Company, (July 9, 1996, OIC P-000849). The case discusses the relationship of benefits available under section 13 and sections 6 and 7 of the Schedule.