Neutral Citation: 1996 ONICDRG 128
OIC A96-000034
ONTARIO INSURANCE COMMISSION
BETWEEN:
GERTRUDE MCFARLANE
Applicant
and
MARKEL INSURANCE COMPANY OF CANADA
Insurer
DECISION
Issues:
The Applicant, Gertrude McFarlane, was injured when she slipped and fell on a Toronto Transit Commission bus on February 12, 1993. She applied for and received statutory accident benefits from Markel Insurance Company of Canada ("Markel"), payable under Ontario Regulation 672.1 Weekly income benefits were terminated by Markel on August 13, 1993. The parties were unable to resolve their disputes through mediation and Mrs. McFarlane applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The issues in this hearing are:
Is the Applicant entitled to weekly income benefits pursuant to section 12 of the Schedule after November 13, 1993?
Is the Applicant entitled to medication and travel expenses pursuant to section 6 of the Schedule?
Mrs. McFarlane also claims interest on any amounts owing, and her expenses incurred in the hearing.
Result:
The Applicant is not entitled to weekly income benefits pursuant to section 12 of the Schedule after November 13, 1993.
The Applicant is not entitled to medication and travel expenses pursuant to section 6 of the Schedule.
The Applicant is entitled to her expenses.
Hearing:
The hearing was held at the offices of the Ontario Insurance Commission in North York, Ontario, on July 17, 1996.
Present at the Hearing:
Applicant:
Gertrude McFarlane
Mrs. McFarlane's
David J. Gillespie
Representative:
Barrister and Solicitor
Markel's
Duncan Boardman
Representative:
Barrister and Solicitor
Before:
William J. Renahan
Arbitrator
Evidence:
The evidence consisted of approximately three hours of testimony by the Applicant, three medical reports and a job description filed by the Applicant. The Applicant's testimony was often vague, unresponsive and rambling. I gleaned much of the background information from the three medical reports.
The Applicant is 60 years old. She has been a health care aide since 1973. Since about 1981 she worked at Leisureworld Nursing Home. Although the nursing home prepared a document which indicates that the physical demands of the job are moderate, I accept Mrs. McFarlane's testimony that her job was physically demanding. She took care of 12 patients, most of whom were either confined to bed or a wheelchair. She helped them dress, bath, shower and eat. She helped transfer them between bed, wheelchair, bath tub, shower and toilet. She had one patient who was 6' 2" and weighed 250 pounds. She said that when she could not get help, she had to transfer this patient from bed to wheelchair by herself. She said that she changed the patients twice in a four-hour shift because they were all incontinent. She also made beds.
On February 12, 1993, at the time of the fall on the bus, Mrs. McFarlane was recovering from a work-related injury. She had strained her back three months earlier, lifting a patient. As a result of that injury, she was off work about one month and then returned to work half-days. She was working half-days at the time of the fall on the bus.
In the February 1993 accident, Mrs. McFarlane slipped and fell on either water or ice as she walked down the aisle of the bus. She fractured her left ankle. She suffered no significant displacement. She was taken to hospital where a cast was applied. The fracture healed with good alignment and after the cast was removed, Mrs. McFarlane underwent physiotherapy on her ankle at the hospital over a four week period.
Dr. Hall, an orthopaedic surgeon, examined Mrs. McFarlane on January 29, 1993, two weeks before the fall in the bus, at the request of the nursing home's disability insurer in connection with Mrs. McFarlane's prior back sprain injury sustained in November 1992. Dr. Hall also examined Mrs. McFarlane five months after the fall on the bus at the request of the Toronto Transit Commission. Dr. Hall wrote in his report of July 2, 1993 that just before the fall in the bus, Mrs. McFarlane had a simple back sprain and would return to work half-days in February 1993 and resume full duties in two months. He also reported that Mrs. McFarlane said that her back still hurt her as a result of the work-related accident but that it was not aggravated by the fall in the bus. He found that the left ankle was warmer than the right and it was thicker. He concluded that Mrs. McFarlane had a genuine problem as a result of the fall in the bus and that if modified duties could not be found for her, she would be fit to resume normal duties by mid-August 1993.
It appears that the Insurer terminated weekly income benefits on August 13, 1993 on the basis of this report. Mrs. McFarlane returned to work on August 16, 1993. She saw Dr. Hall again on September 17, 1993. She told him that she was working in pain and that she was sent home early from work on one occasion. Her family doctor, Dr. Boland, encouraged her to continue working.
Dr. Hall found that Mrs. McFarlane's range of movement in the left ankle was equivalent to that of the right, performed actively and passively. Dr.