Neutral Citation: 1996 ONICDRG 131

OIC A-010429

ONTARIO INSURANCE COMMISSION

BETWEEN:

INES MUSTAFIC

Applicant

and

PILOT INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Mrs. Ines Mustafic, was injured in a motor vehicle accident on May 19, 1993 (the "accident"). She applied for and received statutory accident benefits from the Pilot Insurance Company ("Pilot"), payable under Ontario Regulation 672.¹ Weekly benefits pursuant to section 13 of the Schedule were paid until July 7, 1993, at which time the benefits were terminated by the Insurer, who took the position that no further benefits were owing and also that the quantum of such benefits, after deductions, was in issue. The parties were unable to resolve their differences 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. Mrs. Mustafic entitled to section 13 benefits from July 7, 1993 and, if so, to what point?

2. If Mrs. Mustafic is entitled to weekly benefits, what is the correct amount of those benefits after all appropriate deductions are made?

3. Was there an overpayment by the Insurer and, if so, is it entitled to a repayment?

4. Is Mrs. Mustafic entitled to interest on any amounts owing, as well as her costs of this arbitration?

Result:

1. Mrs. Mustafic is entitled to section 13 benefits until October 7, 1994.

2. In light of deductible payments received from other sources, Mrs. Mustafic is not entitled to receive any further payments pursuant to section 13 of the Schedule.

3. Mrs. Mustafic is required to repay the Insurer the amount of $1,100.00.

4. Mrs. Mustafic is not entitled to her expenses incurred in this arbitration.

Hearing:

The hearing was held in Toronto, Ontario, on December 14, 1995 and May 29, 1996, before me, M. Guy Jones, arbitrator.

Present at the Hearing:

Applicant: Mrs. Ines Mustafic

Applicant's Representative: Mr. Altor Shields Barrister and Solicitor Danny Pollack Student-at-Law

Insurer's Representative: Mr. Rudolph Lobl Barrister and Solicitor

Witnesses:

1. Mrs. Ines Mustafic

2. Mr. John Mustafic

Exhibits:

22 Exhibits were filed.

Evidence and Findings:

Mrs. Mustafic's Pre-Accident Activities:

At the hearing, Mrs. Mustafic described her pre-accident condition as one of a very active person. Mrs. Mustafic is a 54-year old woman with four children, ages 19 to 29, three of whom were living at home with her and her husband, John, at the time of the motor vehicle accident. She had worked at a nursing home for a number of years until she suffered a work-related injury to her knees in 1989. She has not worked since. She received and continues to receive workers' compensation benefits for this injury. Despite the injury, Mrs. Mustafic claimed that she was extremely busy around the house prior to the motor vehicle accident. She claimed to be totally responsible for the cleaning, laundry, and maintenance of the family's three-level town house. In addition, she did essentially all of the cooking. Although Mr. Mustafic was at home, also due to a workers' compensation accident, he did none of the house cleaning or cooking. In addition, prior to the motor vehicle accident, Mrs. Mustafic claims she did most of the shopping, with some assistance from her husband.

In addition to her housework, Mrs. Mustafic claimed to be extremely busy in the Croatian community, organizing aid to support persons injured and displaced in the war that commenced in 1990. Mrs. Mustafic testified that prior to the motor vehicle accident, she was involved in setting up meetings, fundraising drives, organizing dinners, setting up facilities for dinners, organizing and participating in clothing drives, and so forth. While she admitted that she didn't do the terribly physical chores, she did set up the chairs, tables, collected clothing and the like.

Since the motor vehicle accident, Mrs. Mustafic claims that her ability to perform the essential tasks in which she normally engaged has completely changed. She is no longer able to do the simplest household chores, including the dusting, cooking, vacuuming or changing the beds. In addition, she claims that she is no longer involved with the Croatian community relief work because of her injuries. Mr. Mustafic has also given up his Croatian community relief work as he says he must now do the chores that Mrs. Mustafic did before the accident. Mr. Mustafic has remained off work throughout the period in question.

Mrs. Mustafic claims she now simply moves slowly around the house, reads papers, sits and takes occasional short walks with her husband and does little more.

Mrs. Mustafic's Pre-Accident Medical Condition:

While Mrs. Mustafic portrayed herself as a very active woman, working with some minimal discomfort before the motor vehicle accident, the records filed suggest otherwise. As indicated above, she was involved in a workers compensation accident in 1989 when she fell and injured her knees. She remained off work as a nursing assistant from the 1989 accident until the May 19, 1993 motor vehicle accident. She received total and partial temporary workers' compensation benefits for her knees until approximately June 1994, when she received a 20% permanent disability pension for the left knee.

It is also worthy of note that Mrs. Mustafic had surgery to her left knee on a number of occasions, including a tibial osteotomy in December 1992. She was then restricted to a cast from her ankle to her thigh for approximately six weeks. Afterwards, she was provided with a splint for her knee which she wore full time until early February 1993, at which time she only removed it when exercising.

Further insight into Mrs. Mustafic's pre-motor vehicle accident condition can be obtained from the Mississauga Hospital Out-Patient Physiotherapy Requisition Form dated May 16, 1993, just three days prior to the motor vehicle accident. At that time, her doctor requested physiotherapy, not only for her knees but also for "cervical/lumbar myofascial strain." Interestingly, the Form²also indicates that the progress of the symptoms had been static and that the Applicant's activity level was "severely affected."

I note that apart from her knee problems, Mrs. Mustafic denied any pre-motor vehicle medical problems. Nonetheless, a report from Dr. Ilse Lange-Mechlen, a rheumatologist, dated October 10, 1990 addressed to Mrs. Mustafic's family doctor clearly indicates that she suffered a back injury in 1981 for which she was still using a cane to give her support.³

It is clear from a review of all the medical reports, including the workers' compensation file, that Mrs. Mustafic was suffering from a significant knee injury prior to the motor vehicle accident. Accordingly, I do not accept that she was as active as she portrayed herself to be at the hearing. In addition, it would appear that she had neck and back problems prior to the motor vehicle accident. She may have done some housework, but given that her husband was home full-time and three of her children were living at home, I do not accept that she was solely and completely responsible for all the household chores, as she claimed.

Similarly, while she may have been involved in some Croatian community work, given the extent of her pre-accident injuries, I find that they were far less than both she and her husband suggested.

The Motor Vehicle Accident Injuries:

Mrs. Mustafic claimed to have injured her knees and back during the accident. As well, she developed headaches. It was her very clear evidence that the headaches and lower back pain disabled her from doing her pre-motor vehicle accident activities. Curiously, the clinical notes and records of Dr. Mok, the Applicant's family doctor, do not refer to any headaches suffered by Mrs. Mustafic. In addition, there are no references in the report of Dr. Silverberg, to whom she was referred to, of any headaches.⁴ Indeed, Mrs. Mustafic testified that she never saw or asked to see a headache specialist. In light of this, I find that any headaches suffered by Mrs. Mustafic were unlikely to be related to the motor vehicle accident, and if so, they were minor in nature.

With regard to the left knee, I find that it was aggravated in the motor vehicle accident, but only to a minor degree. Dr. Mok, the family doctor, in her report to the Workers' Compensation Board, of March 2, 1995, stated:

The knee injury she sustained during the accident was a minor contusion and did not apparently affect her recovery from the surgery. As before, she could not do any prolonged standing, sitting or bending.⁵

When could Mrs. Mustafic return to her pre-accident activities?

As indicated above, I do not accept that Mrs. Mustafic was as active as she portrayed herself to be before the accident. I find that she did some limited housekeeping and limited community work before the accident. I also find that she was limited in these activities after the accident, but the limitations were caused by her low back pain.

It is difficult, in cases such as these, to determine exactly when a person could have returned to her pre-accident activities. Dr. Michael Hall, an orthopaedic surgeon who saw Mrs. Mustafic on November 10, 1993 at the request of the Insurer, was of the view that as of that date, she was capable of all aspects of self care, and was capable of looking after the house. He further felt that Mrs. Mustafic could have been employed as a health care aide, provided that she was giving private duty care, without a great deal of lifting. He went on to say, however, that: "In terms of the accident, I believe that she is no longer substantially unable to pursue her pre-accident activities which were no more than self care and domestic care."⁶

The Peel Assessment Centre conducted an assessment between August 15 and October 7, 1994 and concluded that Mrs. Mustafic was employable, but also said that: "She was employed in the past as a health care assistant. This type of work would not be suitable unless it did not involve any heavy lifting."⁷

On April 12, 1995, Mrs. Mustafic was seen by a rheumatologist, Dr. Rush, at the request of the Insurer. Dr. Rush concluded that she could work full time without restriction as of that date.⁸

On the other hand, in September 1994, Mrs. Mustafic's family doctor, Dr. Mok, was of the view that she was still disabled from performing the essential tasks which she would have normally engaged in. On May 5, 1995, Dr. Mok indicated that the pain and muscle spasms had limited her ability to bend her back and prevented her from doing simple housework at home as well as participating in social functions in the community.

Dr. Silverberg, a specialist in internal medicine, who saw Mrs. Mustafic on referral from Dr. Mok, stated: "The pain is limiting her ability to bend her back and prevents her from doing simple housework at home."

Dr. Kekosz, a consultant in physical medicine, saw Mrs. Mustafic on July 7, 1995 at the request of her solicitor. He felt that she suffered from a significant myofascial strain of the low back as a result of the motor vehicle accident and had re-injured her left knee. He was of the opinion that she had been left with permanent work restrictions with respect to prolonged periods of standing and walking, due to her post-traumatic arthritis of the knees.

There is obviously a great diversity of medical opinion as to Mrs. Mustafic's ability to carry out her essential tasks.

While Dr. Hall did express the view that as of November 10, 1993, Mrs. Mustafic could look after the house and do limited health care work, he also limited his opinion by saying that she was no longer substantially unable to pursue her pre-accident activities which were no more than self care and domestic care. In light of Dr. Hall's apparent confusion as to her pre-accident activities, I am not fully persuaded that she was capable of returning to her pre-accident activities on November 10, 1993. The Peel Assessment Centre was, however, clear as to her pre-accident activities and performed a very thorough assessment of her condition. Accordingly, based on all evidence before me, I find that Mrs. Mustafic was capable of performing the essential tasks which she engaged in prior to the accident, by October 7, 1994, when she was assessed by the Peel Assessment Centre.

Deduction of Other Benefits:

Canada Pension Plan Benefits:

At the time of the motor vehicle accident in May 1993, Mrs. Mustafic was receiving CPP disability benefits in the amount of $135.06 per week which increased to $137.63 per week in 1994. Both parties agreed that these weekly payments must be deducted from Mrs. Mustafic's entitlement pursuant to section 13(3) of the Schedule.

Workers' Compensation Benefits:

There is no agreement between the parties as to how much, if anything, should be deducted from Mrs. Mustafic's entitlement because of certain workers' compensation benefits she received. It is clear from previous Commission decisions that both total temporary and partial temporary payments are to be deducted, but that permanent pension payments are not.

In this particular case, the Applicant's counsel takes the position that the onus of proving any deduction rests with the Insurer and that the Insurer has failed to produce sufficient evidence to warrant any deduction in this matter.

Before reviewing the evidence that was presented at the hearing, it is worth noting that the Workers' Compensation Board (WCB) records are not compellable pursuant to section 76(2) of the Workers' Compensation Act, R.S.O. 1990, c. W. ll. The records and information will be produced, however, if the injured party makes a written request to the Workers' Compensation Board for the information. Counsel for the Insurer made a number of written requests to the Applicant to obtain the details of monies received from the Workers' Compensation Board, apparently without success. While certain WCB information was provided by the Applicant, only very limited information was made available regarding WCB compensation paid.

Nevertheless, I am of the opinion that there is sufficient information available in this case to allow me to determine the amount of total and temporary workers' compensation benefits paid to Mrs. Mustafic between May 19, 1993 and October 7, 1994, being the period of her disability.

I accept that Exhibit 1, an internal Workers' Compensation Board document, accurately sets out Mrs. Mustafic's total disability payments in 1993 as $315.33 per week. This benefit was paid until September 1, 1993 when the benefit was reduced to a 50% partial temporary benefit. Thus between May 19 and August 31, 1993, Mrs. Mustafic received $5,048.48. From September 1 to December 31, 1993, Mrs. Mustafic received $157.76 per week for a total of $2,681.92.

From January 1, 1994 to June 17, 1994, I find that Mrs. Mustafic received a further 25 weeks of partial temporary benefits at $157.76 per week for a total of $3,944.00. It is clear that as of June 17, 1994, Mrs. Mustafic began to receive a 20% workers' compensation pension and that no further deduction should be made from the award after that point.⁹

As noted by the counsel for the Insurer in his written submission of June 3, 1996, the above-noted figures for workers' compensation benefits are consistent with the 1993 and 1994 income tax returns filed as exhibits by the Applicant.

Accordingly, I find that the Applicant received $11,674.40 in total and partial temporary disability benefits during the period of her disability due to the motor vehicle accident and pursuant to section 13(3), this amount must be deducted from the award.

The deductions to be made from Mrs. Mustafic's accident benefits may be summarized as follows:

CPP payments of $135.06 per week in 1993 x 30.6 weeks = $ 4,132.83

CPP payments of $137.62 per week in 1994 x 40 weeks = $ 5,504.80

WCB payments of $11,674.40

Total deductions - $21,311.03

As Mrs. Mustafic's total entitlement to weekly benefits before deductions was $13,061.00, and she received deductible payments in the amount of $21,311.03, she was clearly entitled to no section 13 payments. Nonetheless, she did receive payments of $1,100.00 in benefits from the Pilot Insurance Company.

Repayment:

Section 27(3) of the Schedule states:

A person must repay to the Insurer any benefit received under section 12 and 13 to the extent of any payments received by the person that are deductible from benefits under subsection 12(4) or 13(3).

It should be noted that this subsection differs from section 27(1) where payments are only made where a benefit is received and paid to the person through error or fraud.

Although the Insurer did not formally request repayment until near the end of the hearing, I find it was not clear until then that there would be a likelihood of an overpayment. A repayment is required as a result of the workers' compensation payments made. Information regarding those payments was totally within the control of the Applicant but was not forthcoming until near the end of the hearing, and even then, with great difficulty. In light of this, and pursuant to section 27(3) of the Schedule, I order that the Applicant repay the Insurer the amount of $1,100.00.

Expenses:

Pursuant to section 282(11) of the Insurance Act, the arbitrator has the discretion to award expenses. In this particular case, I have found that Mrs. Mustafic clearly and consciously exaggerated both her pre- and post-accident condition. Moreover, she was not forthcoming with regard to the workers' compensation benefits she received. I find that her less-than-forthright testimony lengthened the hearing unduly. Accordingly, I am exercising my discretion and declining to award the Applicant her costs of this arbitration.

Order:

1. Mrs. Mustafic is entitled to section 13 benefits until October 7, 1994.

2. In light of deductible payments received from other sources, Mrs. Mustafic is not entitled to receive any further payments pursuant to section 13 of the Schedule.

3. Mrs. Mustafic is required to repay the Insurer the amount of $1,100.00

4. Mrs. Mustafic is not entitled to her expenses incurred in this arbitration.

August 7, 1996

M. Guy Jones 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 20
3. 3Exhibit 5
4. 4Exhibit 8, tab 6
5. 5Exhibit 18
6. 6Exhibit 8, tab 7
7. 7Exhibit 16
8. 8Exhibit 8, tab 7
9. 9Exhibit 4 - correspondence from Workers' Compensation Board to Applicant dated June 30, 1994.