Neutral Citation: 1996 ONICDRG 146

OIC A96-000282

ONTARIO INSURANCE COMMISSION

BETWEEN:

HAIDZINE YERETSIAN

Applicant

and

ZURICH INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Haidzine Yeretsian, was injured in a motor vehicle accident on August 25, 1994. She applied for and received statutory accident benefits from Zurich Insurance Company ("Zurich"), payable under the Schedule.¹ Weekly income replacement benefits were terminated by Zurich on October 4, 1995. The parties were unable to resolve their disputes through mediation and Mrs. Yeretsian applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is the Applicant entitled to weekly disability benefits pursuant to section 19 of the Schedule after October 4, 1995?

2. Is the Applicant entitled to expenses for housekeeping and home maintenance services pursuant to section 55 of the Schedule?

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

Result:

1. The Applicant is not entitled to weekly disability benefits pursuant to section 19 of the Schedule after October 4, 1995.

2. The Applicant is entitled to expenses for housekeeping and home maintenance services pursuant to section 55 of the Schedule in the amount of $2,400.

Hearing:

The hearing was held at the offices of the Ontario Insurance Commission in North York, Ontario, on August 12, 1996.

Present at the Hearing:

Applicant:

Haidzine Yeretsian

Applicant's Representative:

Johanna B. Schady Barrister and Solicitor

Insurer's Representative:

Aldo E. Picchetti Barrister and Solicitor

Before:

William J. Renahan Arbitrator

The proceedings were recorded by Lennox Brown of Network Court Reporting Ltd. The evidence consisted of the testimony of the Applicant and her sister, Adrinee Terzian, and a number of medical documents.

Background:

Mrs. Yeretsian suffered injuries on August 25, 1994 when the vehicle in which she was a passenger was involved in a collision in downtown Toronto. Mrs. Yeretsian's vehicle was turning left when it was struck broadside on the passenger side by an oncoming vehicle. The front of the oncoming vehicle went under Mrs. Yeretsian's car seat forcing it upwards. Mrs. Yeretsian was taken to hospital by ambulance. X-rays did not reveal any fractures and Mrs. Yeretsian was released the same day with instructions to see her family doctor.

Zurich paid weekly disability benefits until October 4, 1995. It also paid for housekeeping services provided by Mrs. Yeretsian's sister, Ms. Adrinee Terzian, at the rate of $100 per day. Zurich terminated weekly disability benefits on the basis of a medical report prepared by Dr. Koonar in August 1995. Dr. Koonar found that Mrs. Yeretsian was not substantially disabled from performing her household tasks. In September 1995, Ms. Terzian was providing housekeeping services one day a week. Zurich also terminated payments for this service in September 1995.

Weekly disability benefit:

Mrs. Yeretsian relies on the following provisions in her claim for ongoing weekly benefits:

19.-(1) An insured person who sustains an impairment as a result of an accident is entitled to a weekly disability benefit if the insured person, as a result of and within two years of the accident, suffers a partial or complete inability to carry on a normal life . . .

2. For the purpose of this Regulation, a person suffers a partial inability to carry on a normal life as a result of an accident if, and only if, as a result of the accident, the person suffers an impairment that results in a substantial inability to engage in,

(a) . . .

(b) mobility activities in which the person ordinarily engaged before the accident;

(c) household activities in which the person ordinarily engaged before the accident;

(d) . . .

(e) activities in which the person ordinarily engaged before the accident that require the ability to control emotions or behaviour; or

Pre-accident activities:

Mrs. Yeretsian is married and has two sons, aged 31 and 22. At the time of the accident she was 50-years-old. Her youngest son was living at home for the summer, before returning to Harvard University. For most of her married life Mrs. Yeretsian was a homemaker. Mrs. Yeretsian and her sister Adrinee Terzian testified about the work Mrs. Yeretsian did around the house.

Mrs. Yeretsian and her husband live in a 6,000 square foot open concept home. The two-story dwelling contains six bedrooms, six bathrooms and two furnace rooms. Mrs. Yeretsian has high standards of cleanliness. She said that before the accident she did not use a housekeeper and that she cleaned the house every day.

She started the day by making breakfast for her husband. After he went to work she made the bed, vacuumed, dusted and washed the floors by hand. She said that her marble, granite and wood floors required a great deal of care. She also did laundry in the upstairs laundry room and ironing in a bedroom. She cleaned the windows, mirrors, carpeted basement, garage and furnace rooms when necessary. This daily cleaning took three hours. Once a week she did a more thorough cleaning which took all day. Although only she and her husband live in the house, Mrs. Yeretsian explained that the house is large and gets dirty when friends and relatives come in. She said that she has a large family and at times served dinner for 50 or 60 people.

Mrs. Yeretsian also prepared middle-eastern style dinners for her husband. She said that middle-eastern cooking requires a high degree of preparation and that she spent about two hours cooking dinner. She also scraped the dishes and used a dishwasher.

For exercise, Mrs. Yeretsian walked every day for more than an hour at a fast pace. Mrs. Yeretsian's evidence about how much driving she did before the accident was not clear. She used a car at least once a week to shop for groceries and every two weeks to visit a friend in Whitby.

Injuries:

At the time of the accident Mrs. Yeretsian was seeing two doctors regularly, Dr. Fischer, a family doctor, and Dr. Kevork, an internist. She had a history of high blood pressure and severe headaches. Mrs. Yeretsian said that her headaches had stopped at the time of the accident and she was distressed that they began again immediately after the accident. Dr. Kevork recorded that Mrs. Yeretsian complained of headaches in the two months before the accident but that they seemed to be easing up. Two months before the accident Dr. Kevork also recorded that Mrs. Yeretsian's right leg was swollen.

Mrs. Yeretsian received the force of the impact from the motor vehicle accident on her right side. She claimed that after the accident she could not bear weight on her right leg because of the pain. A friend gave her crutches. Mrs. Yeretsian's sister, Ms. Terzian, moved into Mrs. Yeretsian's house and stayed for the next five to nine weeks to help. Mrs. Yeretsian saw Dr. Fischer on August 30, 1994, five days after the accident, complaining of pain in her right leg and hip. Dr. Fischer found no bruises. He referred Mrs. Yeretsian to Pro Motion Physiotherapy in Thornhill at the end of August 1994. Dr. Kevork also saw Mrs. Yeretsian on August 30, 1994. In his Health Practitioner's Certificates to Insurer dated November 7, 1994 and January 16, 1995 he recorded his findings as "right hip and thigh pain secondary to trauma, right sciatica and left shoulder blade pain with limitation of motion." In January 1995, Dr. Kevork expected that Mrs. Yeretsian would return to normal daily activities in about three to four months if she responded to therapy. In February 1995 Dr. Fischer referred Mrs. Yeretsian to Northeast Physiotherapy, also known as Body Rehab and Wellness Centre. Body Rehab recorded that Mrs. Yeretsian complained of headaches, pain in the right hip and cervical spine tightness. Mrs. Yeretsian explained that she did not initially complain to Dr. Fischer and Dr. Kevork about her headaches because her leg pain was more severe. She said that as her leg gradually improved she became more concerned with her headaches.

Mrs. Yeretsian also was afraid to drive after the accident. Dr. John Flannery, a psychiatrist, prescribed medication and suggested that Mrs. Yeretsian try to ease back into driving.

Post-accident activities:

Immediately, after the accident, Ms. Terzian stayed with Mrs. Yeretsian 24 hours a day to provide assistance. Five to nine weeks later, Ms. Terzian reduced her hours to two days per week. Later still, she reduced her hours to one day per week. I heard no evidence when this occurred, however it appears that Ms. Terzian was working one day a week when Zurich terminated housekeeping expenses in September 1995.

Mrs. Yeretsian said that she gradually became able to do things, although it now takes her longer to do chores. She cleans daily, but because of fatigue and pain in her right leg, low back, neck and shoulders, she is not able to clean as thoroughly as she used to. She cooks. She does not go out with her husband as much as she did before the accident and she does not have people to the house as much. Some days she can walk for an hour but other days she can only walk a block. She can drive in her neighbourhood when her husband is present in the car but she cannot drive by herself. Some days she feels she is 80 per cent improved and some days she feels less than 50 per cent improved.

Medical evidence:

Zurich terminated benefits on the basis of a report it commissioned from Dr. Koonar. In his report dated August 22, 1995 he wrote "I do not feel Ms. Yeretsian remains substantially disabled from performing her normal daily activities and fulfilling all of her domestic responsibilities." Dr. Koonar also felt that housekeeping services should be discontinued within the next few weeks.

On November 15, 1995, about one month after Mrs. Yeretsian's benefits were terminated, her internist, Dr. Kevork reported:

This patient's housekeeping needs diminished gradually as she improved and at the moment she requires only occasional help to do the heavy housework, but she is able to take care of the ordinary daily household requirements. She will require this help until such a time as she is fully recovered and this may be another 2 - 3 months while she is having ongoing physiotherapy.

Mrs. Yeretsian did not give notice that she wished to be assessed in accordance with section 64 of the Schedule when Zurich notified her that it was terminating weekly benefits. However, some time later, Mrs. Yeretsian requested an assessment, and a disability assessment was performed by Dr. Shoffman in May 1996. He reported that he found "no positive findings which would suggest or indicate that this claimant remains disabled or impaired as a result of her involvement in the motor-vehicle accident."

A medical and rehabilitation assessment was also performed at a Designated Assessment Centre in May 1996. Dr. Pellow found no barrier to Mrs. Yeretsian returning to all her pre-accident activities.

Analysis:

I must decide whether Mrs. Yeretsian suffered a "partial inability to carry on a normal life" after October 4, 1995, when benefits were terminated. I heard little evidence on Mrs. Yeretsian's condition between October 4, 1995 and the date of the hearing. Most of the testimony appeared to relate to Mrs. Yeretsian's difficulties while she was receiving benefits and her current ability. I assume that her abilities at October 4, 1995 were the same as they are now.

(a) Mobility Activities

Mrs. Yeretsian has not satisfied me on a balance of probabilities that she suffered an impairment that resulted in a substantial inability to engage in mobility activities after October 4, 1995. She testified that she was very active before the accident and that she cannot do anything now. However, the evidence concerning Mrs. Yeretsian's mobility activities both before and after the accident was vague and general. Of the little evidence I heard concerning Mrs. Yeretsian's ability to walk, run, climb and descend stairs and move, I am not persuaded that Mrs. Yeretsian's suffered a substantial inability to engage in mobility activities after October 4, 1995. Although Mrs. Yeretsian is afraid to drive a car because of the accident, I heard little evidence to measure the significance of this inability.

(b) Household Activities

Mrs. Yeretsian said that she requires the help of her sister one day a week for heavier cleaning. Otherwise, she is able to cook, clean, and perform household activities by herself. After October 4, 1995 she performed household activities more slowly and less thoroughly than she did before the accident. However, in order to be entitled to weekly disability benefits after October 4, 1995, section 2 of the Schedule requires Mrs. Yeretsian to prove that she suffered a substantial inability to engage in household activities after October 4, 1995. In my view, Mrs. Yeretsian has not satisfied this burden.

(c) Activities in which the person ordinarily engaged before the accident that require the ability to control emotions or behaviour

I heard no submissions that Mrs. Yeretsian suffered a substantial inability to engage in activities which require the ability to control emotions or behaviour. Dr. Flannery, the psychiatrist, did not find any depression or anxiety. Dr. Koonar found that Mrs. Yeretsian was a pleasant co-operative woman who did not appear in any overt distress. Dr. Shoffman noted that Mrs. Yeretsian was not anxious, depressed or distressed. Dr. Pellow found that Mrs. Yeretsian was straightforward with no evidence of pain behaviour or symptom magnification. Mrs. Yeretsian said that she is not as outgoing as she was before the accident. This does not amount to evidence that she suffered a substantial inability to engage in activities which require the ability to control emotions or behaviour.

I am not satisfied that Mrs. Yeretsian suffered a partial inability to carry on a normal life within the meaning of section 2 of the Schedule after October 4, 1995.

Housekeeping and home maintenance expenses:

Section 55 of the Schedule provides as follows:

55. If an insured person sustains an impairment as a result of an accident, the insurer shall pay for additional expenses reasonably incurred by or on behalf of the insured person as a result of the accident for housekeeping and home maintenance services.

"Impairment" is defined in section 1 of the Schedule as "a loss or abnormality of psychological, physiological or anatomical structure or function." Mrs. Yeretsian claims that she suffered an abnormality of physiological function in so much as she could not perform the once a week thorough cleaning as she did before the accident.

In April 1995, Dr. Kevork referred Mrs. Yeretsian to Dr. Soon-Shiong at the Toronto Orthopaedic and Arthritic Hospital. Dr. Soon-Shiong reported that Mrs. Yeretsian did not have any physical restrictions and that she should be encouraged to be as active as possible.

Dr. Koonar and Dr. Kevork specifically dealt with the issue of housekeeping expenses. In his report of August 22, 1995, Dr. Koonar said that housekeeping services should be discontinued within the next few weeks. He wrote:

I do not feel Ms. Yeretsian is substantially disabled from performing her household tasks at this time. She should be encouraged to remain active and perform all of her household activities without restriction. It is certainly against her best interests and counter-productive to her recovery, for her not to be engaged in all of her household and domestic responsibilities. There is certainly no physical reason why she cannot partake in all of these activities at present.

On November 15, 1995, two months after housekeeping expenses were terminated, Dr. Kevork reported that Mrs. Yeretsian might require occasional help to do the heavy housework until mid-January or mid-February 1996.

In the medical and rehabilitation designated assessment report of May 23, 1996, the occupational therapist and kinesiologist wrote that Mrs. Yeretsian might clean more comfortably if she used some "long handled lightweight equipment such as a Tub Scrub and Vileda mop and pail." Mrs. Yeretsian testified that she washes the floors on her hands and knees and in a letter to the insurer's adjuster dated August 28, 1995 she wrote that the only chores she could not carry out were vacuuming, mopping and cleaning the windows.

Mrs. Yeretsian and her sister testified that before the accident Mrs. Yeretsian kept the house thoroughly clean through her own efforts. They testified that as a result of the accident Mrs. Yeretsian required help to maintain the same standard of cleanliness and that the need for housekeeping services one day a week continued after housekeeping expenses were terminated in September 1995.

I prefer the evidence of Dr. Koonar and that of Mrs. Yeretsian's own internist, Dr. Kevork, that at a certain point, housekeeping expenses were no longer necessary. Dr. Koonar estimated that housekeeping expenses were not necessary in early September 1995. Dr. Kevork estimated that housekeeping expenses were not necessary in mid-January to mid-February 1996. The medical evidence appears consistent that by the autumn of 1995 or the winter of 1996 Mrs. Yeretsian no longer required housekeeping services, and she was encouraged to be as active as possible. As well, no further medical evidence was introduced to indicate that Mrs. Yeretsian required housekeeping services beyond mid-February 1996. Since Dr. Kevork saw Mrs. Yeretsian regularly, I prefer his opinion on the actual termination date for housekeeping services.

Mrs. Yeretsian filed copies of a number of invoices from her sister. They appear consistent with her testimony that, except for a few weeks in March 1996 when Mrs. Yeretsian tried unsuccessfully to do the weekly all-day cleaning by herself, Mrs. Terzian continued to work one day a week after Zurich terminated expenses for housekeeping services.

The invoices cover the period August 14, 1995 to May 1, 1996. Counsel agreed that expenses for housekeeping services were terminated in September 1995, although they did not specify the week. The first invoice covers the six-week period August 14, 1995 to September 30, 1995. I assume this invoice was not paid.

The total of the invoices for the period August 14, 1995 to January 31, 1996 is $2,400. I allow this amount as a reasonable amount for housekeeping expenses under section 55 of the Schedule.

Expenses:

Mrs. Yeretsian is entitled to her expenses as set out in Schedule F of the Dispute Resolution Practice Code - 1995 Release. In the event the parties cannot agree on the total amount of expenses, a party may apply for assessment of the expenses through the Office of the Registrar.

Order:

1. The Applicant is not entitled to weekly disability benefits pursuant to section 19 of the Schedule after October 4, 1995.

2. The Applicant is entitled to recover from the Insurer housekeeping expenses in the amount of $2,400 pursuant to section 55 of the Schedule.

3. The Applicant is entitled to recover from the Insurer interest on housekeeping expenses pursuant to section 68 of the Schedule.

4. The Applicant is entitled to recover from the Insurer her reasonable expenses.

August 27, 1996

William J. Renahan Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after January 1, 1994, called "the Schedule" in this decision. The Schedule is Ontario Regulation 776/93, as amended by Ontario Regulation 635/94.