Diane A. Murrin v. General Accident Assurance Company of Canada, 1996 ONICDRG 32

Neutral Citation: 1996 ONICDRG 32

File No.: A-007476

ONTARIO INSURANCE COMMISSION

BETWEEN:

DIANE A. MURRIN

Applicant

and

GENERAL ACCIDENT ASSURANCE COMPANY OF CANADA

Insurer

DECISION

Issues:

The Applicant, Diane A. Murrin, was injured in a motor vehicle accident on November 4, 1991. She applied for and received statutory accident benefits from the Insurer, payable under Ontario Regulation 672.¹ Weekly benefits were terminated by the Insurer on September 27, 1992. The parties were unable to resolve their disputes through mediation and Ms. Murrin applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is Ms. Murrin entitled to weekly benefits under sections 13(1) and 13(8) of the Schedule for any period after September 27, 1992?

2. Is Ms. Murrin entitled to a special award from the Insurer under section 282(10) of the Insurance Act?

Ms. Murrin claims interest on any amounts owing, and her expenses incurred in the arbitration hearing.

Order:

1. The Insurer is not required to pay Ms. Murrin further weekly benefits.

2. Ms. Murrin is not entitled to a special award.

3. Ms. Murrin is not entitled to her expenses incurred in the arbitration hearing.

Hearing:

The hearing was held in London, Ontario, on June 5, 1995, before me, Asfaw Seife, arbitrator.

Present at the Hearing:

Applicant:

Diane A. Murrin

Applicant's

Joseph Comartin

Representative:

Barrister and Solicitor

Insurer's

Stephen Schenke

Representative:

Barrister and Solicitor

Witnesses:

Diane Murrin

The Applicant

Alfreda Brophey

Applicant's Mother

Exhibits:

As listed in Appendix "A" to this decision.

Evidence and Findings:

Background:

At the time of the accident, Ms. Murrin was 41 years old, married with two children. She lived in Essex, Ontario, with her husband and their 17-year old son. Ms. Murrin was a homemaker, while her husband was employed full-time at General Motors. The accident occurred in a parking lot in Windsor. Ms. Murrin was walking when a car backing up out of a parking space struck her on her left side, in the knee and left leg area. Ms. Murrin fell to the ground, on her left side. She was able to get up and walk to her van which was parked nearby. After she entered the van, Ms. Murrin testified she "began to hyperventilate." She telephoned her mother who took her to the emergency department of Windsor Western Hospital.

At the hospital, Ms. Murrin complained of pain in the left arm, left knee and thigh. She was examined and sent home with a prescription for a pain killer and tensor bandages on her left forearm and left thigh . No x-rays were taken.

The next day, Ms. Murrin saw Dr. D. Foster, her family physician of eight years. She complained of pain in her left shoulder and upper arm, pain in the left knee and left leg, and pain in the left lower ribs. X-rays of her knees revealed mild degenerative changes but no other abnormality. Dr. Foster diagnosed a contusion and strain injury in the areas complained of. He prescribed analgesics and anti-depressants for her ongoing anxiety problems and referred her to physiotherapy.

In early January 1992, the Insurer retained Crawford &Company Health and Rehabilitation ("Crawford") to coordinate Ms. Murrin's medical management and to assist in her functional rehabilitation. Since that time, in addition to seeing her family doctor on a regular basis, Ms. Murrin has been examined by two orthopaedic specialists and has taken physiotherapy treatments for her symptoms. Ms. Murrin testified that her injuries showed no improvement until March 1995, three and a half years after the accident, when she was able to resume performing her essential tasks with the help of assistive devices provided by the Insurer.

The Insurer takes the position that even though it paid Ms. Murrin weekly benefits until September 27, 1992, she was in fact able to return to her normal activities as of April 1, 1992. However, the Insurer is not claiming a repayment of benefits paid after April 1, 1992.

Weekly Benefits:

As a person who was not in receipt of income from employment or self-employment at the time of the accident, Ms. Murrin is entitled to weekly benefits under the provisions of section 13 of the Schedule. Under section 13(1), Ms. Murrin is entitled to weekly benefits if, as a result of injuries sustained in the accident, she suffers a substantial inability to perform the essential tasks in which she would normally engage. However, under section 13(8) the Insurer is not required to pay Ms. Murrin a weekly benefit for any period in excess of 156 weeks, unless it has been established that the injury continuously prevents her from engaging in substantially all of the activities in which she would normally engage. Ms. Murrin would be entitled to these benefits, if she can prove, on the balance of probabilities, that during the periods in question, she suffered the requisite disability.

Essential Tasks:

In Edgar Cowie and The Non-Marine Underwriters, Members of Lloyds, London, March 30, 1993, OIC File No. A-001159, Arbitrator Janice Mackintosh considered the meaning of the words "essential" and "task," in the context of section 13(1) of the Schedule. She referred to the Concise Oxford Dictionary, Eighth Edition (1990), for the ordinary meaning of these words. According to the Concise Oxford Dictionary, "essential" means: 1. absolutely necessary; indispensable. 2. fundamental, basic. 3. of or constituting the essence of a person or thing. And, "task" means: a piece of work to be done or undertaken. I accept these definitions for the purposes of determining Ms. Murrin's entitlement to weekly benefits.

At the time of the accident, Ms. Murrin lived with her husband and their 17-year old son, in a one-floor dwelling with laundry facilities in the basement. Ms. Murrin's husband was employed full-time, and Ms. Murrin was responsible for the household work. In her testimony, she described her tasks and activities prior to the accident. She stated that she was solely responsible for the housekeeping, grocery shopping, preparation of meals, laundry and other household chores. She did gardening, and occasionally, she cut the lawn and shovelled the snow. Ms. Murrin drove a car. Her interests and hobbies included bicycle riding, walking her dog, hiking, rock climbing and helping her grandfather and aunt with their housekeeping..

I accept Ms. Murrin's testimony and, based on the above definition, I find her essential tasks at the time of the accident were:

1. Self-care: personal hygiene, bathing, dressing, grooming;

2. Housekeeping: general cleanup, washing dishes, washing floors, vacuuming, dusting, laundry, and bed making;

3. Grocery shopping and meal preparation;

4. Gardening, snow shovelling, and lawn cutting, on an occasional basis; and

5. Driving a car.

Medical Evidence:

With respect to her pre-accident health history, Ms. Murrin testified that she had no knee or shoulder problems before the accident; however, she admitted that as a young girl, she had fractured a collar bone, and she had neck problems as a result of a whiplash injury she sustained in a 1968 car accident. In cross-examination, Ms. Murrin stated she could not recall complaining to her family doctor about shoulder pain prior to the accident, and she was adamant that she never complained to him about knee pain prior to the accident. Ms. Murrin also denied taking any medication at the time of the accident.

Dr. Foster's clinical notes for the two years prior to the accident² indicate that Ms. Murrin did complain to him of arthritic pains in her hands, neck, shoulders, knees and back and at the time of the accident, she was taking Tylenol #2. The medical evidence also indicates that she had a previous history of fracturing of the left lower leg at age four which was corrected through surgical procedures. Ms. Murrin disagreed with Dr. Foster's note regarding pain in her knees. She said "I did not have any problems with my knees before the accident."

The medical evidence also indicates that, prior to the accident, Ms. Murrin suffered from chronic anxiety, recurrent sinusitis and colitis. She suffered from a great deal of stress, including her concerns about her daughter who was ill. Ms. Murrin was regularly taking Tylenol No. 2, tranquillizers and anti-depressants.³

Based on the medical evidence, I find that prior to the accident, Ms. Murrin suffered from anxiety, occasional shoulder, neck, knee and back pains and recurrent sinusitis and colitis; however, I find no evidence that her functional abilities were adversely affected by these symptoms at the time of the accident. Nevertheless, I find Ms. Murrin's reluctance to disclose the true nature of her pre-accident health condition, and her adamant denial, in the face of the clear medical evidence of pre-existing knee problems a factor in assessing her credibility.

In her testimony, Ms. Murrin stated that the injuries she sustained in the accident were restricted to her left shoulder, left knee and thigh area. She claimed she suffered no injuries to her back or neck.

Ms. Murrin testified that she had no difficulty performing self-care activities after the accident. She testified that up until the spring of 1992, she was unable to do her laundry as she could not go up and down the stairs because of knee pain. She said her husband and her mother helped her with the laundry. She was able to prepare meals and wash dishes, with the aid of a special chair provided to her by the Insurer; however, she had "lots of problems" with vacuuming, dusting, and making beds. Her husband and mother did much of it for her. Her driving was restricted because she had problems getting in and out of the car. She could not clean the windows, nor could she do gardening.

In her testimony, Ms. Murrin stated in the fall of 1992, she started doing laundry, slowly - but she was still getting help from her husband and mother. She still had "lots of problems with vacuuming, but [she] tried hard" She found vacuuming difficult because her "leg gave out" as she tried to use her vacuum cleaner to reach areas under furniture. She continued to have difficulty doing her gardening because she could not kneel. She did it by sitting down in the garden..

The Applicant's mother, Ms. Alfreda Brophey, testified that after the accident up until April 1992, she saw Ms. Murrin everyday and helped her with some of her household tasks, including laundry and vacuuming. Ms. Brophey was paid $30.00 by her daughter for her help. After April 1992, she visited her occasionally and helped her with the "odd thing" when Ms. Murrin asked her for help.

There is no dispute that as a result of the accident, Ms. Murrin sustained soft tissue injuries to her left side, particularly to her left leg, left shoulder and left knee. The medical evidence confirms that Ms. Murrin sustained these injuries; however, it does not support Ms. Murrin's claim of disability after September 1992.

In his report dated November 13, 1991, completed for the purposes of Ms. Murrin's accident benefits application,⁴ Dr. Foster estimated the duration of her disability to be six weeks. The Discharge Report⁵ and the Functional Capacities Progress Report⁶ of the Tecumseh Physiotherapy Clinic where Ms. Murrin was treated indicates that on the date of her discharge on March 27, 1992, Ms. Murrin's condition had improved considerably. The kinesiologist commented:

Diane has commented pain is not constant, it is now intermittent. Spasms in her leg have decreased, sitting is much easier and her knee does not give out walking down stairs. Exercise Tolerance has greatly increased. Strength and Endurance has also increased.

The follow-up reports from Crawford⁷ regarding Ms. Murrin's treatment indicate that by early April 1992, Ms. Murrin herself felt that she was capable of resuming her household chores. The reports state that Ms. Murrin advised the staff at Crawford that as of April 1, 1992 she had resumed all of her household chores although at a slower pace. The reports also indicate that the medical services consultant at Crawford contacted Dr. Foster on April 1, 1992 and confirmed that Dr. Foster was of the opinion that Ms. Murrin was capable of resuming all of her pre-accident household duties as of March 31, 1992.⁸

In her testimony, Ms. Murrin denied telling Crawford staff or her family doctor that she was able to resume her household tasks in April 1992. She maintained that at that time she was still substantially disabled from performing her essential tasks. However in her letter to the Insurer dated April 22, 1992,⁹ Ms. Murrin indicated that she was starting to do most of her housework, but was still "having difficulty doing things above my head for any amount of time." In this letter, she did not mention any other functional problems she was experiencing at the time.

On April 22, 1992, Ms. Murrin was examined by Dr. Joseph Berkeley, a specialist in physical medicine, on a referral by her family doctor. Dr. Berkeley found¹⁰ that Ms. Murrin was experiencing mild restrictions of left shoulder and left leg movements. He found Ms. Murrin had a pre-existing "crepitation with patellar movement on the left knee" and that this condition " has been worsened and producing pain on kneeling and perhaps adding to pain in the region of the left knee with left lower limb function. "Dr. Berkeley recommended the use of a cane to increase her walking tolerance and said she should "minimize taking weight on the bent left knee to lessen any factor of compression pain on the sensitive tissues of the patello-femoral region."

Dr. Berkeley recommended additional physiotherapy treatment to address her knee complaints; however, Ms. Murrin advised that she would be unable to take the treatments at that time as she was going away for her annual Florida vacation, which she had planned before the accident.

On April 23, 1992, Ms. Murrin drove to Florida with her mother. She spent five weeks in Florida, where, according to her testimony, she spent most of her time "down," and "sitting around." She said she experienced severe pain with her left knee "giving way on [her]"; however, she admitted she did not seek any treatment in Florida. When she returned to Ontario, the pain became more severe and she resumed physiotherapy, which she said did not help her much.

On June 4, 1992, Ms. Murrin was examined by Dr. R. A. Haliburton, orthopaedic surgeon, at the Insurers's request. In his report,¹¹ Dr. Haliburton stated that Ms. Murrin told him that she was unable to garden, bike ride, walk more than five minutes and had trouble reaching overhead to dust upper level cupboards. However, she reported that she was able to do "routine housekeeping along the lines of meal preparation, laundry, beds, etc., but was only able to do so by putting up with her discomfort."

Dr. Haliburton found that Ms. Murrin had full range of movement of her left shoulder, but complained of pain with all movements. Dr. Haliburton made no orthopaedic findings of any significance relating to the accident. He felt physiotherapy was no longer medically necessary and concluded that Ms. Murrin was not substantially disabled from her pre-accident duties.

After reviewing Dr. Haliburton's report, Dr. Foster, her family doctor, agreed that by June 1992, Ms. Murrin¹² had reached an acceptable level of improvement with regard to her medical status and that she should able to return to her essential household duties. He agreed that she no longer required Crawford's services.

In her testimony, Ms. Murrin stated that she was not treated fairly by Dr. Haliburton. She denied telling him that she was able to perform routine tasks. She said his report "was different from what he told [her]." She also stated she was not aware that Dr. Foster agreed with Dr. Haliburton.

In the summer of 1992, Ms. Murrin went to Wiarton with her husband on their annual summer camping vacation. She testified that her condition remained unchanged, however, she was able to prepare meals.

On July 20, 1992, based on the reported success of the physiotherapy treatment, the opinions of Ms. Murrin's family doctor and Dr. Haliburton, Crawford concluded that Ms. Murrin had achieved her pre-accident activity level, and that she required no more treatment. Crawford proceeded to close its file, and the Insurer terminated Ms. Murrin's weekly benefits effective September 27, 1992.

It appears that after the termination of her weekly benefits, a period of almost one year passed without any activity in Ms. Murrin's medical file regarding her accident-related injuries. Dr. Foster's clinical notes¹³ indicate that during the 12 months following September 27, 1992, Ms. Murrin visited him 33 times; however there is no record in any of these visits that Ms. Murrin either complained about or received any treatment for her accident-related problems. The next mention of such problems was on September 13, 1993 when Ms. Murrin told Dr. Foster that a mediator had been appointed to resolve her dispute with the Insurer. Dr. Foster's note of September 27, 1993, shows that Ms. Murrin told Dr. Foster that she was "seeing a lawyer regarding her leg pain." The doctor noted at this time that Ms. Murrin complained of "shoulder and neck pain-left side."

On October 25, 1993, Dr. Foster examined Ms. Murrin. In his report dated November 16, 1993,¹⁴ Dr. Foster stated that Ms. Murrin complained of pain in the left shoulder and neck when raking leaves and pain in the left buttock, left thigh and left knee. Other than her inability to rake leaves, the report does not refer to functional problems Ms. Murrin was experiencing at the time.

Dr. Foster stated in the report that Ms. Murrin's soft tissue injuries to the upper limb and shoulder had largely resolved and should cause her no further problems. He said the soft tissue injury involving her buttock and left knee still caused her problems but "she remained mobile and is able to continue her regular duties as a housewife." In her testimony, Ms. Murrin disagreed with Dr. Foster's conclusion.

Ms. Murrin testified that from the fall 1992 to the fall of 1994, she experienced problems going up and down stairs. She said she fell at home and in several other places. She could not do laundry, or clean the windows.

Ms. Murrin had received no further treatment after August, 10, 1992, when she discontinued physiotherapy. In September 1994, two years after it had closed its file, Crawford reopened Ms. Murrin's file. Crawford scheduled an in-home Occupational Therapy Homemaker Assessment and a further medical examination by an orthopaedic specialist to investigate her complaints of continued left leg pain and difficulties in performing some of her household tasks. On October 5 and 11, 1994, Ms. Murrin underwent the in-home Occupational Therapy Assessment at the Functional Performance Centre in Windsor.¹⁵ The therapist concluded that Ms. Murrin was performing the majority of her homemaking tasks and that the main areas of difficulty she was experiencing at that time were those related to house cleaning. The report recommended that the Insurer purchase various assistive devices for Ms. Murrin, including a grab bar to be installed on the tub wall, a long-handle dust pan, a sponge mop, and an upright, light weight vacuum cleaner.

On October 14, 1994, Ms. Murrin was examined by Dr. S.W. Bartol, in an independent medical examination arranged by the Insurer. Dr. Bartol's report dated October 24, 1994¹⁶ indicates that Ms. Murrin made the same complaints as she reported to Dr. Haliburton more than two years earlier. She told Dr. Bartol she experienced pain in kneeling and squatting, and as a result she was having difficulty cleaning floors, particularly vacuuming areas under furniture, cleaning the bathtub and doing the laundry because of the repetitive stair climbing required. Ms. Murrin mentioned no neck or shoulder problems, as she did to Dr. Foster one year earlier. Dr. Bartol found that on examination, movement of her neck and shoulders was normal and carried out without any evidence of discomfort.

Dr. Bartol opined that the major source of Ms. Murrin's ongoing complaint of impairment at that time was her left knee. He stated that "it is very conceivable that [she] has sustained an injury to her left knee which is resulting in pain and ongoing impairment. "He found there has been no fracture or any evidence on x-ray of a bony injury. He thought "it is possible that there was an injury to the articular cartilage of the knee and/or meniscus and it is conceivable that that is an ongoing source of symptoms."

However, Dr. Bartol concluded that Ms. Murrin was not substantially disabled from performing most of her normal housekeeping activities. He found that the specific activities which cause her the majority of problems are those which require squatting, or kneeling and repetitive stair climbing. He stated: "by pacing her activities, she admits to performing most housekeeping tasks at this time though she does so with some discomfort."

Dr. Bartol recommended six weeks of physiotherapy. He also recommended an arthroscopic examination of Ms. Murrin's knee, which apparently did not take place.

Following Dr. Bartol's report, the Insurer provided Ms. Murrin with the assistive devices recommended by the occupational therapist and enrolled her in another physiotherapy programme at the Acute Injuries and Rehabilitation and Evaluation Centre at Windsor Western Hospital from January 24, 1995 until March 3, 1995. The physiotherapy report¹⁷ states that at the time of her discharge on March 3, 1995, Ms. Murrin continued to report pain in the lateral aspect of the left thigh, however, she was able to ascend and descend stairs without difficulty.

In her testimony, Ms. Murrin disagreed with the AIREC report. She said she was misquoted.

Dr. Bartol saw Ms. Murrin again on March 27, 1995. He stated in his report¹⁸ that Ms. Murrin reported improvement and that she was able to climb stairs without her knee "giving out."

Ms. Murrin maintained that she remained substantially unable to perform her essential tasks until the time she was provided with the assistive devices.

Credibility and Conclusion:

There is no medical evidence of any objective, physical findings to corroborate Ms. Murrin's subjective complaints of pain and disability arising from the soft tissue injuries she sustained in the accident. There is also no medical opinion that supports Ms. Murrin's claim of disability after September 27, 1992. In fact, the medical evidence strongly suggests that she was not substantially disabled from performing her essential tasks after this date. The only evidence I have heard supporting disability after the termination of her benefits is Ms. Murrin's own testimony.

Therefore, Ms. Murrin's credibility is crucial in assessing her claim.

I did not find Ms. Murrin to be a credible witness. Because of the numerous inconsistencies in her own testimony and the documentary medical evidence which contradicted her claim, I cannot rely on her claims that she was disabled from performing her essential tasks for a period of three and half years after the accident.

By her own account, Ms. Murrin was able to perform a significant number of her essential tasks by the end of April 1992. She had told a number of the health care professionals who have seen or treated her that she was performing the majority of her tasks; however, during the hearing she denied this. She disagreed with almost all the evidence which tended to prove that she was not disabled.

I find Ms. Murrin's denial of pre-existing, relevant health problems and medications she was taking at the time of the accident difficult to understand.

I also find it significant that during the period when Ms. Murrin claims ongoing disability and severe pain, she chose to drive to Florida, instead of taking the physiotherapy treatment recommended by her physicians.

It is also clear from the evidence that for a period of one year after the termination of her weekly benefits, Ms. Murrin neither complained about nor sought treatment of her accident-related problems. It appears to me that the complaints made after she filed for mediation were for the purposes of enhancing her claim.

Ms. Murrin attempted to discount the evidence which tended to contradict her testimony by simply saying that she was misquoted by almost every health care professional who dealt with this claim, including her family doctor, the rehabilitation people at Crawford, her physiotherapist and the medical examiners appointed by the Insurer. Ms. Murrin has not offered any reason why so many of the people involved in treating or assessing her would report things she did not tell them.

Ms. Murrin claims that by providing her with assistive devices, the Insurer is admitting that she remained disabled from her essential tasks until that time. I do not accept this argument. I find that starting from April 1992 and certainly by September 1992 she was substantially able to perform her essential tasks. I find the Insurer's conduct in providing her with assistive devices to be reasonable and consistent with its obligation to help her achieve a complete return to her pre-accident level of functioning.

Special Award:

Ms. Murrin has claimed a special award under section 282(10) of the Insurance Act ("the Act") on the basis that the Insurer unreasonably withheld benefits. Given my findings above, I find that Ms. Murrin is not entitled to a special award.

Expenses:

Ms. Murrin claims her expenses incurred in the arbitration under section 282(11) of the Act which gives an arbitrator the discretion to award an insured person such expenses as prescribed in the regulations, to the maximum set out in the regulations.

On behalf of the Insurer, Mr. Schenke has urged me not to grant Ms. Murrin her expenses. He suggested that this is arguably a case for an award against her under section 282(11.2) of the Act which provides as follows:

(11.2) If an insured person commences an arbitration that, in the opinion of the arbitrator, is frivolous, vexatious or an abuse of process, the arbitrator may award an amount to be paid by the insured person to the insurer that does not exceed the amount assessed against the insurer in respect of the arbitration under section 14.

Having considered the circumstances of the case, I do not find this to be an appropriate case for an award under section 282(11.2) of the Act. I do not find Ms. Murrin's commencement of this arbitration is frivolous, vexatious or an abuse of process.

However, I find that this is a case without any merit, and one where the only evidence supporting the claim is the applicant's testimony, which I rejected due to a lack of her credibility. Accordingly, I have decided to exercise my discretion to deny Ms. Murrin her expenses.

Order:

1. The Insurer is not required to pay further weekly benefits.

2. Ms. Murrin is not entitled to a special award.

3. Ms. Murrin is not entitled to her expenses incurred in this arbitration.

February 21, 1996

Asfaw Seife

Arbitrator

Date

APPENDIX A

Exhibits:

Exhibit 1

Applicant's Medical Brief (Tabs A-F)

Exhibit 2

Dr. Foster's Clinical Notes and Records (Pages 1-37)

Exhibit 3

List of Providers for Ms. Murrin

Exhibit 4

Rehabilitation Brief (Tabs A-C)

Exhibit 5

Letter from Caw Legal Services to General Accident, dated January 14, 1994 (list of expenses for Ms. Murrin attached)

Exhibit 6

Letters from Ms. Murrin to the Insurer, dated November 4, 1991, April 22, 1992, and June 22, 1992

Other Documents Before the Arbitrator:

Report of Mediator, dated November 4, 1991

Application for Appointment of an Arbitrator, dated August 23, 1994

Response by Insurer, dated October 3, 1994 Pre-hearing letter, dated December 29, 1994

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 2
3. 3Dr. Foster's report dated November 16, 1993
4. 4Exhibit 1, tab D-1
5. 5Exhibit 2, page 33
6. 6Exhibit 2, page 34
7. 7Exhibit 4, page 21
8. 8Exhibit 4, tab A at page 16
9. 9Exhibit 6"Exhibit 1, tab E
10. 10Dr. Berkeley's report,
11. 11Exhibit 2, page 35
12. 12Exhibit 4, tab A, page 32
13. 13Exhibit 2
14. 14Exhibit 1, tab D
15. 15Exhibit 4, tab B
16. 16Exhibit 1, tab F
17. 17Exhibit 4, tab C
18. 18Exhibit 1, tab F