Lillian McGraw v. Canadian Surety Company, 1997 ONICDRG 137

Neutral Citation: 1997 ONICDRG 137

OIC A95-000550

ONTARIO INSURANCE COMMISSION

BETWEEN:

LILLIAN MCGRAW

Applicant

and

CANADIAN SURETY COMPANY

Insurer

DECISION

Issues:

The Applicant, Lillian McGraw, was injured in a motor vehicle accident on June 22, 1994. She applied for and received statutory accident benefits from Canadian Surety Company ("Canadian Surety"), payable under the Schedule.¹ Canadian Surety paid Ms. McGraw weekly disability benefits under section 19 of the Schedule from June 29, 1994 through to April 28, 1995, when they were terminated. Ms. McGraw claims that she is entitled to these benefits until June 22, 1996, the 104 week mark of the onset of her disability. The parties were unable to resolve their dispute through mediation. Ms. McGraw applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8 (the "Act"), as amended.

The issue in this hearing is:

Is Ms. McGraw entitled to "other disability benefits" for any period between April 28, 1995 and June 22, 1996, pursuant to section 19 of the Schedule ?

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

Result:

1. Ms. McGraw is not entitled to further weekly disability benefits.

2. Ms. McGraw is entitled to her expenses incurred in the arbitration hearing.

Evidence and Findings:

Background:

At the time of the accident of June 22, 1994, Ms. McGraw was a 66-year-old homemaker who lived with her two grandsons, aged 19 and 22 years. Prior to the accident, Ms. McGraw had worked at the Hospital for Sick Children for 23 years. She left that job in 1988 after being diagnosed with primary biliary cirrhosis (PBC). As a result of this condition, she suffers from chronic breathing problems and fatigue. Since 1992, she has used an electric scooter to help her get about outdoors. She does not drive.

The accident in question occurred while Ms. McGraw was crossing a street, riding her electric scooter. A car that had been stopped started moving slowly forward, making a right turn. Ms. McGraw was struck by the car, which pinned her left leg against the side of the scooter. The impact caused her scooter to lean to one side, but the scooter did not tip over. Ms. McGraw testified that the car struck her on the outside of her left leg, from the thigh down to an area just below the knee. She felt immediate pain and numbness along her whole left leg. After the accident, Ms. McGraw drove her scooter to a nearby store where she bought coffee She then went to a park and had her coffee.

Ms. McGraw testified that over the next few days, her left knee became swollen and more painful. She also developed pain in her neck and low back. On June 27, 1994, five days after the accident, she attended at Sunnybrook Medical Centre where an x-ray of her left knee was taken. The radiology report indicated that there was no evidence of a fracture or joint effusion in the left knee; however, there were mild degenerative changes in the left knee.

Two days after she attended the hospital, Ms. McGraw saw her family physician Dr. Michael Weinstock. He diagnosed her with contusion and strain to her neck, low back and left leg. He referred her to International Managed Health Care ("International"), where she received physiotherapy treatment until mid -1995.

Since the accident, in addition to seeing her family physician, Ms. McGraw has been examined and assessed by several health care practitioners. On December 12, 1994, at the request of Canadian Surety, Ms. McGraw was examined by Dr. M. Devlin, a physiatrist. In January 1995, she underwent an assessment at the Working Conditions Program at the Orthopaedic and Arthritic Hospital, a medical and rehabilitation Designated Assessment Centre (DAC). On December 15, 1995, she was examined by Dr. Urovitz, an orthopaedic surgeon at Multi-Disciplinary Assessment Centre, at the request of Canadian Surety.

Ms. McGraw testified that her neck and low back pain resolved within a few months after the accident; however, despite the rehabilitation treatments, she has seen no significant improvement in her left knee pain. She claims that as a result of her left knee pain, she is unable to engage in certain mobility and household activities, which she performed before the accident.

The Law:

Under section 19 of the Schedule, Ms. McGraw is entitled to weekly disability benefits of $185.00 per week for up to 104 weeks after the onset of her disability, if, during this period and as a result of the accident, she suffered a partial inability to carry on a normal life.

Section 2 of the Schedule provides that 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, among other things, mobility or household activities in which the person ordinarily engaged before the accident.

"Impairment" is defined in section 1 of the Schedule as a loss or abnormality of psychological, physiological or anatomical structure or function.

Substantial Inability:

Ms. McGraw claims that because of left knee pain she continues to suffer a substantial inability to engage in mobility and household activities in which she ordinarily engaged before the accident.

Ms. McGraw testified that her mobility activities prior to the accident were limited by the effects of PBC, and pain in her right knee, which she said was due to a torn cartilage that occurred in 1985. She was restricted in the distance she could walk, the weights she could lift or carry and the nature of strenuous activities she could engage in. However, she testified that, prior to the accident, she was able to walk three to six blocks every day, depending on the weather; and ride the TTC. She said that as a result of the accident, she cannot walk more than three blocks because of pain in her left knee; she cannot use the TTC because "sitting down and getting up is a problem." She testified that she can still ride her scooter to the same extent as she did before the accident - four trips a week to the grocery store.

With regard to household activities, Ms. McGraw testified that despite her pre-accident medical problems, there were no household tasks she could not perform before the accident. She washed the walls, ceilings, floors, stairs and bathtub by hand, kneeling on the floor with the left knee only, or standing on a chair to reach high areas. She vacuumed the house and did the laundry. She baked and cooked for her grandchildren and herself. Outside the house, she did gardening and shovelled snow in the walkway.

Ms. McGraw testified that she cannot perform these tasks since the accident because she can no longer use her left knee to kneel on the floor, and that she is afraid to climb or stand on a chair because of her left knee giving out. She can only vacuum the house partially because she cannot lift the vacuum cleaner or move furniture around. She cannot do the laundry because she experiences left knee pain while going up and down the stairs to the basement. She has stopped gardening because she can no longer push the spade with her left foot to dig the ground. She cannot shovel snow because she is afraid of falling.

Ms. McGraw testified that she can still wash the floor, the ceiling, the walls and the bathtub by using long-handled mops. She can dust, and vacuum partially. She can cook meals and can wash the dishes.

Mrs. McGraw's grandsons substantially corroborated her evidence, with the exception that they have not seen her taking a walk or vacuuming the house, after the accident.

Medical Evidence:

None of the physicians who have seen Ms. McGraw have testified at this hearing; however, their reports, clinical notes and records were filed into evidence.

There is consensus among the physicians who examined Ms. McGraw that, as a result of the accident, she sustained soft tissue injuries to her left leg, in the area below the left knee. However, the medical opinions of Ms. McGraw's family doctor and those of the specialists who assessed her at the request of Canadian Surety regarding the extent of her injuries and its impact on her functional ability are divergent.

In an Assessment of Disability form dated October 31, 1994, Dr. Weinstock noted that Ms. McGraw's pre-accident essential tasks were vacuuming, cooking, washing floors, cleaning bathtub, shopping and lifting her scooter. He indicated that the only activities she could not perform after the accident were kneeling on the floor to clean bathtubs and wash floors, vacuuming and lifting her scooter. He stated that she was able to cook, walk and use her scooter as much as she did before the accident. He added that she needed help with grocery shopping.

In a Health Practitioner's Certificate dated November 5, 1994, under the heading "Can the applicant return to normal daily activities? When?", Dr. Weinstock indicated: "Still can't vacuum; wash floors." He estimated the duration of her disability to be from one to two months.

In his report dated October 16, 1995, Dr. Weinstock stated that Ms. McGraw "is known to have pre-existing osteoarthritis in her knees and hips, and thus has the use of a motorized scooter." He indicated that Ms. McGraw suffered a contusion to her left knee, as a result of, "in all probability," the accident of June 22, 1994. He summarized his findings (covering 13 visits from June 29, 1994 to June 20, 1995) as follows:

Ms. McGraw has ongoing pains in her left knee region and this will affect her activities of daily living. She needs help from her grandchildren with the heavier aspects of her activities of daily living, such as carrying laundry, washing floors and vacuuming. She could do all these activities without help before the accident.

She is able to cook and wash dishes but she does have to rest more frequently and all these lighter duties take longer than usual.

Dr. Weinstock saw Ms. McGraw on three occasions after June, 1995. He last saw her on July 17, 1996. His report of August 1, 1996, (covering the three visits since June 20, 1995), is quite different from his earlier reports. In this report, Dr. Weinstock indicated that "the examination of her knee on November 1995 and July 1996 were essentially the same." However, the report indicated that she was having more problems in performing her daily activities in July 1996 than she did in October 1995. She reported having difficulty bending her left knee and as a result not being able to clean her refrigerator and the lower levels of the kitchen cupboards. Dr. Weinstock reported that Ms. McGraw's "ability to cook is compromised significantly because she cannot stand for long periods of time." He stated that her gardening, which she did "enthusiastically for long periods at a time" before the accident, was limited to a few minutes at a time because she cannot kneel or bend over. He indicated that before the accident, she "used to ride her scooter for great distances without any pain. Now her left leg and knee hurt and her left 3rd-4th-5th toes become numb after a few minutes. She does not ride it for any length of time..." Dr. Weinstock indicated that she can do her laundry in small amounts. He stated "she can walk up and down stairs, but does this very slowly, with deliberate care because of the pain in her left leg."

Dr. Weinstock concluded that Ms. McGraw suffers "a substantial inability to carry on with her pre-accident mobility activities and household responsibilities."

Dr. Weinstock did not testify at this hearing. I heard no explanation why Ms. McGraw's functional abilities deteriorated since October 1995 while the condition of her left knee remained essentially unchanged, as reflected in Dr. Weinstock's August 1996 report.

In addition, in her testimony, Ms. McGraw contradicted a number of things contained in Dr. Weinstock's reports. She denied that she had pre-existing osteoarthritis in her knees or hips. She testified that she had no problems in her left knee prior to the accident, and that her right knee pain was due to torn cartilage. The medical records do not mention a torn cartilage in the right knee.

Ms. McGraw testified that prior to the accident, she used the scooter for grocery shopping only, because carrying grocery bags and pulling a shopping cart irritated her right knee. She testified that her ability to use her scooter did not change after the accident. This is contrary to what she told Dr. Weinstock in July, 1996 that, after the accident, she can only ride her scooter for a few minutes at a time. Surveillance videotape taken in August, 1995 depicts her operating her scooter for at least 36 minutes continuously, with no apparent signs of discomfort.

In her testimony, Ms. McGraw admitted that, before the accident, she was never able to lift her scooter. This is contrary to what she reported to Dr. Weinstock in October, 1994.

In her testimony, Ms. McGraw stated that she is unable to ride the TTC because of the accident; however, I find it significant that she did not make these complaints to any of the doctors who examined her prior to the termination of her benefits.

Unlike what she reported to Dr. Weinstock in July 1996, Ms. McGraw testified that she is unable to do her laundry because she could not walk up and down the basement stairs.

The medical evidence also shows that Ms. McGraw was not consistent in the reporting of her disability to the various doctors. Ms. McGraw was examined by Dr. Devlin on December 12, 1994. In contrast to what she told Dr. Weinstock in October, 1994, Ms. McGraw reported to Dr. Devlin that there was nothing that she could not do after the accident because of her left knee that she was able to do before the accident. Dr. Devlin stated in his report that "the only comment she gave is that she is a little behind in her housework, but this does not bother her particularly."

In January 1995, Ms. McGraw was examined by Dr. Gollish, an orthopaedic surgeon at the Orthopaedic and Arthritic Hospital. He stated in his report of January 18, 1995 that examination of her left knee demonstrated no evidence of mal-alignment or deformity. He found that she was able to fully extend the left knee; and flex it to 110 degrees with complaint of pain. When Ms. McGraw was distracted, she could flex the left knee further to a range equal to the right knee. He found the left knee was stable and there was no clinical evidence of miniscal pathology.

On December 15, 1995, Ms. McGraw was examined by Dr. Urovitz, an orthopaedic specialist. In his report he noted that Mrs. McGraw reported that since the accident she was able to go out on her scooter to do her grocery shopping but she felt much more tense about doing this. In addition, he stated that she reported being able to complete all her house work but that it took her a lot longer to do so and she did it with increasing pain in her left knee, left calf and left ankle.

Dr. Urovitz, like Dr. Devlin before him, stated that he was unable to determine any major, consistently reproducible, objective signs of impairment which preclude her from engaging in all of her pre-accident activities. Dr. Urovitz's impression was similar to that of Dr. Devlin that Mrs. McGraw, despite her subjective complaints of pain in her knee, was capable of doing all the activities that she was doing prior to the accident, although at a slower pace than before and with some discomfort.

Conclusion:

I find a number of inconsistencies between what Ms. McGraw told the various physicians, and her testimony at the hearing regarding her medical problems and her functional ability, both before and after the accident. I prefer to accept the information recorded in clinical notes and records of the doctors as being independent, contemporaneous records made in the normal course of discharging their professional duty.

It has been stated in a number of arbitration decisions that "substantial inability" means not some disability, and not total disability, but a significant disability which prevents an applicant from carrying out essential tasks of his/her pre-accident activity to a significant extent. Pain and suffering are not compensable unless they result in a substantial inability. In addition, if an applicant can perform his/her essential tasks by reasonably modifying the manner, frequency and timing of the performance of the task, he/she cannot claim to be substantially disabled.

I find that, prior to the accident, Ms. McGraw had osteoarthritis in both knees, hips and hands, as well as fatigue and breathing problems caused by PCB. She had a significant problem with her right knee. She was unable to kneel on this knee, or to carry heavy objects. As a result of these conditions, her pre-accident mobility and household activities were limited.

Ms. McGraw did not complain to the doctors that she had a reduction in her mobility activities after the accident. I find that as early as October, 1994, she reported to her family doctor that she could walk and ride her scooter to the same extent as she did before the accident. The reports of Dr. Devlin and Dr. Urovitz indicate that she did not complain of inability to engage in any mobility or household activity that she could perform before the accident.

Even if I were to accept Ms. McGraw's testimony about the level of her post-accident activities, I do not find that she suffered a substantial inability to engage in her pre-accident mobility or household activities.

Based on her testimony and the documentary evidence, I find that Ms. McGraw can walk three blocks a day, and can use her scooter to the same extent as she did before the accident. With respect to household tasks, Ms. McGraw is unable to perform those activities which involve kneeling on her left knee or lifting heavy objects; however, she can still perform the majority of her household activities by pacing herself, or by modifying the work or by using assistive devices to perform the same tasks.

After reviewing the entire evidence, I find that Ms. McGraw has not met the test of disability for entitlement to further benefits under 19 of the Schedule. I conclude that after April 28, 1995, Ms. McGraw did not suffer a substantial inability to engage in the mobility or household activities in which she engaged before the accident.

Expenses:

As an arbitrator, I have the discretionary authority under section 282(11) of the Act to award an insured person such arbitration expenses as are prescribed in the regulations. Ms. McGraw has asked that I award her expenses. Counsel for Canadian Surety did not make any submissions regarding expenses. Even though Ms. McGraw did not succeed in her application, I do not find that her claim was totally without merit. In the circumstances, I exercise my discretion to award her the expenses she incurred in respect of this arbitration.

Order:

1. Ms. McGraw is not entitled to further weekly benefits.

2. Ms. McGraw is entitled to her expenses incurred in respect of the arbitration.

July 23, 1997

Asfaw Seife Arbitrator

Date

SCHEDULE A

Hearing:

The hearing was held at the offices of the Ontario Insurance Commission in North York, Ontario, on August 13 and October 10, 1996, before me, Asfaw Seife, Arbitrator. The proceedings were recorded by Shari Bakalar of Professional Court Reporters.

Present at the Hearing:

Applicant: Lillian McGraw

Ms. McGraw's Representative: Sam Pitaro Barrister and Solicitor

Canadian Surety's Representative: Robert A. Robinson Barrister and Solicitor

Canadian Surety's Officer: Sean McCauley

Witnesses: Lillian McGraw Spencer Reuben, the Applicant's grandson Christopher Reuben, the Applicant's grandson Peter Wraight, Private Investigator

Exhibits:

1. Insurer's Medical Brief, Volume 1

2. Insurer's Medical Brief, Volume 2

3. Applicant's Document Brief

4. Sunnybrook Hospital's Emergency Record

5. Surveillance Investigative Report - August 28, 1994

6. Surveillance Investigative Report - January 27, 1995 (Page 2 missing)

7. Videotape - August 25, 1994 and January 17, 1995

8. Handwritten notes of Peter Wraight, Private Investigator

Footnotes

1. 1The Statutory Accident Benefits Schedule —Accidents after December 31, 1993, and before November 1, 1996, called "the Schedule" in this decision. The Schedule is Ontario Regulation 776/93, as amended by Ontario Regulation 635/94.