Neutral Citation: 1997 ONICDRG 152

A96-001312

ONTARIO INSURANCE COMMISSION

BETWEEN:

J. P.

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, J.P. was injured in a motor vehicle accident on March 10, 1994. She applied for "other disability benefits" pursuant to section 19 of the Schedule[1] on the basis that she suffered a partial or complete inability to carry on a normal life. She received the benefits until March 10, 1996, at which time the Insurer, Wawanesa Mutual Insurance Company ("Wawanesa"), terminated the benefits. The Insurer took the position that while the Applicant still suffered from a partial inability to carry on a normal life, she did not, as of March 10, 1996 suffer a complete inability to carry on a normal life. The parties were unable to resolve their dispute through mediation and J.P. applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issue in this hearing is:

1. Is J.P. suffering a complete inability to carry on a normal life as a result of the accident, thereby entitling her to "other disability benefits" pursuant to section 19 (7)(c) of the Schedule?

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

Result:

1. J.P. is not entitled to "other disability benefits" pursuant to section 19(7)(c) of the Schedule.

2. J.P. is entitled to her expenses related to this arbitration

Hearing:

The hearing was held in Thunder Bay, Ontario, on June 9, 1997, before me, M. Guy Jones, Arbitrator.

Present at the Hearing:

Applicant:

J.P.

J.P.'s

John H. Hornak

Representative:

Barrister and Solicitor

Wawanesa's

Greg Birston

Representative:

Barrister and Solicitor

Witnesses:

J.P.

Randy Merkewich

Exhibits:

One brief of documents was filed at the hearing.

FACTS:

On March 10, 1994, the Applicant, J.P., was riding on a bicycle when she was struck by a motor vehicle. She suffered devastating injuries to her head, right shoulder, right arm, pelvis, right thigh and foot. She suffered a very significant brain injury. As J.P. was not working at the time of the accident, Wawanesa paid her "other disability benefits" in the amount $185 a week until March 10, 1996 pursuant to section 19 of the Schedule. At that time, the company terminated her benefits, taking the position that while she suffered a partial inability to carry on a normal life, she had not, as of March 10, 1996, suffered a complete inability to carry on a normal life as is required in the Schedule in order to continue benefits.

Findings and Analysis:

Section 19(7)(c) of the Schedule requires that in order to receive other disability benefits for more than 104 weeks, a person must suffer a complete inability to carry on a normal life as a result of the accident. A complete inability to carry on a normal life is defined by Section 3 of the Schedule which states:

For the purposes of this regulation, a person suffers a complete 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 continuously prevents the person from engaging in substantially all of the activities in which the person ordinary engaged before the accident.

Pre-Accident Activities

In order to determine if J.P. meets this test, it is necessary to examine, in some detail, her pre-accident activities and then determine to what extent she could perform these activities 104 weeks after the accident. In light of the rather unusual factual circumstances of this case, it is necessary to go into J.P.'s pre-accident history in some detail.

J.P. was born on February 8, 1978. In the following 16 years, leading up to the motor vehicle accident, she lived in approximately 30 foster homes and institutions, and with relatives. In addition, she lived on a number of occasions with her mother, with whom she had a very difficult relationship. As well as having a very troubled home life, J.P. also had a very difficult time at school. She went to three different kindergarten and three separate grade I schools. In grade I, she was tested and found to have a learning disability. While she was officially in grade 10 at the time of the accident, she had apparently not spent a great deal of time in school since grade 6. While in school, she was extremely uncooperative with teachers and disruptive in class. She fought with the other students and generally showed no interest in school.

In 1992/93, her last full academic year before the accident, she missed approximately 110 school days and earned only one out of an attempted five credits. Between October 1993 and February 1994, she was placed in a supervised alternative learning program for "excused" pupils. This involved working approximately two days a week at a pet store, cleaning cages, filling water bottles, stocking shelves, etc., for which she was not paid. She apparently stopped working there in early February 1994.

In light of J.P.'s many problems, she was made a ward of the Children's Aid Society (CAS) in August, 1992. The CAS records filed at the hearing indicate that by the time of the motor vehicle accident, J.P. was a "streetwise adolescent" who was involved in drugs and alcohol. She had been the victim of physical and sexual abuse and had been in trouble with the police.

At the hearing, J.P. admitted to much of the above history. She claimed that she spent a good deal of her pre-accident time watching television, visiting friends, taking her cousin's children to the park, riding bicycles, dancing and partying. She also described herself as a bit of a loner who would spend time by herself, going for walks, etc. While she would make some occasional meals for herself, this was not a major activity prior to the accident.

In the week or so prior to the motor vehicle accident, J.P. was staying at various locations, apparently avoiding the police. Her CAS caseworker noted that she had last seen J.P. two days before the accident at which time "she had been on the streets for several days, doing a lot of partying."[2]

When considering what activities J.P. engaged in before the accident, one cannot simply take a "snapshot" of the person's activities on the day or week before the accident. The activities must be assessed over a reasonable time period [3] which depends very much on the facts of each case.

Because of the Applicant's rather unstructured lifestyle, it is somewhat difficult to determine with certainty her pre-accident activities. However, upon reviewing the documentary evidence and the testimony of the Applicant, I find that J.P.'s relevant pre-accident activities included:

watching television

meeting with friends/partying/dancing

taking walks

bicycling

personal care

occasional caring for her cousin's children

very occasional unskilled and unpaid labour

Injuries

As a result of the March 10, 1994 accident, the Applicant suffered what can only be described as devastating injuries. They included a severe closed head injury, right hemiparesis, a severe fracture of the pelvis and right acetabulum and a right brachial plexus injury. After initial surgery in Thunder Bay to stabilize her pelvis, she was transferred to St. Michael's Hospital in Toronto for surgery on her acetabular fracture. It was not until June 15, 1994 or approximately three months after the accident, that J.P. left the hospital and when she did, it was against medical advice.

Since that time, J.P. has undergone a long, painful, and frustrating period of rehabilitation, including surgery in December 1994, to repair her brachial plexus injury. Unfortunately, this surgery was unsuccessful and, as a result, J.P. has continued to have no functional use of her right arm.

By March of 1996, or two years after the accident, J.P. had made significant improvements but many problems remained. I will summarize them at this time.

Perhaps the most devastating injury was the Applicant's closed head injury. As will be recalled, J.P. had already encountered learning disabilities prior to the accident, so in some ways, the head injury had a particularly strong impact. By March, 1996, the major effect would appear to be on her short term memory. As she testified at the hearing, she has a great deal of trouble remembering small things such as turning off the stove, etc. This has caused her considerable difficulty and has greatly affected her ability to do things.

From a purely physical point of view, by far the most crippling injury to the Applicant has been the right brachial plexus injury. In the accident, J.P. suffered damage to the trunk of the brachial plexus and associated nerve roots.[4] As a result, she lost all flexion of her right arm and in practical terms, all use of the arm. While she is still able to grip items with her right hand, she is unable to effectively move the arm, thereby severely limiting its use. I note that J.P. is right hand dominant and has had to learn to write with her left hand.

As noted above, J.P. had unsuccessful surgery in December, 1994 in an attempt to reconstruct and graft the nerves in her shoulder. The doctors have told her that she could have muscle transfer surgery to replace the biceps function. This could potentially give her some limited function in her right arm, however, to date, she has refused the surgery. Also of considerable significance is the injury to J.P.'s pelvis and hip. Despite successful surgery, J.P. has been left with considerable discomfort and stiffness in the hip area. In addition, she has been left with a very unsteady gait and has right-sided "drop" foot. All these factors have combined so that she is unsteady on her feet and unable to walk distances of roughly more than a few blocks without assistance. In addition, her walking is limited to a very slow pace and she can no longer run. Dr. James Wadell, the orthopaedic surgeon who performed the surgery on her acetabulum and followed her pelvic injuries, stated in his report of August 1, 1996:

She has degenerative arthritis of her right hip secondary to her acetabular fracture. This has given her some stiffness in her hip and moderate discomfort, but she is not disabled. She will require surgical treatment for her hip at some time in the future.[5]

In addition to the above, J.P. has been left with a limited speech defect. Despite therapy, she still has a minor slur to her speech, however, this is not debilitating and her ability to communicate has not been significantly affected.

At the hearing, J.P. made numerous references to double vision and the problems that this has created for her. While she indicated that she has learned to deal with this somewhat, and is able to determine which image is "the real one," she is still having trouble with it. Her double vision was confirmed in a report of Dr. Mark Long, an optometrist in Thunder Bay, whose report was filed, on consent, following the completion of the hearing.

Post Accident Activities

At the hearing, J.P. testified that at two years following the accident, her activities were essentially as follows:

1. watching television.

2. walking without assistance in the trailer where she now lives and walking outside for a few blocks.

3. visiting friends.

4. going shopping but only to a limited degree. She is only able to reach the middle shelves so she often leans on the shopping cart for balance. In view of this, she often sits in the coffee shop while her husband does the shopping.

5. Limited laundry, doing small loads.

6. Limited care of her new-born child.

7. Personal care, except with the exception of washing her hair which causes her difficulty and washing her back which her husband assists with.

8. Cooking to a very limited degree. Her husband does most of this.

Some insight as to her present activities may also be gained from an occupational therapist's assessment conducted in early 1996, approximately two years after the accident. It was based on an interview with J.P., as well as observations by the occupational therapist and a review of some of the medical reports. As will be discussed later, the report covers many of J.P.'s daily activities, not all of which she did before the accident. However, for the purposes of the test, it is only the activities that J.P. ordinarily engaged in before the accident that are to be considered.

Without going into great detail, the report basically reveals the following:

In terms of personal care, J.P. can clean her teeth unaided; she can take a shower although she cannot use her right arm to wash her back and accordingly, her husband helps her. It is worthy of note that the occupational therapist states that her failure to use various aid devices limits her activities somewhat. Unfortunately, there is no evidence as to exactly which devices were rejected by the Applicant or what assistance they would provide.

She requires assistance washing her hair but is able to style it on her own, and can apply her own make-up. She is able to dress herself, for the most part. She has trouble with her bra and while she can apparently do it with some difficulty, her husband helps her with it. She can dress herself otherwise, with the exception of socks for her right foot and again, it is unclear whether a medical aid earlier referred to would be of some assistance in this regard. She is unable to put on her pantyhose without assistance. While doing up buttons causes some difficulty and her husband usually helps her, it is unclear whether she could do this herself with difficulty. With regard to boots, she can put on most footwear but sometimes boots for the right foot cause her difficulty. She requires assistance to put on most of her outerwear clothing.

According to the occupational therapist, she accompanies her husband while shopping and can only do a limited amount. On the other hand, she did very little grocery shopping and meal preparation before the accident. At this time, according to the occupational therapist, she does very little in the way of meal preparation. To the extent that she any of it, she prepares very simple meals. It is also to be noted that she has very limited access to the cupboards because of her difficulty squatting and also the lack of mobility of her right arm. On the other hand, she did not spend a great deal of time in the kitchen prior to the accident.

With regard to household chores, it would appear that she did not do a great deal of housework prior to the accident. After the accident, she did a limited amount of laundry. She is able to do dusting, although there is no evidence whether she did dusting before the accident. Sweeping she does with some difficulty. She is able to vacuum and can clean the sink but she does not clean the tub or toilet, make the beds, or shovel snow. However, it is unlikely that she did many of these activities prior to the accident.

With regard to taking care of, and playing with children, she did this to a very limited degree with her cousin's children prior to the accident. This involved primarily taking the children to a park. Since the accident, she has had a child, and her husband's two children by a former relationship spend some time with her. She does help out somewhat with them and does accompany them to the park and colours with them. With regard to her own child, she is limited in her activities. Indeed, her husband has left his job to care for the child. While she is able to play with the child at the moment, there is some concern that she might not be able to keep up with the child physically in the future. It is important to remember, however, that only her pre-accident activities are relevant when considering the test and prior to the accident, J.P. was not involved in child raising.

It is also important to note that at the present time, J.P. is unemployable.[6] However, prior to the accident, her ordinary activities with regard to employment were extremely limited. She was working at most two days a week for six months up until approximately eight weeks prior to the accident, at which time she stopped working. It is also important to recall that this was simply a training experience for which she was not compensated.

Before leaving the subject of the occupational therapist' report, it is useful to note her conclusion which stated that:

Ms. P. has compensated for her physical challenges such that she is able to perform activities of daily living with minimal to moderate assistance and, depending on the task at hand, perform tasks independently.

Ms. P. feels strongly that she is able to compensate and adapt well to her physical challenges; therefore she has chosen not to use assistive devices to assist with activities of daily living.

In order to be entitled to receive benefits after 104 weeks, J.P. must show that she suffers an impairment that continuously prevents her from engaging in substantially all of the activities in which she ordinarily engaged before the accident. This section of the Schedule itself has not been interpreted a great deal, however, words very similar to those are found in Section 13(8) (b) of the previous legislation which set out entitlement to weekly benefits three years post-accident, if the applicant had no pre-accident income.

One of the many difficulties in this case is that the Applicant is able to do some activities that she did before the accident, but not to the extent or as well as she did before the accident. For example, while J.P. can now walk, she cannot walk as far as before, nor as steadily or as quickly. Arbitrator Young, in Ms. G and Allstate Insurance Company (December 7, 1995) OIC A-013283, encountered a similar situation. Arbitrator Young focused on the words "engaging in" found in the section, in order to determine if the person who was attempting to perform an activity was "continuously prevented from engaging in substantially all of the activities." Arbitrator Young stated:

"Going through the motions" does not, in my view, constitute what a reasonable person would define as "engaging in" the activities under review. Surely, the test of eligibility contemplated by the Schedule is more than just an exercise of ticking off the comparative boxes of what was "done" previously and what is "being” "attempted" today.

I am in general agreement with Arbitrator Young’s comments in that I agree that simply going through the motions is not enough to be "engaged in" the activities under review. While it is not necessary that the Applicant resume her activities to the same level as pre-accident, she must have at least recovered to a level where there is at least some reasonable comparison between the pre-and post-accident activities. Each case, of course, depends on the individual facts of that case.

When considering the test set out in section 3 of the Schedule, it is important to note that the applicant must be continually prevented from engaging in substantially all of her activities in order to meet the test. There has been very little consideration of this term by arbitrators to date. However, I believe that the words are fairly clear. In order to recover benefits, the applicant must be prevented from engaging in most or nearly all of her pre-accident activities. Before applying the test to the facts of this case, I will first deal with the position of the Applicant as to what activities should be examined. Counsel for the Applicant took the position that one cannot simply look at the activities of the Applicant in the period prior to the accident. This, he submitted, would be unfair to someone like J.P., who was only 16 years of age at the time of the accident. Clearly, her daily activities would change as she grows older. An example of this is that prior to the accident, J.P. did not have a child and therefore, her pre-accident activities did not involve raising a child and all that goes with it. Subsequent to the accident, J.P. has had a child and the evidence is that she is unable to fully care for the child herself. Counsel for the Applicant suggests the test in some way must accommodate the activities that the Applicant would reasonably have been expected to do in the future, but for the accident.

While I am sympathetic towards the Applicant's position on this point, I am unable to agree with it. Section 3 of the Schedule states that one must look to "the activities in which the person ordinarily engaged before the accident." In my view, these words are very clear and there is no ambiguity. Accordingly, in applying the facts of this case to the test set out in section 3 of the Schedule, I am restricted to looking at those activities performed prior to the accident.

After considering all the testimony and reviewing the documentary evidence, I have reluctantly concluded that the Applicant has not suffered an impairment that continuously prevents her from engaging in substantially all the activities which she ordinary engaged in before the accident.

In arriving at this conclusion, I think that it is helpful to review her pre-accident activities and examine what impact the accident has had upon them:

1. Watching television:

This was a substantial activity prior to the accident. While J.P. has some double vision, the evidence is that she is able to compensate fairly well for it and continues to watch television.

2. Meeting with friends/partying/dancing:

While J.P. still meets with friends and does some occasional partying, it is clear that she does not do so to the extent that she did before. On the other hand, to a certain extent, her "partying" appears to be curtailed by choice. She has entered into a permanent relationship with a man and has a child which they are raising. This, in part, I find, has limited her partying activities. With regard to dancing, it is clear that her injuries have precluded her from doing this.

3. Taking Walks:

While J.P. can take limited walks, it is clear that her mobility in this regard has been seriously affected. While she can now walk slowly with a "drop" foot, she is not able to balance well, and her endurance has also been seriously affected.

4. Bicycling:

This is no longer realistically possible due to her injuries.

5. Personal Care:

I have already gone into J.P.'s ability to take care of herself in some detail. Suffice to say, she is largely independent in this regard, although she does have restrictions, as listed above. It is also evident that she could increase her personal care capabilities if she were to use certain "assistive devices" referred to by the occupational therapist. Unfortunately, there was very little evidence provided on this point.

6. Occasional caring for her cousin's children

The evidence given at the hearing was that this was done on an occasional basis and involved taking the children to the park, etc. While she apparently does not do this for her cousin any longer, she does this with her own child. I accept that she is not as mobile as she was before, and accordingly, may not be able to do it as well as she could before.

7. Very occasional unskilled and unpaid labour:

As indicated earlier, J.P. had helped out at a pet shop, part-time without pay, for a period of approximately six months. She stopped doing this about two months prior to the accident. While there was evidence led indicating that she was not employable for compensation at this time, there was no evidence led as to her ability to occasionally work part-time without compensation.

I am reinforced in my view that J.P. is not continuously prevented from engaging in substantially all of the activities in which she ordinarily engaged before the accident by the report of Ms. Gina Zoretti, the occupational therapist, who stated on January, 17, 1996 that:

Ms P. has compensated for her physical challenges such as she is able to perform activities of daily living with minimal to moderate assistance and depending on the tasks at hand, performs tasks independently.

Duty to Mitigate

Counsel for the Insurer brought to my attention numerous notes in the medical documentation stating that J.P. had not co-operated with the therapists and other health care providers in participating in her own rehabilitation. In addition, the occupational therapist commented in her report of January 17, 1996:

Occupational therapy recommendations were discussed with Ms. P. which included the provision of assistive devices to assist with certain meal preparation and self-care activities. Ms. P., however, has refused to consider the use of such devices, with the exception of the installation of a grab bar in the bath area.

I also note that J.P. has refused to proceed with the surgery to her right arm which the doctors say would provide her with some limited function of her right arm.

I observe that the Applicant, before and after the accident, was and is a very strong-willed individual and holds very strong views on what she will or will not do. On the other hand, J.P. has had a devastating accident and has endured years of pain, suffering and hardship. She has already undergone a painful but unsuccessful operation to correct her arm problem. Nevertheless, it is clear that J.P. did not fully co-operate in the rehabilitation process.

While section 73 of the Schedule imposes an obligation on the applicant to participate in her rehabilitaton, in light of my findings as to her availability of section 19 benefits, it is unnecessary for me to comment further upon J.P.'s obligation in this regard.

Expenses:

J.P. claimed her expenses incurred in respect of the arbitration. While she was not successful, her case was not without merit. I therefore exercise my discretion under section 282(11) of the Insurance Act and allow her expenses.

Order:

1. J.P. is not entitled to "other disability benefits" pursuant to section 19 of the Schedule.

2. J.P. is entitled to her expenses incurred in respect of the arbitration.

August 11, 1997

Guy Jones

Arbitrator

Date

1The Statutory Accident Benefits Schedule C 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.

2Exhibit 1, tab. 25.

3See Palumbo and Dominion of Canada General Insurance Company (May 25, 1996), OIC P-007314 and Donahue and State Farm Mutual Automobile Insurance Company (August 3, 1994), OIC A-006756.

4For a discussion of the brachial plexus, see Gray's Anatomy, 1st edition, Toronto, B. Mitchell Publishing, (1991) at 506.

5Exhibit 1, tab 33, p.2

6See exhibit 1, tab 25.