Neutral Citation: 1997 ONICDRG 211

OIC A96-000241

ONTARIO INSURANCE COMMISSION

BETWEEN:

MARK McCONACHIE

Applicant

and

GAN CANADA INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Mark McConachie, was injured in a motor vehicle accident on August 29, 1993. He claimed, but did not receive weekly income benefits, reimbursement for yard and housekeeping expenses from GAN Canada Insurance Company ("GAN "), payable under Ontario Regulation 672.¹ The parties were unable to resolve their disputes through mediation, and Mr. McConachie applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is Mr. McConachie entitled to weekly benefits under section 13 of the Schedule from September 4, 1993 through September 4, 1996?

2. Is Mr. McConachie entitled to reimbursement for yard and housekeeping expenses under section 6 of the Schedule?

3. Is Mr. McConachie entitled to a special award pursuant to Section 282 of the Insurance Act?

4. Is Mr. McConachie entitled to his expenses of the arbitration proceeding?

Result:

1. Mr. McConachie is entitled to weekly benefits from September 4, 1993 through September 4, 1996, together with interest according to the Schedule.

2. Mr. McConachie is entitled to reimbursement for $240 for snow and ice removal, together with interest according to the Schedule.

3. Mr. McConachie is entitled to a lump sum special award of $10,000, which shall bear interest from the date of this decision in accordance with the Schedule.

4. Mr. McConachie is entitled to his expenses of the arbitration proceeding.

Hearing:

The hearing was held at the offices of the Ontario Insurance Commission in North York, Ontario, on February 11, 12, and 13, 1997, before me, Fred Sampliner, Arbitrator.

Present at the Hearing:

Applicant:

Mark McConachie

Mr. McConachie's

John D. Johnson

Representative:

Barrister and Solicitor

GAN Canada's

Larry J. Kielbowich

Representative:

Barrister and Solicitor

GAN Canada's

Dwight Robinson

Officer:

Claims Examiner

The proceedings were recorded by Gabriella Micelli and Helen Kazis of Professional Court Reporters.

Witnesses:

Mark McConachie, the Applicant

Robin Dawn MacLean, the Applicant's friend

Donald Poirier, the Applicant's neighbour

Anthony Robbins, fitness club manager

Randy Brethour, the Applicant's neighbour

Jennifer Applewhaite, insurance adjuster

Dwight Robinson, claims examiner

Exhibits:

The parties filed 8 exhibits.

Evidence and Findings:

The Accident

Mr. Mark McConachie was a 28-year-old unemployed general labourer at the time of the August 29, 1993 accident. He lived with his mother and two brothers in Rexdale, Ontario.

On August 29, 1993 Mr. McConachie and his girlfriend were travelling at approximately 100 kilometres an hour on highway 69, north of Barrie, when his vehicle was struck broadside by another car. The impact sent Mr. McConachie's automobile into a utility pole. His car was written off as a total loss.

Mr. McConachie was shaken by the impact. He did not request medical assistance at the scene, and went home to rest. Mr. McConachie did not sleep well the night of the accident, and his neck and back were painful the next morning. After seeing his family doctor the following day, he reported the accident to GAN, complaining of shoulder, neck, low back and right leg pain.

Mr. McConachie's neck and shoulder pain resolved, but his low back and right leg complaints continued. Mr. McConachie claims he is unable to lift or twist, and cannot perform housework, home repairs/renovations, sports and other recreational activities.

GAN claims that Mr. McConachie's disability is not a result of the accident, that he does not suffer the requisite disability to entitle him to weekly benefits for any period.

The Eligibility Test:

In order for Mr. McConachie to be eligible for weekly benefits under section 13(1) of the Schedule, he must prove on a balance of probabilities that as a result of the accident he suffers a substantial inability to perform his essential daily tasks.

Mr. McConachie's Essential Tasks

Mr. McConachie claims that his regular activities at the time of the accident included housekeeping, renovations on the family home, exercise and weightlifting at a health club, hiking, walking, bicycling and canoeing.

Mr. McConachie's pre-accident life centred around exercise and recreational activities. He testified that he weight lifted at a fitness club about three times a week, walked his dog every day, hiked in local conservation areas, and bicycled around the neighbourhood. Mr. McConachie's testimony about his recreational activities was confirmed by his former girlfriend and by a neighbour. Occasionally Mr. McConachie participated in kickboxing, and went on a canoe trip once during the summer.

The evidence establishes that Mr. McConachie was committed to regular workouts and outdoor recreation. Except for the occasional canoe trip and martial arts, I accept that outdoor recreation and exercise at the gym were central to Mr. McConachie's daily and weekly routine prior to the accident. I find that weightlifting, gym exercise, hiking, walking and bicycling were also Mr. McConachie's essential tasks.

Before the accident Mr. McConachie did most of the housekeeping. His mother and brothers were employed outside the home. Mr. McConachie testified that he did the laundry, cleaned the bathrooms, vacuumed the house once a week, bought the household groceries and cooked most of the meals. I accept his evidence, and find that household cleaning chores and cooking were also part of Mr. McConachie's essential tasks.

The evidence also establishes that Mr. McConachie was performing home renovations at the time of the accident. Mr. McConachie testified that when his father died in early 1993, he quit his factory job in order to help renovate the family townhouse for sale. He removed the first floor carpeting, tiled the bathroom floor, painted the walls, repainted the kitchen cupboards and replaced the hardware, took up the kitchen linoleum and put down new flooring and baseboards, installed new electrical switches and fixtures on the first floor, and replaced the front hall closet with a telephone area.

Mr. McConachie admitted that he had no regular schedule or deadline for completion of the renovations. An "essential task" must be a key or necessary activity in which an insured would regularly or normally engage.² This does not include every activity,³ although they can be as varied as regular volunteer or seamstress work, babysitting,⁴ church attendance and Bible reading.⁵ While a person's essential tasks can be broader than housework and self-care, merely casual or ad hoc activity does not qualify.⁶

GAN contends that Mr. McConachie's home renovation activities should not be considered essential tasks because the work was casual. However, Mr. McConachie showed a commitment to these activities by quitting his factory job to help his mother prepare the house for sale. His completion of at least seven home projects during the five months before the accident indicates that he spent considerable time and significant effort on the renovations. I am satisfied that Mr. McConachie regularly engaged in renovation work on the family home prior to the accident, and that this was not a casual or sporadic activity.

GAN also argues that because Mr. McConachie's renovation work was limited to one year, it should not be considered an essential task. I am satisfied a year's work does not constitute short-term activity. Accordingly, I find that Mr. McConachie's renovation work was an essential activity of his pre-accident life.

Pre-Accident Condition

GAN contends that Mr. McConachie's complaints stem from injuries that he sustained prior to this accident. Mr. McConachie had strained his back lifting an industrial container in February 1991. As a result, he received physiotherapy treatment through the Workers' Compensation Board, returning to modified work later that year. Clinical notes from his family doctor indicate no subsequent low back complaints from late January 1992 until this accident.

Mr. McConachie also acknowledges that he strained his right shoulder while exercising in the month before the accident. Clinical notes from Mr. McConachie's family doctor indicate that he had pain in his right shoulder, particularly on rotation. These medical records establish that Mr. McConachie had recovered from this minor incident before the 1993 auto accident.

Mr. McConachie's claim that he was fully functional prior to the accident is supported by a former neighbour, Donald Poirier. Mr. Poirier worked out at a fitness club with Mr. McConachie through the summer of 1993, and testified that his neighbour was in good shape during that time. An employee of the club, Anthony Robbins, testified that Mr. McConachie regularly attended before the accident. The two men often talked about Mr. McConachie's recreational activities. On the above evidence, I accept that Mr. McConachie's occasional back pain and minor shoulder injury did not interfere with his ability to conduct his essential tasks before the accident.

Post-Accident Condition

Mr. McConachie testified that he significantly reduced his renovation work, household chores, and recreational activities after the accident. Mr. McConachie stated that he did not shop, prepare large or complicated meals, vacuum, make beds, clean the bathrooms, or do laundry. He admits helping his brother with a small amount of the renovation work after the accident. Mr. McConachie painted, did a small amount of drywall work and finished baseboards. He paced the work to his symptoms.

Mr. McConachie denies bicycling, weightlifting, canoeing or hiking since the accident. He spends most of the day in casual activities. Mr. McConachie admitted taking regular walks in his neighbourhood, performing stretching exercises and driving. He stated that his back pain required him to have help putting on his socks in the morning and cutting his toenails, and that he takes painkillers for relief.

Surveillance shows Mr. McConachie driving and walking. The October 12, 1994 videotape shows Mr. McConachie driving his car. Later that day, he is shown limping to a medical examination. In early August 1996, Mr. McConachie is seen driving his car, running errands carrying a duffel bag, walking, skimming debris from a backyard swimming pool and lounging in his yard. The surveillance is consistent with Mr. McConachie's claim.

Mr. McConachie's former girlfriend confirmed Mr. McConachie's claim that he suffered chronic back pain after the accident. Ms. Robin MacLean dated Mr. McConachie during 1994, and saw him almost every day. She testified that although Mr. McConachie looked fit and trim, he complained of muscle spasms and low back pain, which travelled down the back of his right leg. She helped him put on his socks and tie his shoes. Mr. McConachie's back pain interfered with their relationship. They continued regular walks in conservation areas for up to 45 minutes, but cancelled their summer hiking and canoeing plans, and spent a lot of time around the house watching TV. I accept this evidence.

However, Ms. MacLean also said that Mr. McConachie told her he worked out at a fitness club after the accident. Business records from an exercise club indicate that Mr. McConachie maintained his membership through April 1994, and that his last visit was in June of that year. One medical report states that Mr. McConachie suffered a visual "blackout" during exercises in 1994.⁷

I accept the independent evidence from Ms. MacLean and the health club that Mr. McConachie was exercising at his club after the accident. Mr. McConachie's denial that he worked out at the club indicates that he is not entirely reliable. I therefore rely on his testimony where it is independently verified by Ms. MacLean and supported by the medical evidence.

Medical Evidence

Until 1996, many of the health care professionals attributed Mr. McConachie's post-accident complaints to his pre-accident condition, non-organic factors, and lack of motivation. Yet a number of the consulting specialists remained concerned enough to order further diagnostic testing although x-rays, a lumbar myelogram and a CT scan revealed no abnormalities.

Two neurologists found no objective evidence for Mr. McConachie's pain. Dr. Moddel examined Mr. McConachie in February 1995. Basing his findings on the x-rays and CT scan, Dr. Moddel found no basis for a nerve root irritation, and was unconvinced by Mr. McConachie's complaints. Likewise, Dr. Bruce Stewart examined Mr. McConachie in early 1995, and was unable to find an objective basis for his complaints.

However, in August 1996, an MRI image of Mr. McConachie's lumbar spine showed thickening of the L5-S1 vertebrae, caused by a posterior, broad-based disc bulge and retrolisthesis (slipped disc).

Dr. Reuven Lexier, an orthopaedic surgeon who examined Mr. McConachie for GAN, was concerned about a possible disc problem prior to the MRI. However, after the MRI confirmed the condition, Dr. Lexier attributed it to congenital or developmental factors. He did not explain how he reached this conclusion. His report states that Mr. McConachie could return to all of his pre-accident activities.

Dr. Stewart interpreted the significance of this new evidence, as follows:

It is my opinion that this man did have previous low back symptoms, probably due to his lumbar retrolisthesis. The accident of August '93 was sufficient to re-produce his old symptoms, probably by enhancing the forward slippage of the S1 under L5, therefore impinging upon the L5 roots, more on the right. Although he does not have consistently positive nerve root signs, I believe that his post-traumatic symptoms are genuine.

Dr. Stewart provides a more complete explanation of the MRI than Dr. Lexier, and I accept his opinion on the causation of Mr. McConachie's low back symptoms.

The MRI also revealed spinal degeneration at all levels. In January 1997, Dr. Karl Massiah, another orthopaedic surgeon, diagnosed that the accident had aggravated Mr. McConachie's spinal degeneration and caused the slipped disc.

Prior to the MRI, the medical experts had no organic evidence to confirm Mr. McConachie's chronic complaints. It was a question of believing Mr. McConachie or not. After the MRI confirmed that Mr. McConachie's back pain had an organic source, Dr. Lexier did not address the significance of this new evidence. Therefore, I give little weight to his opinion.

Mr. McConachie has complained of low back pain and right leg symptoms from very early on after the accident. There is no evidence that he complained of right leg pain prior to the accident. During examinations in 1995 and 1997, Mr. McConachie complained that he lost sensation in his right foot. He is shown limping during one video surveillance. On balance, I find that the evidence supports my finding that the accident caused Mr. McConachie's low back and right leg pain. Based upon the proximity of Mr. McConachie's complaints to the accident, the consistency of the complaints and the opinions of Dr. Stewart and Dr. Massiah, I find on balance that the accident aggravated Mr. McConachie's degenerative changes in his spine, and caused or significantly contributed to his slipped disc, and consequential low back and right leg pain.

Disability Analysis

GAN claims that Mr. McConachie is not motivated to return to a more active life. Mr. McConachie does not dispute he has abused drugs in the past, failed college courses, and dropped out of a physiotherapy program in 1996. He has not worked or looked for work since the accident. However, in light of my findings that Mr. McConachie has an organic basis for his pain symptomology, I cannot accept Dr. Moddel's and Dr. Lexier's opinions that his lack of activity is primarily attributable to lack of motivation.

In October 1996, Mr. McConachie's family physician, Dr. Kruger, reported that his pre-accident condition made him more susceptible to the impact of the accident, and plausibly explains his low back and right leg symptoms. In 1993, Dr. Kruger had reported that Mr. McConachie was capable of personal hygiene and self-care, but would have difficulty with major cleaning tasks and home repairs or renovations. I accept Dr. Kruger's opinion.

Dr. Kruger's opinion supports the lay evidence. I accept Ms. MacLean's testimony that Mr. McConachie was unable to perform the regular and strenuous outdoor recreational activities which were an important part of his life (bicycling, hiking). As a result of Mr. McConachie's inability to conduct major cleaning tasks, home repairs and renovations, and strenuous outdoor activities, I find that he suffered a substantial inability to perform his essential daily tasks as a result of the accident.

Mr. McConachie claims weekly benefits for 156 weeks under section 13(1) of the Schedule. I find that Mr. McConachie is eligible for three years of weekly benefits from GAN i.e. through September 5, 1996.

Yardwork and Other Expenses

At the conclusion of the hearing GAN agreed to pay all of the outstanding chiropractic and transportation expenses that had been submitted. However, GAN did not agree to pay for yard maintenance services provided to Mr. McConachie after the accident.

Yard maintenance expenses fall within "other goods and services" under section 6(1)(f) of the Schedule. Medical or non-medical services must reasonably result from the accident, be required as a result of the accident, and authorized by a medical practitioner if requested by the insurer. GAN did not argue that a medical certificate is required.

Mr. McConachie submitted $775 in yard maintenance expenses to GAN in December 1996. His expense summary and receipts indicates that lawn cutting, snow and ice removal, raking leaves and moving lawn furniture was performed by a neighbour, Randy Brethour, between May 1995 and September 1996. Mr. McConachie told Rehabilitation Management in October 1996 that he had cut the lawn three times since the accident, but that his neighbour usually performed the heavier outside chores.

No expert evidence was received concerning Mr. McConachie's specific ability to perform yardwork. However, based upon Dr. Kruger's opinion that Mr. McConachie would have difficulty with heavier tasks, I can accept that snowshovelling would aggravate his back injury. On the other hand, pushing a rake or a power lawnmower around a yard, and stooping to bag leaves are similar to the walking that he admits are regular post-accident activities. Without medical evidence to support the less strenuous yardwork, I am not persuaded that mowing the lawn, raking leaves and moving lawn furniture are necessary or reasonable expenses resulting from the accident. I find that Mr. McConachie is entitled to payment of the $240 that he submitted for snow and ice removal.

Special Award:

An insurer shall pay a special award under section 282(10) of the Insurance Act when it has unreasonably delayed or withheld payment of benefits to an insured person. GAN has paid no weekly benefits to Mr. McConachie. He has been living on social assistance benefits. Mr. McConachie claims that he is entitled to a special award based upon GAN's complete denial of his eligibility for weekly benefits.

The adjuster's notes indicate that Mr. McConachie filed his claim in October 1993, and that GAN denied the claim in December that year stating, "It would appear that you can still perform your essential daily tasks therefore you are not entitled to disability benefits." Mr. Dwight Robinson, GAN's claims examiner, testified the denial was based upon Dr. Kruger's opinion, information obtained from Mr. McConachie and the adjuster.

However, Dr. Kruger's opinions and the adjuster's notes indicate that Mr. McConachie was having significant back problems after the accident. Dr. Kruger initially reported to GAN that Mr. McConachie would have difficulty with major cleaning tasks and repairs. The adjuster's notes indicate that Mr. McConachie told the Insurer that he could not continue his home renovations and was performing other tasks at a slower pace. At the time that the claim was denied, GAN had no evidence or expert opinion to contradict either Dr. Kruger or Mr. McConachie.

GAN's first medical examination was scheduled 10 months after the denial of the claim. In October 1994, Dr. Paitich reported to GAN that Mr. McConachie suffered a traumatic disc herniation as a result of the accident. Although the MRI later proved that the disc had not sustained a herniation, the evidence is that GAN ignored the opinion of its own assessor.

In February 1995, Dr. Massiah reported to GAN his suspicion that Mr. McConachie suffered a disc protrusion of the lumbar spine which impinged on a nerve root. In October 1996, Dr. Stewart read the MRI as confirmation of the disc bulge and nerve root irritation. Despite this objective evidence confirming Mr. McConachie's complaints, GAN never changed its position.

Evidence also suggests that GAN considered irrelevant information in initially examining Mr. McConachie's claim. The adjuster's notes show that GAN sought wage information from Mr. McConachie before it would pay weekly benefits, even though he was applying for benefits as a non-wage earner. GAN's claims examiner, Mr. Dwight Robinson, agreed that this information was irrelevant.

GAN's initial denial of the claim was contrary to the only existing medical opinion at that time (Dr. Kruger) and statements that the company took from their insured. Instead of immediately retaining another expert to provide a disability analysis, GAN waited 10 months to obtain a medical opinion, and then ignored his opinion (Dr. Paitich). However, considering that no expert provided an opinion which connected Mr. McConachie's disability to an organic problem resulting from the accident, GAN's conduct was not entirely unreasonable.

However, in October 1996, GAN had received the MRI report and Dr. Stewart's opinion. At that time GAN should have given fair and full consideration to Mr. McConachie's claim in light of this new evidence.⁸ Instead, the company maintained a stubborn and inflexible position after receiving this new evidence. After October 1996, I find GAN's continued denial of Mr. McConachie's claim for weekly benefits was unreasonable.

GAN's obstinate refusal to pay any weekly benefits in the face of objective medical evidence is a determining factor in the size of the special award. My order reflects that GAN pay Mr. McConachie approximately $29,000 in weekly benefits plus 2 percent interest, calculated in accordance with the Schedule. Under the circumstances, I am of the opinion that GAN's conducts warrants a sizable special award, amounting to one third of the base amount. Consequently, I find that Mr. McConachie is entitled to a lump sum special award of $10,000, inclusive of interest to this date.

Expenses:

I exercise my discretion to award Mr. McConachie his expenses of the arbitration process.

Order:

1. GAN shall pay Mr. McConachie a $185 weekly benefit from September 4, 1993 through September 4, 1996, together with interest according to the Schedule.

2. GAN shall pay Mr. McConachie $240 for snow and ice removal expenses, together with interest according to the Schedule.

3. GAN shall pay Mr. McConachie a $10,000 lump sum special award, together with simple two percent interest from the date of this order.

4. GAN shall pay Mr. McConachie his expenses of the arbitration proceeding.

December 18, 1997

Fred Sampliner

Arbitrator

Date

Footnotes

1. 1Prior to January 1, 1994, Ontario Regulation 672 was called the No-Fault Benefits Schedule. After that date it became the Statutory Accident Benefits Schedule —Accidents On or Between June 22, 1990 and December 31, 1993. In this decision, the term "Schedule" will be used to refer to Regulation 672.
2. 2Downs and Allstate Insurance Company of Canada (July 18, 1991), OIC A-000064
3. 3Cowie and the Non-Marine Underwriters (March 9, 1993), OIC A-001159
4. 4Craner and Pilot Insurance Company (November 8, 1995), OIC A-006174
5. 5Coe and Personal Insurance Company of Canada (February 13, 1996), OIC A-014676
6. 6Chor Ting Lui and Wellington Insurance Company (April 28, 1993), OIC. A-001894
7. 7Dr. David Boyle
8. 8Stoangi and Royal Insurance Company of Canada, (September 29, 1995), OIC A-008238, Murray and Wawanesa Mutual Insurance Company (August 23, 1996), OIC A-003224