ONTARIO INSURANCE COMMISSION

Neutral Citation: 1997 ONICDRG 64 OIC A96-000029

BETWEEN:

CONSTANTINA CORDEIRO Applicant

and

WELLINGTON INSURANCE COMPANY Insurer

DECISION

Issues:

The Applicant, Constantina Cordeiro, was injured in a motor vehicle accident on September 13, 1994. She applied for and received statutory accident benefits from Wellington Insurance Company payable under the Schedule.¹ Wellington has since been purchased by Halifax Insurance Company. The Insurer terminated weekly caregiver benefits on August 23, 1995 and expenses for housekeeping on September 30, 1995. The Applicant seeks ongoing benefits. The parties did not resolve their disputes through mediation and Mrs. Cordeiro applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is the Applicant entitled to caregiver benefits pursuant to section 18 of the Schedule after August 23, 1995?

2. Is the Applicant entitled to housekeeping expenses pursuant to section 55 of the Schedule after September 30, 1995?

3. Is the Applicant entitled to the cost of medical reports pursuant to section 57 of the Schedule?

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

Result:

1. The Applicant is not entitled to caregiver benefits after August 23, 1995.

2. The Applicant is not entitled to housekeeping expenses after September 30, 1995.

3. The Applicant is not entitled to the cost of medical reports pursuant to section 57 of the Schedule.

Hearing:

The hearing was held at the offices of the Ontario Insurance Commission in North York, Ontario, on March 10, 11 and 12, 1997.

Present at the Hearing:

Applicant: Constantina Cordeiro

Mrs. Cordeiro's Representatives: Antonin I. Pribetic, Barrister and Solicitor, assisted by Frank Rodgrigues, law clerk

Wellington's Representatives: Chris Blom, Barrister and Solicitor

Insurer's Officer: Brian Samec, Halifax Insurance Company (Halifax Insurance Company purchased Wellington after the accident)

Before: William J. Renahan, Arbitrator

Interpretation:

At the outset of the hearing I questioned Mrs. Cordeiro in English and determined that she required the services of a Portuguese interpreter. Part way through Mrs. Cordeiro's testimony, Mr. Pribetic's assistant, Mr. Rodrigues, indicated that the interpretation was inadequate. I asked Mr. Rodrigues to speak out when he thought the interpretation was inadequate. The only interpretation complaint he raised concerned which of two toes Mrs. Cordeiro referred to. Nothing turned on the matter and I was satisfied with the interpretation.

Mrs. Cordeiro spoke to her doctors in Portuguese. Dr. Gordon examined Mrs. Cordeiro at The Toronto Hospital Designated Assessment Centre for a medical and rehabilitation assessment on September 15, 1995 and reported that she spoke English quite well. I heard no evidence or argument that Mrs. Cordeiro was unable to communicate with the health care professionals who examined her.

Background:

Mrs. Cordeiro was born in Portugal where she completed grade 5. She immigrated to Canada at the age of 14 and the next year started work in a clothing factory. She married Antonio Cordeiro. The couple have two children, Caesar, born February 2, 1981, and Anthony, born September 13, 1994. Mrs. Cordeiro stopped working outside the house in about 1990. Mrs. Cordeiro is now 33 years old.

On September 13, 1994 Mrs. Cordeiro was stopped at a traffic light in Toronto when her vehicle was struck in the rear by another vehicle. A photograph submitted by the Insurer does not show any damage to the exterior of the vehicle. Mr. Cordeiro testified that the assembly which holds the bumper in place was damaged. The estimate to repair the vehicle, including the cost of replacing the rear bumper, was $671.

Mrs. Cordeiro testified that she had neck and back pain and felt nauseous. She drove home and the next day saw her family doctor, Dr. Kohut. Dr. Kohut ordered an x-ray of the cervical spine. The x-ray was normal. About two weeks later, Mrs. Cordeiro started seeing Dr. Gonzalez, another family doctor, because Dr. Kohut went on holidays. Dr. Gonzalez has continued to treat Mrs. Cordeiro. He prescribed analgesics and referred Mrs. Cordeiro to Dr. Manuel Rodrigues, a chiropractor, for therapy and exercises. Dr. Gonzalez also referred Mrs. Cordeiro to Dr. Schacter, a neurosurgeon, and to Dr. Sanchez, a psychiatrist.

Mrs. Cordeiro testified that her neck pain has improved a little but her back pain is worse and travels into her legs.

A CT scan performed on July 3, 1995 and a MRI performed on October 6, 1996 revealed degenerative changes and a disc bulge at L5-S1. Dr. Ogilive-Harris, an orthopaedic surgeon, examined Mrs. Cordeiro and reported to her lawyer on January 16, 1997:

I think it is pertinent to point out that many people in the general population have such degenerative changes. However, most of the them do not have symptoms. When, however, they are subjected to trauma, the degenerative areas, weaker than normal, becomes painful. And in this situation, it then requires treatment. I think this is the situation in this lady's case.

Dr. Ogilivie-Harris testified that Mrs. Cordeiro developed the degenerative changes before the accident and that the motor vehicle accident either caused or aggravated the disc bulge. He said that in the case of a degenerative spine, surgery usually makes the spine worse and is only resorted to in the case of paralysis. He also said that function is improved by pacing and exercise.

The Insurer paid Mrs. Cordeiro caregiver benefits from September 20, 1994 to August 23, 1995. It also paid $100 per week during this period for housekeeping expenses. Mrs. Cordeiro claims that she continues to satisfy the criteria for entitlement to caregiver benefits and housekeeping expenses. The test for entitlement to caregiver benefits is set out in section 18 of the Schedule and the test for entitlement to housekeeping expenses is set out in section 55.

The Law:

The relevant portions of section 18 are as follows:

18.-(1) An insured person who sustains an impairment as a result of an accident is entitled to a weekly caregiver benefit if the insured person meets the following qualifications:

1. . . .

2. . . .

3. As a result of and within two years of the accident, the insured person,

i. suffers a substantial inability to engage in the caregiving activities in which he or she engaged at the time of the accident, or

ii. suffers a partial or complete inability to carry on a normal life.

(2) Subject to subsections (3) and (4), the weekly caregiver benefit under this section is payable during the period that the insured person suffers,

(a) a substantial inability to engage in the caregiving activities in which he or she engaged at the time of the accident; or

(b) a partial or complete inability to carry on a normal life.

Mrs. Cordeiro claims that she satisfies the criteria under section 18(1) 3. i and ii in that she suffers a substantial inability to engage in caregiving activities and she suffers a partial inability to carry on a normal life.

"Partial inability to carry on a normal life" is defined in section 2 of the Schedule and Mrs. Cordeiro claims that she qualifies for caregiver benefits under paragraphs (b), (c), (d), (e) and (f) which provide as follows:

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

(a) . . .

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

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

(d) activities in which the person ordinarily engaged before the accident that require the exercise of cognitive powers;

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

(f) activities in which the person ordinarily engaged before the accident that require communication abilities.

Mrs. Cordeiro claims housekeeping expenses under section 55 which provides as follows:

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

The test for entitlement to weekly benefits involves a comparison of Mrs. Cordeiro's relevant pre-accident activities with her post-accident ability to engage in those same activities. If she proves that she suffered a substantial inability to engage in those activities, she must then prove that the injuries she suffered in the motor vehicle accident significantly contributed to that inability.

Some of the section 2 activities relevant to whether an insured suffered a partial inability to carry on a normal life can also be categorized as caregiving activities in relation to a child under 16 years of age. For example, making meals for a family is a household activity and a caregiving activity. Walking a child to school is a mobility activity and a caregiving activity. As well, evidence of an applicant's ability to perform household activities within the meaning of section 2, is relevant to the issue of the need for housekeeping expenses under section 55. The evidence relevant to the issues of ability to engage in caregiving activities, ability to carry on a normal life and the need for housekeeping services overlapped and I therefore considered all the activity-related evidence together.

The evidence on Mrs. Cordeiro's ability to engage in the relevant activities fell under the following headings: house cleaning activities; meal preparation activities; child care activities; and other activities, and I dealt with the evidence under those headings. I also considered the medical opinions on Mrs. Cordeiro's ability to engage in caregiving activities and her ability to carry on a normal life.

I heard very little testimony from Mr. and Mrs. Cordeiro about Mrs. Cordeiro's activity level before the accident compared with her activity level after the Insurer terminated benefits in August 1995. I gathered most of the evidence on her various activity levels from what she said to the various health care providers who filed reports.

House cleaning

At the time of the accident, the Cordeiro family lived in a two bedroom apartment. After the accident, on February 6, 1996, the Cordeiros purchased and moved into a house. Mrs. Cordeiro testified that before the accident, she did all the house cleaning by herself and that she cleaned every day. After the accident, her mother came to help her. She testified that her mother still comes every day, Monday to Friday, and does all the work. She admitted that she did some dish washing and dusting but could not say how much. When asked to be specific she frequently replied that how much she did depended on how she felt and that she tried to do what she could.

Mr. Cordeiro testified that his wife used to do everything and now she cannot do "lots of things" and that she has not cleaned the house since the accident. He said that Mrs. Cordeiro's mother helps with the housekeeping but he does not know how long she is at the house. He did not know that his wife could dust and he could not recall seeing his wife carry anything after the accident. Although a surveillance videotape taken in July 1996 shows Mrs. Cordeiro washing the interior of her vehicle, Mr. Cordeiro was not aware that his wife had ever washed the vehicle.

A kinesiologist interviewed Mrs. Cordeiro in August 1995 for a functional capacity evaluation for the Multi-Disciplinary Assessment Centre which is a Designated Assessment Centre for assessing disability. She recorded that before the accident, either Mrs. Cordeiro or her husband dusted, washed dishes and did laundry. After the accident the housekeeper performed these activities. Before the accident Mrs. Cordeiro made the beds and washed the floor. After the accident the housekeeper performed these activities. Before the accident Mr. Cordeiro vacuumed. After the accident the housekeeper vacuumed.

Dr. Gonzalez, Dr. Ogilvie-Harris and Dr. Rodrigues each said that Mrs. Cordeiro could do house cleaning tasks that did not involve frequent bending and twisting of the spine such as vacuuming, floor washing and tub cleaning. They did not see the surveillance video tape which shows Mrs. Cordeiro bending and squatting for over 30 minutes while she washed the interior of her vehicle.

The evidence was either vague or contradictory as to the house cleaning Mrs. Cordeiro did before and after the accident. I heard conflicting evidence on who dusted, washed dishes, did laundry and vacuumed before the accident. I heard conflicting evidence and vague evidence on how much dusting and dish washing Mrs. Cordeiro did after the accident.

Meal preparation activities

The kinesiologist reported that before the accident Mrs. Cordeiro did the shopping and since the accident Mr. Cordeiro does the shopping. Mr. Cordeiro testified that Mrs. Cordeiro goes with him when he shops and he also testified that she does not go with him when he shops.

Mrs. Cordeiro testified that she did all the cooking before the accident and that her mother has done all the cooking since the accident. She also said that she does what she can without explaining what that meant. The kinesiologist reported that both Mr. and Mrs. Cordeiro prepared the meals before the accident and that the housekeeper prepared the meals after the accident. On November 20, 1995, Dr. Rodrigues reported that Mrs. Cordeiro made breakfast for her children. On September 4, 1996, he reported that Mrs. Cordeiro is "rather active in meal preparation." When asked to comment on Dr. Rodrigues' comments on her activity level Mrs. Cordeiro explained that Dr. Rodrigues told her to do what she could. Mr. Cordeiro testified that Caesar or the babysitter make breakfast. He has never seen his wife make breakfast. Dr. Gonzalez testified that Mrs. Cordeiro is able to prepare meals for herself, her children and her husband.

I heard conflicting evidence as to whether Mrs. Cordeiro cooked meals or shopped with her husband.

Childcare activities

At the time of the accident Caesar was 13 years old and Anthony was nearly four. At the time caregiver benefits were terminated, Caesar was 14 and Anthony was four years, 10 months. Mrs. Cordeiro said that before the motor vehicle accident she took the children out and that now she cannot give her children attention. She said that her relationship with her children is bad and that sometimes she shouts at them. I heard no other testimony from Mrs. Cordeiro as to what care she provided to the children before or after the accident.

Mr. Cordeiro could not recall who took Anthony to junior kindergarten after the accident. He later testified that a family friend took Anthony to school. The kinesiologist reported that Mrs. Cordeiro occasionally walks to the school with the children and that the walk took 25 minutes. Nadia Woloshyn, an occupational therapist with the Designated Assessment Centre for disability reported: "She has tried to maintain as much of her role of mother as possible, she takes her children to school, makes a light breakfast, organizes them." Before the accident she was "more involved with children and socialized.....She feels guilty and upset about not being able to do as much as she would like with her children." On November 20, 1995, Dr. Rodrigues reported that "She takes her children to school on a regular basis every morning, makes breakfast for them and gets them ready for school." On September 18, 1996, Dr. Sanchez, the psychiatrist, reported that Mrs. Cordeiro went to school with her children much less often.

Dr. Rodrigues reported that Mr. Cordeiro takes care of the children. Mr. Cordeiro testified that he is away from home most of the time and that Mrs. Cordeiro's mother supervises the children. Dr. Gonzalez testified that Mrs. Cordeiro is able to perform the basic caregiving activities, although he did not talk to her about what she did with the children.

Most of the evidence on Mrs. Cordeiro's ability to care for her children before the accident and after benefits were terminated was not clear. The remaining evidence was contradictory. I heard conflicting evidence on whether Mrs. Cordeiro walked to school with her children and on whether Mrs. Cordeiro, her mother or Mr. Cordeiro cared for the children.

Other activities

Mrs. Cordeiro testified that she drives or uses public transportation to go to medical appointments and therapy. Mr. Cordeiro did not know that his wife could use public transit. Mrs. Cordeiro testified that she does prescribed exercises at home. Mr. Cordeiro testified that his wife does not exercise at home. Mr. and Mrs. Cordeiro both said that Mrs. Cordeiro cannot bend and that she has to support herself with her elbows when she washes her face. The surveillance videotape taken July 23, 1996, shows Mrs. Cordeiro washing the interior of her vehicle for more than 30 minutes. Most of that time she is bending. Mrs. Cordeiro testified that on two or three occasions she was confined to bed for two weeks because of pain. Dr. Rado, a physiatrist at the disability Designated Assessment Centre, reported that Mrs. Cordeiro told him that she was bedridden two or three times since the motor vehicle accident for three to five days at a time due to low back pain. However, Dr. Gonzalez, Mrs. Cordeiro's family doctor, did not know that Mrs. Cordeiro was confined to bed because of pain.

I heard conflicting evidence on whether Mrs. Cordeiro exercised at home, whether she could use public transporation and whether she could bend.

Medical opinions

Dr. Zeldin saw Mrs. Cordeiro in December 1994 and May 1995. He reported to the Insurer that Mrs. Cordeiro told him that she did her housework except for the heavier aspects. He reported: "I would think that she has long since recovered from her injury and on a physical basis she should be able to carry on with her full and regular pre-accident activity including the essential duties of her housework activities.

On September 27, 1995, Dr. Rado, a physiatrist with the Designated Assessment Centre for assessing disability, reported that he found inconsistencies on examination which were due to voluntary modulation of performance.

Dr. Schacter, a neurologist, reported to Mrs. Cordeiro's lawyer in October 29, 1996 that Mrs. Cordeiro was "Incapacitated from the workforce" due to low back pain.

Dr. Sanchez, a psychiatrist, reported to Mrs. Cordeiro's lawyer on September 18, 1996 that Mrs. Cordeiro's "prognosis to recover enough to function at a pre-accident level is poor."

Dr. Ogilivie-Harris, an orthopaedic surgeon, reported to Mrs. Cordeiro's lawyer on January 16, 1997 that "Now, she has significant restrictions and is not able to carry out the essential tasks as a home-maker. I feel this time, she would certainly be limited in her ability to bend or lift on a repetitive basis or do any of the heavier household chores."

Analysis:

The first part of the test for entitlement to caregiver benefits under both sections 18(1) 3 i. and ii. is a task or activity oriented test. The applicant must establish on a balance of probabilities what her relevant pre-accident activity level was and what her corresponding ability was for the period she is claiming benefits. She must then establish that the reduced ability to engage in the relevant activities amounts to a substantial inability to engage in the relevant activities she engaged in at the time of the accident. She must then establish that the disability was caused by injuries sustained in the motor vehicle accident.

Mrs. Cordeiro's testimony on her ability to engage in activity both before and after the accident was not clear. She answered many questions concerning her abilities by answering, "It depends." When asked for more specific information she replied, "It depends on how I feel." When faced with suggestions that she can do more than she admits to she replied, "I do what I can." Her testimony on her activity level before and after the accident was vague.

The evidence of Mrs. Cordeiro's witnesses, Mr. Cordeiro, Dr. Gonzalez, Dr. Rodrigues and Dr. Ogilvie-Harris and the evidence contained in the various reports of the health care providers as to what caregiving, mobility and household activities Mrs. Cordeiro engaged in before and after the accident was contradictory.

The burden is on Mrs. Cordeiro to establish on a balance of probabilities her pre-accident activity level and her post-accident ability to engage in those activities. I cannot determine on a balance of probabilities the level of Mrs. Cordeiro's pre- and post-accident caregiving, mobility and household activity. Nor am I satisfied that the medical opinions are based on a reliable information as to Mrs. Cordeiro's pre-accident activity level and post-accident ability to engage in those activities and I therefore do not find the medical opinions reliable.

Mrs. Cordeiro has not established that she suffered a substantial inability to engage in caregiving, mobility and household activities after August 23, 1995.

I heard no evidence on Mrs. Cordeiro's ability, either before or after the accident, to engage in activities that require the exercise of cognitive powers, that require the ability to control emotions or behaviour or that require communication abilities.

Mrs. Cordeiro has not established that after August 23, 1995, she suffered a substantial inability to engage in the caregiving activities in which she engaged at the time of the accident. Nor has she established that she suffered a partial inability to carry on a normal life after August 23, 1995.

Housekeeping expenses

Mr. Cordeiro testified that he paid Mrs. Cordeiro's mother $100 per week to provide housekeeping assistance. He did not know how much time his mother-in-law spent at this task. The Insurer paid housekeeping expenses until September 30, 1995. The evidence on the need for a housekeeper was vague and contradictory. I am not satisfied that Mrs. Cordeiro needed houskeeping assistance after September 30, 1995.

Cost of medical reports

I heard no evidence or argument that the Applicant was entitled to the cost of medical reports pursuant to section 57 of the Schedule.

Expenses:

The parties did not address the issue of expenses. If they cannot agree on whether the Applicant is entitled to her reasonable expenses pursuant to section 282(11) of the Insurance Act, either party can contact this office and I will make arrangements to determine the issue.

Order:

1. The Applicant is not entitled to caregiver benefits pursuant to section 18 of the Schedule after August 23, 1995.

2. The Applicant is not entitled to housekeeping expenses pursuant to section 55 of the Schedule after September 30, 1995.

3. The Applicant is not entitled to the cost of medical reports pursuant to section 57 of the Schedule.

April 14, 1997

William J. Renahan Arbitrator

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.