Neutral Citation: 1997 ONICDRG 91
OIC A96-000368
ONTARIO INSURANCE COMMISSION
BETWEEN:
ROBERTA URQUHART
Applicant
and
ZURICH INSURANCE COMPANY
Insurer
DECISION
Issues:
The Applicant, Roberta Urquhart, was injured in a motor vehicle accident on November 6, 1992. She applied for and received statutory accident benefits from Zurich Insurance Company ("Zurich"), payable under Ontario Regulation 672.1 Zurich terminated benefits on November 15, 1995. The parties were unable to resolve their disputes through mediation and Mrs. Urquhart applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The issues in this hearing are:
Is the Applicant entitled to ongoing benefits pursuant to section 13 of the Schedule for any period beyond November 15, 1995?
Is the Applicant entitled to 12 hours of homemaker services per week pursuant to section 6(1)(f) of the Schedule for any period beyond November 15, 1995?
Mrs. Urquhart also claims interest on any amounts owing, and her expenses incurred in the hearing.
Result:
The Applicant is not entitled to further benefits pursuant to section 13 of the Schedule.
The Applicant is entitled to 12 hours of homemaker services per week at the rate charged by Comcare from November 15, 1995, onward, pursuant to section 6(1)(f) of the Schedule, together with interest on any outstanding amounts in accordance with section 24 of the Schedule.
Hearing:
The hearing was held in London, Ontario, on October 1, 2, 3, and December 20, 1996, and at the offices of the Ontario Insurance Commission for submissions on February 19, 1997.
Present at the Hearing:
Applicant: Roberta Urquhart
Mrs. Urquhart's Representative: Paul Brooks, Barrister and Solicitor
Zurich's Representative: Ian M. Boundy, Barrister and Solicitor
Witnesses:
Ms. Roberta Urquhart
Ms. Beverly Kostis
Mr. Michael Monk
Dr. Chess
Dr. Eaton
Ms. Catherine Sydor
Dr. Teasell.
Exhibits:
11 exhibits were filed. They are listed in Appendix One to these reasons.
Evidence and Findings:
(i) The Accident and the Nature of the Injury
Mrs. Urquhart was involved in a high speed collision at a highway intersection. The vehicle Mrs. Urquhart was driving was broadsided. The impact pushed the driver's door inward, against her left leg. The force of the impact badly fractured Mrs. Urquhart's left femur in the area of the trochanter (the outer aspect of the femur immediately below the hip).
(ii) Background
Mrs. Urquhart was 22 years old at the time of the accident. She lived approximately 20 minutes outside of London, with her husband and three pre-school aged children. Since the accident, Mrs. Urquhart has separated from her husband and is living in a common law relationship with Michael Monk, and her children. She has given birth to another child. She and her family now live in London.
Prior to the accident, Mrs. Urquhart had successfully completed grade 11, a six month course in restaurant management, and a couple of courses in bookkeeping and computers. She had worked outside of the home caring for both children and the elderly. Her last job before the accident was a six month stint at a restaurant. Mrs. Urquhart had been an unpaid homemaker for approximately two years preceding the accident, during which time she collected mother's allowance.
In the late 70's and early 80's, Mrs. Urquhart underwent a number of surgeries to correct mal-rotated hips that caused her to be knock-kneed and pigeon-toed. Mrs. Urquhart claimed that these childhood surgeries were successful and that prior to the accident she suffered from no further significant problems related to her hips or lower limbs, other than some minor problems that she related to her pregnancies.
With the exception of the above noted surgeries, Mrs. Urquhart consistently denied that she had any significant pre-accident medical history. A review of her family physician's clinical notes and records suggests otherwise. Mrs. Urquhart visited Dr. Eaton approximately 50 times between May 1986 and November 1992. In addition to the number of visits, the nature of the complaints are notable. On a number of occasions, Mrs Urquhart complained of persistent pain in her hips and ankles. On one occasion her doctor suggested that she give up her job caring for the elderly, because of the physical demands. It would appear that Mrs. Urquhart had trouble coping with both physical and emotional difficulties. She suffered from insomnia, anxiety, depression, and an irritable bowel that may have been a physical response to stress. On various occasions she was prescribed antidepressants and sleeping aids. Mrs. Urquhart was argumentative during cross-examination on her prior history and tried to explain away references as trivial when they obviously were not.
It was apparent to me that Mrs. Urquhart was prepared to ignore or seriously minimize those parts of her medical history that she perceived were detrimental to her case. In light of this, I must approach her evidence concerning her post-accident history with caution.
(iii) Nature of the Claim
Mrs. Urquhart was paid a weekly benefit of $185.00 plus $50 for each of her three children. In addition the Insurer paid various amounts for housekeeping and child care assistance. These benefits was terminated on the third anniversary of the accident. Mrs. Urquhart is seeking reinstatement of both benefits.
With respect to the housework and child care assistance, Mrs. Urquhart is seeking homemaker assistance pursuant to section 6(1)(f) of the Schedule. It has long been accepted that subsection (f) is not designed to replace the injured persons services for the benefit of other family members, but that homemaking services will be a recoverable expense where requiring the injured person to complete the tasks would interfere with her own rehabilitation or would be unreasonably difficult or painful.
With respect to the weekly benefit, because Mrs. Urquhart received these benefits for three years following the accident, section 13(8) of the Schedule provides that the Insurer is only liable to continue paying these benefits if Mrs. Urquhart is continuously prevented from engaging in substantially all of the activities in which she would normally engage.
It is important to keep in mind that the test for benefits under the two sections is different. Amongst other things pain, is only a consideration under section 13 in the event that it is disabling. Under section 6, the Insured may be entitled to assistance, if she can demonstrate that it is a reasonable expense, despite the fact that she is not "disabled" by the pain. It is also worth noting that section 13(8) stipulates that a benefit is payable only if the disability extends to substantially all of the person's activities, whereas a benefit may be claimable under section 6 if the individual needs assistance doing only the heavier household chores. Nonetheless, because most of a homemaker's activities involve the upkeep of the household and care of the children, a examination of a homemakers entitlement to benefits under the two sections raise many of the same considerations.
(iv) Post-accident Medical Care
Before examining Mrs. Urquhart's condition at the time benefits were cut off, it is necessary to briefly set the stage by setting out her medical care and condition in the three years following the accident.
Mrs. Urquhart was transported from the scene of the accident to a local hospital, where her fracture was treated by a procedure known as "gamma nailing." The procedure involves the insertion of a intermedulary rod which is affixed with screws. Under normal circumstances, once the bone has united the hardware is removed. In this case the original estimate for the removal, was approximately one year post accident.
Mrs. Urquhart's initial recovery was slower than expected, and was complicated by pain in her left knee. On November 16, she was discharged from hospital, at which time she was able to ambulate with the assistance of crutches. Physiotherapy was prescribed to assist her with gait training and strengthening of the muscles in the leg and hip.
By approximately three months post accident, Mrs. Urquhart had progressed to the use of a single cane. She was examined by a resident assisting her orthopaedic surgeon, on February 24, 1993. The resident's clinical note records: (1) a positive Trendelenberg gait, (2) the greater trochanter was broken during the surgery, and portions of the bone were protruding into the surrounding tissue, (3) her abductor muscles were weak, and (4) physiotherapy was to be continued. The two most significant notations were the indication of a Trendelenberg gait, and the prominence of the greater trochanter.
The term Trendelenberg gait, depicts a swinging of the injured limb in a stiffened fashion, and is typically due to weakened abductor muscles. Although there is some divergence in the evidence, that I will refer to later, I find that Mrs. Urquhart has retained this awkward gait, and that it continues to seriously hinder her mobility.
The prominence of the greater trochanter is significant because the protrusion of the bone into the adjacent tissue was a source of irritation and pain that was later only partially alleviated by removing bone spurs and sanding down a portion of the remaining bone. Again there is some variance in the evidence about the nature and extent of the pain, but I find that Mrs. Urquhart continues to suffer from significant pain that is attributable to the injury sustained in the accident. Mrs. Urquhart was seen by another resident approximately a month later, at which time she continued to complain of significant pain extending down to her left knee and up into her back. This pain was presumed to be due to the protruding bone, but it was decided to delay the corrective surgery until the hardware was removed. Again a note of weak abductors was made and physiotherapy was continued, with a follow up appointment for three months hence.
Approximately a month later, the rehabilitation consultant retained by the Insurer met with Dr. Bailey, the orthopaedic surgeon. Dr. Bailey advised the consultant of the left hip pain and the need for corrective surgery, and stated that the pain might be limiting her walking and bending, but that, he felt that she was capable of the essential tasks of daily living and child care despite the fact that she might have genuine limitations with heavy household tasks. Based upon this opinion the Insurer terminated weekly benefits. After further discussions with the Insurer these benefits were reinstated until the three year mark.
In May, the consultant met with the physiotherapist. In a note of the conversation, the consultant recorded that the Applicant could walk "perfectly" with her cane. The physiotherapist's actual note said "walks without limp with cane and reports 3/10 pain with cane. Without cane there is a gross limp and reports 7/10 pain." During the hearing, counsel for the Insurer argued that this was strong evidence that by the spring of 1993, before anyone was concerned about building a case for litigation, Mrs. Urquhart was well on her way to recovery, and was capable of walking "perfectly," albeit with a cane. I do not agree. Firstly, the actual note from the physiotherapist does not use the word "perfectly," it merely records the absence of a limp. Secondly it is inconsistent with the bulk of the evidence which suggests that even as of the date of the hearing, Mrs. Urquhart has continued to have trouble walking, even with a cane. I take the notation to be limited to an indication of her ability in a clinical setting, while being asked to walk a short distance. In addition I note that even in those conditions, Mrs Urquhart was reporting pain. Mrs. Urquhart was very upset at Dr. Bailey's suggestion that she was capable of performing the essential tasks of daily living. During the hearing she indicated that she was particularly angered by his statements in light of the fact that she had been seen by his residents, not by him, and accordingly, she did not think he was in any position to reach such a conclusion. Mrs. Urquhart asked her family doctor to refer her to another surgeon. Apparently there was some confusion surrounding that referral and the second surgery was unfortunately delayed.
In January 1994, a little more than a year post-accident, Mrs. Urquhart was referred by her counsel to Dr. Teasell, a physiatrist, for a medical-legal consult. His report recorded that on examination he found a "marked Trendelenberg gait" and significant weakness on formal testing of her abductors. He also noted marked tenderness over the greater trochanter and significant wasting in the hips and buttocks. Dr. Teasell concluded that she would have significant difficulties with walking or standing for any length of time, or with activities that required any degree of heavy physical activity, such as "heavier housework, child care etc."
Dr. Teasell testified that he was "deeply disturbed" by the fact that Mrs. Urquhart's rehabilitation was "sub-optimal" by London standards. Accordingly, despite the fact the referral was for medical-legal purposes, he took the unusual step of contacting the family physician to suggest that she be referred immediately to an orthopaedic surgeon.
Mrs. Urquhart was seen by Dr. Chess, an orthopaedic surgeon, in March 1994, at which time the hardware was removed, some of the bone spurs were removed and the largest protrusion was sanded down a little. Mrs. Urquhart was non weight bearing for the next six weeks and was referred for further physiotherapy.
Her progress was reviewed by Dr. Chess in February 1995, approximately 11 months after the second surgery. He continued to note weakness in the abductors, diffuse muscle wasting and the Trendelenberg gate. He also recorded a leg length discrepancy. His report states that he did not foresee any great improvement in the future. Dr. Chess testified that he did not think that his efforts had helped Mrs. Urquhart very much.
Dr. Chess testified that the pain in the hip area was due to continued irritation and inflammation caused by the protruding bone. With respect to the muscle weakness, he indicated that the injury and ensuing surgery had damaged the muscle tissue and ligaments, and that disuse or guarding of the area because of pain would result in further muscle loss. He referred Mrs. Urquhart for further physiotherapy, because he had "nothing else to offer her," but was not optimistic that she would regain much strength.
During the hearing Mrs. Urquhart ambulated by listing to the left, while leaning heavily on a cane in her left hand and swinging her straightened leg. Dr. Chess was taken aback by this evidence. He indicated that she had been taught to use the cane in her right hand, and that the use of the cane in her left hand represented a deterioration in her gait.
Dr. Chess reviewed Mrs. Urquhart in the spring of 1995. His prognosis remained unchanged.
(v) Medical-Legal Opinions
In addition to treating physicians, Mrs. Urquhart was seen by four specialists for medical-legal purposes. The first was Dr. Teasell, to whom I have referred earlier. The second was Dr. John Clifford, an orthopaedic surgeon who examined Mrs. Urquhart in July 1995, in connection with the related tort action.
Dr. Clifford agreed with Dr. Chess's prognosis that Mrs. Urquhart would have a permanent leg length discrepancy, and limp. He also agreed that restrictions on her physical activities would be necessary to minimize the following activities: prolonged standing, stooping or squatting, repetitive bending, and repetitive/heavy lifting at the waist. However, despite these restrictions, Dr. Clifford stated he anticipated that with appropriate aids and instruction on energy conservation that Mrs. Urquhart "could be expected to perform all domestic activities on an independent basis." He further reported that continued housekeeping assistance five days per week was "likely unnecessary on a prolonged basis. Indeed continuing to utilize such services may well serve to re-enforce ongoing dysfunction."
Dr. Clifford also indicated that it was possible that Mrs. Urquhart had entered a chronic pain stage, however he stated that it was his impression that the "clinical presentation at the time of the consultation likely represented an attempt to over estimate the implications of her MVA-related injuries as well as her current level of dysfunction." Dr. Clifford cited Mrs. Urquhart's less than candid history regarding her prior complaints, the discrepancy between her gait on examination and the physiotherapists report (referred to earlier), and a clinical presentation he characterized as "pain magnification," in support of his impression.
The third medical-legal consult was conducted by Dr. Carey, a orthopaedic surgeon who practises in association with Dr. Bailey, Mrs. Urquhart's original surgeon. Dr. Carey reported that Mrs. Urquhart did not have a "very noticeable" limp when using her cane, however he did note some restriction in her stride length and "swing-through" on the left side. With respect to walking without the aide of a cane he reported a significant Trendelenberg limp. Like most of the other physicians he noted loss of abductor strength, which he graded as 4-.
Dr. Carey reported that he "would expect that she [Mrs. Urquhart] should be somewhat impaired in performing her essential daily living activities." However, he did not "feel that she would be unable to do these activities but would require more energy expenditure and discomfort with performance of them." Dr. Carey indicated that the same would apply to Mrs. Urquhart's caregiver activities. Dr. Carey, like Dr. Clifford thought that Mrs. Urquhart would benefit from further physiotherapy aimed at increasing her ability to perform household tasks.
Finally, the Insurer relied heavily upon the opinion of Dr. Lacerte, a specialist in physical medicine and rehabilitation, who examined Mrs. Urquhart in September 1995. Like all other physicians, he found some loss of strength in her abductors, which he graded as four out of five. However he was of the view that the loss of strength was minimal and could not explain the Applicant's "somewhat shuffled" gait, which during his testimony he characterized as "bizarre" given her "virtually normal strength and full range of motion."
With respect to loss of strength in Mrs. Urquhart's abductor muscles, the Insurer's counsel urged me to accept the opinion of Dr. Lacerte over all others. He suggested that few of the other physicians had done formal testing, and that when such testing was done it demonstrated a grade of 4 or 4- at worst, which in Dr. Lacerte's view would not result in any impairment. I do not accept this opinion. A review of the medical records filed, and the testimony of the physicians who appeared, reveals that most physicians did do formal testing, though not all chose to report the findings using a numerical grade. Secondly, regardless of what grade the physicians used, be it numerical or descriptive, it was apparent that most of the doctors considered the loss of strength as noteworthy. Many commented directly upon the loss of strength, in relation to the troubles with Mrs. Urquhart's gait.
As part of the IME performed by Dr. Lacerte, Mrs. Urquhart was asked to complete a number of self-evaluations. She routinely reported an inability or difficulty with virtually every household and child care activity listed on the forms. When asked to rate her disability, she tended to select the more severe, and frequently most severe categories. She also believed her condition had worsened over time and she was pessimistic concerning the future.
Dr. Lacerte, refuted the suggestion that Mrs. Urquhart was disabled. Dr. Lacerte indicated that her-self reported functional disability was disproportionate to her mild physical impairment, and could not be justified. He postulated that there were "psychosocial barriers to rehabilitation with possible secondary gains." In closing he stated that he found "it very distressing to see a young woman adopting such disabling behaviour."
In reaching his conclusions, Dr. Lacerte relied upon photos taken of Mrs. Urquhart by a private investigator. The photographs are still photos reproduced from a videotape. The pictures depict Mrs. Urquhart standing just inside her door while her children are playing out in the yard. In one photo she is shown stooping to pick up her infant child. Dr. Lacerte testified that the movements and lack of visible pain behaviours are inconsistent with Mrs. Urquhart's claims. I am not prepared to accept Dr. Lacerte's conclusion. In my view, other equally consistent conclusions can be drawn from the photos. For example it appears that Mrs. Urquhart is leaning on a door, which is consistent with her claims that she cannot stand unaided for any length of time. It is also noteworthy that she remains indoors while her children play outside. It is unfortunate that the Insurer chose to present only a few photos rather than the entire tape and all of the investigators reports which might have provided a more complete and useful depiction of Mrs. Urquhart's activities. .
(vi) Lay evidence concerning the Applicant's physical condition
Mrs. Urquhart's own evidence concerning her physical condition is somewhat contradictory, particularly as it concerns her condition after the second surgery. On some occasions she appeared to be suggesting that she was worse off after the second operation. I prefer her evidence to the effect that the second operation took away some of the sharp "bony type" pain, and that following the operation she noticed some increase in the strength in her leg. This evidence is more consistent with the evidence of the expert witnesses.
Despite the fact that she enjoyed some gains after the second surgery, Mrs. Urquhart, her mother, and her common law husband, all testified that over the course of the last year or so, the Applicant's condition has worsened. All three testified that her stamina has diminished, that she is able to walk only very short distances and that her pain is becoming more generalized. Mrs. Urquhart now complains of pain radiating throughout the left side of her body, a painful and stiff neck, pain in her lower back, and headaches. Mrs. Urquhart testified that the back back pain has become a constant problem. Counsel for the Insurer suggested that this was a new symptom that could not be related to the accident. In support of this submission he relied upon the opinion of Dr. Lacerte, who also noted that it appeared to be a recent problem. However, I note that complaints of back pain can be found as early as the physiotherapist's notes made shortly after the accident. I reject the Insurer's submission, and find that the back pain is due in part to the awkward positions the Applicant assumes to compensate for her leg pain.
Mrs. Urquhart testified that as of the date of the hearing, her standing ability was limited by pain to a maximum of five minutes, and her walking tolerance was similarly limited to a block or so. She testified that sitting for anything beyond 10 minutes causes an increase in her pain and that after 30 minutes she has to get up. Mrs. Urquhart stated that only on her very best days can she bend down, and that she cannot lift or carry even relatively light objects because of pain and poor balance.
I stated at the outset I have concerns about relying upon the Applicant's unsubstantiated complaints. Those same concerns were expressed by Dr. Clifford. However a number of specific instances related by Mrs. Urquhart and her family suggest to me that her condition has in fact deteriorated over that last year or so. One such example concerned an occasion where Mrs. Urquhart was unable to walk the single city block between her house and a neighbour's. Another concerned an attempt to attend one of her son's cross-country races. She was unable to walk the relatively short distance to the viewing area, and missed the race. I accept that, even allowing for some exaggeration on Mrs. Urquhart's part, her condition has worsened over the last year. In that regard I note that at the end of 1995, the Applicant's homemaker assistance was terminated, and that consequently the demands upon the Applicant have increased. Dr. Teasell testified that for individuals such as Mrs. Urquhart, who suffer from chronic pain, the key is pacing. As the demands on Mrs. Urquhart increase, her ability to pace herself so as to keep within her pain tolerance is undermined, resulting in a more generalized malaise. This opinion is consistent with the evidence of Mrs. Urquhart and her family, all of whom testified that if Mrs. Urquhart is more active in the morning than usual, she becomes visibly more tired and uncomfortable by the afternoon.
(vii) Reports Concerning Functional Capacity
The earliest report commenting upon Mrs. Urquhart's functional capabilities is found in the caseworker's report to the Insurer on February 8, 1993. To put the report in context it should be noted that it concerns the period shortly after her return home, when she had just progressed from using a single crutch to a cane. At that time Mrs. Urquhart reported to the caseworker that her mobility was increasing, and that she could drive her children back and forth to school, but that she still could not pick up or run after the children, and could not go out in the community with them unassisted. She could do grocery shopping, but could not carry the groceries. Likewise, she could load and unload the washer, dryer and dishwasher, but could not carry the laundry or the dishes. She could do light housework such as dusting and sweeping, but not vacuuming. Of particular significance was the notation that Mrs. Urquhart could not work for more than 10-15 minutes without a rest.
A further report on Mrs. Urquhart's functional capabilities is found in the caseworker's report dated April 19, 1993. At that time the Applicant continued to report difficulties with carrying objects and caring for her children, particularly the two-year-old. Endurance continued to appear to be a problem. While testifying, Mrs. Urquhart disagreed with the suggestion in the latter report that she could do the vacuuming if she broke it down into small segments, but on the whole agreed that the report was an accurate reflection of her abilities at that time.
I note one other apparent inconsistency between the report and the lay witness's evidence that relates to Mrs. Urquhart's ability to prepare meals. The report suggests that she is able to complete meal preparation, the only caveat being that she had to leave the cleaning up until later in the evening or until the next day. All of the lay witnesses testified that Mrs. Urquhart's ability to prepare the dinner meal has been impaired, and that she is much more reliant upon others to prepare meals in advance which she then re-heats, or alternatively to assist her at the time they are prepared. Mrs. Urquhart herself testified that she generally now prepares much simpler meals, and orders out more frequently, especially if she is having a "bad day." I accept this evidence. It was a common theme throughout all the evidence I heard, and is consistent with the medical evidence which suggested that as the day progresses and the demands upon her are increased, her reserves of energy and pain tolerance are taxed.
In December of 1994, approximately two years post accident, Mrs. Urquhart's counsel retained Associative Rehabilitation Inc. (ARI) to prepare a Functional Capacity Evaluation and Rehabilitation Report. The reports of the initial evaluation, clinical and in-home testing, and follow-up contacts were filed. A second evaluation was conducted in June of 1996 and the comparative report was filed. In addition, Ms. Catherine Sydor, the Occupational Therapist who undertook the evaluations, testified.
At the time of the first evaluation, Mrs. Urquhart was still living with her husband, who was at home and provided some assistance with child care activities. However, on alternate weekends she had her husband's four children from a previous marriage to contend with. She was receiving approximately six hours of homemaker help paid for by the Insurer.
The evaluation included a physical assessment, and the reports suggest that the ARI testing revealed more physical restrictions such as decreased ranges of motion, than were recorded by the various medical practitioners. In those respects I prefer the evidence of the medical practitioners. However the value of the ARI report is in its detailed analysis of Mrs. Urquhart's abilities within her own home, and in that regard I found it very helpful.
Ms. Sydor was particularly concerned that Mrs. Urquhart frequently employed improper and unsafe body mechanics when completing household chores. Ms. Sydor reported that Mrs. Urquhart tended to guard her left side and to shift weight to her right leg and hip. This pattern was particularly noticeable when carrying or lifting objects. Mrs. Urquhart also utilized improper mechanics when stooping or bending. According to Ms. Sydor these poor mechanics impaired Mrs. Urquhart's ability to do house cleaning and to prepare meals. Ms. Sydor also noticed that Mrs. Urquhart tired easily even with relatively light tasks, and that as she tired her pain behaviours became more prominent, and that her gait and body mechanics deteriorated and in some cases became unsafe. Ms. Sydor discontinued at least one test because of concerns about the client's safety. In addition, Ms. Sydor noted indications of poor balance, which further compromised Mrs. Urquhart's ability to lift and carry even small weights. Poor balance and distorted body positions also affected her ability to sweep and mop floors.
Ms. Sydor concluded that Mrs. Urquhart was incapable of meeting her homemaker and child care responsibilities. To assist Mrs. Urquhart, she recommended the purchase of a number of aids including a cart for transporting items such as dishes, long handled cleaning tools, and safety bars in the bathroom. She also supported the continued provision of housekeeping services, and recommended an active conditioning program and instruction with regard to the proper use of the aids, and better techniques for the organization and completion of household and child care activities. In addition, she recommended funding for a chronic pain program.
I did not hear any evidence concerning the chronic pain program, but I understand that the other recommendations were followed up. In addition, after her husband moved out, and was no longer assisting with the household chores, her homemaker assistance was increased to 12 hours per week.
As noted above, a number of the medical legal reports suggested that with appropriate aids, and further education and rehabilitation, Mrs. Urquhart should be capable of carrying out her household chores independently. This optimism was not borne out on a follow-up investigation performed by Ms. Sydor in June 1996. At the time of this second evaluation the Applicant was not receiving any homemaker assistance, but was relying heavily upon the assistance of her mother, who prepared a couple of meals per week, bathed the smaller children once per week and helped with housework.
Ms. Sydor reported that Mrs. Urquhart's capabilities over the two periods remained comparable. In fact, if the comprehensive comparison charts are reviewed it is apparent that Mrs. Urquhart was more impaired. Where Mrs. Urquhart was able to use the assistive devices, her abilities were improved, such as transporting dishes using the cart. However her endurance was diminished. For example rising from a kneeling position with the help of her arms, elevated her heart rate to 121 b.p.m. Ms. Sydor prematurely terminated the vacuuming test when Mrs. Urquhart's heart rate increased to a unsafe level. Also of note was the Applicant's apparent inability to alter her improper mechanics when instructed to do so. Ms. Sydor also noted a decrease in Mrs. Urquhart's mobility underlined by her observation that the Applicant was using a cane inside the home whereas during the earlier evaluation she had been able to get around within the home by relying upon household fixtures to balance herself.
Ms. Sydor was obviously sympathetic to Mrs. Urquhart, but just as obviously she undertook a careful examination of the Applicant's abilities, and relied upon objective criteria including physical responses such as increased heart rates to assist in her evaluation. On cross-examination she was challenged about her ability to objectively asses Mrs. Urquhart, and it was suggested to her that she may have been fooled by Mrs. Urquhart. I accept her evidence that over the course of the days she spent with Mrs. Urquhart she had an opportunity to test for impairment and exaggeration in oblique manners, and that she was satisfied that Mrs. Urquhart was not deceiving her.
Conclusions:
I am satisfied that Mrs. Urquhart is entitled to homemaker assistance. Many of the individual heavier tasks and those that require a lot of lifting or stooping and bending are very difficult and painful for Mrs. Urquhart. In addition taken as a whole, the amount of work entailed in managing a household of small children taxes Mrs. Urquhart's limited reserves, and leaves her unable to effectively pace herself and manage her pain.
The optimism of some of the physicians such as Dr. Clifford and Carey has not been borne out. While the psychosocial and secondary gain concerns raised by Dr. Lacerte may very well be playing a role, and there were indications of exaggeration in Mrs. Urquhart's testimony, I am nonetheless satisfied that her complaints of pain and fatigue are genuine, and that they justify homemaker assistance pursuant to section 6(1)(f) of the Schedule.
Dr. Teasell testified that he believed Mrs. Urquhart would need 10 to 12 hours of homemaker assistance to allow her to effectively pace herself and manage her pain. Mrs. Urquhart was receiving 12 hours of assistance per week prior to the benefit being terminated. That level of service is to be restored, and Mrs. Urquhart is to be paid a lump sum equal to the cost of 12 hours of homemaker service per week, from the date the benefit was terminated to the point where it is restored. The lump sum is to reflect the rates charged by the service provider throughout the applicable period.
The more difficult question I face is whether the extent of Mrs. Urquhart's disability justifies an award of a weekly benefit pursuant to section 13 of the Schedule. In that regard, Mrs. Urquhart's counsel relies very heavily upon Arbitrator Young's decision in Ms. G and Allstate Insurance Company (December 7, 1995), OIC A-013283. Like the present case, the Applicant sustained a severe orthopaedic injury that impaired her mobility. However it should also be noted that unlike Mrs. Urquhart, Ms. G. also sustained a "closed head" injury that impaired her mental faculties. In that sense Ms. G. was substantially worse off than Mrs. Urquhart, and the parallels between the two cases cannot be drawn to closely.
The real value in a reading of the Ms. G. case is in Arbitrator Young's analysis of subsection 13(8). As the wording of the section is crucial I take the liberty of setting it out in full.
(b) for any period in excess of 156 weeks unless it has been established that the injury continuously prevents the insured person from engaging in substantially all of the activities in which the person would normally engage.
Arbitrator Young focuses on the words "engaging in." He concludes that the words suggest a qualitative analysis, and that where the individual's ability to carry out the activity is changed markedly and the character of the activity is not comparable, it cannot be said the person is "engaging in" the activity. I agree that counsel and arbitrators alike must avoid falling into the trap of focusing exclusively on the constituent elements of an activity. The activity must be seen as a whole. I also agree that a qualitative assessment is necessary and that if the length of time that it takes an individual to complete a task becomes extreme, an Arbitrator may be justified in concluding that the person is unable to engage in the activity. Likewise if the degree to which an individual can partake in an activity is sufficiently restricted it is safe to say that the person is no longer "engaging" in the activity.
However, it is also crucial to keep in mind that whereas in section 13(1) entitlement is premised upon a "substantial inability," pursuant to section 13(8) only individuals who are prevented from engaging in activities are entitled to a benefit. In my opinion, when viewed on a continuum, "prevented from engaging in" represents a higher degree of disability than "substantial inability."
In light of this, while it is true that a qualitative analysis is merited, it must be employed against the backdrop of the ultimate question, which is whether the person is prevented from engaging in the activity. In considering this case, we must also remember that the disability must extend to substantially all of the activities in which the person would normally engage.
In my view the medical evidence does not support an award of a weekly benefit. The optimism of Drs. Clifford and Carey concerning Mrs. Urquhart's ability to carry on her household duties, was not borne out, but their reports cannot be read in any fashion that would support a weekly benefit. Dr. Lacerte completely rejected the ongoing disability claim. Dr. Chess spoke to Mrs. Urquhart's mobility problems, and supported her claim that she would have trouble stooping bending and lifting, but he had little to say about her general ability to carry out her daily activities. The most sympathetic physician was Dr. Teasell. Dr. Teasell reiterated on a number of occasions that Mrs. Urquhart was severely disabled by her pain and that she would need assistance in coping with her household duties. But he also agreed with the statement put to him on cross-examination that he was not suggesting that she could not do anything, and stated that in fact there were a variety of things she could do.
The impression left by Dr. Teasell was that the key to managing a case like Mrs. Urquhart's was eliminating some of the excessive demands and pacing the balance. In my view that is not the same thing as saying that the person is incapable of engaging substantially all of their usual activities. To the contrary, it suggests to me that with the appropriate level of assistance, the person will be able to manage their daily affairs. In fact I note that Dr. Teasell was hopeful that with further physiotherapy and retraining Mrs. Urquhart might be able to reenter the workforce when her children were grown.
On balance I am not satisfied that Mrs. Urquhart's disability is so pervasive that it prevents her from engaging in substantially all of her usual activities. I am satisfied that Mrs. Urquhart suffers from a significant mobility impairment. Similarly there is no doubt in my mind that Mrs. Urquhart suffers from a substantial inability to engage in many of the household chores she must accomplish in a day. I am also accept that she is even prevented from engaging in some of them. However it must be remembered that she is able to engage in other activities, notwithstanding that some of hose activities must be modified. For example, I note that Mrs. Urquhart is able to drive her car, and thereby transport herself and her family to and from activities. She is able to do grocery shopping, provided that she has assistance with carrying the groceries. She is able to fix her children's breakfast, and lunch. She is capable of supervising her children's preparations for school. She is capable of reading stories to the younger children, albeit that activity sometimes takes place on her bed where she can lie down. She is able to attend for her children's various appointments.
In addition she can partake in other more physically demanding activities, albeit for short durations. I am satisfied that some of those activities are so truncated that it can safely be said that she is prevented from engaging in them. With respect to other activities such as supper preparation or light house cleaning, while I am satisfied that her ability to engage in them has been impaired, I do not think that it can be said that she is prevented from engaging in them.
In reaching this conclusion, I am not unmindful of the argument that when Mrs. Urquhart's life is viewed as a whole, her ability to carry on her daily activities has been so severely impaired by pain, and lack of mobility, and that the character of the activities she is able to engage in have been so severely altered that it can fairly be said that she is prevented from engaging in substantially all of her usual activities. I accept that Ms. Urquhart's life has been drastically altered. However, I do not believe that it can fairly be said that taken as a whole she is prevented form engaging in substantially all of her usual activities.
In reaching this conclusion I am also mindful of the fact that Mrs. Urquhart will be receiving 12 hours of homemaking services, which together with continued therapy and counselling will assist Mrs. Urquhart with coping with her pain thereby allowing her to participate in a wider range of activities.
Expenses:
Mrs. Urquhart succeeded with respect to the claim for housekeeping expenses. Her claim for weekly benefits was ultimately unsuccessful, but it was a valid dispute in my view. In the circumstances, I exercise my discretion to award Mrs. Urquhart her expenses.
Order:
Mrs. Urquhart is entitled to 12 hours of homemaker services per week at the rate charged by Comcare from November 15, 1995 onward, together with interest on any outstanding amounts in accordance with section 24 of the Schedule.
Mrs. Urquhart is not entitled to further weekly benefits.
Mrs. Urquhart is entitled to her expenses incurred in respect of the arbitration.
June 4, 1997 Date
Stewart McMahon Arbitrator
Appendix One
List of Exhibits:
- Insurer's Medical Brief
- Applicant's Medical Brief
- 13 photos dated, Augut 12, 1995
- Applicant's Rehabilitation Brief
- Dr. Chess's C.V.'s
- Catherine Sydor's C.V.'s
- Report to ARI by Dr. Eaton dated, January 20, 1995
- Dr. R. Teasell's C.V.'s
- Dr. Eaton's C.V.'s
- Consultation Notes from Dr. Bates
- Dr. Michael Lacerte's C.V.'s