Neutral Citation: 1998 ONFSCDRS 108

FSCO A97-000042

BETWEEN:

KATHLEEN HART

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

DECISION

The Applicant, Kathleen Hart, was injured in motor vehicle accidents on May 3, 1994 and on May 29, 1994. She applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company ("State Farm"), payable under the Schedule.¹ In this arbitration Mrs. Hart claims entitlement to post 104 weeks of benefits as a result of the motor vehicle accident which took place on May 3, 1994. The parties were unable to resolve their disputes through mediation, and Mrs. Hart applied for arbitration at the Financial Services Commission of Ontario² under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

Is Mrs. Hart entitled to other disability benefits after 104 weeks ?

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

Mrs. Hart is not entitled to receive other disability benefits after 104 weeks.
I remain seized of the question of Mrs. Hart's entitlement to her expenses in respect of the arbitration.

Kathleen Hart was injured in two motor vehicle accidents in May 1994. The first of these took place on May 3, 1994; the second on May 29, 1994. At the time of these accidents Mrs. Hart was an active retiree, aged 65, married, who lived with her husband of some 46 years in a one bedroom apartment in Sarnia.The first of the accidents occured while Mr. and Mrs. Hart were returning from a pre-sale clean up of their trailer at a campground. Mr. and Mrs. Hart planned to sell the trailer and then travel east.

In the first accident, Mrs. Hart sustained two undisplaced rib fractures, multiple bruises of her left anterior chest wall, left breast, her left wrist, left forearm and left knee. She went on to complain of swelling and bruising of her left ankle. Her family physician, Dr. Canning opined that Mrs. Hart had suffered multiple soft tissue injuries of a severe nature and fractured ribs. In his opinion her initial injuries were aggravated by the second accident, but she sustained no new injuries.

State Farm paid Mrs. Hart other disability benefits, under section 19 of the Schedule, at the rate of $185 a week, for the initial 104 week period based on a partial inability to carry on a normal life. In this arbitration Mrs. Hart claims that she continues to be entitled to receive these benefits. After 104 weeks of benefits, the Schedule prescribes a much more onerous test, namely a complete inability to carry on a normal life.

According to section 3 of the Schedule a person meets this test "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 ordinarily engaged before the accident." The issue in this arbitration is whether Mrs. Hart meets that test. Mrs. Hart contends that she does; State Farm that she does not.

Pre-accident activities

Mrs. Hart, her daughter, son, and son-in-law all testified about Mrs. Hart's work, travel, gardening, home maintenance, and recreational activities spanning a period of some 30 years. Her counsel submitted that I should examine those activities and determine whether Mrs. Hart was continuously prevented from doing them as a result of her injures. I do not agree that the Schedule should be interpreted in this manner.

The Schedule requires a consideration of the activities in which Mrs. Hart ordinarily engaged at the time of the accident. Although the Schedule states "at the time of the accident"those words are used in conjunction with "ordinarily engaged." Ordinarily engaged suggests a consideration of activities which are performed with some frequency or regularity in the normal course of events. In order to obtain a fair and reasonable picture of such activities it may be necessary to consider Mrs. Hart's activities for some period before the accident. In Mrs. Hart's case since some of her activities were seasonal, I find that an ample time frame would be within the year before the accident; not over a period of 30 years.

I also find that in determining Mrs. Hart's pre-accident activities, the Schedule requires me to consider only those activities in which Mrs. Hart actually engaged at the time of the accident, not those activities in which she might have been able to engage. This is particularly significant in Mrs. Hart's case because following their retirement Mr. and Mrs. Hart shared the responsibilities for housework. Mr. Hart performed some of the heavier household chores. Where they shared a specific chore, I must look solely at Mrs. Hart's function in performing the chore or activity. After Mr. Hart's death in 1995, from causes unrelated to either motor vehicle accident, Mrs. Hart had greater responsibilities for carrying out the household chores. I accept that this test may seem unrealistic in Mrs. Hart's changed circumstances. However, it is the test which the Schedule imposes and which I apply.

In the pre 104 week period the Schedule defines the range of activities against which disability is measured. These are personal care, mobility activities, household activities, activities requiring the exercise of cognitive poswers, the ability to control emotions or behaviour or communication abilities.³ I agree with Arbitrator Blackman that the scope of the activities considered in the post 104 week period may be broader than those in the pre 104 week period.⁴

I find that Mrs. Hart's pre-accident activities were carrying out her personal care, her household responsibilities of dusting, laundry, ironing, meal preparation, baking, setting the table, loading the dishwasher, washing dishes by hand including heavy pots and pans, and planting the flower boxes on the balcony of the apartment. She also shopped for groceries with her husband, who carried the heavy bags of groceries. I find on the basis of Mrs. Hart's statements that Mr. Hart did the cleaning which required furniture movement, vacuuming, made the bed, unloaded the dishwasher, cleaned the 3 piece bathroom and took out the garbage.

Mrs. Hart's children* denied that their father played any significant role in performing household chores. Mrs. Vachon scoffed at the notion, and suggested that perhaps once in a while her father might have taken out the garbage. I have considered their testimony in making my finding as to Mrs. Hart's pre-accident activities. While their testimony may have accurately reflected the division of household chores between their parents while they were growing up in the family home, I prefer Mrs. Hart's testimony that she and her husband shared household responsibilities in the apartment in which they lived for four years prior to the accident. Her testimony is consistent with her prior statements to an occupational therapist and rehabilitation counsellor made within four months of the initial motor vehicle accident.

Mrs. Hart prepared large family dinners for her husband, herself, their children and grandchildren at Thanksgiving, Christmas, and at times on Sundays. At these dinners she would bake each grandchild's favourite dessert. She would also babysit her grandchildren on the weekend. I have no evidence of the frequency of the babysitting or the Sunday dinners. At the time of the accident Mrs. Hart's grandchildren would have been approximately 9,11,12, 16, 20, 21,22 and 23.*

I find that Mrs. Hart's mobility activities were driving and daily walking. She engaged in a number of recreational activities. She danced with her husband once a week, took line dancing and clogging lessons three hours per week, camped, (where she walked, biked, swam, played bingo, danced and was involved in the camp olympiad. Mr. and Mrs. Hart hosted a corn roast for the campground and attended dances, and had their children and grandchildren stay with them at the camp in their trailer. ) Mrs. Hart attended baseball games a couple of times a year, sewed and altered and mended her grandchildren's clothing and knitted for them. She travelled to Florida with her husband where they spent the winter. She occasionally travelled with her sister to Toronto or Detroit. I find that in the year before the accident Mrs. Hart lived a busy and active life.

Pre-accident health

Mrs. Hart testified that at the time of the accident she enjoyed excellent health. According to the records of Dr. Schwab, a chiropractor, Mrs. Hart complained of low back pain in April 1993, just over a year before the first motor vehicle accident. Dr. Schwab treated Mrs. Hart's left sacroiliac joint, left hip, left leg and left knee on ten occasions between April and June 1993. These were the very areas of which she complained following this accident. However, Dr. Schwab's final entry in June 1993 states "better."⁵

Mrs. Hart was asked if she had trouble with her back before the accident. She replied:" Not to my knowledge; I was dancing." She stated that she did not remember seeing Dr. Schwab for back pain before the accident. She expressed doubt that Dr. Schwab's records were correct, since she was dancing at the time. However, the chiropractor's notes reflect that Mrs. Hart was clogging at the time. According to Mrs. Hart clogging is similar to tap dancing.

There were several instances during Mrs. Hart's testimony where she could not recall events or recalled them differently than the way they were reflected in various documents. Generally when documents which conflicted with her memory were put to Mrs. Hart, she acknowledged that she was in error. At times she appeared to be truly shocked by the conflict between her own testimony and the statements in various documents. In one instance she she had initialled each page of the document. I accept that Mrs. Hart may have become somewhat forgetful; however, there is no suggestion that this is related to her motor vehicle accident injuries. Where there is a conflict between her evidence and documents I generally prefer the documentary evidence. In this instance I prefer the documentary evidence in Dr. Schwab's record.

Post-accident health

Following the accident Mrs. Hart wore a rib belt for approximately two months due to her fractures. She was initially treated with rest, analgesics, anti-inflammatories, ultrasound, interferential, ice, and physiotherapy. Her family physician anticipated that she would need twelve months to recover from her injuries. For the first nine months following the accident Mrs. Hart seemed to be making progress in keeping with, or even ahead of Dr. Canning's timelines, until her husband's death in March, 1995.

In August 1994, Crawford and Company completed an activities of daily living form. Mrs. Hart initialled each page. Based on this document, Mrs. Hart was able to perform her self-care; she would have a bath if her husband was present to help her out of the tub, otherwise would she would shower. Of her household chores she was unable to wash heavy pots and pans, carry laundry to and from the laundry room in the apartment building. She was partially able to do the ironing. She could make lunch, but did not make supper or do baking. Her grocery shopping was unchanged. She had not tried to plant the flower boxes.

Crawford and Company arranged for an occupational therapist to help Mrs. Hart return to her pre-accident level of function, and educate her on proper body mechanics and energy conservation techniques. On September 9, 1994, Ms. Walker conducted an assessment of Mrs. Hart's homemaking activities. She concluded that with pacing and modification of her activites, Mrs. Hart was able to perform all her pre-accident homemaking activities.

Mrs. Hart had difficulty carrying the laundry downstairs to the laundry room in the apartment building. Ms. Walker recommended that Mrs. Hart use a laundry cart to carry laundry to and from her apartment. At the hearing Mrs. Hart acknowledged that she was able to do the laundry with the assistance of the laundry cart. Ms. Walker noted that Mrs. Hart had difficulty with meal preparation because standing aggravated her low back. She recommended that Mrs. Hart sit at the kitchen table for most of the preparation, and, when standing, that she place one foot on a small stool to reduce low back strain. Mrs. Hart testified that she had no recollection of the advice relating to meal preparation and the reduction of low back strain when standing.

Mrs. Hart agreed to have one further visit with Ms. Walker to ensure that she was carrying out household activities correctly. The other activities included vacuuming, mopping and sweeping which were part of her husband's chores, pre-accident. According to Ms. Walker's report of October 17, 1994 when she telephoned to arrange an appointment Mrs. Hart "stated she was managing well and did not require any further occupational therapy intervention."

On November 21, 1994, Dr. W.P. Southcott, an orthopaedic surgeon examined Mrs. Hart at State Farm's request. In Dr. Southcott's opinion, from an orthopaedic point of view, there was no restriction Mrs. Hart's activities, although she would experience some pain with lifting grocery bags, carrying laundry bags and vacuuming. He recommended an active rehabilitation program geared to returning her to her pre-accident status as soon as possible. Similarly, on or about November 22, 1994, Dr. Canning agreed that Mrs. Hart was able to complete her household tasks and could return to her pre-accident activity level, provided she did no heavy lifting.

Mrs. Hart completed a 20 session* comprehensive rehabilitation program at the Canadian Back Institue, and was discharged on February 22, 1995. Her physiotherapist and kinesiologist reported that Mrs. Hart was capable of resuming all her activities of daily living using appropriate assistive devices, as recommended by the occupational therapist. Mrs. Hart "was not interested in attending further treatment nor did she feel it was necessary." She was discharged from active treatment and provided with a home program to build and maintain the strength of her ankle, knee and trunk muscles.

The physiotherapist and rehabilitation counsellor recommended, and Mrs. Hart agreed, to meet with an occupational therapist to ensure that she was using proper body mechanics in carrying out her household activities That meeting was scheduled to take place on March 10, 1995, but was postponed due to Mr. Hart's death. At the end of April 1995, the therapist contacted Mrs. Hart to reschedule but "she informed the therapist that she was able to complete all of her activities around her home and that she did not require any further intervention."⁶ Mrs. Hart testified "I don't believe I said that. There is no way." She testified that she did not remember the offer of a follow up appointment. For the reasons given earlier, I prefer the statements in the documents of Mrs. Hart's refusal of further occupational therapy in October 1994 and April 1995 to the recollection she provided in her testimony.

Approximately two weeks after Mr. Hart died in March 1995, Mrs. Hart began experiencing episodes of chest pain lasting 15 to 20 minutes at night. No significant cardiovascular cause was found to account for her symptoms and they were treated as panic or anxiety attacks. I have no medical evidence which suggests that these panic or anxiety attacks were related to either motor vehicle accident. Her family physician prescribed anti-anxiety medication.

In May 1995, Dr. Southcott reassessed Mrs. Hart. He noted that Mrs. Hart had improved with the rehabilitation program and had then regressed. He opined that she "had been through a hard time in her life lately with the death of her husband and she probably has a functional overlay which is only a normal reaction." He noted Mrs. Hart's increased workload, because her husband was no longer available to help with household chores, seems to have set her back. In Dr. Southcott's opinion from a physical and orthopaedic point of view, Mrs. Hart could participate in most normal activities of daily living. He restricted her from heavy lifting, noted that bending over and vacuuming may aggravate her problem. He felt that she should ease into the additional work, or even have some help on a temporary basis.

Dr. Newell, a physiatrist* who saw Mrs. Newell at the requst of her counsel in July 1998 opinied that Mrs. Hart had a significant reactive depression to her husband's death, and was not coping in an adaptive manner. Dr. Newell stressed that it was important for Mrs. Hart to receive bereavement counselling to help her deal with the consequences of her loss of her husband of over 40 years. Mrs. Hart testified that between October 1997 and May 1998, she was hospitalized on 6 occasions with cardiac problems. She had a heart attack, angioplasty and had a stent inserted. In Dr. Newell's opinion Mrs. Hart's functionning was "dramatically altered by the heart attack, her heart surgery in December 1997 and her convalescence. . Mrs. Hart's daughter agrees that her mother is depressed but attributes it to frustation about her level of inactivity which she attributes to the accident. Mrs. Hart does not agree that she is depressed. I prefer the opinion evidence of Dr. Newell to the views of Mrs. Hart and her daughter.

In August 1995 Mrs. Hart was assessed by an orthopaedic surgeon and an occupational therapist at a designated disability assessment centre. The assessors concluded that Mrs. Hart continued to be substantially disabled in performing her household activities, and recommended further active treatment to improve function. Dr. McKinlay noted that the main problems limiting function are the knee and back," She is able to do light house work, even vacuuming if she takes her time, but I think she would remain disabled in terms of her performing the majority of her household activities until she had significant improvment from both her back and her knee pain. I note that Mrs. Hart's essential tasks as listed on the assessment of disability form included at least some of her husband's pre-accident chores, such as vacuuming and sweeping the floor.

Dr. Miller, (date and qualifications) examined Mrs. Hart on a referral from her family physician following a request of her lawyer. In his opinon some of Mrs. Hart's pain was attributable to peripheral vascualr disease, but most was due to the motor vehicle accident. He opined that she has a permanent, partial impairment with a resulting partial inability to perform her household activities because of an inability to squat and /or kneel as well as frequent bending.

In May 1997, Dr. Clifford, who had earlier examined Mrs. Hart at State Farm's request. reviewed video surveillance of Mrs. Hart shopping and driving. He opined that Mrs. Hart had no inability to carry on a normal life.

Mrs. Hart acknowledges that following the accident, she has experienced panic or anxiety attacks, been hospitalized with a heart attack, and been hospitalized with angina attacks, has had a stent inserted, and is presently receiving B12 injections to "bring my blood back up"

I find the medical evidence and the evidence of other health practitioners raises significant questions as to the extent to which Mrs. Hart's ongoing complaints relate to the motor vehicle accident or to other factors. I do not need to decide the causation question. I find that none of the medical evidence supports Mrs. Hart's view that she is continuously prevented from engaging in substantially all of the activities in which she participated pre-acident.

Post-accident activities

Mrs. Hart complains that she is unable to do her housework, cooking and recreational activities. She finds that she has not improved "that much" since the accident and expresses frustration that life is passing her by. She attributes all of her difficulties to the motor vehicle accident.

Mrs. Hart is able to carry out her personal care. I find that when her actual pre and post accident housework activities are compared that she is substantially able, with modification and pacing to do what she did before the accident. There is no suggestion that she is unable to dust; she now makes the bed. She can do the laundry with the use of a laundry cart, she irons with the use of a towel instead of taking out the ironing board.

She testified that she is unable to prepare large meals; however, it would appear that she has not attempted to modify this task as recommended by the occupational therapist. Ms. Walker suggested that she sit as much as possible while doing food preparation. She is able to use her kitchen applicances. Mrs. Hart prepares her breakfasts, lunches, and eats frozen TV dinners, or dinners in restaurants with her daughter and son-in law three to four times a week. In effect she is preparing 17 to 18 out of 21 of her own meals. There is no suggestion that she is unable to set the table. She testified that she has not resumed her baking.

Mrs. Hart now loads and unloads the dishwasher; she still has difficulty with heavy pots and pans. She has not planted the flower boxes on the balcony of the apartment. Mrs. Hart testified that this is because everything has to be lifted up; her daughter testified that she seems to have lost interest. Her daughter testified that she and her children began cleaning her bathroom and doing her housecleaning after Mr. Hart's death. Mrs. Hart describes this as something "they just automatically came" and started doing after the accident.

Mrs. Hart's recreational activities are now, reading, watching television and, knitting. When asked the reason why she could not sit and sew she stated: I don't want to. I don't feel comfortable sitting there doing it.." Post-accident she took up aquaaerobics three days a week. She testified she stopped this when the facility near to her closed and because of her heart attack. However she anticipated receiving clearance to resume this activity from her cardiologist in September 1998. Mrs. Hart is able to drive for short distances within Sarnia. Instead of daily walking in the park, she walks in the mall when she feels up to it, perhaps a few days during the week. She has not resumed dancing. She quit being a member of the 445 club shortly after her husband died. She stated that she did not want to go to the club without him and didn't feel that she could do anything when she got there.

In terms of camping she visits her daughter and son-in-law's trailer, but does not stay overnight. I accept that her sitting tolerances of 60 minutes at a time, and up to 5-6 hours a day ⁷would make a 23 hour drive as a passenger to Florida unfeasible.

I accept that there is a marked contrast in Mrs. Hart's pre and post accident recreational activities in baking, and in preparing large family meals, and that there has been a change in the quality of her life. In the post 104 week period, Mrs. Hart is entitled to other disability benefits only if she is continuously prevented from engaging in substantially all of her pre-accident activities. I find, without deciding the issue of causation, that Mrs. Hart retains a number of abilities and has not established that she is not continuously prevented from engaging in substantially all of the activities in which she ordinarily engaged before the accident. I conclude that Mrs. Hart is not entitled to receive other disability benefits during the post 104 week period.

Compliance with section 64

The Applicant alleged that State Farm failed to comply with the procedural requirements of section 64 in effecting a stoppage of her benefits. As a result she claimed ongoing entitlement to other disability benefits and a special award. Although State Farm stopped paying Mrs. Hart other disability benefits in 1996, this allegation was made for the first time on the first day of the hearing, some two years later. I ruled that Mrs. Hart had waited far too long to raise a claim for entitlement on a procedural basis in this arbitration.

In her written submissions, Mrs. Hart claimed a special award under section 282(11) of the Insurance Act, based on the alleged breach of section 64 of the Schedule. A special award is granted where the arbitrator concludes that the Insurer has unreasonably withheld or refused to pay benefits. I have concluded on a substantive basis that Mrs. Hart is not entitled to other disability benefits. Since there are no benefits outstanding, there is no basis on which I could make a special award. I find that Mrs. Hart is not entitled to a special award.

Expenses

The Applicant claimed her expenses in respect of the arbitration. If the parties are unable to agree on expenses, I remain seized of the question of expenses.

Order:

Mrs. Hart is not entitled to other disability benefits after 104 weeks.
If counsel are unable to agree on expenses I remain seized of this issue.

Suesan Alves

Arbitrator

Date

Appendix A

Hearing:

The hearing was held in Point Edward, Ontario, on August 11 and 12, 1998, before me, Suesan Alves, Arbitrator.

Present at the Hearing:

Applicant:

Kathleen Hart

Mrs. Hart's

Carl E. Fleck

Representative:

Barrister and Solicitor

State Farm's

Matthew G. Duffy

Representative:

Barrister and Solicitor

Witnesses:

Kathleen Hart, Sharon Anne Vachon, Claude Vachon, James Hart

Exhibits:

Exhibit 1

Amended Production Brief of Applicant, with 12 tabs

Exhibit 2

Insurer's Production Brief, with 21 tabs

Exhibit 3

Accident Benefits Application Package in relation to May 3, 1994 accident

Exhibit 4

Application for accident benefits re May 29, 1994 accident

Exhibit 5

Letter from Fleck & Daigneault to State Farm Mutual Automobile Insurance Company, dated July 6, 1994

Exhibit 6

Two surveillance videotapes dated February 19, 1997 and July 8, 1998

Footnotes

The Statutory Accident Benefits Schedule — Accidents after December 31, 1993 and before November 1, 1996, Ontario Regulation 776/93, as amended by Ontario Regulations 635/94, 781/94 and 463/96. O.R. 776/93 was extensively modified by O.R. 781/94; accordingly, where necessary, "1994 Schedule "refers to the original O.R. 776/93, and "1995 Schedule "refers to O.R. 776/93 as amended.
Effective July 1, 1998, the Ontario Insurance Commission was changed to the Financial Services Commission of Ontario, pursuant to the Financial Services Commission of Ontario Act, S.O. 1997, c.28.
Section 2 (a)-(f)
Sheppard and Personal Insurance Company of Canada , (OIC A97-000460 October 31, 1997)
Post- accident Mrs. Hart has complained of pain in the same areas which Dr. Schwab treated. Dr. Canning's first notation of post-acident of complaints of low back pain are in August 1994, approximately 3 months after the second accident . Most of the physicians who have examined Mrs. Hart have questionned her attribution of her pain in these areas following the accident and the motor vehicle accident. Dr.Clifford reported in *that Mrs. Hart denied any pre-accident problem, with her back, leg, knee or ankle. He noted the gap between the accidents and the onset of her low back complaints and opined that any ongoing pain in these areas was unrelated to any injury she may have sustained in the motor vehicle accidents. I do not need to resolve the causation question in reaching my decision.
Letter dated August 9, 1995 from Crawford & Company
These tolerances were determined in a functional capacities assessment conducted by the designated assessment centre in August 1995

Kathleen Hart v. State Farm Mutual Automobile Insurance Company, 1998 ONFSCDRS 108

Case Summary