Neutral Citation: 1998 ONFSCDRS 14

FSCO A96-000478

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

LEANNE PATRICK

Applicant

and

PEEL MUTUAL INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Leanne Patrick, was injured in a motor vehicle accident on September 13, 1994. She applied for and received statutory accident benefits from Peel Mutual Insurance Company ("Peel"), payable under the Schedule¹ Peel terminated weekly income replacement benefits in January 1995 on the basis that Mrs. Patrick had not been involved in an accident. During the hearing the Insurer argued in the alternative, that if Mrs. Patrick was involved in an accident, any injury sustained was trivial and could not form the basis for entitlement to any form of benefit. Mrs. Patrick seeks ongoing caregiver benefits, housekeeping expenses, physiotherapy and counselling. The parties were unable to resolve their disputes through mediation, and Ms. Patrick applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Was Mrs. Patrick involved in an accident, as that term is defined in the Schedule?

2. Is Mrs. Patrick entitled to a caregiver benefit for any period beyond January 23, 1995?

3. Is Mrs. Patrick entitled to housekeeping expenses?

4. Is. Mrs. Patrick entitled to be reimbursed for the cost of a pair of sunglasses?

5. Is Mrs. Patrick entitled to physiotherapy treatments?

6. Is Mrs. Patrick entitled to be reimbursed for past psychological counselling by Dr. Arnold, and if so is she entitled to the cost of ongoing treatment?

7. Is Mrs. Patrick entitled to be reimbursed for travel expenses to physiotherapy and Drs. McTavish's and Arnold's offices?

8. Is the Insurer entitled to a repayment of the benefits it has paid, on the basis that Mrs. Patrick was not involved in an accident?

9. Is Mrs. Patrick entitled to a special award?

Ms. Patrick also claims interest on any amounts owing and her expenses incurred in the hearing.

Result:

1. Mrs. Patrick was involved in an accident.

2. Mrs. Patrick is entitled to a caregiver benefit from January 24, 1995, until September 13, 1996, on the grounds that she has sustained a partial inability to carry on a normal life.

3. Mrs. Patrick is entitled to ongoing housekeeping expenses of 8 hours per week at a rate of $9.10 per hour.

4. Mrs. Patrick is not entitled to be reimbursed for the cost of a pair of sunglasses.

5. Mrs. Patrick is entitled to further physiotherapy.

6. Mrs. Patrick is entitled to be reimbursed for the cost of treatment by Dr. Arnold totalling $906.50 to the date of the hearing, and ongoing.

7. Mrs. Patrick is entitled to be reimbursed for the following travel expenses, plus ongoing expenses.

i. Physiotherapy $ 49.56

ii. Dr. Arnold $ 430.43

iii Dr. McTavish $ 272.58

8. Mrs. Patrick is entitled to interest on overdue expenses in accordance with the Schedule.

9. Mrs. Patrick is entitled to her expenses.

10. Mrs. Patrick is not entitled to a special award.

Hearing:

The hearing was held in Barrie, Ontario, on September 15, 16, 17, 18 and 22, 1997.

Present at the Hearing:

Applicant: Leanne Patrick

Ms. Patrick's Representative: Edward V. Bergeron, Barrister and Solicitor

Peel's Representative: S.J. Chip Petrillo, Barrister and Solicitor

Arbitrator: Stewart M. McMahon

The proceedings were recorded by Legal Reporting Services.

Witnesses and Exhibits:

The witnesses and exhibits are set out in Appendix A to these reasons.

Evidence and Findings:

Was Mrs. Patrick involved in an accident?

Before describing the events on the day in question a little background is necessary. At the time, Mrs. Patrick and her two primary school-aged children lived in a rural community north of Toronto. In the summer of 1994 Mrs. Patrick was advised that her eldest daughter Kayla would have to attend a new school. This upset Mrs. Patrick. She was also annoyed by the length of time that Kayla was on the bus and the lateness of the hour at which she dropped off after school. In addition, Mrs. Patrick wanted the bus to stop at her house. Mrs. Patrick raised each of these matters with Ms. Clement, the bus driver. These discussions extended over the first week or so of school, leading up to September 13, the day of the "incident." Both Mrs. Patrick and Mrs. Clements testified that for their part they were calm and polite, but that the other was verbally abusive. Having had the benefit of hearing from both the participants, and reviewing the statements of a number of students on the bus, I am satisfied that in fact the "discussions" became increasingly heated as the days passed, and that each of the participants used language they would rather not admit to. A number of pieces of evidence support the finding that the atmosphere was becoming charged.

• Mrs. Clements complained to both the school officials and the bus company, that she was being harassed by Mrs. Patrick.

• Mr. Payne, the owner of the house adjacent to the bus stop, testified that in the days leading up to the day in question he could hear the two arguing. Mr. Payne appeared a little protective of Mrs. Clements. He stated that while he could clearly hear Mrs. Patrick use profanity, he was not in a position to hear what the driver said. It was however clear to me that Mr. Payne was recounting discussions that were not one-sided.

• Cst. J. B. McKelvey testified that Kayla Payne, a student on the bus, told him that she could hear Mrs. Patrick and Mrs. Clements swearing at each other.

• Derrick Fairbairn another student on the bus, gave a statement to the police in which he stated "I could hear them yelling."

• Mrs. Clements was angry enough that on the day in question, after she closed the door in Mrs. Patrick's face, she wanted "to see the look on her face when I drove away."

Mrs. Clements testified that by September 13 she had decided she had to find some way to stop Mrs. Patrick arguing with her every day. She made up her mind that after the children got off the bus, if Mrs. Patrick began to complain, she was going to close the door and then drive away. Mrs. Patrick was indeed waiting that afternoon and after the children got off the bus she approached the front door and began to address Mrs. Clements. Mrs. Clements testified that she held up her hand, said "excuse me," and then closed the door of the bus. In a statement given to the police she stated "I shut the door in her face. "This latter version is consistent with the statement given to the police by Mrs. Clements'son.

Mrs. Clements was adamant about two facts. One; that she did not start to drive away until she saw Mrs. Patrick and her daughter start to walk back to their car. Two; that Mrs. Patrick was not struck by any part of the bus, including the doors.

Mrs. Patrick testified that as she was standing between the doors, and was about to address the driver, Mrs. Clements said; "I am sick and tired of this," and then put the bus in motion and slammed the door. She stated that as she quickly turned to her left to pick up her daughter, she was struck on the right shoulder by the rearmost of the front doors. Mrs. Patrick stated that she was knocked backward, but not down.

Mrs. Patrick admitted that she did not immediately feel any pain, but stated that she was furious with the driver. She returned home with her daughter. Mrs. Patrick testified that the children's father Rob Hunt was at the house, and noticed a red mark on her shoulder. Mr. Hunt confirmed this evidence when he testified.

Later that evening Mrs. Patrick went to see Mr. Payne to see if he had witnessed the incident. He did not. Mr. Payne's testimony concerning that day was rather vague and not very helpful.

Mrs. Patrick also went to the emergency department of the local hospital approximately five hours after the incident. At that time there was no sign of redness on the arm, but Mrs. Patrick complained of tenderness when the area was palpated.

That same night Mrs. Patrick wrote a letter to the school board, setting out what happened.

The next day Mrs. Patrick reported the matter to the school authorities, who referred her to the police. The police interviewed Mrs. Patrick, Mrs. Clements, Mrs. Patrick's daughter Kayla, Mrs. Clements' son Rob, and Derrick Fairbairn and Kayla Payne, two other children on the bus at the time of the incident. The officer appeared to approach the matter on the basis that one or the other of the women must have been lying. He did not appear to have considered the possibility that Mrs. Patrick could have been struck without Mrs. Clements being aware of the fact. He focused on the statements of the participants and witnesses as to whether or not the bus was moving at the time the doors were closing. He decided they were not, and principally on that ground, concluded that in an effort to get Mrs. Clements fired, Mrs. Patrick lied abut being struck by the bus doors.

Cst. McKelvey advised the participants that no charges would be laid against Mrs. Clements, but that he intended to approach the Crown Attorney's office about the possibility of laying a public mischief charge against Mrs. Patrick on the basis that she had falsely accused Mrs. Clements. Ultimately the Crown Attorney's office advised against the laying of such a charge, because of an insufficiency of evidence.

It is very unfortunate that Cst. McKelvey proceeded on the basis that one or the other of the participants was lying. It has had the effect of entrenching the conflict between Mrs. Patrick and Mrs. Clements, who live in a small community, and who inevitably come into contact with each other. On one such occasion Mrs. Clements screamed profanities at Mrs. Patrick. Mrs. Patrick is also convinced that Mrs. Clements has tried to run her off the road. In addition Mrs. Patrick now distrusts the police, whom she believes have unfairly persecuted her.

Having had the benefit of hearing from both Mrs. Patrick and Mrs. Clements, I am satisfied that on the crucial point of whether or not Mrs. Patrick was struck, neither is lying. Whether or not the bus was in motion at the time that Mrs. Clements began to close the doors is largely immaterial and I make no finding in that regard. I am satisfied that Mrs. Patrick is telling the truth when she said that she was struck on the upper part of the right arm by the bus door as it was closing.

At the same time, I find, without hesitation, that Mrs. Clements did not intend to strike Mrs. Patrick, and was unaware that she had done so. As is noted by James F. Mitchell, an experienced accident reconstruction expert who was retained by the Insurer, the driver's seat is slightly more than five feet from the door. The doors are closed by a heavy, long-handled arm that would not be conducive to transmitting the type of small vibrations that would be caused by a glancing blow.

Mrs. Patrick testified that when she was addressing Mrs. Clements she was standing between the doors. Mrs. Clements' own statement to the police was that she slammed the door in her face. As I stated earlier, Mrs. Clements was angry and no doubt her adrenaline was running high. It does not surprise me that in her haste to cut off another confrontation with Mrs. Patrick she unintentionally slammed the door when Mrs. Patrick was too close to avoid being struck.

During Mrs. Clements' testimony she made much of the fact that she was watching closely because she wanted to see the look on Mrs. Patrick's face, and that accordingly she could state with certainty that Mrs. Patrick had not been hit. However, her evidence on where she was looking was contradictory. On cross-examination, she first stated that she was staring through the window in the door. When this was queried, she said either the door or the first window to the rear of the door. Mrs. Clements was then read a portion of the transcript from her Examination for Discovery in a related tort action, in which she stated that she saw Mrs. Patrick's face, through the window to the rear of the door. At that point she agreed that it must have been the window to the rear of the door. All of the witnesses, including Mrs. Clements, agreed that at the time she closed the door, Mrs Patrick was immediately in front of, if not between the doors. It is obvious from an examination of the pictures of the bus that are attached to Mr. Mitchell's report, that if Mrs. Clements was indeed looking through the window to the rear of the door, she would have been unable to see whether or not Mrs. Patrick was struck as the door closed. Mrs. Clements is no doubt recalling where she was looking as she watched Mrs. Patrick and her daughter walk back to their car, not where she was looking as she pulled the door closed.

Mr. Mitchell suggests that there would be a natural tendency for the driver's head to rotate to the left as she pulled on the door handle. He also suggested that she would likely have been checking the traffic in anticipation of pulling out. Whether or not that occured in this case is conjecture, but I am satisfied from the confusion in Mrs. Clements' own testimony that she did not have a clear view of Mrs. Patrick as the doors closed. No doubt as the police investigation progressed and civil litigation ensued, Mrs. Clements had to defend herself and became convinced that she could positivly state that Mrs. Patrick was not hit, when in fact she was not in a position to make such a statement.

The Insurer also placed great reliance upon the statement given to the police by Mrs. Clements' son Rob Galway. The signed statement includes the following; "My mom didn't want to talk to her so she closed the bus door right in her face, but the lady was not hit by the doors." On this crucial point, I afford very little weight to the statement for a number of reasons. First, Rob Galway was only eight years old at the time, and was the son of one of the participants. Second, while Rob printed his name at the bottom of the statement, it is in the officer's handwriting, and Rob was not called as a witness, so I did not have the opportunity to hear his version of events first hand, or to have that version tested on cross-examination. Third, the report of Mr. Mitchell contains an analysis of whether a person sitting in the front seat (as Rob was), could have seen Mrs. Patrick's shoulders being struck by the door as it closed. The report includes pictures depicting the view from the window seat which suggests that Mrs. Patrick's shoulder would not have been visible. A boy with his face pressed against the glass (if that is what he was doing), might have had a better view, but only marginally. When all of these factors are considered, I conclude that I can only give very little weight to Rob Galway's statement.

In all of the circumstances I find that Mrs. Patrick was in fact struck a glancing blow on the outer aspect of her right shoulder by the bus door as it was being closed by Mrs. Clements. From this finding it follows that the answer to the first issue is that Mrs. Patrick was involved in an accident.

Benefits:

Pre-Accident Caregiving Activities

Mrs. Patrick's evidence concerning her daily routine was a romanticized ideal. She stated that in the summer she and her two children would go on daily bike rides, daily trail walks, and that virtually every day they would pack a picnic and go either to the beach, or to her mother's or sister's. Mrs. Patrick testified that during the winter, in addition to school, she and the children would take daily toboggan runs, go on sleigh rides two or three times per week, and that each of the girls would skate 2 or 3 times per week. In addition to these activities, Mrs. Patrick testified that as a single mother she cooked all the meals and kept a sparkling clean house.

This idyllic picture must be contrasted with what we know of Mrs. Patrick's pre-accident life. Mrs. Patrick has had a tumultuous early life. Prior to her children's birth she used intervenous drugs. She continues to use marijuana, and a few years before the accident, she was convicted of trafficking and sentenced to 90 days, which she served on weekends. Mrs. Patrick had broken up with the children's father on a couple of occasions, and at the time of the accident she was legally separated. For a couple of years leading up to the accident Mrs. Patrick had been working as a dancer, which took her away from home for a week at a time. Mrs. Patrick had a long history of migraine-type headaches that were so severe she was hospitalized and treated by a specialist. At one point she told the specialist that the headaches were so intolerable that she had thought of shooting herself. In Dr. McTavish's (the family doctor's) two notes immediately before the accident, she records that Mrs. Patrick is under increasing (++) stress related to financial and marital difficulties, and that she was concerned about a 15 lbs weight loss in the preceding month. These two notes also include references to headaches and spasm in the neck, and that she was seeing a chiropractor and was taking percodan, a narcotic, for pain control. Dr. McTavish testified that in the period leading up to the accident she was "coping well for her."[emphasis added]

I do not make these points to disparage Mrs. Patrick or to denigrate her child-rearing skills or habits. It was obvious to me that Mrs. Patrick was a loving mother who, in often trying circumstances, remained devoted to her children, and who was doing everything in her power to raise her children in a good home. In that regard, I note that Mrs. Patrick volunteered at a local home for the aged, and would bring her elder daughter Kayla with her when she visited the residents. This speaks of a woman who has a very strong sense of caring, and an understanding that this sense of responsibility and caring is something that must be nurtured in children. I also note that notwithstanding her difficulties with Mr. Hunt, that she made sure that he was an active participant in the children's rearing. These traits are admirable.

Both Mr. Hunt, and Mrs. Patrick's sister testified that Mrs. Patrick was very active. Dr. McTavish testified that Mrs. Patrick relates to the world in a physical rather than cerebral way, and expresses herself through activity more than through words.

I only refer to Mrs. Patrick's past history to support my finding that Mrs. Patrick could not possibly have engaged in the number of activities she indicated were crammed into every day. First, it is obvious that she was absent from the home on a regular basis. Second, there is no doubt in my mind that the marital, financial and legal, stresses she was under, (which tended to manifest themselves in physical or somatic complaints) and her headaches would have regularly restricted the level and quality of the activities she could participate in, much as they have in the post-accident period. In defining the caregiving activities she engaged in at the time of the accident, I accept the list provided by Mrs. Patrick, but at a much more modest level, and with regular periods of significantly limited involvement.

Post-Accident Complaints and Level of Activity:

(i) The Applicant's evidence

As noted earlier, Mrs. Patrick did not feel any immediate pain, however when she returned home Mr. Hunt noted a red mark on the outer aspect of her arm, just below the shoulder. She attended at the hospital a few hours later at which time she complained that the area was tender, and that it was painful upon rotation. The attending physician noted a clicking sound from the acromioaclavicular joint(AC joint). Mrs. Patrick testified that over the next few days she developed discomfort in the front part of her shoulder, and severe headaches.

Mrs. Patrick first saw Dr. McTavish 10 days after the accident. The doctor's clinical note records that the right arm and shoulder were very painful and that her trapezius and right neck muscles were very tense. She also made a note of increased pain in the AC joint. Three days later Mrs. Patrick complained to Dr. McTavish of pain in her right breast, and that her breast implant felt abnormal. Mrs. Patrick indicted that her nerves were "shot" but that she was concerned about taking medication. Dr. McTavish made a note of "severe reactive depression" and referred her to Dr. Arnold, a clinical psychologist.

Mrs. Patrick also complained that the bright sunlight caused headaches (photophobia). Dr. McTavish prescribed sunglasses.

A review of Dr. McTavish's and Dr. Arnold's notes reveals that Mrs. Patrick was very upset, anxious and angry. She often cried during appointments and frequently complained of headaches. The focus of the anger was; the driver whom she perceived as the cause of her problems, and the police. Mrs. Patrick could not understand why she was being treated as the criminal when she perceived herself as the victim.

Mrs. Patrick described her present complaints as follows:

• pain in right shoulder, arm and neck

• pain in right shoulder blade

• an irregularity in her right breast prosthesis

• headaches that are occasionally accompanied by dizziness, vomiting and urinary incontinence

• emotional difficulties. Mrs. Patrick referred to herself as a "basket case."

Mrs. Patrick testified that she is aware of a constant ache in her neck. This pain is increased when she attempts to turn her neck from side to side or to tuck in her chin. She also indicated that if she attempts to tilt her head back that she gets a burning sensation, and that it locks after being tilted back more than two or more inches. A number of physicians have noted that Mrs. Patrick tends to hold her neck in a rigid fashion. Mrs. Patrick stated that on five or six occasions since the accident the pain in her neck has been "unbearable." Mrs. Patrick admitted that the neck has been improving of late.

With respect to the pain in the shoulder blade, Mrs. Patrick stated that it is a constant burning sensation, that it is made worse by damp weather, and use of her right arm.

With respect to the breast, Mrs. Patrick first noticed a bubble in her right implant a day or so after the accident. Both she and Dr. McTavish attributed this bubble to the accident. Mrs. Patrick was referred to a plastic surgeon who opined that the condition might be due to the accident. Mrs. Patrick was examined by Dr. Peters, a noted specialist in breast surgery and prosthetics, who opined that the condition noted by Mrs. Patrick had absolutely nothing to do with the accident. After hearing Dr. Peters' evidence, the Applicant wisely withdrew the claim that the condition was attributable to the accident.

The headaches and related symptoms (which she refers to as "spells") would appear to be Mrs. Patrick's single largest complaint. She described two types of headaches. One that is located in the temple, and is present all the time. A second that is located at the back of the head. This latter headache is not always present, but is more severe. These headaches are exacerbated with stress. Mrs. Patrick described the spells as a feeling of hot flushes accompanied by dizziness, loss of bladder control and vomiting. Generally these spells come unbidden. She has noted that they always accompany sex.

Mrs. Patrick testified that because of these complaints her ability to carry out her duties as a caregiver and homemaker are severely curtailed. She stated that she can only walk short distances, and that she cannot take the girls for walks in the woods because the ground is too rough which hurts her shoulder and head, and that she is afraid of having a spell. Mrs. Patrick also stated that she is unable to go bike riding with the girls, because she is unable to reach for the handle bars. Nor has Mrs. Patrick gone skating, or even attended with the girls, because she is unable to tie their skates. Mrs. Patrick stated that virtually the only household chore she is capable of, is folding her own underwear after they are washed by others.

Mrs. Patrick testified that immediately after the accident, her sister, Shana Marchildon, came to the house each day to clean, cook, and look after the kids. She stated that she would spend at least 8 hours a day at the house. This lasted for about a year, at which point, Ms. Marchildon had to reduce her visits to two or three per week, because she began to work part time. She stated that in February 1997, her sister started working full time, at which point Rob Hunt began to come on a daily basis. He took over responsibility for the cooking and cleaning and most of the childcare. Mrs. Patrick described her present routine as essentially sedentary.

Ms. Marchildon's evidence was largely consistent with the above, but more precise. She stated that she returned to work in January 1995 (approximately 5 months after the accident), at which point she reduced her visits to approximately three per week, and that each of these visits lasted approximately 3 to 4 hours. During these latter visits, she would do basic housekeeping, with the occasional heavy cleaning such as the fridge or stove. She also stated that as her hours at work increased she had to cut back a little on this assistance, but that she continued to try and take the kids out because her sister could not.

Rob Hunt's evidence was also largely consistent with Mrs. Patrick s. He stated that over the first three months after the accident, Mrs. Patrick began to do less and less. He stated that during this time he would drop over almost every day. He indicated that his own involvement increased significantly in the fall of 1996, and that at present he has to be there virtually every day. He stated that he does all the cooking and cleaning. He said that he "does not bother Mrs. Patrick to do much" because he knows that it bothers her a lot. He indicated that she lies around, and needs a lot of quiet time. Mr. Hunt mentioned a couple of times that going out is very difficult for Mrs. Patrick, as she gets car sick.

Dr. McTavish was Mrs. Patrick's advocate in the best traditions of family doctors and in her testimony was very clear that she believed that Mrs. Patrick was disabled and would likely remain so unless the accident were acknowledged. Even then, Dr. McTavish expressed the view that Mrs. Patrick would require years of counselling before she would recover. Dr. McTavish stated that Mrs. Patrick's headaches and emotional state were her biggest problems.

A medical-legal assessment was carried out by Dr. Wilkins a specialist in physical medicine and rehabilitation, in November 1996. Dr. Wilkins diagnosed soft tissue injury to the right shoulder girdle, post-traumatic headaches, marked accentuation of previous migraine headaches, and damage to her right breast implant. Dr. Wilkins confirmed the need for further physiotherapy, and in particular pointed to the need for ongoing psychological counselling. Dr. Wilkins refers to the incident as being "quite devastating" but does not directly address the question of whether or not Mrs. Patrick is substantially incapable of caring for her children.

(ii) The Insurer's evidence

Mrs. Patrick was examined in September of 1996, by Dr. Hugh Cameron, an orthopaedic surgeon who was retained by the defendants in the related tort action. Mrs. Patrick recounted her history of daily headaches, and "spells." She also complained of a "lot of pain in her neck," which occured about twice a week, and lasts for a few hours, and the burning sensation in her shoulder blade. On examination, the doctor noted that Mrs. Patrick exhibited a full range of movement in the neck, the peculiar locking of her neck noted above, and that resisted movement of the shoulders reproduced pain in the shoulder. No spasm was noted.

A multidisciplinary Insurer's Medical Examination(IME) was conducted by Dr. Howard Seiden and Associates in late 1996 and early 1997. The battery of examinations included: a physical exam and functional abilities examination, a neurological examination, and a psychiatric examination.

The neurological examination revealed no neurological deficits. Dr. Bayer noted a number of discrepancies between Mrs. Patrick's range of motion on formal testing and her ability to accomplish ordinary tasks such as bending to dress, or turning to look at someone talking to her.

He noted no spasm in the neck. The doctor reviewed the surveillance video tape, which he also found inconsistent with her clinical presentation.

Surveillance was conducted on October 4 and 5, 1995. The video tape presented during the hearing is quite short and of relatively poor quality. Nevertheless it shows Mrs. Patrick moving about normally in her kitchen, and driving the children back and forth to school. The two most sgnificant points are: one, that Mrs. Patrick can be seen using her right arm and shoulder without any signs of guarding or pain, and in circumstances where she could easily have used her left arm; and two, that contrary to Mrs. Patrick's evidence that she can only fold her own underwear, she can been seen folding a complete load of laundry without any difficulty or obvious pain.

The physical examination was similarly unremarkable. It is worth noting that Dr. Koonar, who conducted the physical examination, reported Mrs. Patrick's history of "spells" to the Ministry of Transport, resulting in the suspension of Mrs. Patrick's driving privileges. Notwithstanding Dr. McTavish's intervention with the Ministry, the licence suspension remained in effect as of the date of the hearing.

Dr. Koonar reviewed the results of the functional abilities evaluation, including the self-reporting portion of the evaluation, in which Mrs. Patrick rated herself as crippled. Dr. Koonar noted that despite this self-evaluation, and an obvious pain focus during the physical testing, Mrs. Patrick was capable of many of the tasks of daily living. He concluded that her inactivity was largely voluntary and that she was not nearly as disabled as she "appears to illustrate." In reaching this conclusion Dr. Koonar also relied upon the surveillance video tape.

Nothwithstanding that Dr. Koonar thought Mrs. Patrick was capable of far more than she "illustrated," he noted that she would be deconditioned and he agreed with the suggestion made by the staff who conducted the functional abilities examination, that Mrs. Patrick would benefit from some occupational therapy to assist with "work simplification, proper biomechanics, and appropriate rest and relaxation techniques."

Both Dr. Koonar and Dr. Bayer referred to the very minor nature of the impact and expressed the opinion that it could not explain her ongoing complaints. Both doctors referred to functional components and raised the possibility of secondary gain.

The psychiatric examination was conducted by Dr. Turner. One of his principal concerns was chemical dependency. Reference is made in a number of reports to the fact that Mrs. Patrick has indicated her reluctance to take prescription drugs for fear of becoming dependent. Dr. McTavish echoes this fear. However it is clear that Mrs. Patrick is in fact relying heavily upon medication, including narcotics and marijuana. Dr. Turner recommended assessment by a competent specialist. Dr. Turner also expressed the opinion that Mrs. Patrick would benefit from assessment by a pain programme to help her develop more effective ways of reducing pain and increasing function.

In a brief follow-up report, Dr. Turner responds to questions posed by Dr. Seiden that would appear to have been designed to elicit the doctor's opinion on whether or not Mrs. Patrick is disabled within the meaning of the Schedule. It is unfortunate that the questions were not introduced into evidence, because the answers are less than clear, and generally do not address the correct test. Dr. Turner expressed the opinion that there was no evidence of a psychiatric disorder which can be directly attributed to the accident. He stated however that the accident may have contributed to the "recurrence" of substance abuse problems related to her use of marijuana and opiate-based analgesics. Likewise, he stated that "it is not clear that Mrs. Patrick is substantially disabled from performing her activities of daily living as a direct result of the accident." But he then goes on to state that a "significant contribution is made by the previously mentioned psychoactive substances." Surprisingly the doctor stated that as a psychiatrist he was unable to comment on the role of chronic pain. Finally, the doctor stated that she did suffer "from a disorder which prevents her from engaging in full activities which require careful communication, exercise of cognitive powers, and the control of emotions and behaviours." He stated "this disorder is not an actual psychiatric one, but involves psychoactive substance abuse."

The IME reports and the surveillance videotape were provided to Dr. McTavish and Dr. Wilkins for comment. Dr. McTavish acknowledged that Mrs. Patrick did not exhibit any pain in the video. She commented that people react differently to pain, and that people who suffer from chronic pain have good days and bad. She also stated Mrs. Patrick consistently tried to do things and invariably paid the price on the ensuing days. Dr. Wilkins stated that her "chronic pain behaviour" is the significant factor, and that her "emotional and psychologic barriers to recovery far outweigh any physical damage from this relatively minor incident."

(iii) The Relationship of the Headaches to the Accident.

As noted above, Mrs. Patrick had a significant pre-existing history of migraines headaches. The Insurer focused on this history and argued that the present headaches and "spells" could not be related to the accident. The Insurer relied very heavily upon the reports and viva voce evidence of Dr. Dolezel, a specialist in internal medicine, who has seen Mrs. Patrick a number of times on referral from Dr. McTavish. Dr. Dolezel first saw Mrs. Patrick in 1983. She was referred because of a history of headaches that extended over two months. He diagnosed vascular headaches. He put her on a course of medication which she did not complete because she became pregnant. The headaches subsided to a manageable level and nothing further was done at that time.

She was seen again three years later in 1986 at which time she complained that she had started having headaches again and that nothing was helping. The headaches at that time were severe enough that she had left work a few months earlier.

In December 1989, she again attended upon Dr. Dolezel complaining of a severe headache that had started five days earlier. At that time she indicated that she had been having frequent, severe headaches ever since her motorcycle accident six years ago. In fact her motorcycle accident was only four years earlier, but it does appear that her headaches started approximately two years before the motorcycle accident. Dr. Dolezel concluded that she was suffering from vascular headaches.

Dr. Dolezel did not see Mrs. Patrick again until 1997, after her "spells" began. The doctor diagnosed her as suffering from Meniere's disease, which Dr. McTavish explained is a label for a combination of symptoms including tinnitus, loss of hearing, vertigo and headaches of unexplained origin. Mrs. Patrick did not suffer from tinnitus.

Dr. Dolezel testified that Mrs. Patrick's complaints are classical symptoms of migraine headaches, and that they could not be attributed to the motor vehicle accident. He did admit that the motor vehicle accident might affect Mrs. Patrick's ability to cope with the headaches.

Dr. McTavish indicated that Mrs. Patrcik suffered from three distinct types of headaches: one-vascular or migrainous, sometimes accompanied by vertigo, vomiting, and incontinence; two-bitemporal; three - occipital. She stated that the latter two are directly related to the accident. She also stated that the migraine headaches have been significantly exacerbated by the accident. In that regard she noted that they had progressed in terms of frequency, severity and duration. She also noted that whereas before the headaches had been accompanied by nausea, they were now accompanied by vomiting.

With respect to the "spells," Dr. McTavish related them to muscle spasm and accompanying pinching of the nerves in the neck.

Dr. McTavish's role as Mrs. Patrick's advocate undermines her value to me as an objective analyst of the relationship between the motor vehicle accident and the headaches. Dr. McTavish's tendency to ignore or seriously downplay Mrs. Patrick's very significant pre-accident history of migraine headaches is evident in a number of her early reports. This tendency was also evident during her testimony at the hearing.

I reject Dr. McTavish's assertion that the headaches were only an issue in the "distant past" as she stated in a letter to the Ministry of Transport dated April 11, 1997. It is clear from a review of both Dr. McTavish's own notes and the reports of Dr. Dolezel that severe and debilitating headaches were a persistent part of Mrs. Patrick's life.

Notwithstanding my view of Dr. McTavish's tendency to overstate the effects of the accident, it is apparent that Mrs. Patrick's headaches are exacerbated by anxiety and stress. The accident, and in particular, the fact that Mrs. Patrick has been disbelieved by the police and challenged in public by Mrs. Clements has been a source of significant and ongoing anxiety and stress for Mrs. Patrick, and in that sense the accident has played an important role in increasing the effect of the headaches on Mrs. Patrick's daily life.

In addition it would appear that the spasm in Mrs. Patrick's neck and the headaches are intertwined. When Mrs. Patrick's gets stressed or anxious she tends to get tightness in her neck which exacerbates her tension headaches. In addition, when her migrane headaches are severe she tends to hold her neck in a rigid fashion increasing the pain and tension in the neck, which in turn exacerbate the tension headaches. In addition, while some of the spells appear to come unbidden, they always accompany sex, suggesting that they can be triggered by an activity, or a physical condition. Dr. McTavish witnessed one of these spells, and noted a twitching and spasm in Mrs. Patrick's neck at the time of the attack. Dr. Arts, a neurologist who examined Mrs. Patrick, notes that her spells are typical of migraine sufferers, but also suggests that the tightness in her neck may play a role.

In conclusion, while I reject the notion that the motor vehicle accident has resurrected a previously dormant problem, I do find that the accident has played a significant role in exacerbating both the symptoms and Mrs. Patrick's ability to cope with her headaches.

Caregiver Benefits:

Entitlement to a caregiver benefit can be established on two alternate grounds. The first is set out in subsection 18 (2)(a). To suceed on this ground, the Insured must establish that she suffers from a substantial inability to engage in the caregiving activites in which she engaged at the time of the accident. The benefit is payable for as long as the Insured suffers a substantial inability to carry out those duties, or until the dependents turn 16. Alternatively, subsection 18(2)(b) states that an insured person may establish entitlement if she suffers from a partial inability to carry on a "normal life," as that term is defined in section 2 of the Schedule. Section 2 sets out six activites, that include: personal care, mobility, household, cognitive abilities, emotional control, or communication abilities. On the basis of Arbitrator Draper's analysis in Dhaliwal and Gore Mutual Insurance Company² I conclude that the list is to be read disjunctively, and that accordingly, an insured is entitled to the weekly benefit in the event she suffers from a substantial inability to engage in any one of the six activites. From a quick perusal of the list, it is obvious that the considerations under the two alternate tests will often be similar, but because the list of activites included in the alternate test is disjunctive, the insured may establish entitlement on the basis of a more restricted disability. If entitlement is established on this alternate ground, no benefit is payable for more than two years, unless the insured person establishes that she suffers from a complete inability to carry on a "normal life" as that phrase is defined in section 4 of the Schedule. (The complete text of sections 2, 3 and 18 are set out in Appendix B to these reasons.)

Did the injuries sustained by Mrs. Patrick render her substantially unable to carry on the essential tasks of caring for her two children?

In addressing this issue, the starting point must be Mrs. Patrick's circumstances prior to the accident, and the type and level of care that she was able to provide to the children. As a single mother she had the primary responsibility for raising the children. However, Mr. Hunt was an active part of the family unit notwithstanding his legal separation from Mrs. Patrick, and it was clear to me that he was an important element in the children's upbringing. Mrs. Patrick was not working as a dancer at the time of the accident, but she had been working regularly in this trade, and would likely have continued. This work took Mrs. Patrick out of town regularly. Her headaches were on occasion debilitating, and regularly would have limited her ability to lead an active lifestyle, and to play with the children or take them out on outings. I received no evidence as to who cared for the children on these occasions, but presume it must have been other members of Mrs. Patrick's family such as her mother and sister, and Mr. Hunt. Mrs. Patrick is only entitled to a caregiver benefit pursuant to section 18(2)(a) if she can demonstrate that the accident has resulted in a significant inabity to provide this same level of care.

From this starting point I turn to consider the nature of the injury. I am satisfied that the door struck Mrs. Patrick only a glancing blow. The force was insufficient to knock her off her feet, or to cause any immediate pain. Any redness caused by the blow was no longer visible when Mrs. Patrick attended at the hospital later that night, and any bruising had disappeared prior to her visit to Dr. McTavish's office 10 days later. Mrs. Patrick's feet were not locked in place, and consequently there would have been no significant twisting or stretching of the shoulder or neck musculature. The physical forces involved in the accident should have caused nothing other than a very minor contusion that in ordinary circumstances would have resulted in no significant impairment, and only a very minor amount of pain that would have resolved within a few days.

Unfortunately for all concerned, Mrs. Patrick's recovery did not follow this uneventful course. Mrs. Patrick's ongoing troubles can only be satisfactorily explained when seen as a psychological response to the incident, and in particular to the fact that her version of events was rejected by the police, and has been challenged by both her own Insurer, and the defendants in the tort action. These psychological stresses have resulted in a degree of social isolation, and an increase in her headaches. They have also resulted in the development of a chronic pain syndrome centred around complaints of neck and shoulder pain.

Mrs. Patrick was paid a weekly caregiver benefit until January 23, 1995. The benefit was terminated on the grounds that Mrs. Patrick had not been involved in an "accident," but coincidentally it was at this same time that Mrs. Patrick's sister returned to work, and was no longer coming on a daily basis to look after the children and the housework. As will be recalled, Mrs. Marchildon testified that starting in early 1995, she reduced her visits to approximately three times a week, for 3 or 4 hours per visit. These visits were further reduced as Mrs. Marchildon's hours at work were increased. During the visits she would do some cleaning and try and take the kids out for activities. Mr. Hunt did not significantly increase his own involvement until the fall of 1996. No evidence was lead to explain what if any other accommodations were made to deal with the void created by the sister's absence. I infer that Mrs. Patrick herself had to take over the principal responsibility for the children' daily care.

Mrs. Patrick testified that she is capable of virtually no physical activity, and that the pain in her neck and shoulder are constant. However, a number of statements made to the staff conducting the Insurer Medical Examinations in the fall of 1996 suggest that in fact the neck and shoulder pain was regular but not constant. The video surveillance in October of 1995 indicates that over the course of two consecutive days Mrs. Patrick was capable of getting the children up and ready, driving them to school, running a few simple errands, and doing some light housework, without any visible signs that pain was inhibiting her activities. In addition, the functional capacity evaluation suggests that Mrs. Patrick is capable of most of the tasks necessary in caring for the children. I am satisfied that forced into a litigation context, and having to substantiate that she was in fact struck by the bus, Mrs. Patrick has somewhat overstated the extent of her physical complaints and her physical disability.

There is no doubt in my mind that Mrs. Patrick continues to experience pain in her neck and shoulder, and I accept that demands upon these muscle groups will increase her pain. However, the physical testing suggests that there is no reason why Mrs. Patrick cannot, with some modification and assistance from family members, perform the essential tasks of caring for her children. This would appear to be confirmed by the fact that Mrs. Patrick in fact took over these responsibilities when her sister returned to work. In coming to this conclusion I readily accept that Mrs. Patrick's ongoing physical complaints interfere with the physical aspects of her parenting functions, and in particular with her ability to engage in strenuous recreational activities, however, I am not satisfied that the physical impairment can fairly be characterized as a substantial inability to provide the level of care Mrs. Patrick maintained before the accident.

With respect to the headaches, I am satisfied that headaches are a significant part of Mrs. Patrick's daily life, and I am satisfied that on occasion they are debilitating. I also accept that since the accident the occasions upon which they are debilitating have increased. However, when these events are seen in the context of Mrs. Patrick's pre-existing pattern of headaches, and the level of functioning pre-accident, I am not satisfied that after October of 1995, the headaches and associated spells have resulted in a substantial inability to carry out the caregiving functions Mrs. Patrick was performing prior to the accident.

Is Mrs. Patrick entitled to a weekly benefit on the alternate ground that she suffers from a partial inability to carry on a normal life? If so Is Mrs. Patrick entitled to an ongoing benefit beyond September 13, 1994, on the basis that she suffers from a complete inability to carry on a normal life?

One of the six groups of activities referred to in section 2 of the Schedule are those that require mobility. Since the accident, Mrs. Patrick's mobility has been substantially impaired in a number of ways. First and foremost she has lost her driving privileges as a result of Dr. Koonar's letter to the Ministry of Transport. Prior to the accident Mrs. Patrick's headaches would no doubt have curtailed her ability to get out into the community on those occasions when her migraines were very severe, but I am satisfied that her present complaints further restrict her mobility. In addition, with the loss of her driving privileges, she now suffers from a generalized and substantial inability to get out in the community, and is dependent upon others to drive her.

In addition, Mrs. Patrick's fear of having a spell in public has resulted in a further diminishment in her mobility. Likewise, her fear of meeting Mrs. Clements and Cst. McKelvey has further limited her ability to get out in the community. Like other aspects of the case, I believe that Mrs. Patrick has somewhat overstated the extent of this problem. In that regard I note that Mrs. Patrick related three occasions when she was out in the community. One was a trip to the beach, one was a bingo night, and one was a trip to the children's school. All three were identified, because Mrs. Patrick wanted to relate a negative incident that assisted her case. I am satisfied that they would not otherwise have been brought up, and this suggests to me that there have been other occasions when Mrs. Patrick has been out in the community, that she has chosen not to refer to. I am however satisfied that Mrs. Patrick has been more restricted to her house than she would otherwise have been.

I find that as a result of the accident, Mrs. Patrick has suffered from a substantial inability to engage in activities that require mobility, and that accordingly she is entitled to a caregiver benefit until September 13, 1996.

Beyond September 13, 1996, Mrs. Patrick is only entitled to a benefit on this alternate ground in the event that she suffers from a complete inability to carry on a normal life, which is defined in section 3 as being "continuously prevented from engaging in substantially all of the activities the person ordinarily engaged in before the accident." In Urquhart and Zurich Insurance Company³ I commented upon the post-156 week test for a non-earner benefit under the OMPP version of the Schedule. In my view there is no significant difference between the post-156 week test, and the "complete inability to carry on a normal life" test. In Urquhart, I suggested that the drafters had intentionally set a test that only very seriously injured individuals would be able to meet. In reaching that conclusion I focused on the fact that the disability must not only be continuous, but must also prevent the person from engaging in her usual activities. To my mind, when seen on a continuum, the use of the word "prevent" suggests a very high degree of impairment, that is beyond the "substantial inability" test referred to in the pre-156 week test. The same escalation in the degree of impairment required to meet the test for benefits, can be seen in the "partial and complete inability" tests found in the present Schedule. I am not satisfied that Mrs. Patrick's disability is so pervasive as to meet the test imposed by the "complete inability" test.

Housekeeping Expenses:

In the present Schedule, housekeeping and home maintenance expenses are dealt with in section 55 as a discrete benefit, separate and apart from the caregiver benefit, nothwithstanding that caregiving activities obviously include an element of housekeeping. This has two important consequences. First, an insured person may fail to meet the test for a caregiver benefit, and still be entitled to housekeeping expenses. Second, it is important to differentiate between expenses incurred to care for children or dependents, from expenses incurred to replace the insured person's housekeeping responsibilities.

Mr. Bergeron indicated during submissions that throughout the time Mrs. Marchildon was coming in, the Applicant is seeking payment for 10.5 hours per week at $9.10 per hour, for a total claim of $9,937.20. Mr. Petrillo challenged the need for housekeeping services, but did not take exception with either the number of hours per week or the rate per hour. Mr. Bergeron indicated that with respect to Mr. Hunt's services, the evidence suggested that Mr. Hunt was in the house 8 hours per day, but that Mr. Hunt acknowledged that he "man cleaned" and that he was not as effective as Mrs. Marchildon. Mr. Bergeron also acknowledged that Mr. Hunt derived a benefit from his time with the children. Mr. Bergeron calculated the expense on the basis of 9.5 hours per week at $9.10 per hour for a total to the date of the hearing of $2,866.50.

However, he then suggested that this total be rounded up to $5,733, to reflect the fact that Mr. Hunt was in the house for the entire day. Mr. Petrillo challenged the need to round up the time.

In addition, Mr. Bergeron was claiming for a day that Mr. Hunt and Mrs. Marchildon spent during a house move, and $600 for spring and fall cleaning.

Keeping in mind my comments about the need to differentiate between childcare and housekeeping, and my earlier comments about Mrs. Patrick's ability to do more than she demonstrates, I find that it would be reasonable to grant the Applicant a total of 8 hours per week at $9.10 per hour from the date of the accident and ongoing. As I state later in these reasons, Mrs. Patrick is entitled to further physiotherapy, and ought to have an inhome occupational therapist to assist her in developing more efficient and less draining methods of performing her household chores. I would expect that with time, Mrs. Patrick's reliance upon others to do her housekeeping will subside.

Counselling services privided by Dr. Arnold:

Mrs. Patrick may have benefited from counselling on any number of issues pre-accident, however, even a cursory review of Dr. Arnold's notes reveals that the focus of the ongoing sessions has been issues related to the accident. I am satisfied that these are reasonable expenses, and Mrs. Patrick is entitled to be reimbursed for the expenses incurred to date. I am further satisfied that Mrs. Patrick is in need of ongoing counselling, the length and duration of which I cannot determine at this juncture. At tab 3 of Exhibit 7, Mr. Bergeron set out a summary of the benefits Mrs. Patrick's was seeking. Mr. Petrillo did not challenge the accuracy of the amounts set out therein. I order the Insurer to pay Dr. Arnold's accounts of $906.50, plus ongoing accounts as submitted.

Sunglasses:

There are sufficient references in the pre-accident notes to satisfy me that photophobia was a factor before the accident, and the need for sunglasses ought not to be attributed to the accident.

Physiotherapy:

Dr. McTavish has prescribed further physiotherapy for Mrs. Patrick's neck and shoulder. At the time of the hearing Mrs. Patrick was on a rather long waiting list for OHIP-funded physiotherapy. I find physiotherapy treatment to be a reasonable expense and order the Insurer to fund a course of treatment. I heard no evidence which would allow me to ascertain the length and frequency of the treatment. If it becomes an issue I may be spoken to on this matter. Although it is not in issue in this proceeding, I note that Dr. Koonar supported the involvement of an occupational therapist to assist Mrs. Patrick with organizing household chores. I would urge the parties to explore this issue as well as a pain management and chemical dependency programme as suggested by Dr. Turner.

Transportation Expenses:

A mileage claim of 29.5 cents per kilometre is being made by Mrs. Patrick for physiotherapy attendances, and for visits to Drs. McTavish's and Arnold's offices. The amount per kilometre was not challenged and I accept it as reasonable. Nor was the distances to the various centres, and I accept them as being accurate. The visits to physiotherapy and Dr. Arnold's are all related to the accident and are to be paid by the Insurer. Mr. Bergeron has listed 23 visits to Dr. McTavish's office in his summary. Some of the visits to Dr. McTavish's office may have been unrelated to the accident. I heard no evidence in this regard. Those visits that include a significant relationship to the issues raised by the accident are to be paid. If this matter cannot be resolved I may be spoken to. In addition, Mrs. Patrick, who can no longer drive, is entitled to a reasonable expense for transportation to and from further treatment, and doctor's visits that relate primarily to the accident.

Special Award:

Mrs. Patrick seeks a special award on the basis that after the release of Mr. Mitchell's report, which was commissioned by the Insurer, there ought not to have been any doubt but that Mrs. Patrick had been struck by the bus. I do not read Mr. Mitchell's report as definitive support for the proposition that Mrs. Patrick was struck. The report does reject the notion that Mrs. Clement's son could have seen the incident, but beyond that, it only suggests that Mrs. Patrick could have been struck, not that she was struck. In any event it can hardly be suggested that in the circumstances the Insurer was acting unreasonably in relying upon the conclusion reached by the police.

Expenses:

Mrs. Patrick was not entirely successful but she did establish that she was in an accident and that she was entitled to a number of further benefits. In the circumstances, she is entitled to her expenses of the arbitration. If the amount cannot be agreed upon they shall be assessed in accordance with the Rules of the Dispute Resolution Process, in effect at the time the Application for Arbitration was filed.

Order:

1. Mrs. Patrick is entitled to a caregiver benefit from January 24, 1995 until September 13, 1996. Mrs. Patrick's claim for a caregiver benefit beyond that date is dismissed.

2. Mrs. Patrick is entitled to housekeeping expenses of 8 hours per week at $9.10 per hour, from the date of the accident and ongoing, less the amounts previously paid by the Insurer.

3. Mrs. Patrick is entitled to ongoing physiotherapy treatment.

4. Mrs. Patrick is entitled to psychological treatment by Dr. Arnold and the Insurer shall pay the outstanding sum of $906.25 plus ongoing expenses.

5. Mrs. Patrick's claim for sunglasses is dismissed.

6. Mrs. Patrick is entitled to transportation expenses to physiotherapy, and to Drs. Arnold's and McTavish's offices.

7. Mrs. Patrick is entitled to interest on outstanding expenses in accordance with the Schedule.

8. Mrs. Patrick is entitled to her expenses incurred in respect of the arbitration.

August, 1998

Stewart McMahon Arbitrator

Date

APPENDIX A

Witnesses:

The Applicant Dr. M. McTavish Shanna Marchildon Kathryn Dupuis Dr. Walter Peters Rob Hunt Leigh Clements Ronald Payne Senior Constable Jeff B. McKelvey Dr. M. Veall Dr. J. Dolozel Ellen Edmonstone

Exhibits:

Exhibit 1 Applicant's Book of Productions Volume 1 Exhibit 2 Respondent's Production Book Volume 1 Exhibit 3 Respondent's Production Book Volume 2 Exhibit 4 Respondent's Production Book Volume 1 Exhibit 5 Video Tape of Rodeo Picnic - July 8, 1993 Exhibit 6 Applicant's Book of Productions Volume 2 Exhibit 7 Applicant's Book of Productions Volume 3 Exhibit 8 Note of Dr. Larry Arnold Exhibit 9 Video of Applicant on October 3 and 4, 1995 - Investigative Research Group Exhibit 10 Transcript of Discovery of Leigh Clement dated June 13, 1996

Appendix B

Partial Inability to Carry on Normal Life

1. 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) personal care activities in which the person ordinarily engaged before the accident;

(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.

Complete Inability to Carry on Normal Life

2. For the purpose of this Regulation, a person suffers a complete inability to carry on a normal life as a result of an accident if, and only if, as a result of the accident, the person suffers an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident. Dependants

PART IV

CAREGIVER BENEFITS

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. At the time of the accident, the insured person was residing with a person in respect of whom the insured person was the primary caregiver and the person receiving the care was less than sixteen years of age or required the care because of physical or mental incapacity.

2. The insured person was not employed on a full-time basis and was not self-employed at the time of the accident.

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.

(3) No weekly caregiver benefit is payable under this section for the first week of the disability.

(4) If an insured person qualifies for weekly caregiver benefits under subparagraph ii of paragraph 3 of subsection (1) and does not qualify under subparagraph i of paragraph 3 of subsection (1), no weekly caregiver benefit is payable under this section more than 104 weeks after the insured person first qualified for weekly caregiver benefits unless the insured person is suffering a complete inability to carry on a normal life as a result of the accident.

(5) The amount of a weekly caregiver benefit shall be $250 for the first person who meets the following qualifications, plus $50 for each additional person who meets the following qualifications:

1. The person resided with the insured person at the time of the accident.

2. The insured person was the primary caregiver in respect of the person at the time of the accident.

3. At the time the benefit is paid, the person,

i. is less than sixteen years of age; or

ii. requires care because of physical or mental incapacity.

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.
2. 2(OIC A-011188, June 22, 1995)
3. 3(OIC A96-000368, June 4, 1997)