Neutral Citation: 1998 ONFSCDRS 24

FSCOA96-001793

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

C. L.

Applicant

and

ZURICH INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, C. L., was injured in a motor vehicle accident on October 8, 1991. She received weekly non-income benefits from Zurich Insurance Company ("Zurich"), pursuant to section 13 of Ontario Regulation 672.¹ Zurich terminated weekly benefits effective June 5, 1995. The parties were unable to resolve their disputes through mediation and Mrs. L applied for arbi-tration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is Mrs. L entitled to weekly non-income benefits of $185 after June 5, 1995 on the basis that she is continuously prevented, as a result of the accident, from engaging in substantially all of her normal activities, pursuant to subsection 13(8) of the Schedule?

2. Is Mrs. L entitled to housekeeping expenses under either section 7 or paragraph 6(1)(f) of the Schedule from November 8, 1994 and ongoing?

3. Is the Insurer entitled to a repayment of collateral benefits pursuant to subsections 13(3) and 27(3) of the Schedule?

4. Is Mrs. L entitled to prescription expenses of $108.37 pursuant to subsection 6(1)(a) and transportation expenses of $410.40 pursuant to subsection 6(1)(d) of the Schedule?

5. Is Mrs. L entitled to a special award pursuant to subsection 282(11) of the Insurance Act?

Mrs. L also claims interest on any amounts owing and her expenses incurred in the arbitration proceeding.

Result:

1. Mrs. L is entitled to weekly non-income benefits of $185 pursuant to subsection 13(8) of the Schedule from June 5, 1995 and ongoing.

2. Mrs. L is entitled to housekeeping expenses in the amount of $70 every four weeks from November 8, 1994 and ongoing, pursuant to paragraph 6(1)(f) of the Schedule. She is not entitled to care benefits pursuant to section 7.

3. The Insurer is entitled to a repayment of collateral benefits $3,655 pursuant to sub­sections 13(3) and 27(3) of the Schedule, with interest from the date of this decision.

4. Mrs. L is entitled to prescription expenses of $108.37 and transportation expenses of $410.40.

5. Mrs. L is entitled to a special award of $2,000, inclusive of interest.

6. Mrs. L is entitled to interest on all outstanding amounts in accordance with section 24 of the Schedule and to her expenses of the arbitration.

Hearing:

The hearing was held in Ottawa, Ontario, on December 8, 9, 10 and 11, 1997, before me, Susan Sapin, Arbitrator. This was a bilingual hearing. The Applicant testified in French and some of the documents filed were in French. An interpreter was provided to translate her testimony into English for the benefit of the Insurer and the court reporter. Due to the personal nature of some of the facts, I have exercised my discretion to use initials to refer to the Applicant and some of her witnesses. Those present and details of the hearing are listed in the Appendix.

Evidence and Findings:

A. Accident and injuries

On October 8, 1991, Mrs. L was driving on the highway from Alexandria to her home in Glen Robertson, a small village of approximately 600 people, when she attempted to pass a truck that had stopped without warning ahead of her. She lost control of her car. It hit a culvert and landed in a ditch. She was taken to hospital by ambulance and remained there for three weeks. She suffered compression fractures in her lower spine at the T11, T12 and L1 levels and a fractured nose. She testified that she injured her ribs and this caused pain that went up to her neck; the medical evidence, however, does not corroborate this. She was fitted with a rigid Jewitt brace, which holds the back in hyperextension to stabilize it and to prevent disc collapse, and which covered her torso from the neck down. She wore this for a year and a half.

Zurich retained a consultant, Associative Rehabilitation Inc. (ARI), to assist Mrs. L with her rehabilitation. Assistive devices such as a shower chair and bars, stair rails, an obus forme and a cervical pillow were provided, as well as homemaker assistance, physiotherapy, a chronic pain-management programme and psychological counselling. Despite these efforts, and although the fractures healed well, Mrs. L testified that she continued to suffer pain and was unable to resume her pre-accident level of functioning.

(B) Entitlement to weekly income benefits

(1) The test

Mrs. L is entitled to ongoing benefits of $185 per week from 156 weeks after the accident if she establishes, on a balance of probabilities, that the injuries she sustained in the accident con-tinuously prevent her from engaging in substantially all of the activities in which she would normally engage.

(2) Pre-accident activities

On the evidence of Mrs. L, her husband, her daughter J, and her niece J. L., I find that prior to the accident, Mrs. L always did her own housework, which included laundry, ironing, mending by hand and sewing machine, sweeping, vacuuming and mopping floors, dusting, meal preparation and clean-up, grocery shopping, and heavy spring cleaning such as washing walls and windows. She enjoyed her 13 grandchildren, who range in age from 8 months to 20 years old. She fre-quently babysat them at her home, actively spending time with them, amusing them and looking after their needs. I accept that she looked after one or more of them during school holidays and for extended periods during their parents' marital difficulties, although evidence differed about the exact periods. I accept the evidence of her daughter who stated that her mother "always took care of the new kids in the family." Mr. L stated that "We always had one at home." Mrs. L walked and bicycled daily in good weather. She exercised on a stationary bicycle and skied cross-country in winter. Her husband did the heavy work in the garden and she pulled weeds. She did errands alone, driving as far as Valleyfield, Hawkesbury and Ottawa. She regularly accompanied her husband to local dances where he played the fiddle and she danced Scottish dances. She liked to wear nice clothes and high heels and took pride in dressing attractively.

The overwhelming importance of family in Mrs. L's life was evidenced in an interview with Tri-County Mental Health Services in 1993, when she stated that she was so close to her children and grandchildren that she required no social life beyond her family. The interview report stated that her role of homemaker brought her a great deal of personal satisfaction.²

A particular pleasure for her was to receive her family at Christmas, Thanksgiving, other holidays and Sunday suppers, at which time she insisted on doing all of the decorating, meal preparation and clean-up herself without assistance, except perhaps sometimes from her husband.

The Insurer submitted that Mrs. L's functional abilities were impaired before the accident by longstanding neck pain associated with headache, chest pain, osteoarthritis, low back pain, anxiety and depression. Mrs. L vehemently denied that these symptoms impaired her activities in any way.

Dr. John Fairfield testified at the hearing. His evidence supports her denial. He has been Mrs. L's family doctor since 1987. He impressed me as an honest, dedicated, up-to-date and extremely thorough physician. I found his evidence very helpful in understanding Mrs. L's physical and mental condition over the years. In his testimony he reviewed each of the 47 visits to him by Mrs. L between 1987 and October, 1997. His pre-accident clinical notes indicate chronic muscle tension headaches and neck pain in 1988, serious enough to warrant referral to a neurologist;³ functional chest pain due to anxiety in 1989; functional abdominal pain; and osteoarthritis that was symptomatic in both hands and possibly both knees, diagnosed in 1990.⁴ There was disagreement about whether Mrs. L suffered low back pain prior to the accident. She denied this in her testimony. The clinical notes of Dr. Fairfield and a Dr. Robert Frechette record four com-plaints of back pain in the five years prior to the accident.⁵

Dr. Fairfield testified that, in his opinion, these pre-accident symptoms were not incapacitating. In fact, he stated that he found Mrs. L to be a very courageous lady who functioned well in spite of a lot of stress over the years. I reject the Insurer's inference in favour of the testimony of Mrs. L and Dr. Fairfield and find that Mrs. L's normal activities prior to the accident were as she described them and that they were not impaired by any of her pre-accident symptoms.

(3) Causation

Mrs. L must establish that the injuries sustained in the accident significantly contribute to her disability.⁶ The accident need not be the sole cause, nor is it necessary for me to determine the precise contribution of any other factors. Mrs. L argued that the injuries to her lower back were sustained in the accident and that the pain they cause her continuously prevent her from engaging in substantially all of her normal activities. The Insurer disputes this and argues that it is not her back injury, which has healed, that impairs her daily activities, but rather other non-accident related conditions, both psychological and physical, including her failure to pursue therapy for pain and depression.

(a) Non-accident related factors

At the time of the accident, Mrs. L was a 55-year-old homemaker whose activities revolved largely around her home and family. Her life has not been an easy one. The 13th of 14 children, she was taken out of school in Grade 7 to help her mother at home. Her older brothers drank and fought. She left home at 16 to marry her husband of 43 years, a gentle man who does not drink. After the birth of her first six children in rapid succession, one of whom died at birth, Mrs. L was hospitalized for several weeks for severe depression. Her six surviving children range in age from 26 to 40. Four of the six suffer from or have recovered from serious substance abuse problems. The youngest son in particular has been in and out of prison and detoxification centres. This has caused Mrs. L considerable stress and heartache over the years, which, in the opinion of her family doctor, Dr. John Fairfield, and the psychologist who treated her for chronic pain, Dr. Gilles Hébert, manifested itself not only in anxiety and depression, but in physical symptoms as well.⁷

Dr. Fairfield's records indicate that after the accident, Mrs. L suffered from neck pain and head-aches, for which he once again referred her to Dr. Chertkow, who concluded that the headaches were due to muscle tension or musculoskeletal neck pain or "both exacerbating each other" and that they may well be post-traumatic in origin.⁸ Mrs. L also developed mild bilateral carpal tunnel symptoms. In addition, she underwent surgery to release Dupuytren's contractures⁹ in her right wrist in September 1993, a facelift with liposuction to her neck and dermabrasion for lines around her mouth in May 1993,¹⁰ surgery to straighten her nose and correct a sinus problem, removal of a cataract in her left eye in February 1994, and a bilateral breast reduction to reduce back pain in September 1994, which she stated had no effect.¹¹ She also suffered from recurrent severe bouts of flu. Mrs. L also complained to Dr. Reen of left hip pain for the first time in September 1994.

The Insurer argued that it was some of these conditions, as well as depression, and not the injuries sustained in the motor vehicle accident, that caused Mrs. L's impairments.

Mrs. L's depression was remarked upon by virtually every health practitioner who examined or treated her. She herself denied that she was depressed, and testified that the professionals were wrong, and that what they took for depression was in fact her shy personality. Dr. Hébert interviewed and assessed Mrs. L on several occasions between April and October 1994 and conducted the chronic pain-management programme in which she participated. His assessment will be discussed in more detail below. Dr. Hébert diagnosed clinical depression that went beyond a shy, subdued personality but concluded that her mild features of depression were not disabling. His impression was that the limitations which substantially impacted her ability to perform many daily activities were due not to her depression but to her physical status.¹²

Dr. Denis Desjardins, an orthopaedic surgeon, examined Mrs. L at the request of her solicitors in November, 1996 and provided a medico-legal report dated December 30, 1996. He also testified at the hearing. I found his report and his testimony to be lucid, professional, objective and, with a few exceptions, relevant to the issues in dispute. In the absence of any Insurer's medical reports, I give it a great deal of weight.

Dr. Desjardins concluded that Mrs. L suffered residual pain and limitations from the T12 and L1 fractures of the dorsolumbar spine, which were directly caused by the accident and which also caused a dorsal kyphosis.¹³ He also found increased lumbar lordosis¹⁴ due partly to compen-sation for the accident-related kyphosis and partly to mild degeneration of the facets at L5 and S1, located in the lumbosacral spine. This also caused pain. He testified that Mrs. L suffered more serious degenerative disc disease of the neck. He also found significant osteoporosis due to menopause, which may have pre-existed the accident and which could be aggravating her symptoms. He found that although the fractures had healed, the dorsolumbar spine remained unstable. He stated that Mrs. L had reached her maximum medical recovery and that further treatment would not help. He found that the injuries sustained in the accident impaired her ability to bend, lift and twist. I accept Dr. Desjardins' evidence insofar as it clearly confirms that Mrs. L suffers impairment of her activities due to injuries sustained in the accident.

(b) Failure to pursue therapy

The Insurer argued that Mrs. L's failure to pursue therapy was unreasonable and concluded from this that she was not as impaired by her pain as she claimed.

The approach taken by arbitrators in the past is that failure to pursue recommended treatment may support a finding that the injuries are not as debilitating as the applicant claims or that any ongoing problems are no longer "as a result of the accident." Instead, they are as a result of other factors, including the decision not to pursue treatment.¹⁵ I do not find that the evidence in this case supports either conclusion for the reasons set out below.

Mrs. L testified that the initial physiotherapy sessions at the Glengarry Memorial Hospital in Alexandria, about seven miles from her home, were extremely painful and did not help her to resume her activities. Her husband testified that she did not go very often as she was too sore and had to sleep all day afterwards. Hospital records for January to December 1992 record only 10 visits during that period. The ARI consultant reported that family and health problems unrelated to the accident interfered with her attendance. Therapy was discontinued after Dr. Mehar S. Reen, Mrs. L's treating physiatrist, strongly recommended an in-home active physiotherapy programme and psychological counselling in order to help Mrs. L deal with the changes in her life as a result of her disability.¹⁶

The ARI consultant also recommended and arranged for counselling support to help Mrs. L cope with her depression and with her physical limitations resulting from the accident.¹⁷ However, after an initial interview, Mrs. L declined individual psychotherapy offered by Tri-County Health Services in June 1993,¹⁸ stating that she preferred to cope on her own.

Mrs. L attended a residential comprehensive rehabilitation programme at the Canadian Back Institute (CBI) in Ottawa in October 1993. She again found the therapy too painful and found it very difficult to be away from her family. CBI discharged her early on the basis that she had developed a full chronic pain syndrome and that further therapy would be useless until it was treated.¹⁹

In June 1994, Mrs. L attended a brief 12-hour chronic pain-management programme that included group therapy run by Dr. Gilles Hébert. Although shy and socially withdrawn at first, she became an active participant. At the end of the programme, Dr. Hebert strongly recommended individual follow-up counselling as well as individual sessions with an occupational thera-pist.²⁰ Mrs. L still suffered from pain and depression. The ARI consultant also felt that further individual follow-up counselling with Dr. Hébert was necessary; however, Mrs. L declined. The consultant referred the file to the ARI occupational therapist who reviewed it and concluded there was little potential for rehabilitation. The consultant came to the same conclusion.

By November 1994 it was pretty much agreed by Mrs. L's health care providers that there was little more that could be offered to her by way of rehabilitative therapy.²¹

Dr. Fairfield sympathized with the plight of his patient and felt that her symptoms of depression in November 1994 were a reasonable reaction to the fact that by that time no one had been able to help her cope with the pain and limitations caused by the accident. In consultation with Dr. Hébert he had prescribed antidepressant medication in August 1994. Mrs. L took it for a few days, then stopped because both she and her husband thought it changed her personality. She testified that it made her angry and aggressive. Both she and her husband were concerned it might be addictive. Dr. Fairfield encouraged her to take the antidepressant despite her concerns but testified that he eventually concluded that her wish not to take the medication should be respected.

Similarly, Dr. Hébert felt that Mrs. L's belief that psychological intervention was not appropriate should be respected.²² As part of his assessment of Mrs. L, he administered the MMPI-2,²³ a standard screening measure for psychological, emotional and personality dysfunction. He found the results to be consistent with his clinical observations. He concluded that Mrs. L's personality profile was characterized by lack of both insight and psychological sophistication, concrete thinking, an excessive preoccupation with her physical problems, passive dependency and an excessive reliance on others. He stated that individuals with her profile did not readily accept psychological interpretations of their problems.²⁴ In fact, Mrs. L testified that she could not see the point of therapy at all, where people just sat around and talked about their problems.

(c) Findings with respect to causation

On the evidence above, I find that Mrs. L has established, on a balance of probabilities, that she suffers a disability to which the accident is clearly the most significant contributing factor.

I reject the Insurer's submission that Mrs. L's failure to attend at physiotherapy, rejection of psychotherapy and scorn for psychological intervention expressed at the arbitration all suggest that she was not sufficiently impaired by her back pain to commit herself to therapy. I also reject the Insurer's submission that it was not reasonable for Mrs. L to decline routine interventions recommended by physicians and psychologists.

I find the evidence to be clear in this case that Mrs. L will always have pain as a result of her injuries, that no amount of physical therapy will make it go away and that chronic pain manage-ment techniques will not be effective without further psychotherapy. However, her personality and life circumstances make her a poor candidate for such therapy. Dr. Fairfield testified that Mrs. L had impressed him from the first as a shy, reserved and very private person. Both he and Dr. Hébert concluded that her unwillingness to pursue their recommended treatment should be respected. It is not reasonable, in these circumstances, to insist that Mrs. L undergo these treat-ments, nor is it fair to draw a negative inference from her failure to do so. I accept Dr. Hébert's opinion that it was not her depression but her physical condition that caused her impairment.

(4) Does the injury continuously prevent Mrs. L from engaging in substantially all of the activities in which she would normally engage?

(a) Post-accident activities

Mrs. L testified that she can no longer reach, bend, or twist without severe pain. This restricts her activities in the following ways:

Personal care: She must shower using her chair and can wash her own hair, which is long, but not her back, which her husband washes and dries. She can dress but cannot fasten her bra at the back or put on her shoes or socks. Her husband assists her with these.

Meal preparation: She can prepare light meals and clean up afterwards, including washing the dishes, as long as the tasks can be accomplished at her own height and the dishes or pans are not too heavy or too many. She cannot bend to load or unload the dishwasher or the oven. She stated that as a result she can no longer bake or prepare family Sunday or special occasion meals as before, nor can she clean up afterwards. Either her husband must help cook, which he enjoys and is capable of doing, or family members must bring the food.

Household chores: Mrs. L cannot change or properly make the bed, vacuum, wash floors or windows or do the big spring cleaning. She can dust at her own level only. Her husband assists her to carry and sort the laundry; she can load the washing machine but not the dryer, which requires bending, and cannot carry a full laundry basket or hang the clothes out to dry. She cannot push a grocery cart, retrieve items from the shelves or carry groceries. Mr. L testified that he now does pretty much all of the housework under her direction, and most of the cooking. He testified that his wife is a perfectionist in her homemaking and would prefer to do these things herself if she could.

Errands: Mrs. L can walk short distances to church, the post office, the bank and the mall, all a block or so from her house. She can drive short distances to neighbouring towns (for example, to Alexandria, about 7 miles away.) She stated she does not walk in winter as she is afraid to fall.

Other activities: Mrs. L stated that she tried to bicycle after the accident but could not do so due to pain. She cannot ski cross-country or dance Scottish dances. She no longer accompanies her husband to the dances as she cannot sit for long on the hard chairs. Both she and her husband testified that they enjoyed sexual relations prior to the accident but that Mrs. L. has been unable to engage in this activity since the accident due to pain. She no longer babysits her grandchildren as she is unable to look after them. She can no longer pull weeds in the garden. She admitted that she has made several long-distance driving trips since the accident, to Quebec City, Chatham and West Virginia, for example, sometimes by car and sometimes in the camper, but stated that this was only possible because she herself did not drive and she was able to lie down with a pillow during the drive. She has gone on weekend trips with her husband in their camper to a camp-ground near Cornwall. She stated that what she misses most is dancing and caring for her grandchildren.

Mrs. L testified that if she attempts to engage in some of her pre-accident activities as she did before the accident, she suffers so much pain that she is unable to do anything for several days afterwards.

(b) Medical evidence

Mrs. L's functional impairment was addressed by Dr. Desjardins, who found that pain from the injuries sustained in the accident has permanently impaired her ability to bend, lift and twist. He felt that she could sit, stand and walk with normal facility for short periods. Despite the Insurer's contention that counsel for the Applicant asked Dr. Desjardins to change his opinion, and based on Dr. Desjardin's testimony, I accept the doctor's statement that engaging in some pre-accident activities would cause Mrs. L considerable pain the following day, as his honest professional opinion. Unfortunately, his statements about her ability to engage in her homemaking tasks in paragraphs 3, 4, 5 and 16 of his report are somewhat contradictory and his statements that she is prevented from engaging in most of her normal pre-accident activities in paragraphs 5 and 15 are vague. Therefore, although I accept Dr. Desjardins' conclusion that Mrs. L's ability to do housework is impaired to the point that she requires assistance to clean, vacuum and wash floors two or three times a month, I do not find that his evidence supports her claim that she meets the disability test as set out in subsection 13(8)(b) of the Schedule.

Dr. Eward Day, a specialist in physical medicine and rehabilitation, examined Mrs. L at Dr. Fairfield's request and attempted to alleviate her symptoms with a type of therapy known as "facet manipulation." He was unsuccessful and concluded that it was unrealistic to expect Mrs. L to return to riding a bicycle, go on long distance walks, dance and perform the activities of a homemaker. He found no evidence whatever that she was malingering or exaggerating her pain.²⁵

(c) Functional capacity evaluation (FCE)

Mrs. L participated in a day-long whole body functional assessment conducted by Performance Plus Rehabilitative Care Inc. (PPRC).²⁶ Although this assessment considered a wider range of function than dealt with by Dr. Desjardins, I did not find it helpful in determining the key question. Mrs. L told the assessors that she had been in bed with a cold the previous two weeks and so was not at her best. It is evident from the detailed narrative section of the report that she complained almost constantly of pain throughout the testing, and found it difficult and tiring. It is equally clear that she participated fully in spite of her pain and that PPRI considered the results to be valid. The report found that she had a work-day tolerance of 5 to 6 hours, based on the fact that she could sit and stand for certain periods of time and walk frequent long distances. It stated that she had the most difficulty lifting from the floor, carrying, squatting, crouching, kneeling and crawling. Mrs. L testified that the assessment was so arduous and painful that she was bedridden for two days afterwards.

The Insurer argued that the cold that kept her in bed two weeks prior to the assessment likely kept her there afterwards as well. This is less plausible than the possibility suggested by Mrs. L herself, who testified that she suffers far more frequently from colds and flu since her accident than before, which suggests that her weakened condition results from her injuries. In any event it puts the validity of the assessment into question. I find the assessment represents nothing more than Mrs. L's maximum tolerance for certain activities on a single day, with pain, for which she stated she compensated by spending two days in bed.²⁷ The reported findings are not related to her actual ability to engage in the activities of her real life as she described them, i.e. dancing, bicycling, skiing, caring for small children, sexual relations. They do not take into account the effect of her pain or how often or for how long she would be able to engage in these specific activities. Despite the charts and purported "objective findings," I find this report to be subjective and too general to assist me in determining whether Mrs. L is continuously prevented from engaging in substantially all of her pre-accident activities.

(d) Surveillance

The Insurer showed four minutes' worth of surveillance film footage taken on November 30 and December 5, 1997, arguing that it supports the conclusion that any physical impairment is minor and ought not to prevent Mrs. L from engaging in substantially all of her pre-accident activities. The first segment shows Mrs. L leaving her house, getting into her car without difficulty and driving away. There is snow on the ground. According to the accompanying report²⁸ Mrs. L is seen later that day to "reach out, above and in front of herself, grabbing curtains in a front window and closing them." This is not evident from the video itself. The second segment shows Mrs. L walking for what appears to be less than a block on a sidewalk in Alexandria, consider-ably more slowly than her 64-year old husband, who suffers from arthritis in his legs and limps. She is later shown slowly getting into the passenger side of their car.

I find the surveillance report and video to prove absolutely nothing more than what Mrs. L herself has admitted and Dr. Desjardins has confirmed, that she can walk, sit and drive for short periods of time.

(e) Analysis and conclusion

I find that Mrs. L meets the disability test set out in subsection 13(8)(b) of the Schedule for the following reasons.

The Schedule does not compensate accident victims for pain and suffering, or the loss of enjoy-ment of life. Hence, the diagnosis of a chronic pain syndrome by itself does not entitle one to weekly income benefits.²⁹ The question in determining subsection 13(8)(b) eligibility is whether pain continuously prevents Mrs. L. from engaging in substantially all of the activities in which she would normally engage.

Arbitrators have articulated certain principles that assist in answering this question.

Firstly, one must view a particular activity as a whole and not focus exclusively on its constituent elements.³⁰ To break down an activity, or a category of activities, (household chores, or personal care, for instance) into discrete individual actions, if taken to its logical extreme, could disentitle almost anyone, no matter how disabled, if she were still capable of minimal discrete action. I think a sensible approach is to first define pre-accident activities that can logically be grouped into a category, not in general, but for the particular individual concerned ("household chores," for example). The next step would be to determine which of the activities the person actually is able to engage in within that category, and then determine whether those constitute substantially all of the activities in that category. For example, "household chores" for a particular person might include dusting, vacuuming, laundry, making the beds, preparing meals, doing the dishes and grocery shopping. It would strain reason to subdivide these actions any further— I would not consider a person who could dust only at her own height, for example, to be able to engage in "dusting," or a person who formerly prepared full cooked meals and now can only make sand-wiches and coffee, to be able to engage in "meal preparation." If she could do most of the other activities, however, I would consider her able to engage in substantially all of the activities in the broader category of "household chores." Of course, common sense dictates that some categories might be too broad ("leisure activities," for instance) and that some activities stand alone and indivisible for the purpose of this analysis, for example, in Mrs. L's case, riding a bicycle, skiing, dancing. Finally, one would examine the final list of categories and activities to determine whether the person could complete substantially all of them.

The second principle is that one must look at the quality of the activity, i.e. whether the indivi-dual's ability to carry out the activity is changed markedly or the character of the activity is not comparable. For example, if the length of time to complete an activity is so extreme or the degree to which the person can participate is sufficiently restricted, then it cannot be said that the person is "engaging in" the activity.³¹ I would consider this to be particularly applicable to an activity such as walking. For example, walking short distances of a block or less is a qualitatively different activity than walking long distances.

Thirdly, is the person actually prevented from engaging in the activity.³² Determining this in-volves a discussion of whether an "appropriate level of assistance,"³³ "reasonable and practical modifications,"³⁴ or the flexibility a person has to direct her own activities permits her to engage in activities despite her impairment. The focus of the inquiry is primarily on the injured person and what she can accomplish independently. The availability, amount or type of assistance she would need to enable her to engage in her activities should only be considered to the extent that it is reasonable and practical. An insured person is not required to completely rearrange her life a-round the assistance available, nor is she required to be dependent upon the assistance of another individual in order to be able to engage in her normal activities. She would not be disentitled simply because someone else was prepared to do all or most all of her normal tasks for her.³⁵

Fourthly, does the disability extend to substantially all of the activities in which the person would normally engage? This is not a definition of numeric precision and it has received little interpretation. Arbitrator Jones has interpreted it to mean most or nearly all activities.³⁶

I find on the evidence that pain from her injuries affects all of the activities in which Mrs. L would normally engage, albeit to varying degrees. Applying the principles above I would categorize her pre-accident activities as follows: personal care, household chores, meal preparation (particularly in conjuction with entertaining children and grandchildren on Sundays and holidays), looking after children, walking or driving short distances, walking or driving long distances, weeding the garden, sexual relations, riding a bicylce, cross-country skiing, dancing and running errands. I find that she can engage in substantially all of her personal care activities, walk short distances (a block or so) and drive short distances such as to Alexandria, 7 miles away. I find that Mrs. L is continuously prevented from engaging in the remainder of her activi-ties. In particular I find that as Mrs. L is now a passive participant in family gatherings and visits with grandchildren, where she formerly hosted these events and did all the work, she cannot be said to be engaging in the same activity because it has so markedly changed. I find the activities in which she is continuously prevented from engaging to make up most of or substantially all of the activities in which she would normally engage.

I find therefore that Mrs. L is entitled to benefits pursuant to subsection 13(8)(b) of the Schedule from June 5, 1995 and ongoing.

(C) Entitlement to housekeeping expenses

From the date of her discharge from hospital until November 8, 1994, the Insurer paid Mrs. L $175 per week she claimed to have paid to her daughter, her niece and her husband for help with her personal care and housework. Mrs. L, her daughter and her niece testified that one or the other of the two younger women came every day during the week and helped with housework. The household at that time consisted of Mrs. L and her husband. I find that part of the time was spent simply keeping Mrs. L company and that Zurich was aware of this. This is corroborated by ARI's note that Zurich arranged and paid for family members to come to Mrs. L's home daily to assist her with and "supervise her activities."³⁷ These arrangements continued until Zurich stopped paying this benefit effective November 8, 1994.

Subsection 6(1)(f) requires the Insurer to pay all reasonable expenses for services, whether medical or non-medical in nature, which the insured person requires because of the accident. Mrs. L is not required to prove that the expenses were actually incurred. It has long been accepted that subsection (f) is not designed to replace the injured person's services for the benefit of other family members, but that homemaking services will be a recoverable expense where requiring the injured person to complete tasks would interfere with her own rehabilitation or would be unreasonably difficult or painful.³⁸

Based on the testimony of the witnesses, the evidence of Dr. Desjardins and Dr. Day as discussed above, the size of the household, and the extra housework required for the family dinners described, I find that, as a result of the accident, Mrs. L requires ongoing homemaking assistance for approximately 16 hours per month, or, to be more precise, the equivalent of two eight-hour days every four weeks, which she can apportion according to her needs. For lack of any better method of calculating a reasonable rate, I would use the weekly rate of $175 paid by Zurich to obtain a daily rate of $35 for an eight-hour day. This results in a payment of $70 every four weeks, for 16 hours of work. Mrs. L is to be paid a lump sum calculated on this basis from the time the benefit was terminated until it is reinstated, with interest payable on each payment as due pursuant to subsections 24(1) and (4) of the Schedule.³⁹ I am mindful that this represents an hourly rate that is likely less than the current minimum wage, and that Mrs. L may in fact have difficulty obtaining services at this rate in her community. In the event the parties are unable to resolve this item I may be spoken to.

(D) Entitlement to care benefits pursuant to section 7 of the Schedule

I find that the evidence presented does not substantiate Mrs. L's claim for ongoing care benefits from November 8, 1994 and she is therefore not entitled to these benefits.

(E) Repayment of collateral benefits

I find on the evidence presented that Mrs. L received a total of $3,655 in disability benefits from a private disability insurer during the time that she was receiving weekly benefits of $185 from Zurich for the same injuries.⁴⁰ Subsection 13(3) of the Schedule entitles Zurich to deduct the amount Mrs. L received from a private insurer from the weekly benefits of $185 it paid her. In addition, subsection 27(3) of the Schedule requires Mrs. L to repay to Zurich the amounts it was entitled to deduct. Although I find nothing in the evidence to indicate that Mrs. L was either aware of or understood this requirement, I find that the law requires her to repay the $3,655.

Zurich claims interest on this amount. Subsection 27(4) of the Schedule provides that "the insurer may charge interest from the day the amount owing to the insurer is determined at the bank rate on that day." (emphasis added). The issue of an overpayment was not raised by the Insurer either at the pre-hearing or in its Response to an Application for Arbitration. I find therefore that "the day the amount owing to the Insurer is determined" is the date of my decision and find that the Insurer is entitled to claim interest as of that date.

(F) Transportation expenses

On the basis of Dr. Fairfield's evidence I find Mrs. L is entitled to transportation expenses for 19 accident-related visits to his office. This should be paid at the rate of 24 cents per kilometre, which I understand to be the rate at which Zurich paid transportation expenses, for each round trip of 90 kilometres, for a total of $410.40.

(G) Prescription expenses

Mrs. L is entitled to $108.37 for presription medication reasonably required as a result of the accident.⁴¹

(H) Special Award

Mrs. L claimed a special award pursuant to subsection 282(11) of the Insurance Act on the basis that the Insurer acted unreasonably in terminating both the care benefits, which included house-keeping, in November 1994 and the non-income benefits in June 1995. The Insurer conceded that care benefits were terminated after it became clear that Mrs. L was no longer willing to comply with rehabilitation measures and because she no longer needed paid housekeeping assistance, as Mr. L had taken on the housework. Although I have found Mrs. L's alleged failure to comply to be reasonable in the circumstances, I find no fault with the the Insurer's failure to come to the same conclusion. I find that Zurich was faced with an unusual and intractable challenge in Mrs. L and that it fully explored all conventional methods in trying to assist her to resume her daily activities.

However, I do find that Zurich clearly applied the wrong test when it decided that Mrs. L was not entitled to paid housekeeping assistance because Mr. L was doing the housework, and I find it was unreasonable not to evaluate her need for housekeeping assistance as a result of the accident. I find that this conduct merits a special award.

Weekly non-income benefits were terminated based on the FCE of March 14, 1995. Although I have found the FCE to be flawed, I do not find that the Insurer behaved unreasonably in relying upon it.

The maximum special award is 50 percent of benefits payable. As I find the Insurer's conduct to be unreasonable but not flagrant or in bad faith, I find an award at the lower end of the scale to be appropriate and award a lump sum of $2,000 inclusive of interest.

(I) Expenses

Mrs. L has been successful in her application for benefits. I reject the Insurer's submission that counsel for Mrs. L acted improperly when he asked Dr. Desjardins to clarifiy his medical opinion. Although it may have been inept, I find nothing improper in a lawyer attempting to educate a doctor about the nature of a legal test for disability and find no reason to question the integrity of either professional. I found the witnesses presented on behalf of the Applicant to be helpful in my determination of the issues. I therefore exercise my discretion to award Mrs. L her expenses of the arbitration.

Order:

1. The Insurer shall pay Mrs. L weekly non-income benefits of $185 from June 5, 1995 and ongoing.

2. The Insurer shall pay Mrs. L housekeeping expenses in the amount of $70 every four weeks from November 9, 1994 and ongoing.

3. Mrs. L shall repay to the Insurer collateral benefits of $3,655 with interest from the date of this decision.

4. The Insurer shall pay Mrs. L prescription expenses of $108.37 and transportation expenses of $410.40.

5. The Insurer shall pay Mrs. L a special award of $2,000 inclusive of interest.

6. Mrs. L is entitled to interest on all outstanding amounts in accordance with section 24 of the Schedule and to her expenses of the arbitration.

August 19, 1998

Susan Sapin Arbitrator

Date

Appendix

Present at the Hearing:

Applicant: C. L.

Applicant's Representative: Jean-Marc Lefebvre, Q.C. Barrister and Solicitor Lynn Bradley Student-at-Law

Zurich's Representative: Donna Crabtree Barrister and Solicitor

Witnesses: The Applicant The Applicant's husband The Applicant's daughter The Applicant's neice Dr. John Fairfield Dr. Denis R. Desjardins

Exhibits: The parties filed 22 exhibits. The proceedings were recorded by Gillespie Reporting Services.

Footnotes

1. 1Prior to January 1, 1994, Ontario Regulation 672 was called the No-Fault Benefits Schedule. After that date it became the Statutory Accident Benefits Schedule — Accidents On or Between June 22, 1990 and December 31, 1993. In this decision, the term "Schedule" will be used to refer to Regulation 672.
2. 2Assessment interview report dated June 24, 1993, Exhibit 3, tab 92.
3. 3Dr. Howard Chertkow, who diagnosed degenerative disc disease in the neck. He attributed the headaches to this as well as to stress and underlying depression.
4. 4The Nursuing Interview and Assessment form completed by Mrs. L'on admission to hospital on Ocotber 8, 1991 records that she had arthritis in both hands. Exhibit 1, Tab 2, pp. 57-58.
5. 5Exhibit 3, tab 89. Mrs. visited Dr. Frechette only to obtain diet pills, which she stated he dispensed freely.
6. 6Adopted as the correct test by Director's Delegate David Draper in Malabanan and Canadian General Insurance Company, (OIC P96-00073, February 4, 1998) as well as in many other Commission decisions.
7. 7Dr. Fairfield testified that he attributed her headaches and functional chest and abdominal pain to family stress. (see above)
8. 8Report dated June 23, 1994, Exhibit 3, tab 58.
9. 9Shortening of tissue on the inside of the wrist that pulls the hand in towards the wrist; Mrs. L'stated that the condition caused her no pain or impairment and that she wanted the surgery for cosmetic reasons.
10. 10The dermabrasion was poorly done and had to be repeated in February of 1996.
11. 11Mrs. L'testified that the surgery was to reduce pain and not for cosmetic reasons. Dr. Watters, who performed the operation, certified that the surgery was due to a painful back following the accident. Exhibit 3, tab 83.
12. 12October 6, 1994 discharge report, Exhibit 3, tab 68.
13. 13Excessive outward curvature of the spine, causing hunching of the back.
14. 14Inward curvature of the spine; the opposite of kyphosis.
15. 15Puopolo and Wellington General Insurance Company, (OIC P-006445, July 25, 1996), Caron and General Accident Assurance Company of Canada, (OIC A96-000264, February 24, 1998).
16. 16ARI report dated April 29, 1993, Exhibit 3 tab 32.
17. 17Initial evaluation, September 1992, Exhibit 3, tab 24.
18. 18Initial interview report dated June 24, 1993, Exhibit 3, tab 92.
19. 19CBI discharge report dated October 29, 1993, Exhibit 3, tab 43 -- ARI report dated November 11, 1993, Exhibit 3, tab 41.
20. 20Summary note June 1994, Exhibit 3, tab 61.
21. 21Report of Dr. Reen, November 24, 1994, tab 70.
22. 22Exhibit 3, tab 68.
23. 23Minnesota Multiphasic Personality Inventory
24. 24Assessment report dated June 16, 1994, Exhibit 3, tab 57.
25. 25Report dated January 4, 1996, Exhibit 3, tab 81.
26. 26Report dated March 17, 1995, Exhibit 3, tab 74.
27. 27This is consistent with her evidence about her attempts at physiotherapy, which she also stated were so painful that she had to rest in bed afterwards.
28. 28Exhibit 13
29. 29Caron and General Accident Assurance Company of Canada (OIC A95-000264, February 24, 1998). See also for example Quattrocchi and State Farm Mutual Automobile Insurance Company (OIC A-006854, September 29, 1997), Bertsouklis and Liberty Mutual Fire Insurance Company (OIC P-006499, May 28, 1996), and Breemo and The Dominion of Canada General Insurance Company (OIC P-001933, April 18, 1997).
30. 30Urquhart and Zurich Insurance Company (OIC A96-000368, June 4, 1997), at p. 22.
31. 31Ibid.
32. 32Ibid.
33. 33Ibid.
34. 34Simpson and Royal Insurance Company of Canada (OIC A-003863, April 6, 1994)
35. 35Puopolo and Wellington General Insurance Company (OIC P-006445, July 25, 1996)
36. 36J.P. and Wawanesa Mutual Insurance Company (OIC A96-001312, August 11, 1997)
37. 37Report of Initial Evaluation, September 9, 1992, Exhibit 2, tab 20.
38. 38Urquhart, supra note 30
39. 39Urquhart, supra—Supplementary Decision—(February 8, 1998) and Quarrington and Jevco Insurance Company, (OIC A-010804, July 17, 1995.
40. 40Exhibit 1, tab 1, pp. 86-87.
41. 41Prescriptions filed as Exhibit 6.