Neutral Citation: 1999 ONFSCDRS 128

FSCO A98-000546

BETWEEN:

DEBRA WHYTE

Applicant

and

ZURICH INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

M. Kaye Joachim

Heard:

June 14 and 15, 1999, in Lindsay, Ontario.

Appearances:

John R. McCarthy for Ms. Whyte

Alan Bakker for Zurich Insurance Company

The Applicant, Debra Whyte, was injured in a motor vehicle accident on September 30, 1996. She applied for statutory accident benefits from Zurich Insurance Company ("Zurich"), payable under the Schedule.¹ Zurich denied entitlement to weekly caregiver benefits. The parties were unable to resolve their disputes through mediation, and Ms. Whyte applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issue in this hearing is:

Is Ms. Whyte entitled to caregiver benefits from October 7, 1996² to September 30, 1998?

Ms. Whyte is entitled to caregiver benefits from October 7, 1996 to September 30, 1998, plus interest and expenses.

Ms. Whyte is 46 years old. She has been living in a common law relationship with James Kennedy for nineteen years and they have two children, Heather, 10, and Ryan, 9. She grew up in Toronto and moved to Minden twelve years ago. She lives approximately two kilometres outside of Minden. For medical reasons, Ms. Whyte has never obtained her driver's licence. Her only means of transportation are walking and bicycling.

On September 30, 1996, Ms. Whyte was cycling in Minden when she slipped under the wheels of a truck at a stop sign and was injured. She did not file an application for benefits until April 1997 because she did not understand that she had the right to do so until she sought legal advice. Ms. Whyte alleges that she is entitled to caregiver benefits for the first two years after the accident on the basis that she suffered a partial inability to carry on a normal life throughout that period. She alleges that since the accident, she has suffered ongoing hip pain, memory difficulties, balance problems, and fear and anxiety about bicycling. She alleges that she suffered a substantial inability to engage in household activities and mobility activities in which she ordinarily engaged prior to the accident.

Ms. Whyte testified that for approximately one month after the accident, she was bedridden and her husband looked after her and the children. After that, she gradually resumed her pre-accident activities, although she continued to experience pain in her left hip and left elbow. For the first year after the accident, she had difficulty with some of her household chores such as vacuuming, hanging up laundry and gardening. Physical intimacy with her husband was painful. She was initially unable to walk the two kilometres to Minden or the three kilometres to her children's school. Eventually, she was able to walk these distances, with difficulty. She never bought another bicycle or rode outdoors again because difficulties with her balance made her fearful.

Credibility:

Ms. Whyte was the only witness to testify in support of her application. The reliability of her evidence is crucial to the determination of several issues in this case. I found her evidence to be generally reliable for the following reasons. Her complaints of pain were consistent with the description of the accident and the photographs of the injuries sustained. Her evidence about her activities and abilities was consistent with the evidence of her injuries. Her description of her functional limitations was moderate and, in some ways, detrimental to her claim.

The Insurer noted that Ms. Whyte's common law husband did not testify in support of his wife's claim and argued that I should draw an adverse inference from his failure to do so. While this type of corroborative evidence can be helpful, it can also be seen as self-serving. Mr. Kennedy's opportunity to witness his wife's difficulties was limited, as he was generally absent during the week. On balance, I am not satisfied that the Mr. Kennedy's failure to testify had any bearing on this case.

The Insurer noted that Ms. Whyte alleged in her application for benefits that she had memory problems after the accident, but not before. However, Ms. Whyte conceded during cross-examination, and the pre-accident medical records confirm, that she suffered memory difficulties before the accident. However, she did not allege that these difficulties caused her any functional difficulties and her memory problems did not play any role in her claim for benefits. I am not satisfied that this point outweighs the other reasons for accepting her evidence.

Medical Evidence:

Ms. Whyte was transported to the hospital by ambulance. She was alert and conscious at the scene and she was able to walk, with assistance, to the ambulance. The hospital records noted a small laceration to her left hand and elbow and swelling and bruising of her left hip. X-rays of her pelvis, lumbar spine, and sacrum were normal. The discharge diagnosis was soft tissue injuries. Photographs taken shortly after the accident showed massive bruises on Ms. Whyte's left hip and buttock area, left leg and left arm.

Ms. Whyte testified that she continued to experience ongoing pain in her left hip, and to a lesser degree, her left elbow, but she did not seek any medical attention for her injuries for seven months after the accident. She explained that her injuries initially prevented her from attending at the medical clinic in Minden. Further, she saw no reason to complain about her pain, as she had been advised that soft tissue injuries take time to heal. She also indicated that she would have been hesitant to mention the personal nature of some of her difficulties. Her former family doctor suggested that there are barriers inhibiting individuals living in small towns from seeking medical attention, including a lack of transportation, a shortage of doctors, and an attitude of independence.

I do not accept this explanation for Ms. Whyte's failure to seek medical attention for seven months after the accident. I note that Ms. Whyte made frequent visits to the Lyons Medical Centre in Minden prior to the accident. Her pre-accident medical records indicate no hesitation in reporting serious personal matters to her family doctor. In the seven months after the accident, Ms. Whyte did attend at the Lyons Medical Centre on at least three occasions for medical treatment. While she was there, she did not mention the bicycle accident or complain of any pain or difficulties.

Nonetheless I accept Ms. Whyte's evidence. I find that her complaints of ongoing pain and difficulty are credible and consistent with the mechanism of the accident and the subsequent medical evidence. The lack of complaint and medical treatment merely indicates that the level of pain and difficulty she was experiencing was not severe.

Left Hip Pain:

When Ms. Whyte ultimately reported her bicycle accident to her family doctor in May 1997, no treatment was prescribed at that time. During a physical examination on July 22, 1997, Dr. Judith Smith noted complaints of mild discomfort in the left hip and diagnosed soft tissue injuries. She recommended physiotherapy.

During a medical and rehabilitation designated assessment center ("DAC") assessment in April 1998, Ms. Whyte was examined by a physiatrist and a physiotherapist. The physiotherapist noted complaints of pain in the left hip, but no difference in measurements of the left and right leg, suggesting that Ms. Whyte had not been favouring one side for the past eighteen months. The physiotherapist diagnosed probable trochanteric bursitis in the left hip, and suggested physiotherapy, stretching and strengthening exercises. She also noted pain and swelling in the left elbow and some weakness in grip strength. The physiatrist confirmed the diagnosis of left trochanteric bursitis "which can be quite disabling at times."

The medical evidence confirms that Ms. Whyte's description of ongoing left hip pain is consistent with the injuries sustained in the accident. Whether or not this pain constitutes an "impairment" depends on whether the pain disabled her from functioning. This will be discussed below.

Balance and Anxiety - Ability to Ride a Bicycle:

Ms. Whyte testified that riding the stationary exercise bicycle in her home caused her pain and clicking in her hip. On the other hand, she reported to Dr. Judith Smith that she was able to ride her exercise bike at home, but was unable to bicycle outside, because of balance difficulties and fear and anxiety. I conclude that the evidence whether Ms. Whyte was physically unable to ride the exercise bike is equivocal. However, I accept her evidence that she could not ride a bicycle outside because of balance difficulties and fear.

The pre-accident medical records confirm that Ms. Whyte reported difficulties with her balance before the accident. However, despite these balance problems, Ms. Whyte did ride her bicycle. She was involved in a frightening accident while riding her bicycle in which she slipped under a truck. She was extensively bruised and suffered residual pain. She has not ridden a bicycle outside her home since, although it is her only means of transportation other than walking. She became fearful of riding her bicycle. I conclude that Ms. Whyte's anxiety impaired her ability to ride a bicycle outdoors, and that the accident was a material contributing factor in Ms. Whyte's fear of riding her bicycle.

Substantial Inability to Carry out her Household Activities:

I accept Ms. Whyte's evidence that for the first month after the accident, she was virtually bedridden. The nature of the accident and the bruising shown on the photographs support a finding that for the first four weeks after the accident, Ms. Whyte suffered a substantial inability to carry out her household activities.

Ms. Whyte testified that she had "difficulties" with vacuuming and hanging up laundry but she did not testify that she could not perform these activities. She conceded that she kept up her garden during the two year period, although it was not until this year that she got a good crop. Prior to the accident, she was responsible for all the housework, cooking, care of the children, and most of the gardening. After the accident, she managed to perform substantially all of these activities, albeit with pain. She did not testify about any need for outside support or assistance, other than during the first month.

The Applicant's counsel argued that there should be a "qualitative" element to the "substantial inability" test. He argued that although Ms. Whyte performed these activities, it was with "difficulty." The "difficulty" Ms. Whyte experienced was pain. It is well established in the arbitral jurisprudence that pain in and of itself is not compensable under the Schedule. It is only when the level of pain that the individual subjectively experiences affects his or her ability to function that it may be compensable. In this case, if Ms. Whyte's pain level had substantially interfered with her ability to perform many of her household activities, she would have been eligible under this heading. However, that was not her evidence.

I conclude that Ms. Whyte, on her own evidence, did not demonstrate a substantial inability to engage in the household activities in which she ordinarily engaged before the accident.

Substantial Inability to Engage in Mobility Activities:

In light of her inability to drive, the only way for Ms. Whyte to get from her home into Minden to pick up the mail, do the groceries, or perform other errands in town, was to walk or cycle. When she wanted a few items quickly, she would cycle. In an earlier written statement, she described cycling approximately five kilometres every day. Before the accident, she walked her children to school every day, and sometimes met them in town and walked back with them. During the winter months, Ms. Whyte was unable to bicycle and was totally dependent on her ability to walk to get around. Thus, the mobility activities in which Ms. Whyte ordinarily engaged before the accident (in addition to the usual sitting, standing, and general movement) were walking and bicycling.

Ms. Whyte testified about her inability to ice skate, but I am not satisfied that the evidence demonstrated that this activity was carried out with such frequency that it could be considered a mobility activity ordinarily engaged in prior to the accident.

Has Ms. Whyte demonstrated a substantial inability to engage in the mobility activities in which she engaged prior to the accident? There is no dispute that Ms. Whyte is capable of ordinary movement activities such as sitting, standing, and moving about.

Inability to Walk:

Ms. Whyte testified that she was unable to walk to her children's school to perform her weekly volunteer work, for one year after the accident. She took a taxi into town and would walk back. However, in a written statement in July 1997, she stated that she was able to walk to school and back, with difficulty. While Ms. Whyte no longer walks her children to school every day, her evidence was that her children do not want her to walk to school with them. I conclude that after July 1997, Ms. Whyte was able to walk into town or school and back.

However, I find that for someone in Ms. Whyte's circumstances (unable to drive and living two kilometres from town) this inability to walk long distances, until July 1997, amounted to a significant inability to engage in the mobility activities in which she ordinarily engaged.

Inability to Ride:

The evidence established that Ms. Whyte also continued to be unable to ride her bicycle throughout the entire two year post-accident period.³ Does this inability to ride her bicycle amount to a substantial inability to engage in the mobility activities in which she previously engaged? The Insurer argued that subsection 2(b) refers to mobility activities in the plural, not the singular. The Insurer argued that an insured must establish an inability to engage in more than one mobility activity in order to satisfy the partial inability to carry on a normal life test.

I do not accept this literal reading of section 2. In my view, an insured may suffer a substantial inability to engage in mobility activities, even if he or she is impaired with respect to only one mobility activity. The focus of the section is on the level of inability and the individual circumstances of the insured's pre-accident activities. Consideration must be given to the frequency and significance of the activity in the person's life. Given Ms. Whyte's unique life circumstances (she is unable to drive and she lives two kilometres outside a small town), Ms. Whyte's inability to get into town quickly and conveniently amounts to a sizable inability in her mobility activities.

I conclude that Ms. Whyte suffered a substantial inability to engage in mobility activities in which she ordinarily engaged, for two years after the accident. This amounts to a partial inability to carry on a normal life and accordingly, she is entitled to caregiver benefits during that period.

Interest:

Under section 68 of the Schedule, an insurer shall pay interest on overdue benefits at the rate of 2 percent per month compounded monthly. A weekly benefit is overdue fourteen days after the insurer receives an application for the benefit.⁴

In this case, the Applicant submitted her application for benefits on June 5, 1997. The weekly benefit became overdue on June 19, 1997. Interest is payable at the rate of 2 percent per month, compounded monthly from that date.

EXPENSES:

In light of the Applicant's success in this proceeding, I exercise my discretion to award her the expenses of the arbitration.

July 8, 1999

M. Kaye Joachim Arbitrator

Date