Neutral Citation: 1999 ONFSCDRS 202
FSCO A97-001228
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
DONNA YAREMKO
Applicant
and
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Insurer
REASONS FOR DECISION
Before:
David Evans
Heard:
May 11, 12 and 13, 1999, at the Offices of the Financial Services Commission of Ontario in Toronto.
Appearances:
David Arn for Mrs. Yaremko
Robert S. Franklin for State Farm Mutual Automobile Insurance Company
Issues:
The Applicant, Donna Yaremko, was injured in a motor vehicle accident on November 16, 1992. She applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company ("State Farm"), payable under the Schedule.1 State Farm paid weekly income benefits payable under section 13 of the Schedule to November 16, 1995, and supplementary medical and rehabilitation benefits (section 6) and care benefits (section 7) to July 15, 1996. State Farm took the position that any disability or necessity for ongoing assistance and care arose because of Mrs. Yaremko's age and prior injuries. The parties were unable to resolve their disputes about reinstatement of the benefits through mediation, and Mrs. Yaremko applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c. I.8, as amended.
The issues in this hearing are:
Is Mrs. Yaremko entitled to receive weekly benefits pursuant to section 13 of the Schedule from November 16, 1995 and ongoing?
Is Mrs. Yaremko entitled to the expenses for home renovations as particularized in the report of Adapt-able Design dated December 30, 1997, claimed pursuant to paragraph 6(1)(e) of the Schedule?
Is Mrs. Yaremko entitled to receive care benefits, pursuant to section 7 of the Schedule, representing a credit to the rent charged to Earl De Young for assistance provided to Mrs. Yaremko both inside and outside the home?
Is Mrs. Yaremko entitled to the expenses for housekeeping and hairdressing services claimed pursuant to paragraph 6(1)(f) of the Schedule?
Is Mrs. Yaremko entitled to the expenses for an adjustable bed, walker and electric scooter claimed pursuant to paragraph 6(1)(f) of the Schedule?
Is Mrs. Yaremko entitled to the expenses for transportation expenses such as taxi fares to and from the hairdresser and medical treatment appointments claimed pursuant to paragraph 6(1)(d) of the Schedule?
Is either party entitled to expenses of the arbitration proceeding?
Is Mrs. Yaremko entitled to interest on overdue payments?
Result:
Mrs. Yaremko is not entitled to receive weekly benefits pursuant to section 13 of the Schedule from November 16, 1995.
Mrs. Yaremko is not entitled to expenses for home renovations.
Mrs. Yaremko is not entitled to receive care benefits, pursuant to section 7 of the Schedule.
Mrs. Yaremko is not entitled to the expenses for housekeeping and hairdressing services claimed pursuant to paragraph 6(1)(f) of the Schedule.
Mrs. Yaremko is not entitled to the expenses for an adjustable bed, walker and electric scooter claimed pursuant to paragraph 6(1)(f) of the Schedule.
Mrs. Yaremko is entitled to transportation expenses of $17 claimed pursuant to paragraph 6(1)(d) of the Schedule, plus interest.
The parties may now speak to me regarding their entitlement to expenses of the arbitration proceeding.
EVIDENCE AND ANALYSIS:
Mrs. Yaremko, born October 16, 1923, testified that she has lived at her home on Brock Avenue in Toronto since 1954. She lived there with her husband until he died in December 1989; her daughter and grandchildren also lived with her for a period. She has worn back braces since the 1950s to relieve her constant low back pain and has an artificial right eye after two unsuccessful corneal transplants in the 1980s.
Mrs. Yaremko had other health problems predating her motor vehicle accident in 1992. Mrs. Yaremko testified that on August 17, 1989, while leaving a supermarket she fell on her left side with her left arm under her, hitting the left side of her face and head. The St. Joseph's Health Centre X-rays showed that she broke her left wrist. The emergency record shows that she also had a large hematoma around her left eye; Mrs. Yaremko testified that her left forehead swelled up to the size of an egg. She also twisted her foot and shoulder when she fell and had subsequent problems from the fall, including left-sided headaches and left shoulder and wrist pain. She was unable to continue her part-time job inserting flyers into the paper, and she sued the supermarket for loss of income. She testified that currently she only has a problem with her left arm when it rains and that within a few months of the slip-and-fall she was able to resume a number of activities that she now cannot do due to the motor vehicle accident.
Mrs. Yaremko did not remember a slip-and-fall accident in 1988. However, the emergency record of St. Joseph's Health Centre dated December 3, 1988, shows that she suffered a fall and a right foot injury.2 The note is difficult to read, but it appears that she fell on the sidewalk with her right foot under her and had tenderness and swelling in her foot.
Mrs. Yaremko testified that immediately after the slip-and-fall accident of 1989 she suffered from dizziness, and headaches that were sometimes severe. Her headaches gradually lessened, until she had them only the "very odd time" after two years. Although she had fallen in her house on two or three occasions due to dizziness, she did not need help because of it.
Mrs. Yaremko testified that her husband died on December 6, 1989. Approximately two months later, she hired Mr. Earl De Young to perform odd jobs around the house, especially outside work, and in September or October 1990, he started boarding in the basement.
Mr. De Young testified that he initially paid $250 rent per month, and sometime before the motor vehicle accident, the rent was set at $450. There was no lease, nor did he have any records of rent paid, as it was an informal arrangement.
Mrs. Yaremko and Mr. De Young testified that Mrs. Yaremko's daughter, Debra, left home at the end of the summer of 1991 or at the latest by the end of 1991. Hospital records from December 1990 suggest that she had moved out even at that point. Mrs. Yaremko claims that as a result of the motor vehicle accident on November 16, 1992, she reduced the rent she charged Mr. De Young by $200 first for his caretaking services and then by an additional $200 for his housekeeping services. However, Mr. De Young could not say precisely when the accident occurred. Instead, he testified that he started doing everything around the house, including inside work such as dusting and vacuuming, after Debra left.
With respect to the motor vehicle accident, Mrs. Yaremko testified that on November 16, 1992, she had made an appointment for her cat Garfield to be groomed. Mr. De Young took the cat in, and then he and Mrs. Yaremko went back to pick up Garfield just before 6:00 p.m. After they had returned, Mr. De Young met a friend, so Mrs. Yaremko took the cat home from the streetcar stop. She then started on her way along Queen Street to meet Mr. De Young, but she changed her mind and turned east towards home. She was about two-thirds across the intersection of Brock and Queen when a truck hit her and threw her in the air. She landed on the roof of a car, flew off its hood when the car braked, and landed in front of it with her body on the road and her arm on the sidewalk. She was not unconscious, and she does not remember hitting her head; Mrs. Yaremko tried to avoid striking her head because she knew another woman had died of concussion a week earlier in a similar accident. Mrs. Yaremko was taken to and treated at St. Joseph's Medical Centre.
The hospital records show that Mrs. Yaremko was admitted on November 16, 1992, complaining of pain in her right chest, shoulder, elbow, wrist, and hand. The St. Joseph's Report of History for November 16, 1992, indicates "contusion R[ight] occiput — no laceration." There is also a note that the patient stated that the back of her head hit the pavement, but a CT head scan showed no intracranial lesion or any other significant abnormality. X-rays of November 20 and 23 showed a fracture of the surgical neck of the right humerus (that is, the outside of her right arm near her shoulder, below and between the two rounded projections or tubercles), impaction of the bony fragments, fractures of right ribs and an old healed fracture of the left clavicle.
Dr. E. Spratt, thoracic surgeon, was Mrs. Yaremko's attending physician in the hospital, and he concluded that she also suffered fractures to her right wrist and hand. However, Dr. Michael Wood, orthopaedist, treated Mrs. Yaremko at the hospital and continued to treat her afterwards. He testified that there was no displaced fracture of her wrist (her right radius) or her hand, that the ribs have healed, and that the only residual problem now is the fracture to the upper part of her right humerus, leading to damage in her right shoulder.
Mrs. Yaremko was discharged on November 28, 1992. She testified that after her release from the hospital, she returned for treatment every weekday for one or one-and-a-half years.
Mrs. Yaremko testified that she had an operation on her right hand in October 1993 for a carpal tunnel syndrome that she considered to be caused by the accident, as she broke her knuckles and fingers and wrist. Now she has no strength in that hand, and she can hardly hold a dishcloth. She also has arthritis in her neck, hand and wrist that she did not have before.
Mrs. Yaremko testified that she paid her daughter for housekeeping and reduced Mr. DeYoung's rent for caretaking until the beginning of 1998. At that time, her daughter was not able to keep house for her after work, so then Mr. DeYoung assumed all the duties for an additional reduction in rent. State Farm paid for these expenses until July 1996.
Mrs. Yaremko testified that after the accident she had problems with her right shoulder and suffered increased headaches and dizziness. She cannot bend low as she gets too dizzy. She cannot look down, although she can bend down while looking straight ahead and feel with her hand. She also gets dizzy if she raises her head to look at a street sign and must reach for a post to support herself. Lying flat makes her dizzy, so she has to sleep sitting up, to which end she purchased a used adjustable bed in January 1999. At the beginning of 1998, she stopped going to the bank alone because she could no longer stand in line. In the summer of 1998 she purchased a rolling walker to assist her in walking. She testified that her health is much worse than it was in 1996 and 1997.
Mrs. Yaremko testified that she can take the TTC on her own, at least if the streetcar is not crowded and she can sit. Mr. DeYoung walks her to the corner, she goes to the hospital on her own, and then he comes and takes her back home. Mrs. Yaremko testified that she can wave with her left hand and put her left hand over her head, which she cannot do with her right hand, as she can only hold her right arm out straight.
Weekly Benefits:
In order to receive weekly benefits after November 16, 1995, Mrs. Yaremko has to satisfy the test set out in subsection 13(8)(b) of the Schedule: she has to establish that her injuries "continuously prevent" her from engaging in "substantially all" of the activities in which she would normally engage.
This claim was effectively withdrawn during submissions, as Mrs. Yaremko's counsel advised that he would make no submissions on this point. I find that indeed Mrs. Yaremko is not continuously prevented from engaging in substantially all of her normal activities. Mrs. Yaremko testified that she engaged in relatively few activities before the accident, such as attending bingo, going to the occasional show, or doing a little gardening. She was able to resume these activities afterwards, as she testified and as seen in the surveillance. As for housekeeping, it will be seen below that she was paying for housekeeping before the motor vehicle accident. Accordingly, I find that Mrs. Yaremko is not entitled to further weekly benefits.
Home Renovations:
Mrs. Yaremko claims a variety of home renovations set out in the Adapt-Able Design report dated December 30, 1997. This report in turn is based upon a Functional Home Assessment by Ms. Sue Wilkinson of Rehabilitation Management dated September 4, 1997. In her report, Ms. Wilkinson made a number of recommendations based on an exacerbation of Mrs. Yaremko's dizziness ("positional vertigo") and the dysfunction in her right shoulder. Ms. Wilkinson also referred to increased low back pain, but I heard no testimony that Mrs. Yaremko's low back pain increased as a result of this accident, nor did any medical reports indicate this. Thus, the Design report suggested modifications to the entrances and bathroom to allow electric scooter or walker access, a residential elevator to improve access to the second floor, and kitchen modifications to accommodate Mrs. Yaremko's shoulder problems. Counsel for Mrs. Yaremko made no submissions on the residential elevator, effectively withdrawing that portion of the claim. The other modifications total approximately $50,000.
This claim is based in section 6(1)(e) of the Schedule, which provides that the Insurer will pay to each insured person who sustains physical, psychological or mental injury "as a result of the accident all reasonable expenses resulting from the accident" for "(e) home renovations to accommodate the needs of the insured person."
Dizziness:
Mrs. Yaremko's claims of increased dizziness are essentially subjective. As noted above, the CT scan at the time of the motor vehicle accident revealed no abnormality. An assessment of subjective complaints relies on credibility. However, Mrs. Yaremko's credibility is affected by the fact that the pre-accident medical reports do not indicate the improvement to which she testified, nor do the post-accident reports indicate an immediate exacerbation. The post-accident surveillance shows her engaging in activities that would be difficult for a person with severe vertigo, and she gave inconsistent testimony in the discoveries relating to the slip-and-fall. She also could not remember or denied the importance of events such as her vertigo attacks in December 1990, and she downplayed pre-accident references to falls by suggesting that perhaps she had slipped on water or on an electrical cord. Furthermore, Dr. Veidlinger's reports are also inconsistent with each other, presumably reflecting an inconsistent history he received from Mrs. Yaremko.
Dr. Paul Dekany, Mrs. Yaremko's family doctor until recently (he died at Easter 1999), made extensive notes of Mrs. Yaremko's problems over the years. The earliest records filed show him prescribing Percodan and Tylenol III. Mrs. Yaremko had testified that she had not received Gravol before the motor vehicle accident, but the records do indicate such prescriptions. Even before the slip-and-fall, there are notations such as "no sleep because of pain" on February 20, 1987, and "can't walk back pain" on September 8, 1987.
After her fall on August 17, 1989, Mrs. Yaremko first saw Dr. Dekany on September 6. (I will not refer to every visit; Mrs. Yaremko continued to see Dr. Dekany regularly.) He noted that her left forehead was discoloured, and on September 18, he wrote "still severe headaches." On February 13, 1990, he wrote "[Patient] had been knocked out. Concussion . . . can't work, can't lift newspapers, anxious." On May 22, 1990, Dr. Dekany wrote "back is paining because of bus travel," and on July 26 he wrote "terrible headaches."
The records for St. Joseph's Medical Centre show an emergency attendance on December 16, 1990 that Mrs. Yaremko did not remember. Entries recorded that day show that she had been vomiting because of headaches, suffering loss of balance for two days, "crawling" around the house and falling to the right. The assessment record showed that she had been unable to walk "since Friday" and "crawls to BR." Mrs. Yaremko attended at St. Joseph's again on December 21, 1990. The patient record for December 21 indicates that Mrs. Yaremko had fallen four days earlier, striking the back of her head, and that she "fell because of dizziness." It goes on to record that initially her vertigo was aggravated by head movements, but it had become persistent along with frontal throbbing headaches on both sides of her head. Mrs. Yaremko testified that she only fell because she walks into doors. The nurse's clinical assessment record notes: "States she has no coordination, fell at home."
Returning to Dr. Dekany's records, Mrs. Yaremko complained weekly in February 1991 of dizziness. The entry of March 28, 1991, contains "yesterday fell, was dizzy did not hurt herself, dizzy!!": Mrs. Yaremko testified that she could have been dizzy or could have tripped over a cord. With respect to other comments in that entry of "tense helpless . . . not better . . . if she looks up, nearly passes out. Needs somebody to help walk and shopping," Mrs. Yaremko testified that she did not remember that, only that she needed her daughter's help if she bought many items. She did not recall his saying "will never be better." Similarly, Mrs. Yaremko could not recall the entries of June 3 — "not better more dizzy anxious" — or of July 2 — "dizzy staggering somebody has to come with her." In particular, regarding the July 2 entry "leg cramp at night . . . fell down 5 steps 4 days ago," Mrs. Yaremko testified that if she did slip it was not necessarily because of dizziness, as she could have lost her grip on the stairs or caught her shoe. She did not remember Dr. Dekany's entry of September 4, 1991: "can't go 2 blocks falling down, dizzy, headache can't look up anymore, gets dizzy can't keep balance." She testified that she would not say she had any real problems by then.
The entry in Dr. Dekany's records for November 5, 1991, contained a number of items. The records note "depressed — anxiety — very dizzy has to be accompany [sic] to office with friend": Mrs. Yaremko testified that she always went by herself as far as she remembered. Regarding "dizziness — bruises upper arm from bumping into walls," Mrs. Yaremko testified that she was a fast walker, so when going down the stairs she would bump into doors because she does not see on her right side. Regarding the entry of December 3, 1991, that she needed somebody to walk with her, Mrs. Yaremko testified that perhaps sometimes she had someone help her.
I note that Mrs. Yaremko's claims include that of a caretaker to accompany her.
For February 3, 1992, Dr. Dekany's clinical entry reads "dizzy spells, fell in the bath tub last week": Mrs. Yaremko testified that she fell because the tub is small and not because of dizziness. There is a notation of March 5, 1992 of "headache difficulty walking." Regarding the entry of July 22, 1992, "falling all the time bumping into walls and doors," Mrs. Yaremko testified that she cut corners too short because of her right eye blindness, although perhaps she was dizzy when she bumped into walls. Regarding the entry of September 24, 1992, "dizzy fell again this week, bruised hip," Mrs. Yaremko testified that she did not remember how she bruised her hip and that she may have slipped on water in the kitchen.
Dr. Dekany referred Mrs. Yaremko to Dr. Otto Veidlinger, neurologist, on several occasions. Dr. Veidlinger reported to Dr. Dekany in a letter dated February 15, 1990. With respect to the fall, he noted that she had a large goose egg over the left frontal area and an extensive right periorbital hematoma which developed into an extensive bruising over the soft tissues of the left side of the face. She was complaining of severe diffuse left-sided headaches. She also had occasional dizziness, by which she feels "as if to fall over" and sometimes while walking in the street, "she has to stop and grab something," and her symptoms were getting somewhat worse rather than better. On October 15, 1990, he reported that Mrs. Yaremko had a serious external head injury with very painful post-traumatic headaches associated with dizziness as well as dizziness on quick changes of position. After a referral for what Dr. Dekany thought might have been mild strokes in December 1990, Dr. Veidlinger reported on February 1, 1991 that Mrs. Yaremko probably had severe vertigo: "However, taking her history, it appears that she suddenly had severe vertigo as she was getting out of bed. She fell back into bed, had to crawl around to the bathroom and symptoms then eased up." On examination, Dr. Veidlinger confirmed very marked vertical nystagmus on sudden head dependance associated with vertigo, characteristic of a vestibular dysfunction rather than a central nervous system dysfunction; there were no other signs to suggest a cerebral infarct. He then discussed with her the 1989 slip-and-fall, noting that it was "very difficult to relate these attacks of acute vestibular vertigo which are after all so common with that remote head injury."
However, regarding causation, Dr. Veidlinger then wrote a report two weeks later on February 14, 1991, to Mr. Andrew C. Dekany, barrister and solicitor. This time, he felt that there was enough continuing evidence of dizziness, "although never quite this severe," to trace the attacks of vestibular dysfunction back to the 1989 slip-and-fall. Dr. Veidlinger thought that there was a good chance of these attacks recurring permanently, as he could easily elicit the vertigo and associated nystagmus, even though Mrs. Yaremko was no longer complaining of vertigo.
Dr. Veidlinger wrote to Dr. Dekany on September 13, 1991:
The dizziness is described as a true vertigo, in particular she can not look up. She often has to grab something and hold on. She sometimes bumps into things on the street. . . She is quite unsteady as she walks and needs a lot of support. . . As I have discussed previously, this vestibular disturbance is very likely a result of her head injury at which time all her symptoms started. . . She is now certainly severely disabled with her vertigo. . . Unfortunately, her dizziness may still persist in fact, I think it will now be a permanent problem.3
On December 17, 1991, Dr. Veidlinger wrote to Dr. Dekany that Mrs. Yaremko's dizziness and headaches were getting much worse. Mrs. Yaremko testified that they could have been worse that day and better a week later. Dr. Veidlinger noted that Mrs. Yaremko could not lie flat to sleep.
Turning to the post-accident period, I find that, in light of the many pre-accident notations, the records do not reveal any sudden exacerbation in Mrs. Yaremko's dizziness. There are entries referring to dizziness in Dr. Dekany's records, but they are in the same vein and of approximately the same frequency as before the accident.
Dr. Veidlinger wrote to Dr. Dekany on April 8, 1993 that at St. Joseph's Mrs. Yaremko had a "big goose egg over the right side of her head." Mrs. Yaremko testified that she did not tell him about a goose egg because she did not have one, not even on the back of her head. I find that Dr. Veidlinger did not describe any severe exacerbation of her headaches or dizziness in this report: he described Mrs. Yaremko as having tension headaches and increased anxiety as a result of the accident as well as "still" having dizziness, incoordination and staggering. On August 31, 1993, he wrote that the headaches had actually persisted since she fell in the supermarket "and were really not precipitated by the injury in November." In contrast to this report, on November 3, 1993, Dr. Veidlinger wrote that Mrs. Yaremko continued to have more dizziness and headaches "all related to the November 15, 1992 accident." However, on March 7, 1994, Dr. Veidlinger wrote: "These symptoms have now been on a continuing basis since her accident for which I originally saw her." [Emphasis added.]
On January 27, 1997, Dr. Veidlinger wrote to Mrs. Yaremko's solicitor, noting that she had had some headaches before the car accident but following the accident her headaches became much more severe and have continued: "She also started to feel dizzy and incoordinated and she would stagger." [My emphasis] Dr. Veidlinger concluded that Mrs. Yaremko had the symptoms prior to the car accident but they had been "greatly magnified" ever since.
As for the surveillance, State Farm conducted surveillance of Mrs. Yaremko on Friday, May 17 and Saturday, May 18, 1996. At 12:24 p.m. on May 17, Mrs. Yaremko is shown coming out of the house and working at its side, lifting a green garbage bag off the ground and bending over at the waist several times, including picking up a flat of flowers. Mrs. Yaremko testified that she was only picking up items she had left on a blue box beside her verandah and that she was not bent over more than 90 degrees. However, I find that Mrs. Yaremko does bend over more than 90 degrees on the tape. Later that afternoon she and Mr. DeYoung walk with her arm in his. They can be seen walking at a fairly normal pace back around 6:40 p.m. At 6:42 p.m., Mrs. Yaremko after breaking away from Mr. DeYoung waves to a neighbour, first with her left and then with her right arm. I find Mrs. Yaremko was able to raise her right arm swiftly, lifting her right elbow to slightly above shoulder level and waving her right hand above her head. The next day Mrs. Yaremko can be seen walking unaided to the bus stop a block from her house where she waits for Mr. DeYoung. They then enter a bus, go to a fish shop, and then go to play bingo.
There was further surveillance in July 1996. Mrs. Yaremko testified that on July 6, Mr. DeYoung took her to bingo, but he returned to look after a lawn sale, so she made her way back alone on the streetcar. At 4:54 p.m. she came out of the house to take care of the lawn sale during Mr. DeYoung's absence. She again bends over briefly at the waist to attend to something on the ground. She also lifts up and folds a black shawl; I find that she appeared to use both arms with equal comfort, raising her right elbow at least even with her shoulder and possibly higher.
Mrs. Yaremko testified that she walked much better in 1996 than in 1998 and that she is "five times worse" than when the videos were taken, as at that time she did not need the walker or need to lean on lampposts. She testified that Mr. De Young is not always present in the videos because she likes to strike out on her own, as she hates to depend on others, and the streetcar is only one block away. Now she has to hang on to Mr. De Young all the time because otherwise she keeps drifting to the right instead of walking straight. She also testified that four years ago she could walk on the stairs fairly well, but now it takes her longer and she has to hang on to the railing or work her way down on her posterior.
Mrs. Yaremko was observed again by surveillance in November 1997. She can be seen walking alone and waving at a bus that left without her on November 26. On her way back she limps; Mrs. Yaremko testified that she had been to see her chiropractor, Dr. Lam, four stops from her home, and that she limped because she was tired and her back pained her. She testified that in November 1997 if there was no snow or ice she could go by herself on the streetcar.
I find that the surveillance indicates that Mrs. Yaremko was able to carry on activities on her own for which she claims she needs assistance. More importantly, I find that the surveillance shows that she can not only look down but also bend over without apparently causing dizziness.
Mrs. Yaremko was examined for discovery in the action arising out of the 1989 slip and fall on April 18, 1995. When asked if it was true that she experienced increased dizziness and headaches following the car accident, she replied that she had headaches all the time and dizziness "because Dr. Veidlinger told me as I get older it will get worse." Mrs. Yaremko testified that she did remember Dr. Veidlinger telling her that as she ages her headaches and dizziness worsen. At the discovery, Mrs. Yaremko went on to testify that she had no increased headaches and dizziness "because I didn't hurt my head."4
Mrs. Yaremko was also asked at the discovery if she knew why Dr. Veidlinger said that she continued to have more dizziness and headaches related to the car accident, to which she replied that she did not know why he said it because her car accident had nothing to do with her head: "I had this dizziness in my head long before I got hit by a car."
I find that the inconsistencies noted above prevent me from relying on Mrs. Yaremko's testimony that her dizziness was exacerbated as a result of the accident. The same applies to the reports of Dr. Veidlinger, based as they are on her history given to him during the examinations. That leaves the insurer examinations by Dr. Barry Little, neurologist. In his report dated November 10, 1995, he thought that Mrs. Yaremko had a labyrinthine concussion producing postural vertigo, although there was no evidence of specific neurologic injury. However, at that point Dr. Little was not aware of Mrs. Yaremko's pre-accident problems. In a later report dated April 29, 1999, he noted that her neurological exam was normal. After viewing the surveillance tapes, he found it hard to believe that she continued to exhibit all the symptoms she alleges as a result of the accident. He considered the claimed expenses to be inappropriate in the absence of a clear definitive impairment. He wrote that, although the accident might have aggravated a pre-existing condition of dizziness, the protracted nature of her symptomatology and the absence of concrete neurologic signs argued strongly against brain trauma as a reason for the multiplicity of symptoms.
I find that if there was any contribution by the accident to Mrs. Yaremko's pre-existing dizziness, the contribution was not material and was at most minimal. Mrs. Yaremko had a long history before the accident of balance and dizziness problems, and there is little immediate post-accident evidence of exacerbation: the records rather indicate a continued gradual deterioration.
Accordingly, I find that the renovations related to the dizziness problems, namely the personal elevator, the reconstruction of the entrances and the bathroom, and other related construction, are not reasonable expenses resulting from the accident.
Shoulder limitations:
Before dealing in detail with Mrs. Yaremko's admitted shoulder limitations, I will briefly touch on her carpal tunnel syndrome. As mentioned above, she had an operation in the fall of 1993 on her right hand. Dr. Knowlton, head of the plastic surgery service at St. Joseph's, noted on August 12, 1993 that her fractured wrist was treated by Dr. Wood and "healed very nicely" (Mrs. Yaremko testified that she disagreed about the healing). Dr. Knowlton noted that the main problem was weakness in her right hand with nodules in the hand and that she also complained of pain in her wrist going into her hand. Mrs. Yaremko's wrist was decompressed in early October and on October 29, he noted that she was healing very nicely but complained of pain in her wrist and forearm, which he did not think was due to the operation. On November 26, he noted that she was using her right hand well and making a good fist. On February 4, 1994, he thought that her osteoarthritis was causing the continuing discomfort in her wrist; her fingers were good. Finally, on May 27, 1994, Dr. Knowlton wrote that despite her complaints of right hand discomfort the fingers "no longer have any problems and she makes a good fist and seems to be using her hand well." He went on to note that Mrs. Yaremko thought her problem was secondary to a car accident and that she was going to get the insurance company to send a form. Mrs. Yaremko testified that later on her hand got worse and she started dropping things.
Mrs. Yaremko considered that the syndrome resulted from a fracture to her right hand. However, Dr. Michael Wood, the orthopaedic specialist who has treated Mrs. Yaremko on a number of occasions since the accident, wrote in his medical-legal report dated November 18, 1997, that the original file note from the hospital indicating a fracture of the distal radius was incorrect. He testified that the only major orthopaedic injury that Mrs. Yaremko suffered in the motor vehicle accident was to her shoulder and that she certainly had no displaced fracture in her wrist.
The doctors who performed the orthopaedic insurance examinations, Dr. Langer and Dr. Cameron, whose reports are set out in more detail below, found no clear connection of the carpal tunnel syndrome to the accident. Dr. Cameron, in his report dated June 14, 1995, noted that it was healed by then in any event.
Mrs. Yaremko's reports to Dr. Veidlinger on her recovery from the syndrome were inconsistent. On April 24, 1996, he wrote that her right hand now felt "relatively well" after the carpal tunnel operation; on September 25, 1997, he wrote that since the carpal tunnel surgery, "she has never really recovered with regard to the use of the right hand."
Based on the strength noted in Mrs. Yaremko's right hand shortly after the surgery, the findings of the Insurer's doctors, and the inconsistent reports by Mrs. Yaremko, I find that any current problems in Mrs. Yaremko's right wrist did not result from the motor vehicle accident.
Mrs. Yaremko has admitted problems in reaching above shoulder height with her right arm. Dr. Wood, in his 1997 report, noted that Mrs. Yaremko had initially shown improvement in her shoulder problems. For instance, by August 1994 her right shoulder flexion and abduction were both at 150 degrees. By February 1995, the fracture was united, but her shoulder was still stiff. An ultrasound showed severe anatomical distortion with complete disruption of the long head of the biceps and supraspinatous tendon. (From then on he was generally seeing her for other problems.) He concluded that she had a significant injury to her right shoulder, leaving damage to the muscles around it with features of stiffness.
Dr. Wood testified that two of the four muscles protecting her shoulder were completely torn, explaining her stiffness. Her range of motion was highest in August 1994; by July 22, 1996, it was at 100 degrees (normal is 180 degrees), although she still had fairly good internal rotation. (I note that other and subsequent medical records show a fluctuation in the shoulder range of motion between those two extremes, including up to 140 degrees by Mrs. Yaremko's chiropractor, Dr. Lam, in October 1997.) Dr. Wood testified that at 100 degrees, the arm held either straight out or to the side would be at a level just above the nose. Thus, Mrs. Yaremko would not be able to reach over her head to retrieve items. Some activities of daily living would also be restricted, as she would not be able to attach clasps of jewellery behind her neck or button up her dress at the back, and she would have to do up her brassiere at the front and then turn it around or buy front-closing bras (Mrs. Yaremko testified that she has adopted this remedy). However, Dr. Wood testified, given Mrs. Yaremko's lack of muscle atrophy, she has been using her right upper arm below shoulder level. He also testified that surveillance showing her casually lifting her arm up to at least 90 degrees suggested that she did not have any considerable discomfort to that level. He testified that a reasonable estimate of the shoulder disability would be 17 to 18 per cent of the whole person.
Dr. Fred Langer, orthopaedic surgeon, examined Mrs. Yaremko. In his report dated December 13, 1994, he found that she had moderate decreased movements in her right shoulder, as her abduction was limited to 60 or 70 degrees. (I note that Mrs. Yaremko had displayed a greater range of motion to Dr. Wood both before and after this assessment.) There was no obvious muscle atrophy or weakness in the shoulder girdle. He concluded that she had some permanent moderate limitation of abduction in the right shoulder but required no therapy.
In a report dated June 14, 1995, Dr. Hugh Cameron, orthopaedic surgeon, confirmed that Mrs. Yaremko is unable to reach into high cupboards with her right arm and has some self-care difficulties as a result of the fracture of the humerus. He did not consider this a major disability.
In his report of April 15, 1999, Dr. Langer found that the fracture of the right proximal humerus healed with a malunion leaving a limited range of motion of the left shoulder interfering with elevation of the right upper limb. Activities requiring her to raise her right arm forward or away from the chest to the side will be permanently compromised, and she will also have problems with full internal rotation, like trying to do her brassiere up. He characterized this as a relatively minor disability, noting that her range of motion is functional below shoulder level. He did not consider her complaints of pain in her right shoulder to be disabling. In commenting on the house modifications, Dr. Langer noted that her normal left upper extremity means she can function in the kitchen, so modifications to it are not needed. In a separate letter of the same date he wrote that the video shows her functioning in a normal way, considering her age.
I find that although Mrs. Yaremko has some disability in her right shoulder because of the accident, she is able to reach for items using her left shoulder. Accordingly, the claim under this head for modifications to the kitchen and in particular the upper kitchen cabinets is denied.
Housekeeping and Caregiving Services:
Pursuant to paragraph 6(1)(f) of the Schedule, Mrs. Yaremko is entitled to all reasonable expenses resulting from the accident for other goods and services, whether medical or non-medical in nature, which she requires because of the accident. Mrs. Yaremko is claiming housekeeping services of $200 per month under this head.
However, Mrs. Yaremko testified that she was receiving housekeeping services before the accident, and that her post-accident expenses for these services did not increase. She had hired and fired two housekeepers at $50 per week. Her daughter then assumed these duties after she moved in, approximately six months before Mr. Yaremko died. Mrs. Yaremko did not initially pay her daughter for these services; her testimony was unclear as to the time she did start paying, but it appears to roughly coincide with the time she starting receiving benefits of $200 per month from the insurer for housekeeping.
Mrs. Yaremko testified that the housekeepers and then her daughter had assumed the heavier housekeeping duties before Mr. DeYoung took them over. However, Mrs. Yaremko testified that she could not describe what additional duties Mr. DeYoung performed after the accident. Mr. DeYoung testified that he "took over doing everything in and around the house" after Debra left; as noted above, Mrs. Yaremko testified that Debra left before the motor vehicle accident.
As to the heavier duties themselves, Mrs. Yaremko testified that she had never mopped the floors or cleaned the bathtubs before the motor vehicle accident because it hurt her back to bend over the mop or into the bathtub, nor had she cleaned the windows or the cupboards since she slipped and fell. Mrs. Yaremko testified that she was not prepared to move the clothes line to hang clothes; however, Mr. DeYoung testified that he has not used the line "in quite a while" in any event. Mrs. Yaremko testified that she cannot perform a number of other household activities because of dizziness; I have already found that the ongoing dizziness does not result from the motor vehicle accident.
I find that Mrs. Yaremko's housekeeping expenses did not result from the accident, nor did she require these services because of the accident. Accordingly, the housekeeping claim is denied.
Mrs. Yaremko also claims for Mr. DeYoung's caregiving services after the accident under section 7 of the Schedule. Since Mr. DeYoung is not a professional caregiver nor is he claiming any loss of income arising from the care, the claim must be under paragraph 7(1)(b) for all reasonable expenses resulting from the accident in caring for Mrs. Yaremko after the accident.
In large part, this claim relates to the allegation that Mr. DeYoung has to accompany Mrs. Yaremko. However, Mrs. Yaremko testified that he had accompanied her before the accident, taking her to the mall, to bingo, to a dance on Saturday night, and he also helped her with groceries if she had a great deal. In that regard, I note that Mr. DeYoung had taken the cat to the veterinarian and accompanied Mrs. Yaremko when she retrieved it later on the day of the car accident, performing the same kind of service for which Mrs. Yaremko now seeks payment. Furthermore, Mrs. Yaremko testified that Mr. DeYoung accompanies her because of her dizziness problems, such as her difficulties looking up at street signs or walking in a straight line. Aside from the fact that I have already found the dizziness not to be substantially related to the motor vehicle accident, the surveillance shows Mrs. Yaremko walking and taking public transit unaccompanied. Accordingly, I find that this is not a reasonable expense resulting from the accident.
Other Subsection 6(1) Claims:
Mrs. Yaremko claimed the expense of attending a hairdresser under paragraph 6(1)(f). However, Mrs. Yaremko testified that she had been visiting the hairdresser on a weekly basis before the accident. Furthermore, although Mrs. Yaremko testified that she cannot wash her hair, Dr. Wood testified that Mrs. Yaremko could reach the top of her head by bending her head without abducting greater than 90 degrees, although he thought she would have more discomfort while washing her hair. I find that this is not a service that she requires because of the accident. The claim is denied.
Mrs. Yaremko also claimed the expense of an adjustable bed, a walker and an electric scooter as medical devices under paragraph 6(1)(b). Mrs. Yaremko testified that she needed the adjustable bed because she cannot lie flat due to dizziness and that she needed the other devices because of her dizziness problems while walking. In light of my findings above, I find that these are not reasonable expenses resulting from the accident. The claim is denied.
Mrs. Yaremko claimed travel expenses pursuant to paragraph 6(1)(d) for transportation to and from treatment, counselling and training sessions, including transportation for Mr. DeYoung as an assistant. Mrs. Yaremko included taxi trips to her hairdresser as a claim. I find that these could not be for treatment, counselling or training, and furthermore I have found that the hairdressing was not recoverable, so transportation expenses would not be recoverable. As for the trips to her doctors, Dr. Wood wrote in his November 1997 report that from 1995 on he was generally seeing Mrs. Yaremko for other problems, and Mrs. Yaremko testified that she was seeing Dr. Dekany for a number of problems. Furthermore, Mrs. Yaremko testified that she was taking taxis to see Dr. Dekany and Dr. Veidlinger before the motor vehicle accident. Mrs. Yaremko testified that the expense applications also included some irrelevant transportation expenses, such as those to report a break-and-enter or to attend settlement discussions. Mrs. Yaremko testified that in 1998 she started taking the TTC instead of taxis to her appointments; I find that if she could take taxis then, she could have taken taxis earlier. Even where she claimed TTC transportation expenses, Mrs. Yaremko claimed for a packet of tickets: the Application for June 1998 only has two trips, both to the hairdresser, and the TTC tickets claimed total $40. I find that the only relevant transportation expenses would be those to Dr. Lam, the chiropractor, who did treat her shoulder. She claimed only two trips to him, totalling $17. I allow this claim but deny the other claims.
EXPENSES:
The question of expenses was deferred until all other issues in dispute were decided. Therefore, the issue of Mrs. Yaremko's expenses of this arbitration proceeding may now be addressed, if the parties cannot agree among themselves.
October 18, 1999
David Evans Arbitrator
Date
Neutral Citation: 1999 ONFSCDRS 202
FSCO A97-001228
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
DONNA YAREMKO
Applicant
and
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c. I.8, as amended, it is ordered that:
Mrs. Yaremko is entitled to transportation expenses of $17 claimed pursuant to paragraph 6(1)(d) of the Schedule, plus interest.
The parties may now speak to me regarding their entitlement to expenses of the arbitration proceeding.
October 18, 1999
David Evans Arbitrator
Date