Neutral Citation: 1999 ONFSCDRS 223

FSCO A98-000693

BETWEEN:

ALICIA PETERS

Applicant

and

GUARANTEE COMPANY OF NORTH AMERICA

Insurer

REASONS FOR DECISION

Before:

Dirk VanderBent

Heard:

June 28 and 29, 1999, in Kitchener, Ontario.

The hearing was not transcribed.

Appearances:

Theodore C. Dueck for Mrs. Peters

Terry R. Shillington for Guarantee Company of North America

The Applicant, Alicia Peters, was injured in a motor vehicle accident on December 3, 1995. She applied for and received statutory accident benefits from Guarantee Company of North America ("Guarantee"), payable under the Schedule.¹ Guarantee terminated weekly caregiver benefits on December 10, 1997. The parties were unable to resolve their disputes through mediation, and Mrs. Peters 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. Peters entitled to receive weekly caregiver benefits, from December 11, 1997, and ongoing, pursuant to section 18 of the Schedule?
Is Mrs. Peters entitled to receive interest on any outstanding weekly caregiver benefits which are payable, pursuant to section 68 of the Schedule?.

Mrs. Peters is entitled to receive ongoing weekly caregiver benefits as claimed, together with interest.

Background:

As a result of the motor vehicle accident Mrs. Peters sustained a broken left wrist (a fracture of the distal radius), and a compound fracture of the right ankle (described as a severe comminuted fracture of the distal right tibia and fibula). Hospital physicians performed an open reduction of the ankle fracture and a closed reduction of the left wrist fracture. Mrs. Peters was released from hospital two weeks later. For the first year after the accident she was generally inactive, as she could not bear weight on her right leg. As her wrist fracture made it too difficult to operate a wheelchair, she got around using a commode chair. Her ankle fracture was slow to heal, and a bone graft procedure was performed on November 14, 1996, using bone taken from her left hip. After this surgery, she received physiotherapy at the hospital outpatient clinic for approximately five months. She was progressively allowed to bear weight. Initially, Mrs. Peters used crutches and a walker. She ultimately graduated to using two canes, which she has continued to use to the date of this hearing. Her wrist fracture healed with some residual deformity. Mrs. Peters' recovery has been complicated by her weight. She is 5' 1" tall, and at the time of the accident weighed at least 200 pounds. Her weight has since increased to 250 pounds.

At the time of the accident Mrs. Peters was 50 years of age, and lived with her husband, and their then 30 year old son, Carlos. Carlos sustained a severe brain injury in an earlier motor vehicle accident which occurred in 1991. Guarantee agrees that, at the time of the accident, Carlos required care due to mental incapacity resulting from his brain injury, and that Mrs. Peters was his primary caregiver at the time of her accident. Guarantee accordingly commenced payment of caregiver benefits. However, counsel for both Guarantee and Mrs. Peters agreed that it was unclear whether the parties ever reached a consensus on which entitlement test applied. Guarantee asserts that it paid caregiver benefits only on the basis that Mrs. Peters suffered a partial inability to carry on a normal life. It terminated benefits after 104 weeks, asserting that Mrs. Peters did not suffer a complete inability to carry on a normal life. At this hearing, Mrs. Peters agreed that her functional limitations do not satisfy the complete inability test. However, she asserts that she has always suffered a substantial inability to engage in the caregiving activities in which she engaged at the time of the accident. Accordingly, she argues that she continues to qualify for caregiver benefits.

Mrs. Peters elected to undergo a disability assessment by a Designated Assessment Centre ("Disability DAC"). This assessment was conducted by 'Link With Work" in February 1998. Unfortunately, the Disability DAC report makes it clear that it addressed only the test of whether Mrs. Peters suffered a complete inability to carry on a normal life. Guarantee has not paid any weekly benefits since December 10, 1997. Mrs. Peters has not returned to any form of employment since the accident. Since her bone graft surgery, her physicians have not recommended further therapeutic treatment. Home exercises were recommended, and she performs these regularly. She continues to live with her husband and her son.

Questions to be addressed:

The parties have agreed that Mrs. Peters' entitlement is based on subparagraph 18(1)(#3)(i) which provides that a person is entitled to benefits if:

As a result of and within two years of the accident, the insured person,

i. suffers a substantial inability to engage in the caregiving activities in which he or she engaged at the time of the accident,

This test is often labelled as the substantial disability test, and requires that I address the following questions:

What are the caregiver activities in which Mrs. Peters engaged at the time of the accident?
What is the nature of Mrs. Peters' ongoing injuries and functional disabilities arising from the accident?
As a result of her injuries, does Mrs. Peters suffer a substantial inability to engage in her caregiving activities?

Caregiver Activities

Since his accident, Carlos has continuously remained totally dependant on his parents for provision of his domestic needs, as well as supervision to ensure his health and safety. His brain injury has left him with severe cognitive, emotional, and motor control deficits. He demonstrates poor impulse control, and an inability to plan appropriately. His judgment is significantly impaired. He is stimulus bound and childlike in his behaviour. He cannot concentrate, and suffers from poor memory. He also demonstrates socially inappropriate behaviour.

It is agreed that Carlos' care needs have not changed since his accident. Specific examples of his behaviour underscore the extent of his disability. Carlos has placed a lit cigarette in his pocket, forgetting that he has done so, and burned himself. He cannot cook, as he forgets he has turned on the stove. He requires assistance shaving (although his ability to shave has improved somewhat), and due to his poor co-ordination and attention deficits, often fails to clean himself properly after using the bathroom. The result is that he often soils the toilet and his underwear. He often fails to shower properly, spilling water on the floor which has to be mopped up. He is unable to eat properly, and spills food on himself. He, therefore, must use a bib. Because of these problems, Carlos requires a change of clothing twice a day. He must be supervised when eating, and must have his food cut for him, otherwise he will attempt to swallow pieces of food which are too large. He has a tendency to choke easily, as a consequence of having been intubated at the time of his accident.

Carlos does not use garbage pails, and discards clothing and personal items on the floor. Consequently, his caregivers must constantly pick up after him. When out in the community, he is inattentive to traffic, and must be supervised when crossing the street. On outings with his parents, his poor impulse control presents difficulties. He will wander, pursuing whatever attracts his attention, without regard for his safety, or need to remain with his parents. Both Mrs. and Mr. Peters testified that Carlos accepts their supervision when they are outside their home, but they must match his walking pace so they can verbally cue his behaviour. They must be vigilant at all times, as he impulsively and spontaneously changes direction to pursue whatever attracts his attention. Carlos at times makes socially inappropriate comments of a sexual nature to female strangers. He has lost contact with the friends he had prior to the accident. He has difficulty remembering events that have taken place a few minutes before. Consequently, he would make frequent telephone calls to friends, forgetting that he had done so. He also perseverates, which means that he tends to persist with incorrect problem strategies, while ignoring new information which may guide him to a correct strategy. For example, he often misplaces items, but is unable to accept that it cannot be found. He will fixate on the problem, becoming increasingly agitated and frustrated, repeatedly asking his parents to find it for him. He can be distracted at times, but often it becomes necessary to conduct an exhaustive search in order to locate the item. This can be difficult and time consuming as he is indiscriminate about where he places things.

Due to his disabilities, Carlos lives a simple life. He spends much of his time at home with his parents, and has an interest in audio tapes and compact discs. Prior to Mrs. Peters' accident, his parents would take him on daily outings to a shopping mall or park. As securing Carlos' attention and co-operation is a time consuming process, these outings take up to 3 to 4 hours, even though the activities are relatively simple. Mr. and Mrs. Peters both testified at the hearing. Their evidence was consistent, except that they disagreed on who spent the most time taking Carlos out into the community. I find that they likely shared this responsibility, both perceiving their respective contributions to be greater than they were. However, I accept that Mrs. Peters took Carlos out by herself at least one day a week, and shared this responsibility with her husband at least once per day. I also find that these outings were an important caregiving activity. As Mr. Peters testified, Carlos becomes bored if he stays in the house all day. In addition to improving Carlos' quality of life, keeping him happy and stimulated assists Mrs. and Mr. Peters in maintaining their relationship with their son, which in turn is the means by which they can control his behaviour.

Mrs. Peters testified respecting the specific care needs she provided for her son. I accept her evidence in this regard. In summary, therefore, I find that she engaged in the following caregiving activities prior to the accident:

taking Carlos by car out into the community, and walking with him in shopping malls and the park, at least two times per week, with each outing lasting up to four hours
cutting his fingernails and toenails, and assisting him in shaving
laundering his clothes and bed linens, and ironing (three loads of laundry per week), including some handwashing necessary to properly clean soiled underwear (total of four hours work per week)
preparing all Carlos' meals, and supervising his eating (up to five hours per day)
grocery shopping for Carlos once per week (as part of the family grocery shopping), as well as shopping for his personal needs (clothing, toiletries, etc.)
cleaning the bathroom, making Carlos' bed, and tidying the house (including looking for misplaced items) (excluding the family's general housekeeping needs), (one to one and a half hours per day)
supervising Carlos 24 hours per day, (this duty being shared equally with her husband)

Injuries/Functional Disabilities:

Mrs. Peters was assessed by physiatrist Dr. Scott Garner, who prepared a report dated April 29, 1999. He concluded that she suffered from the following residual problems:

right ankle osteoarthritis with right ankle contracture and residual pain.
mild range of motion loss of the left wrist with possible secondary adductor tendinitis with left arm use.
mechanical low back pain with left posterior hip myofascial discomfort.
post traumatic headaches.

While Dr. Garner confirmed that his expertise did not extend to grading the level of Mrs. Peters' arthritis, Dr. G. Stamp (the Disability DAC medical assessor) confirms that Mrs. Peters has suffered significant post-traumatic degenerative arthritis in her ankle joint.

Dr. Garner testified at the hearing, clarifying several of the findings documented in his report. He explained that the restrictions in the range of motion of Mrs. Peters' right ankle were not the result of self-limiting behaviour, but were physical restrictions noted when he physically manipulated her ankle. One of these findings suggested that the muscle strength in her ankle was below that considered necessary to move a limb against gravity. Dr. Garner also noted that x-rays showed ongoing cortical irregularity. In lay terms, the cartilage lining is no longer smooth, and therefore the bones which comprise this joint no longer move against each other as freely as they would in a healthy joint. As a result Mrs. Peters has developed osteoarthritis. Dr. Garner also explained that x-rays indicate that Mrs. Peters suffers from osteoporosis (a decrease in bone density). This is due to calcium leaching from the bone, which occurs when bones are not regularly used for normal weight-bearing activities. Dr. Garner also noted that Mrs. Peters' injury has left her with a right anterior tibial bulge through the fascia, and healing with deformity. In lay terms, the soft tissues have tightened up, and the muscles do not work normally due to the bulging. He commented that this creates additional biomechanical inefficiency which increases Mrs. Peters' lack of strength and control in the joint. He stated that persons who suffer joint arthritis may experience few symptoms when muscle strength is good. However, if strength is poor, and bone cartilage is not smooth, one could expect joint inflammation and resultant pain.

Mrs. Peters also underwent several insurer examinations, performed by two assessors: orthopaedic surgeon, Dr. James Israel, and Dr. Michel Lacerte who is a specialist in physical medicine and rehabilitation. While these two doctors do not agree with Dr. Garner's assessment of the functional limitations which Mrs. Peters experiences as a result of her injuries, they do agree with Dr. Garner's primary medical diagnosis of her ankle condition. Although neither doctor diagnoses osteoarthritis, Dr. Israel confirms significant osteoporosis, and some incongruity in the ankle joint, and further indicates that Mrs. Peters would be left with residual disability. Dr. Lacerte expressed the opinion that Mrs. Peters would experience ongoing weight-bearing difficulties due to a combination of decreased flexion, pain, and obesity. Dr. Lacerte agreed with Dr. Garner's assessment of Mrs. Peters' left wrist and left hip (bone graft site) problem. Accordingly, I find that Mrs. Peters suffered the residual problems as noted by Dr. Garner in his report.

Mrs. Peters testified that she cannot stand or walk for longer than 15 minutes due to pain in her left wrist, left hip and right foot. Her right foot causes her pain from the back of her heel to the toes, particularly in the morning when she is unable to bear weight on it. She uses a cane in her right hand to control the pain in her right foot, and a cane in the left hand for balance. She cannot lift or carry items heavier than her purse, as she needs to hold a cane in her right hand, and she experiences pain in her left wrist. She is unable to bend, crouch or kneel. She never walks without the aid of some supporting device (cane, walker, or shopping cart). She does not drive her car, because of pain in her right foot, which, she feels, prevents her from safely operating the brake pedal.

Dr. Garner accepts Mrs. Peters' self-reported limitations as reasonable and consistent with her injuries. A functional capacity evaluation was conducted as part of the assessment conducted by the Disability DAC, which Dr. Garner considered to be valid, and is also consistent with Mrs. Peters' evidence. However, Dr. Israel and Dr. Lacerte do not agree that Mrs. Peters is substantially disabled from engaging in her caregiver activities. I prefer Dr. Garner's opinion over theirs.

I am not persuaded by Dr. Israel's analysis for two reasons. First, he assumes that if Mrs. Peters can perform an activity with assistance, she has the ability to perform that activity. However, his report does not indicate that he considered whether she would be so dependant on assistance that she realistically could not perform the activity independently. Secondly, his most recent assessment report dated May 28, 1999 confirms Mrs. Peters' continued inability to stand for long periods of time, walk long distances, or go up and downstairs. He does not comment on whether she has the capacity to kneel, bend, or crouch, nor does he provide any analysis to explain why he concluded that her identified functional limitations would not interfere with her ability to perform her caregiving activities. He only states that her limitations should not prevent her from doing "most of her usual previous activities."² In the absence of any further analysis, I find that his opinion has little probative value.

I also found Dr. Lacerte's report, dated June 8, 1999, to be of little assistance. He relied on pre-accident clinical notes and records to identify what he concluded to be a pre-accident history of fibromyalgia (diagnosed in 1991), mild focal degenerative changes in the right knee and ankle joints (based on a 1994 full body scan), and self-reported diabetes. However, Mrs. Peters testified that she did not suffer from any of these conditions. While she had been referred by her family physician for assessment by a rheumatologist, her family doctor told her it was nothing serious, and no further treatment was recommended. Since that time she had continued to function both working in a restaurant (a business which she ran for approximately two years), and in caring for Carlos. She never received treatment for her leg complaints, which she testified did not interfere with her ability to function. She also confirmed that she has never been diagnosed as having diabetes. Her family physician had warned her to watch her diet or she could develop this condition. None of Mrs. Peters' evidence was contradicted. Dr. Lacerte did not testify. His report was admitted on the consent of both counsel, as Guarantee had conceded that it was not relying on Dr. Lacerte's opinion that Mrs. Peters' pre-accident medical condition was the cause of her post-accident difficulties. It is clear from Dr. Lacerte's report that he considered that Mrs. Peters' pre-accident medical history (as described above) probably precluded her from performing many of the more physically demanding activities related to her son's care. He concluded that she was not disabled because she could perform the verbal cueing and supervision necessary to direct her son's self-care activities and behaviour. On the evidence, I find he made an erroneous assumption. Consequently, Dr. Lacerte's opinion is misinformed, and I place no weight on this evidence.

I prefer Dr. Garner's view. He provided a reasoned analysis when asked to evaluate Mrs. Peters' credibility, and assess the extent to which her subjective reports of functional disability could be objectively accepted as valid. He stated that Mrs. Peters' self-reported complaints of pain and functional limitations are reasonably consistent with his objective medical diagnosis of her condition. The primary source of her pain is due to her arthritis and the soft tissue pain associated with muscle distortion and strain. If Mrs. Peters were to attempt to fully bear weight on her right leg, or crouch, her leg would give out. Her use of a cane to support her right leg is reasonable. Lower extremity pain increases exponentially with the force placed on the joint. Consequently, Mrs. Peters' overweight condition makes her functional problems all the more difficult. Dr. Garner observed that, in his experience, some patients with similar injuries present as less disabled, and other significantly more. He did not find Mrs. Peters' self-reported difficulties represented an unusual or abnormal presentation.

I found Mrs. Peters and her husband to be credible witnesses. Their evidence was consistent for the most part, although they disagreed on who shouldered the major responsibility for taking Carlos out for social activities. However, I was left with the impression that each held an honest perception that they had done more than the other. I accept Guarantee's submission that Mrs. Peters was reticent in acknowledging the activities she could perform. However, I did not find her to be evasive. Her own perceptions respecting her global functioning affected her answers to questions respecting her ability to do specific tasks. Therefore, while I find that she had some tendency to advocate on her own behalf, she did not deliberately or significantly misrepresent her condition and functioning. In this regard, I note that, although the Disability DAC medical assessor found some discrepancy in her functional performance, she performed consistently during the functional capacity evaluation, and willingly participated in certain activities even though she no longer performed them at home (having delegated them to her husband).

Mrs. Peters asserts that she must use two canes. Dr. Garner could not comment on this issue. Mrs. Peters testified she uses two canes as she must bear weight on her left leg to relieve the pressure on her right, but ultimately this stresses her left hip and results in low back pain. Consequently, she uses the second cane to relieve the stress on her left leg and low back. I accept that this is a reasonable means to accommodate her disability. However, I do not find the use of the second cane to be a significant factor in this case. The issue is not whether she needs to use the second cane to walk. The issue is whether she has the strength and endurance to perform her caregiver activities either using one cane or two.

To conclude, I accept that Mrs. Peters suffers from the restrictions as noted in the Disability DAC functional capacity evaluation. I accept her evidence that these restrictions have persisted to the date of this hearing. Mrs. Peters is unable to stand or walk for longer than 15 minutes, and can ambulate at only a slow pace with the use of canes. She cannot crouch, kneel, or bend forward to reach. When standing she must support herself using one cane, or by leaning on a support surface such as a table or counter top. She is unable to reach for items on low shelves, and is unable to carry heavy items or items that must be lifted with both hands (e.g. hot dishes to be removed from the stove).

Substantial Disability

It is not disputed that Mrs. Peters' husband has assumed all of the caregiver activities for Carlos since the accident. However, Guarantee asserts that Carlos' care needs are met predominantly through supervision, which Mrs. Peters is able to do. Guarantee further asserts that the remainder of his needs involve only domestic care duties, most of which Mrs. Peters can partially complete on her own. Her husband's assistance with these tasks is a reasonable accommodation of her disability, and therefore Mrs. Peters does not satisfy the substantial disability test. I do not accept this position.

When determining whether a primary caregiver suffers a substantial inability to engage in caregiving activities, the following principles apply:

The Schedule contemplates a purely subjective test of caregiving activities. An arbitrator must consider the caregiving activities carried out by the insured person, and determine whether he/she has a sizeable inability to engage in these activities.³
A person who is not working in paid employment, has much more flexibility in deciding what his/her tasks are, and how these will be accomplished. Whether an insured person's pre-accident essential tasks could be accomplished with reasonable and practical modifications is a relevant consideration when assessing entitlement.⁴ Insured persons, however, are not expected to re-arrange their entire pre-accident schedule and that of their family, in order to accommodate their disability.⁵
Time is a factor that should be considered. Given enough time even a severely disabled person can accomplish many tasks. A realistic assessment is required. If the injured person is able to do his or her essential tasks at a somewhat slower pace, he or she may not satisfy the substantial disability test, unless time is a critical factor.⁶
The interaction between an insured person's injuries and his/her essential tasks is critical. Certain injuries may prevent one person from performing his or her essential tasks, while causing only minor disruption for another person who has different essential tasks to perform.⁷
When assessing functional disability, an insured person's activities should not be unreasonably broken down into their constituent tasks. The question is whether the insured person can perform the activity as a whole, not whether he or she can perform each individual physical act involved in the activity.⁸
An insured person's ability to effectively perform an activity, as well as his/her need for assistance, are also relevant considerations. At some point, a person's ability to engage in an activity may be so limited, or so dependent on assistance, that it cannot be realistically said that he or she is capable of engaging in that activity.⁹

In applying these principles to the circumstances of this case, I find that, except for her ability to provide verbal supervision of Carlos at home, Mrs. Peters is unable to meaningfully engage in her caregiver activities.

Even assuming Mrs. Peters could ambulate with one cane, and had the stamina to last more than 15 minutes by taking frequent rest breaks, I received no evidence to suggest that she could manage a three to four-hour outing, keeping pace with a 30 year old man who is incapable of appreciating her functional limitations. Mrs. Peters can exercise control over her son through verbal cueing alone. She cannot do so if she is unable to remain in close physical proximity to him. There is no suggestion in the evidence that she would have the ability to move quickly enough to pursue him should he impetuously wander off. Therefore, I find she has the capacity to supervise her son only within the confines of their home. As Carlos' community outings are important, I find that this limitation constitutes a substantial inability to engage in caregiver supervision.

I further find that Mrs. Peters' functional limitations prevent her from completing each of her other caregiver activities, when they are considered as a whole, rather than being broken down into their constituent tasks. She cannot single handedly scrub the toilet and mop up the bathroom floor, make Carlos' bed, do his laundry and pick up after him. Nor can she prepare and cook three meals a day, or go grocery shopping on her own. I also do not find that Mr. Peter's assumption of the tasks which Mrs. Peters cannot do, can be properly characterized as a reasonable and practical accommodation which qualifies her as being able to engage in these activities. Mrs. Peters can prepare food while sitting at the kitchen table if it is handed to her, or make a sandwich at the kitchen counter if all the ingredients are located at counter level. However, this can only be described as a modest contribution to the work required to prepare a meal. Similarly, Mrs. Peters can do some aspects of laundry, but requires someone else to carry the laundry to the machines, and assist in removing it from the dryer, and carry it back to the closets. Mrs. Peters can push a grocery cart, but she has to be driven to the grocery store by her husband and cannot load the groceries into the car on her own. Mr. Peters has to pick up items that are too heavy or large for her to hold in one hand, as well as items on lower shelves which she would have to kneel down to reach. He must also carry the groceries to and from the car and assist in putting them away. In my view, Mr. Peters is not assisting his wife in doing the groceries, she is assisting him. Her ability to do any of these domestic chores is so limited, and her dependance on her husband's assistance so significant, that I cannot find that she is capable of meaningfully engaging in these activities.

When considering the totality of the caregiver activities which Mrs. Peters provided for her son prior to the accident, and the importance to Carlos' well being of the activities in which she can no longer engage, I find that she has continuously satisfied the test for entitlement under subparagraph 18(1)(#3)(i). Accordingly, she is entitled to receive caregiver benefits, indexed in accordance with the provisions of the Schedule, from December 11, 1997, together with interest.

SPECIAL AWARD:

In submissions, Mrs. Peters' counsel requested that I consider granting a special award, pursuant to section 282(10) of the Insurance Act, on the basis that the Disability DAC addressed the wrong test for entitlement, and Guarantee relied on the DAC assessment to terminate payment of Mrs. Peters' caregiver benefit. I note, however, that neither party adduced any evidence to indicate whether 'Link With Work' misdirected itself as to the entitlement test(s) to be considered, or whether it was misled by representations made by either of the parties. Similarly, no evidence was adduced which suggested that either party sought to clarify this matter with this assessor, or requested any additional assessment to address the substantial disability test. Accordingly, I received insufficient evidence on which to conclude that Guarantee acted unreasonably in terminating benefits as it did. I therefore decline to grant a special award in this case.

EXPENSES:

I did not receive submissions respecting expenses. The parties may return this issue before me if they are unable to resolve it between themselves.

November 18, 1999

Dirk VanderBent Arbitrator

Date