Neutral Citation: 1999 ONFSCDRS 71

FSCO A97-001962

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

JENNIFER KELLAR

Applicant

and

HALIFAX INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Shari L. Novick

Heard:

November 9 and 10, 1998 in North Bay, Ontario Final submissions were received by teleconference on November 23, 1998.

Appearances:

Paul Trenker for Jennifer Kellar

Scott Densem for Halifax Insurance Company

Issues:

The Applicant, Jennifer Kellar, was injured in a motor vehicle accident on July 31, 1993. She applied for and received statutory accident benefits from Halifax Insurance Company ("Halifax"), payable under the Schedule¹ Halifax terminated the weekly income benefits and child care benefits it had been paying the Applicant on July 31, 1996, exactly three years after the accident. Ms. Kellar took the position that she remained entitled to these benefits. The parties were unable to resolve their disputes through mediation, and Ms. Kellar applied for arbitration at the Financial Services Commission of Ontario² under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is Ms. Kellar entitled to non-earner weekly benefits pursuant to subsection 13(8) of the Schedule from July 31, 1996 and ongoing?

2. Is Ms. Kellar entitled to receive childcare benefits from July 31, 1996 and ongoing, under subsection 13(4) of the Schedule?

3. Is Halifax liable to pay Ms. Kellar's expenses in respect of this arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?

Result:

1. Ms. Kellar is entitled to receive non-earner weekly benefits from July 31, 1996 and ongoing under subsection 13(8) of the Schedule.

2. Ms. Kellar is entitled to receive childcare benefits from July 31, 1996 and ongoing under subsection 13(4) of the Schedule.

3. Halifax shall pay Ms. Kellar's expenses of this arbitration.

EVIDENCE AND ANALYSIS:

Background

Jennifer Kellar, the Applicant, sustained significant injuries as a result of being involved in a serious motor vehicle accident on July 31, 1993. She suffered a closed head injury, a shattered pelvis, an open fracture of her right tibia, and fractures of her left tibia, ankle and two toes on her left foot. She received several significant lacerations and abrasions to her face and chest area and lost several teeth as a result of the collision. Ms. Kellar was transported by ambulance from the accident scene to North Bay Civic Hospital and after some preliminary attempts were made to stabilize her condition, she was transported by air ambulance to St. Michael's Hospital in Toronto. She underwent a laparotomy and extensive orthopaedic surgery. She remained in hospital for several days and had two further operations.

Ms. Kellar was discharged from St. Michael's with a metal fixator attached to her pelvis, extending outside of her body. She spent a further seven weeks in hospital in North Bay recovering from her injuries, and subsequently underwent further surgeries, leaving her with various pins, plates and screws in her pelvis, right leg, left leg, and left ankle. The metal fixator attached to her pelvis remained in place for eight weeks and was subsequently removed.

At the time of the accident Ms. Kellar was 22 years old and had a daughter, Shayna, who was almost two years old. She has since given birth to two more children: another girl, Sydney, born in June of 1995, and a boy, Hunter, born in January of 1998. Halifax ceased paying Ms. Kellar both non-earner benefits under subsection 13(1) and childcare benefits under subsection 13(4) of the Schedule 156 weeks after the accident, claiming that she did not qualify under the more stringent test that comes into effect at that point in time.

The Law

Subsection 13(8)(b) sets out the test that an insured must satisfy in order to continue to be entitled to both non-earner weekly benefits and childcare benefits more than 156 weeks after an accident. It states:

13(8) The insurer is not required to pay a weekly benefit under this section,

(b) for any period in excess of 156 weeks unless it has been established that the injury continuously prevents the insured person from engaging in substantially all of the activities in which the person would normally engage.

This is a stricter test than that set out in subsection 13(1) which governs an applicant's entitlement to benefits in the first 156 weeks after an accident. Entitlement under that provision is based upon an applicant demonstrating "substantial inability to perform the essential tasks in which....she would normally engage."

Subsection 13(4) sets out the amount payable for childcare benefits. The relevant part reads as follows:

13(4) The insurer will pay to an insured person who is receiving a weekly benefit under subsection (1)...a benefit of $50 per week...for each person who at the time of the accident was residing with the insured person and in respect of whom the insured person was the primary caregiver if the person receiving the care was less than sixteen years of age or if the person required the care because of physical or mental incapacity.

As can be seen, if the Applicant meets the post-156 week test for benefits, the childcare benefit to which she is entitled is based on the number of children residing with her at the time of the accident. Consequently, the fact that Ms. Kellar has had two children since the accident does not increase the benefit to which she is entitled under this provision.

Evidence relating to Applicant's activities

In order to be entitled to benefits 156 weeks after an accident, an insured person must establish that she is continuously prevented from engaging in "substantially all of the activities in which she would normally engage." Consequently, an in-depth examination of an applicant's activities and life circumstances prior to the accident is required. In this case, I heard a significant amount of evidence about the various activities in which Ms. Kellar engaged prior to the accident in July 1993. While she had worked at various jobs from the time she left school in 1987 until 1991, when she gave birth to her daughter Shayna, and for a four-month period in late 1992 and early 1993, the Applicant had not been employed during the months preceding the accident. It was agreed that she was not entitled to benefits under section 12 of the Schedule. Accordingly, my focus in considering whether Ms. Kellar continues to be entitled to benefits must be restricted to the activities in which she was normally engaged prior to the accident that were not related to employment.

Pre-accident activities

The evidence establishes that in the months leading up to the accident, Ms. Kellar was the primary caregiver for her daughter and was solely responsible for cleaning and maintaining the home that at that time she was sharing with her spouse.³ She testified that she had been a meticulous homemaker and a very devoted mother.

Ms. Kellar spent a great deal of time with her daughter Shayna, whom she described as being very active. The uncontradicted evidence was that Ms. Kellar was also very active and spent a significant amount of time outdoors, during both the winter and summer months. She testified that she regularly took Shayna swimming, camping, fishing and snowmobiling. Ms. Kellar stated that she particularly enjoyed fishing, and that she would go out to fish on the lake every weekend and often in the evenings during the week. She frequently went camping during the summer months and drove a snowmobile in the winter, both for recreation and transportation. It was clear that these outdoor activities were a major focus of the Applicant's life, and that she participated in many of them on a regular basis with her young daughter and her spouse.

Ms. Kellar testified that she exercised daily and recalled that she regularly went running three or four times a week. She also led an active social life, which included going out dancing on a regular basis, even after the birth of her child.

Extent of Applicant's injuries

The medical evidence presented at the hearing included the oral evidence and various written reports of Dr. Tom Wallace, an orthopaedic surgeon who treated Ms. Kellar in North Bay after she was released from hospital in Toronto. It also included medical reports from Dr. Emil Schemitsch, an orthopaedic surgeon whom Ms. Kellar consulted two years post-accident regarding her left tibia, and from Dr. D. Garbuz, another orthopaedic surgeon who conducted an IME of Ms. Kellar in May of 1996, just short of three years after the accident. Clinical notes from Dr. Armstrong, Ms. Kellar’s family doctor, were also filed as an exhibit, as were various physiotherapy reports and Functional Capacity Evaluations conducted in September 1995 and October of 1998.

The reports filed establish that Ms. Kellar suffered extensive injuries as a result of the accident. Her most serious injury was a vertical shear fracture of the pelvis. Ms. Kellar’s pelvis was actually fractured at five different points, and she was initially treated surgically by applying an external fixator to stabilize the pelvis. This device was later removed and an internal fixation was performed, resulting in various screws being inserted into her left sacral joint. The medical evidence indicates that Ms. Kellar continues to experience significant pain in the region of her left sacroiliac joint, and that her left hemipelvis is more elevated than the right, resulting in a pelvic malalignment or malunion and a 3-centimetre leg length discrepancy.

Ms. Kellar also sustained an open tibial fracture in her right leg, which required a closed reduction and the insertion of a tibial nail. She suffered two large lacerations on her right leg and underwent a skin graft. Another tibial nail was inserted into her left leg to treat her left tibial fracture, and an open reduction and internal fixation involving various screws and a plate was performed on her fractured left ankle. While the fractures of her left tibia and ankle eventually healed without incident, one of the locking screws inserted into her right tibia rotated, requiring further surgical intervention. The Applicant also sustained fractures of the third and fourth metatarsal bones in her left foot.

Dr. Wallace treated Ms. Kellar primarily for the orthopaedic injuries she suffered to both legs and her left ankle. He explained the various stages of healing of these fractures and the procedures she underwent to insert the required plates and screws. He testified that all of the fractures in these lower extremities eventually went on to heal to union, and stated that the Applicant does not suffer any ongoing disability as a result of these injuries.

Dr. Wallace described the pelvic fractures sustained by Ms. Kellar as "life threatening." After examining the Applicant in April of 1996, almost three years after the accident, he found that she continued to have significant low back pain in the area of the left sacroiliac joint, and that that was the major factor limiting her mobility and activity level. He stated that it was usual to have chronic back pain with this injury as the ligaments involved heal with scarring, and that any strain to the area causes pain. Dr. Wallace advised that he is involved in many assessments for the purpose of determining whether individuals qualify for workers'compensation benefits, and stated that any worker who sustains this type of injury while at work would not be rehabilitated because the patient is almost always left with pain while both sitting and standing. He opined that the dysfunction of Ms. Kellar's left sacroiliac joint as a result of her pelvic malunion will leave her with constant pain in her low back indefinitely, and that sitting and standing would continue to strain her pelvis.

Dr. Garbuz conducted an Independent Medical Examination on the Applicant in May of 1996. His report notes that the Applicant's only major complaint at that point was of constant discomfort on the left side of her low back, which was made worse by prolonged sitting, standing, walking or bending. In the Summary and Recommendations portion of his report, he states:

I think her disability is permanent. I think she will always have pain and discomfort in the area of the left SI joint. This is the natural history of these injuries, even when they do heal in a perfect position. However, when they heal with shortening and superior displacement, constant pain is often the prognosis.

When asked to comment on Ms. Kellar’s limitations, Dr. Garbuz states:

In terms of limitations, I believe Jennifer is extremely limited. She can't sit or stand for any prolonged periods. Lifting and bending is very difficult. I believe these limitations are permeant (sic).

Extent of Applicant’s Disability

While Ms. Kellar sustained several injuries as a result of the accident, she has fortunately recovered fully from many of them. The source of her continuing discomfort and disability is pain in her lower back resulting from her pelvic fractures. She testified that she feels pain on the left side of her lower back on a daily basis, and that the level of pain is significant and has not improved since approximately 18 months after the accident. The Applicant explained that sitting for any length of time will cause her pain, and that she cannot stand for long without feeling pain. She stated that she has an equal number of good and bad days, explaining that on a good day she is capable of preparing simple meals and performing light housework if she takes frequent rests. She stated that on bad days she takes 9 to 12 Tylenol-3 tablets for the pain she experiences, and that she spends most of the time lying on the couch at her mother-in-law’s house, while her mother-in-law looks after her children.

Ms. Kellar was asked to compare her present activity level to what she was capable of doing before the accident. She explained that whereas she used to spend a large part of her time outdoors participating in various activities, she can no longer take part in any of these. She stated that she used to go fishing on a regular basis but can no longer do this, as she cannot sit for long periods in a boat. She testified that while she has on occasion fished from a dock, that is a substantially different activity than fishing from a boat while out on the lake, and that she does not enjoy it nearly as much. She testified that her lower back pain prevents her from running, doing any exercise or swimming, and that she can no longer drive a snowmobile or go camping.

Ms. Kellar stated that whereas she used to participate in many of these outdoor activities with her daughter Shayna on a regular basis, her caregiving activities are now limited to indoor pursuits such as reading stories or playing with crafts with her children. She stated that she is not able to play outdoors with them or take them for walks. She explained that while she can drive and is able to lift her younger children in and out of her car if she has to, these movements cause her pain. Ms. Kellar explained that Shayna began going to school for full days in 1996, and that both of her daughters spend every second weekend and part of each summer and Christmas break with their father, John Boissoneault, from whom she is separated.

In terms of homemaking activities, the Applicant admitted that she began performing simple tasks around the house, such as preparing light lunches, or doing light cleaning, such as dusting, approximately one year after the accident. She explained that she experiences pain whenever she performs some of the movements involved but stated that she is very strong-willed and has pushed herself to take on increasingly active tasks throughout her rehabilitation. Ms. Kellar also stated that she is often required to do things and move in ways that cause her pain because she has three young children, and does not really have a choice.

As noted above, the Applicant gave birth to her second child in June of 1995, approximately two years after the accident, and was pregnant during most of 1997 with her third child. She testified that her back pain worsened during both of these pregnancies, and that she delivered both children by Cesarean section.

Gilbert Shymanski, the Applicant's common-law spouse, also testified about her activities and capabilities. Mr. Shymanski first met Ms. Kellar in late 1996, and stated that they had recently moved in together. He explained that while he had not shared a home with the Applicant for the first two years of their relationship, he had spent three nights a week, as well as most of the time that he was not at work, at her home within a few months of meeting her. He stated that on those occasions he did most of the cooking, meal preparation and clean-up, as well as the major household chores, as Ms. Kellar was unable to do them. He stated that now that he lives with Ms. Kellar, he performs all of those activities for himself, the Applicant, and the three children, on a daily basis. He testified that he and the Applicant do the laundry together, and that the household chores that she can perform on her own are limited to dusting, washing a few dishes and cleaning up small messes made by the children.

Mr. Shymanski described the Applicant as an excellent mother, explaining that she regularly reads and "does crafts" with the children. He stated, however, that she cannot participate in any outdoor activities with Shayna, and that Shayna, who likes to ride her bicycle, rollerblade and engage in other sports activities, has advised that she would prefer to live with her father, who can presumably participate in these activities with her.

Sheila Munroe, Mr. Shymanski’s mother, also testified briefly at the hearing. She stated that the Applicant and her two younger children spend three or four days each week at her house when the Applicant is experiencing a lot of pain and does not feel that she is able to look after the children. Mrs. Munroe estimated that the Applicant spends 85-90% of her time during these days lying on the couch, getting up frequently for short periods to get something in the kitchen or go to the bathroom. She explained that Ms. Kellar is able to provide some assistance with the children on these days, such as picking up small toys or arranging food that has been prepared on their plates, but that she herself performs all of the other homemaking and caregiving tasks that are required.

The Insurer retained an investigative firm to conduct video surveillance on the Applicant. Taken in October and November of 1998, the videos capture Ms. Kellar driving around town in her van, and sometimes in a car, doing various errands. Ms. Kellar appears to drive without any visible signs of discomfort and is seen walking quickly for short distances to and from her vehicle. She is shown lifting her youngest child on several occasions and carrying him in one arm. She is also seen placing him and her three-year-old daughter in and out of the van and the car, without much visible effort. On various occasions, she is seen coming out of a grocery store either carrying one bag or pushing a cart holding a few bags. On one occasion she is seen holding various parcels and assisting Mr. Shymanski load them into the trunk of a car.

A Functional Capacity Evaluation performed on the Applicant in September 1995, just over two years post-accident, concluded that Ms. Kellar was substantially disabled from performing her pre-accident activities as a homemaker and caregiver. A second FCE was carried out in October of 1998. The physiotherapist who performed that assessment found that the Applicant was "extremely limited with any tasks requiring prolonged static positions in sitting, standing or forward trunk flexion" and is also "limited with activities involving left trunk rotation or any activities involving balance or agility of the lower extremities." He noted that Ms. Kellar's functional abilities had not improved since the earlier assessment done in September of 1995, and that her abilities with respect to some tasks had decreased. He concluded that when the physical demands of a homemaker/caregiver are taken into account, Ms. Kellar's limitations would prevent her from being able to perform all aspects of this job on a daily basis. He opined that her present disabilities appear to be permanent as there has been no significant improvement in her condition over the last three years, and that if she attempted to increase her activity or "work in the full capacity of a homemaker," she would likely exacerbate her condition and cause further functional limitations.

Julie Mainguy is a rehabilitation consultant who worked with Northern Rehabilitation & Consulting Services, a company retained by the Insurer to coordinate the rehabilitation services provided to the Applicant. Ms. Mainguy testified that she met with Ms. Kellar on a monthly basis from October 1994 to March 1996, except for a period during 1995 when she was pregnant, and that she filled out progress report forms in consultation with the Applicant on each of these occasions. Several of these forms were filed into evidence. They outline Ms. Kellar's complaints and activity level and in several cases include an Activity Profile form, which lists various homemaking and caregiving tasks and records the degree of difficulty she experiences in performing each one.

The general picture that emerges from these reports is that Ms. Kellar was physically able to perform most of the activities listed, but that she was limited in doing so by her pain. The phrase "paces herself” frequently appears next to various activities on the Activity Profile forms. Ms. Mainguy indicated under cross-examination that while she had completed these forms based on information provided by Ms. Kellar during their meetings, those were her words.

Ms. Mainguy met with Ms. Kellar for the final time in late March of 1996. The progress report she completed at that time indicates that Ms. Kellar continued to experience lower back pain that was aggravated by performing activities that involve sitting, walking, climbing stairs, lifting, carrying, pushing, pulling, kneeling, squatting, crouching and bending. Ms. Mainguy noted, however, that Ms. Kellar was able to prepare light meals, wash dishes, sweep the floor, vacuum and perform caregiving activities with minimal difficulty. My review of the Activity Profile form completed during that visit indicates that Ms. Kellar was experiencing substantial difficulty with caregiving activities and notes that she was having particular difficulty lifting and carrying her baby. This inconsistency was not addressed in Ms. Mainguy’s evidence.

Finally, the medical reports filed contained differing opinions on whether the Applicant’s limitations prevent her from carrying on her pre-accident activities as a homemaker. Dr. Wallace reported in April of 1996 that the ongoing symptoms in her lower back will restrict her indefinitely from performing activities involving bending, lifting or prolonged standing, and stated that he did not feel that she was able to resume her pre-accident level of activity as a homemaker/caregiver. Dr. Garbuz, the orthopaedic surgeon who conducted an IME in May of 1996, opined that the Applicant’s disability is permanent and that she will always have pain and discomfort in the area of her left sacroiliac joint, yet concluded that it was reasonable for her to go back to performing her homemaking activities, with the exception of vacuuming or mopping floors.

Analysis and Findings:

In order to qualify for further benefits under the Schedule the Applicant must prove that the injuries she suffered as a result of the accident continuously prevent her from engaging in substantially all of the activities in which she would normally engage. This is clearly an onerous test and in most cases in which arbitrators have been called upon to apply this provision, the applicants have failed to establish continued entitlement to benefits. On the evidence before me, however, I find that Ms. Kellar meets this test and is entitled to continue to receive both weekly and childcare benefits from July 31, 1996 until she no longer qualifies under section 13. In assessing the evidence, I have relied upon some general principles that have emerged from decisions of other arbitrators who have addressed entitlement to non-earner benefits 156 weeks after an accident.

The case law

The analysis applied in G. and Allstate Insurance Company, (OIC A-013283, December 7, 1995) has, for the most part, received general approval by arbitrators in subsequent cases addressing entitlement under subsection 13(8). In assessing whether the applicant in that case met the threshold set out, Arbitrator Young focused his analysis on the meaning of the phrase "engaging in" activities. He found that isolated post-accident attempts to perform activities that an applicant used to perform prior to the accident do not constitute "engaging in" the activity, and that the manner in which an activity is performed or the quality of the performance must be considered.

In Urquhart and Zurich Insurance Company [OIC A96-00368, June 4, 1997) Arbitrator McMahon agreed with the qualitative analysis applied in the G. and Allstate decision cited above. He added that if the degree to which an individual can partake in an activity is sufficiently restricted, it cannot be said that they are truly "engaging in" the activity. He also stated that each activity must be viewed as a whole and should not be broken down into its constituent parts. The arbitrator stated, however, that the issue must be determined against the "backdrop of the ultimate question" of whether the applicant is prevented from engaging in the activity.

The arbitrator in J.P. and Wawanesa Mutual Insurance Company (OIC A96-001312, August 11, 1997) also agreed with the analysis applied in G. and Allstate, supra, and added that when comparing activities performed before and after an accident, an individual who is merely "going through the motions" cannot be said to be "engaging in" an activity. Arbitrator Jones also interpreted "substantially all" activities to mean most or nearly all of an individual’s activities. While this application was brought under Bill 164, the wording of the test to meet in order to qualify for benefits two years after an accident generally parallels the wording of subsection 13(8)b under the Bill 68 Schedule that applies in the instant case.

In C.L. and Zurich Insurance Company (FSCO A96-001793, August 19, 1998) the applicant suffered serious injuries which significantly restricted her ability to sit, stand and walk. Mrs. L’s activities prior to the accident revolved around caring for her home and large family, for whom she regularly prepared large meals. In considering whether she met the test set out in subsection 13(8), Arbitrator Sapin grouped the applicant’s pre-accident activities into broad categories, determined which activities within each category she was capable of engaging in, and then considered whether the applicant was able to engage in substantially all of the activities within a category. The final step in the analysis was to review the complete list of categories and determine whether she could complete substantially all of them. Applying this approach, the arbitrator concluded that the applicant’s post-accident activities were sufficiently restricted such that she met the test for continued entitlement to weekly benefits under the provision in question.

Zurich appealed the arbitrator’s findings, and in a recent decision by the Director’s Delegate, (FSCO P98-00043, March 24, 1999) the decision was overturned. Director’s Delegate Draper stated that the arbitrator had broadened the test set out under subsection 13(8), with Mrs. L’s "entitlement turning on her reduced ability to engage in non-essential activities," as opposed to assessing her ability to engage in the relevant activities against the backdrop of the ultimate question of whether she was continually prevented from engaging in those activities.

In Marchildon and State Farm Mutual Automobile Insurance Company (FSCO A97-000643, November 3, 1998), Arbitrator Joachim made the following comments:

While the pre-156 test focuses only on essential tasks, the post-156 test focuses on substantially all activities in which the insured would normally engage. Thus, an applicant must establish inability, not only with respect to his or her essential tasks, but with substantially all the activities in which he or she would normally engage. The degree of functional impairment is also stricter. Pre-156, the applicant must establish that he or she suffers a substantial inability to engage in the essential tasks. Post-156, the applicant must establish that he or she is continuously prevented from engaging in the relevant activities.

While the post-156 test is strict, it should not be read so strictly as to make it virtually impossible for anyone to qualify. In cases such as the present one, where pain is the primary factor which allegedly prevents the Applicant from engaging in her former activities, the question is not whether the Applicant can physically do these activities, but whether the degree of pain she experiences, either at the time, or subsequently, is such that she is practically prevented from engaging in those activities.

Evidentiary findings

It goes without saying that each case must be decided on its own facts. While some of the restrictions limiting the applicants in the cases described above are similar to the limitations experienced by Ms. Kellar, the test must be applied in an individualized fashion. The pre-accident activities performed by each applicant, as well as each of their relevant life circumstances, must be examined in order to determine what activities they would normally be engaging in if the accident had not occurred. In this case, it is not disputed that the Applicant pursued a very active lifestyle prior to the accident, which focused on the outdoor activities that she performed, both on her own and with her spouse and their young daughter. While she also performed various homemaking tasks, these appeared to be secondary to her caregiving and outdoor activities and were clearly not as central to her life as was the case with some of the applicants in the decisions cited above.

Before setting out any of my conclusions from the evidence presented, I must comment on the credibility of the Applicant’s evidence. While the Applicant’s evidence alone may not be determinative of the ultimate question that I must decide, an applicant’s credibility is central in determining the activities in which she would normally engage, as well as the extent of her ability to engage in post-accident activities. Both of these issues are fundamental to the analysis required. I found Ms. Kellar to be a very forthright witness who did not exaggerate or magnify her complaints of disability. She testified at some length about a variety of issues, and despite being thoroughly cross-examined by very competent and well-prepared counsel, impressed me with her consistency and overall credibility

Ms. Kellar has fortunately been able to recover fully from most of the serious injuries that she suffered in the accident, and has admitted this readily to the doctors who examined her and when she testified at the hearing. Despite continuing to experience pain in her lower back as a result of the malalignment of her pelvis, she has consistently made efforts to regain as much of her previous life as possible, and was candid about the activities that she is able to perform. She did not appear to be pain focused or fixated on her disability, and impressed me as someone who has pushed herself to test the limits of what she can accomplish, given her disability. Having reviewed all of the video surveillance taken of the Applicant, I find nothing in that footage or in Ms. Mainguy’s evidence or reports that seriously challenges Ms. Kellar’s statements about her current capabilities or limitations.

I conclude from the evidence that Ms. Kellar’s major activities prior to the accident consisted of caring for her young daughter, participating in outdoor activities and maintaining her home. Her childcare activities involved the usual tasks such as feeding and bathing her daughter, but also included participating in outdoor activities such as swimming, camping, fishing and snowmobiling with her. She participated in all of those activities on her own or with her spouse as well, and especially enjoyed going out on the lake to fish a few times each week during the summer and fall. She also went dancing, exercised and ran regularly. It was clear from the evidence that she had a great deal of energy and that the outdoor activities that she pursued constituted a significant part of her life, and were not merely activities that she performed on an occassional basis.

The evidence indicates that Ms. Kellar experienced an equal number of good and bad days after the accident. On her bad days, she spent most of the day lying on the couch, completely disabled by her pain, getting up only when necessary and relying on her mother-in-law to look after her children. On her good days, Ms. Kellar was able to perform certain activities on a limited basis, such as preparing light meals and doing light housework while taking frequent rests, and caring for her children in a relatively inactive way.

When the combined image described above is contrasted with the Applicant's pre-accident life, I am persuaded that her level of activity has decreased so drastically that she can correctly be described as someone who is continuously prevented from engaging in nearly all of the activities in which she would normally engage. While Ms. Kellar may be able to perform some household chores and engage in some caregiving activities to a limited degree on some days, she can no longer participate in any of the outdoor activities that she had in the past in any meaningful way, nor is she able to engage in the bulk of the activities that she had performed with her daughter Shayna prior to the accident. Given that these last two types of activities formed the focus of her pre-accident life, I find it appropriate to place greater weight on them than on certain household activities that she may now be able to perform but that only played a minor role in her life prior to the accident. In my view, the personalised manner in which the test must be applied permits such a "prioritizing" of an applicant's activities.

And, when the childcare activities that she can now perform are considered from a qualitative point of view, the fact that Ms. Kellar spends half of her time lying on a couch virtually unable to engage with her children, in my view, further supports a finding that she is continually prevented from engaging in the relevant activities.

This was a very difficult case to decide. Despite suffering significant, life-threatening injuries in the accident Ms. Kellar seems to have regained a certain level of functioning, and has gone on to have two more children. There is certainly a strong argument to be made (as the Insurer did) that that fact in itself suggests a level of functioning that exceeds the threshold of disability required for continued entitlement to benefits under subsection 13(8). It must be remembered, however, that every doctor who examined Ms. Kellar found that the malalignment of her pelvis caused her to be extremely limited and to suffer constant pain. It was agreed that she could not sit or stand for any prolonged periods, that lifting and bending was very difficult for her, and that all of these limitations are permanent. The clear prognosis is that she will continue to suffer constant pain in her lower back well into the future.

Dr. Wallace stated that if she had sustained these injuries while at work, she would have likely received a full pension from the Workers' Safety Insurance Board (formerly the Workers' Compensation Board), stating that workers who sustain the pelvic injury she has are not rehabilitated as they are almost always left with pain both while sitting and standing.

In view of these physical limitations and bearing in mind the level of activity that she enjoyed prior to the accident, I find that Ms. Kellar is continuously prevented from engaging in most or nearly all of the activities in which she would normally engage.

Finally, the Insurer contended that since Ms. Kellar only had one child at the time of the accident, as opposed to the three she has now, any comparison of her activities before and after the accident must exclude any activities she now performs that relate to her two younger children. The Applicant disagreed and submitted that the provision in question requires that I consider the activities that Ms. Kellar would likely be involved in, given her age and life circumstances, if she had not been injured in the accident. While my conclusion that the Applicant is entitled to continued benefits is not based on her inability to care for her two youngest children, I agree with the Applicant's position on this point. Subsection 13(8)(b) speaks of being prevented from engaging in activities in which a person would normally engage: as I read it, the phrase "would normally engage" requires that the Applicant's life circumstances be considered and a determination made of the activities that she would likely be engaging in if she had not been injured in the accident. In light of Ms. Kellar's age and her decision to start a family prior to the accident, I find it appropriate to presume that she would have gone on, as she did, to have more children and would thus "normally engage" in the usual activities associated with raising and caring for young children.

EXPENSES:

Given my findings above, I exercise my discretion to award Ms. Kellar her expenses incurred in this arbitration. In the event that the parties cannot agree on the total amount of expenses to be paid, either party may apply to the Registrar for an assessment of expenses under Rule 77 of the Practice Code.

April 28, 1999

Shari L. Novick Arbitrator

Date

Neutral Citation: 1999 ONFSCDRS 71

FSCO A97-001962

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

JENNIFER KELLAR

Applicant

and

HALIFAX 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:

1. Ms. Kellar is entitled to receive non-earner weekly benefits from July 31, 1996 and ongoing.

2. Ms. Kellar is entitled to receive childcare benefits from July 31, 1996 and ongoing at the rate of $50 per week.

3. Halifax shall pay Ms. Kellar her expenses incurred in respect of the arbitration.

April 28, 1999

Shari L. Novick Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents On or Between June 22, 1990 and December 31, 1993, Regulation 672 of R.R.O. 1990, as amended by Ontario Regulations 660/93 and 779/93.
2. 2Effective July 1, 1998, the Ontario Insurance Commission was changed to the Financial Services Commission of Ontario, pursuant to the Financial Services Commission of Ontario Act, S.O. 1997, c.28.
3. 3The Applicant lived with Shayna's father, John Boissoneault in Banfield, a rural area outside North Bay, from August of 1991 until March of 1993 when they separated and she moved with Shayna to North Bay.