Neutral Citation: 2000 ONFSCDRS 196

FSCO A00-000045

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

ADOSINDA CORREIA

Applicant

and

TTC INSURANCE COMPANY LIMITED

Insurer

REASONS FOR DECISION

Before:

Nancy Makepeace

Heard:

June 13, 14 and 15, 2000, at the Offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

A. Wayne Edwards for Ms. Correia

Franceen Rogovein for TTC Insurance Company Limited

Issues:

The Applicant, Adosinda Correia, was injured in a motor vehicle accident on September 3, 1998. She applied for and received statutory accident benefits from TTC Insurance Company Limited ("TTC"), payable under the SABS-1996.¹ TTC terminated weekly income replacement benefits on February 17, 1999. The parties were unable to resolve their disputes through mediation, and Mrs. Correia applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act ("the Act"), R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is the Applicant entitled to income replacement benefits under section 4 of the SABS-1996 from February 17, 1999 and ongoing? In order to decide this question, I must decide whether the Applicant suffered an impairment resulting from the accident after an injury at a physiotherapy clinic in late September 1998.

2. Is the Applicant entitled to medical benefits under section 14 of the SABS-1996 for: (i) chiropractic treatment between December 23, 1998 and March 23, 1999, totalling $1622.71;

(ii) travel expenses relating to visits with her family doctor and chiropractor, totalling $42.75;

3. Is the Applicant entitled to $15 for her family doctor's note clearing her to return to modified work, under section 24 of the SABS-1996?

4. Is the Applicant entitled to rehabilitation benefits under section 15 of the SABS-1996 for:

(i) a CardioPulmonary Resuscitation ("CPR") course the Applicant completed at the Red Cross, costing $55;

(ii) a police report, costing $42, required in order to apply for another job as a homemaker; and

(iii) a blood test, costing $15, for the same purpose.

5. Is the Applicant entitled to housekeeping benefits under section 22 of the SABS-1996 in the amount of $390?

6. Is the Applicant entitled to interest on amounts owing, under subsection 46(2) of the SABS-1996?

7. Is the Applicant entitled to her arbitration expenses, pursuant to subsection 282(11) of the Act and Regulation 664, R.R.O. 1990, as amended by O.Reg. 464/96, made under the Act?

Result:

1. The Applicant is entitled to ongoing income replacement benefits from February 17, 1999. Her entitlement to benefits after 104 weeks, pursuant to paragraph 5(2)(b) of the SABS-1996, was not in issue before me.

2. The Applicant is entitled to her travel expenses relating to attendances with Dr. Mehta. I remain seised of the issue of chiropractic treatment and related travel expenses, if the parties are unable to agree.

3. The Applicant is entitled to $15 for her family doctor's note.

4. The Applicant is entitled to be reimbursed for the cost of the CPR course ($55), the police report ($42) and the blood test ($15).

5. The Applicant is entitled to housekeeping benefits in the amount of $180.

6. The Applicant is entitled to interest on the amounts owing, calculated in accordance with subsection 46(2) of the SABS-1996.

7. I may be spoken to about arbitration expenses, if the parties are unable to agree.

EVIDENCE AND ANALYSIS:

Background and issues:

The Applicant was 59 years old at the time of the hearing. She lives in a house with her three grown children. Her husband remains in Portugal. Since coming to Canada, the Applicant has worked as a homemaker and a babysitter. At the time of the accident, she worked full-time as a visiting homemaker for the Visiting Homemakers' Association ("VHA"). She looked after sick and elderly people in their homes. Her job duties included feeding, bathing, diapering and toileting her patients, cleaning their clothing, bed linens and homes, transferring them between bed and wheelchair, doing small grocery errands for them, and wheeling them onto a verandah or to visit a nearby friend. The Applicant relied on public transit to travel to and from her clients' homes.

On September 3, 1998, the Applicant was returning home from work on a TTC bus. She was the third passenger standing at the rear doors when the bus reached her stop. As she stepped off the final step, the doors closed on her, striking her shoulders and upper arms. The bus began moving. The Applicant explained that the driver could not see her because the bus was so crowded. Some other passengers alerted the driver to her plight, and he stopped the bus, opening the doors. The Applicant fell onto the sidewalk, landing on her right side. Another passenger who had just disembarked tried to get the driver's attention, but the bus drove off.

The Applicant claims that the accident resulted in injuries to the entire right side of her body, especially her right shoulder and upper arm, right hip, and right ankle. The TTC does not accept that she sustained upper body injuries, but does accept that she had right hip, leg and ankle injuries, which are well documented in the file. The Applicant testified that the back of her head brushed the side of the bus as she fell. The TTC disputes this. As the Applicant does not claim that she sustained a head injury, it is not necessary for me to decide this point.

On the advice of her family doctor, the Applicant began receiving physiotherapy treatment at the College Street Physiotherapy Clinic (the "Clinic") in mid-September 1998. She discontinued treatment at the end of September. The Applicant claims that after about five treatment sessions, she felt well enough to return to work, and asked the Clinic for a discharge certificate required by her employer. According to the Applicant, her therapist insisted that she first undergo a functional capacity evaluation ("FCE"). This was done on September 25, 1998. The Applicant claims that she sustained injuries to her neck, low back, shoulders, arms, hands and wrists as a result of improper lifting techniques she was required to utilize during the FCE.

The Applicant’s income replacement benefits were terminated on February 17, 1999, based on a report by Dr. Gabriel A. Vadasz, a Designated Assessment Centre ("DAC") disability assessor appointed under section 52 of the SABS-1996.

The TTC submits that the bus incident did not "directly cause" the Applicant's injuries sustained in the FCE, and therefore the Applicant has failed to satisfy the causal nexus requirement set out in subsection 2(1) of the SABS-1996 (definition of "accident").

The Applicant offers three theories of liability. The first is that she injured her neck, low back and upper extremities in the bus accident, but these injuries only became symptomatic or were aggravated as a result of the FCE. Her second theory is that her right leg injuries, which were directly caused by the bus accident, remain disabling independently of her FCE-related injuries. Finally, the Applicant argues that the TTC is responsible to pay benefits relating to her neck, low back and upper extremity injuries because they happened while she was engaged in TTC-approved treatment for her injuries sustained in the bus accident.

The TTC initially sought repayment of IRBs paid to the Applicant, totalling $3,866.40. However, the TTC withdrew this claim during closing argument.

For reasons that follow, I find that the Applicant remains disabled and is entitled to further benefits after February 17, 1999 as a result of her combined impairments sustained in the bus accident and the FCE.

The Evidence:

The Applicant testified that her right hip and right ankle began to hurt, and her ankle began to bleed, immediately after she fell from the bus. Another passenger called an ambulance, which took her to St. Joseph's Health Centre. The Applicant testified that her right upper arm was painful and bruised by that time. However, the hospital’s emergency record indicates only that she complained of right ankle and right hip pain, and a small abrasion was noted on her ankle. X-rays of the right ankle and right hip showed no fractures. Although the Applicant testified that her right arm was also x-rayed, there is no record of this.

The Applicant testified that by the time she was discharged, her ankle was swollen, and she was having difficulty walking on her right leg. She was unhappy with her treatment at St. Jo's, and after going home, she took a cab to Toronto Western Hospital. The TWH emergency record indicates Advil was prescribed and the Applicant was advised to avoid using the ankle for three weeks, and to return if the pain got worse or she could not move her toes. She bought some crutches and went home.

The next day, the Applicant went to see Dr. S. Mehta, her family doctor. She testified that he looked at her hands and arm, as well as her right leg. However, in a report prepared in September 1999, Dr. Mehta stated only that the Applicant complained of right foot pain on that first visit. She was limping, and her ankle was bruised and tender. He did not record any upper body complaints.

On September 10, 1998, the Applicant met with Mr. Garry Leary, a TTC Claims Adjuster. He recorded her injury as a right ankle sprain. He took a signed statement from her that day. The only injury mentioned in the Applicant's statement to Mr. Leary is the right ankle sprain. The Applicant also completed an Application for Accident Benefits form that day, referring only to her right ankle sprain. Her Activities of Normal Life report, which was submitted along with her application, gives plausible details about how her right leg injury affected her household and recreational activities, again without mentioning upper body impairments.

The next day, the Applicant returned to Dr. Mehta. She gave him a Disability Certificate to complete. Dr. Mehta reported that the Applicant was now complaining of pain in her right groin and hip, as well as her right ankle. She complained of having difficulty standing and walking, but she was managing to do her household chores with the help of her children. Dr. Mehta reported that the Applicant was unable to work because of soft tissue injuries to her right foot and right hip. He prescribed Motrin, and referred her to the Clinic.

The Applicant was initially assessed at the Clinic in mid-September 1998.² Her therapist, Mr. Eduardo Cordero, summarized her physical problems in her right hip and ankle. A treatment plan was prepared and approved for a program of therapy 4 times per week for 6-7 weeks. Although the Applicant testified therapy was for her right arm as well as her right hip and ankle, the Clinic's reports do not refer to any upper body problems.

The Clinic's "Ongoing Reporting Form" indicates that the Applicant "voluntarily discontinued the exercise programme on September 28/98. Final physical and functional assessment were not conducted due to her unexpected departure." The Applicant testified that by September 24th, her pain had completely resolved. She was no longer using crutches, she could climb stairs, and she was doing all her housework. She asked Mr. Cordero for a discharge note, but he told her it was too soon, given that she worked long hours at heavy work before the accident. He told her to come the next day for some functional tests. The Applicant laid on her stomach while Mr. Cordero applied hot packs and pressure to her back. Then "Alison," another therapist, asked her to do a number of lifting tests. This involved lifting a heavy basket from the floor while bending at the waist. The Applicant objected because she had been taught about proper lifting using a squat position. Alison told her to do it anyway. The Applicant said her back "started to click." Alison also asked her to walk while holding the basket in front of her at shoulder height. The Applicant also did pushing, pulling and reaching exercises, and used a treadmill. She testified that she had to rest on the couch the next day because of back pain, and her shoulders and arms were swollen and painful. She also felt the tests had damaged her hands. Her fingers were swollen, she was unable to grip, and her elbow was swollen and painful.

The Applicant’s counsel requested the clinic’s notes relating to the FCE, but was advised that none were available.³ He stated that Mr. Cordero no longer worked for the clinic at the time of the hearing, and that Alison was unavailable and had no information pertaining to these events. The Clinic's clinical notes include entries for only three dates: September 14th, 16th and 23rd. The first entry includes just the Applicant's name and a claim number. The September 16th entry includes details about the accident and the usual notations concerning symptoms, assessment and treatment. The September 23rd entry says simply, "Patient has discontinued therapy. No reason given. Discharge." It is signed by Mr. Cordero. I am troubled by the brevity of this note and the absence of detailed reporting after September 16th. In the absence of oral evidence from Mr. Cordero, I prefer to rely on the Applicant's account of the events leading up to her discharge. I find her testimony believable on its face, and I place weight on the fact that she has consistently related this story to everyone she has subsequently dealt with in regard to this matter.

After the FCE, the Applicant returned to Dr. Mehta and told him she was having problems with her low back, elbows and hands as a result of the FCE. On October 2, 1998, she began seeing Dr. J.E. Labelle, a chiropractor, for her low back, upper body and right leg problems. The TTC approved Dr. Labelle's Treatment Plan, covering 10 weeks of treatment.

The Applicant called Steve Cummins, the TTC adjuster who had carriage of her file, on September 29, 1998. He followed up with a letter:

This will confirm our conversation on September 29, 1998 where you indicated that the problem with your right foot and hip had resolved with treatment through College Street Physical Medicine and Sports Clinic. As a consequence you discharged yourself from their program. You also indicated that while at the Clinic you were asked to lift things and as a result you developed problems with your arms.⁴

The Applicant wrote Mr. Leary the same day with a detailed account of the incident at the Clinic:

I like to bring to your kind attention the following:

On the 16 Sept.98, I started the Physiotherapy treating [sic] at the Sport Clinic. The treatment was for my right leg and right foot which were damaged by the bus accident. I didn't have anymore damages on my body, you investigated the case with me, and you, Mr. Garry, saw my foot sprained and my leg was in pain and bruises only.

Now, after the 8 days treatment, my leg and foot became better. I started walking and climbing stairs, as normally I did, no pains were showing up. Therefore, on the 24 Sept. 98, I told Dr. Edward of the Sport Clinic [Mr. Cordero, the therapist], I wanted to be discharge[d] from the physiotherapy treatment, as I want to return back to my duties of Home Maker. Dr. Eduardo replied me, saying it is to early to go back to work, I have to continue the treatment for 6 to 7 weeks. He started saying he billed the TTC Claims Insurance form saying I need a treatment for 6 to 7 weeks. I told him, I'm not going to continue a treatment when I have no pains on my foot and leg. And I'm not going to be sitted at home, I'm going to go back to work.

After describing the "heavy lifting test" in detail, the Applicant continued:

Since the 25 Sept.98, my whole body is in pain, my back, neck, shoulder, hands, arms are swollen up. . . .

Now, I'm unable to return to work, my whole body has been damage[d] by this heavy lifting test which Dr. Edward and Mrs. Alison made me to do at the Sport Clinic. Now, I want to know who is responsible for this damage caused to my body. And who is going to take action on this case. Will your Claim Insurance people look after this case, the damage caused on my whole body by the Sport Clinic of Physiotherapy specialist.

I went there to get my leg and foot treated, to get better soon, so I could be able to return back to work. But now, I'm unable to go back to work, until the pains of my whole body gets cured the right way. The nerves on the join[t]s of my arms are damaged a lot. My foot and leg is okay, no pains.⁵

This letter has the freshness and detail of a truthful contemporaneous account. What comes through strongly is the Applicant’s feeling that the testing at the Clinic caused her new injuries. Whereas she was ready to return to work before the functional testing, she felt she could not go back to work afterwards.

The Applicant wrote two subsequent letters to Mr. Cummins about her treatment-related injuries.⁶ They are strikingly consistent with respect to the incident at the Clinic.⁷ The Applicant also made several other complaints about the Clinic. My impression is that in addition to seeking compensation for the injuries she sustained at the Clinic, the Applicant felt the TTC would be interested in what she felt were the Clinic's improper practices.⁸ In response to these letters, the TTC gave notice that the Applicant's income replacement benefits would be terminated effective October 28, 1998, on the basis that the Applicant had recovered from her right foot and right hip impairments resulting from the accident. The benefits were reinstated in late October.

On December 9, 1998, the Applicant was assessed by Dr. F.K. Deegan at the TTC's request. Dr. Deegan reported that the Applicant initially stated she had injured her right ankle and hip in the bus accident, but "recalled that she had an injury to the area of her left shoulder as well - after I drew to her attention that the bus doors usually close from either side so that she must have had a contra-coup type injury."⁹ The Applicant told Dr. Deegan she was "essentially symptom free" in regard to her right ankle and hip when she sustained her further injury at the Clinic. By the time she saw Dr. Deegan, the Applicant was near the end of her treatment with Dr. Labelle. She reported she felt much better as a result. However, she still complained of pain in her anterior upper chest, both shoulders, both arms, low back, right thigh and right ankle. Dr. Deegan reported:

Her abnormal findings today were limited to minimal paravertebral muscle tenderness throughout the spine bilaterally without associated muscle spasm/tension. There were complete ranges of movement in the areas of her mentioned injuries and good muscle strength. There were no abnormal neurological findings. [Emphasis in original]

Dr. Deegan concluded that the Applicant had suffered a soft tissue injury "(not serious)" to her right hip and ankle in the bus accident, from which she had made a complete recovery, as well as "more generalized pains in other areas as a result of work conditioning therapy/testing" at the Clinic, which had been resolving with chiropractic treatment. He did not believe that the Applicant's injuries would result in permanent disability or that further treatment was required after the completion of her program with Dr. Labelle. He concluded the Applicant was not disabled from resuming her pre-accident activities, including her job as a home care worker.

Based on Dr. Deegan's report, the TTC gave notice that it would not pay for further chiropractic fees, related travel expenses, or housekeeping assistance. It also issued a stoppage notice under section 37 of the SABS-1996. The Applicant requested a DAC assessment under section 43, which was performed by Dr. Vadasz on February 11, 1999. Ms. Rosylin Goldlist, an occupational therapist, conducted a functional abilities evaluation ("FAE") as part of the assessment.

The Applicant told Dr. Vadasz that her initial symptoms following the accident included pain in her right foot, ankle, leg and hip. Again, she confirmed that her accident-related symptoms had resolved to the point where she was ready to return to work, and that the Clinic’s lifting tests caused pain in her neck, both shoulders, both wrists and low back. Dr. Vadasz summarized the Applicant's complaints as of February 1999:

This claimant today complained of neck pain, mostly right sided, lower back pain, bilateral wrist pain and elbow pain.

None of these complaints were present immediately following the bus accident. All the symptomatology started following what appears to be a functional capacities assessment at a rehabilitation centre.

Dr. Vadasz recorded that the Applicant "denied any pain in her right ankle, right hip or right lower extremity" that day.

On examination, Dr. Vadasz observed no abnormalities in the Applicant’s shoulders or elbows. Her active range of motion in her cervical spine was "certainly functional" though perhaps somewhat reduced. Thoraco-lumbar spinal movements were also mildly reduced. Both wrists were mildly tender on flexion and extension, but were otherwise normal. Dr. Vadasz observed signs of mild to moderate osteoarthritis in the Applicant’s hands. Her hips, ankles, feet and legs were normal, but there was mild patellofemoral crepitus in both knees. Dr. Vadasz also noted signs of mild diffuse osteoarthritic changes.

Dr. Vadasz concluded the Applicant had reached maximum medical improvement from soft tissue injuries to her right hip, leg and ankle suffered in the bus incident, and had residual pain relating to soft tissue injuries sustained at the Clinic, which were not accident-related. He also diagnosed underlying mild to moderate diffuse osteoarthritis. It was Dr. Vadasz' opinion that the Applicant exhibited "considerable non-organicity." He did not feel she was disabled from her work as a visiting homemaker.

The TTC terminated income replacement benefits based on the DAC report.

The following month, Dr. Mehta sent the Applicant to Dr. S. Sharma for electromyography and nerve conduction studies relating to her wrist and elbow complaints. According to Dr. Sharma, the Applicant stated that, along with the injury to her right ankle, she began having right upper extremity pain when the bus door closed on that arm. Her right arm symptoms improved with physiotherapy, but her elbow and wrist symptoms were aggravated by the FCE, which also led to symptoms in her anterior chest wall, upper back and both shoulders. At the time of examination, the pain in her neck and shoulders was reported to have settled. Dr. Sharma concluded that the test results were consistent with bilateral carpal tunnel syndrome, slightly worse on the left side.

In June 1999, Dr. Mehta cleared the Applicant to resume modified work with restrictions, including no heavy lifting. The Applicant called the VHA. On July 9, 1999, a Human Resources official wrote the Applicant:

According to the physical limitations outlined by your physician, it is with regret that we must decline your request to return to work.

Adosinda, we would be pleased to review a medical assessment provided for you by a health care professional in one year's time, provided your capabilities meet the requirements expected of a VHA Homemaker.

We sincerely hope that your health continues to improve . . .

Dr. Kachooie assessed the Applicant at her counsel's request on February 16, 2000. At that time, the Applicant reported pain in her low, mid and upper back, shoulders, elbows, wrists and hands. She also complained of persistent pain in her right hip and ankle. She reported having pain when bending, vacuuming, cleaning, lifting repetitively, or standing or sitting for a prolonged period.

At Dr. Kachooie's request, a functional capacity evaluation of the Applicant was conducted on February 11, 2000 by Restore Function. The assessor concluded that the Applicant:

exhibited some strength deficits as evidenced by the results of the static strength, grip strength, cervical/extremity strength and work capacity tests. Based on the [Applicant's] performance on this functional study, it is this evaluator's opinion that [she] can function independently in the competitive labor market with accommodation.

In particular, the Applicant was found to be restricted for bending, climbing, crouching, kneeling and stooping on a repetitive basis, and needed rest breaks for prolonged standing. Lifting capacity was limited.

On examination, Dr. Kachooie found only slight soft tissue tenderness in the paravertebral muscles of the cervical spine and mild tenderness in the mid-thoracic spine. Dr. Kachooie also diagnosed bilateral tennis elbow. The doctor concluded that the Applicant had made an uneventful recovery from upper extremity, right hip and ankle injuries, but continued to suffer bilateral tennis elbow and mechanical low back pain. Dr. Kachooie recommended physiotherapy, an aquatic fitness program, and gradual resumption of moderate activities, avoiding prolonged sitting and repetitive bending. Based on the results of an FCE performed by Restore Function, Dr. Kachooie concluded that the Applicant could return to light work, but would have difficulty with repetitive bending, lifting and carrying which would involve use of her upper extremities.

The Applicant testified that she continued to feel she could not return to her job as a homemaker. She testified that she could do the lighter parts of the job - light housework, preparing breakfast and light meals, and providing companionship to her patients. However, she testified that her right leg would hurt and swell up if she walked or sat too long. Climbing stairs, and prolonged walking and sitting irritate her back, but otherwise, her back pain is mainly resolved. Lifting and carrying - grocery bags, for example - aggravates her shoulder, wrist and hand problems, which means she would not be able to lift or transfer patients. Bending to clean the tub would also aggravate her upper extremity problems. At home, her children look after the heavier housework.

First theory of liability: Did the Applicant suffer neck, low back and upper extremity injuries in the bus accident?

I accept the Applicant's testimony that she sustained injuries to her right hip, leg and ankle in the bus incident. The TTC confirmed the occurrence of the accident and accepts that these injuries were well-documented.

The Applicant testified that she also injured her right upper arm and shoulder in the bus accident.¹⁰ This would make sense, because she fell onto her right side. However, none of the medical reports prepared before the Clinic incident refer to any upper body injuries. Nor did the Applicant refer to upper body injuries in her statements given to the TTC before the Clinic incident. In her letters to the TTC afterwards, the Applicant insisted that her injuries resulting from the bus incident were related to her right hip and ankle, and that her upper body and low back injuries resulted from the FCE at the Clinic.

I found the Applicant to be a straightforward and credible person who wanted to be helpful.¹¹However, she was not always able to be precise about when her various symptoms developed. Where there is a conflict, I prefer to rely on the more contemporaneous evidence. Accordingly, I am prepared to accept only that the Applicant may have had a bruised and sore right upper arm for a short time after the bus accident, but I find this was a minor problem that was never significant or disabling.

In his submissions, the Applicant’s counsel argued that the Applicant has bilateral carpal tunnel syndrome resulting from breaking her fall from the bus with her hands. There is no evidence that the Applicant extended her arms to break her fall. In her testimony and her statements to all her doctors, she described falling onto her right side when the doors to the bus opened. Nor is there any evidence of wrist complaints until after the Clinic incident. I do not accept that the Applicant developed wrist problems at the time of the bus accident.

I find that the Applicant injured her right leg, hip and ankle in the bus accident. I do not accept that she injured her shoulders, elbows, wrists, neck or low back at that time.

Second theory of liability: Does the Applicant have an impairment relating to her right hip and ankle injury after September 24, 1998?

The Applicant testified that her right hip and ankle problems continued to bother her "now and then" at the time of the hearing, especially with wet weather or heavy activity. However, in her letters to the TTC following the incident at the Clinic, the Applicant stated that her right leg problems had resolved by the time she requested a discharge note from the Clinic in late September 1998.¹² She said the same thing to Dr. Deegan and Dr. Vadasz.

Questioned about this, the Applicant stated that Dr. Labelle treated her for right leg symptoms as well as back and upper body symptoms, in October 1998. Dr. Labelle’s treatment plan corroborates this evidence.¹³ In addition, although the Applicant told Dr. Vadasz she did not have right leg pain in February 1999, she did report persistent right thigh and ankle symptoms when she saw Dr. Deegan in December 1998. As late as February 2000, she complained to Dr. Kachooie about persistent pain in her right hip and ankle.

The Applicant’s letters to the TTC were written within two weeks of the FCE, at a time when she was focussed on the new injuries she had sustained at the Clinic. I find that the most plausible explanation of the discrepancy is that the Applicant’s right hip and ankle problems were substantially improved by the time she asked to be discharged from the Clinic, but subsequently recurred on an intermittent basis. I am not satisfied these impairments were independently disabling.

Third theory of liability: Did the Applicant suffer impairments in the FCE that are causally connected to the accident?

The Applicant testified that after the FCE, her wrists, hands and fingers were swollen, and there were lumps on the inside of her elbows. She was unable to close her hand because of pain. Her back and shoulders also hurt. Although Alison, the therapist who conducted the assessment, told her these problems were common after the test and would disappear in a few days, they did not. After 10 weeks of chiropractic treatment, the swelling in the Applicant’s fingers and hands subsided, though the swelling in her elbows remained, and she continued to have wrist pain. At that time, she felt she could do light cleaning, but she could not wash floors, because this would hurt her wrists, and she could not bathe or transfer patients.

Dr. Vadasz testified that he does not accept Dr. Sharma's diagnosis of carpal tunnel syndrome. He found no evidence of it when he examined her. If she had the condition, he did not accept that it was related to the bus accident. He testified that carpal tunnel syndrome has a number of causes, and is not necessarily caused by trauma. He would not expect this type of accident to result in the condition. In cross-examination, he stated he had never seen bilateral carpal tunnel syndrome related to trauma.

I have already stated that I do not accept that the Applicant developed carpal tunnel syndrome as a result of the bus accident because I do not accept that she broke her fall with her hands. Based on the sparse evidence I received about this diagnosis, I am not persuaded the Applicant developed carpal tunnel syndrome as a result of the FCE. However, I accept that the Applicant suffers pain in her wrists as a result of the FCE. I also accept that her shoulders, elbows, neck and low back were injured in the FCE.

Disability: Conclusion

Dr. Vadasz accepted that the Applicant's homemaker job required medium strength, and that she tested only at a sedentary industrial level. However, it was his opinion that the Applicant was not disabled from her pre-accident job. On cross-examination, he explained that he reached this conclusion because he felt the Applicant's actual functional level was higher than she displayed during the FAE conducted by Ms. Goldlist. The difficulty with this reasoning is that a person who can work at higher than a sedentary level may nevertheless be unable to work full-time at a medium-level job. She might be restricted to light work (the intermediate NOC category) or part-time medium-level work.

Dr. Vadasz may have been influenced by his understanding that the Applicant was required only "rarely" to lift patients and that power lifts were available. I prefer the Applicant's testimony that she was solely responsible for assisting patients with transfers in their homes, and had no mechanical assistance. The most persuasive evidence of the Applicant's job demands is the job description provided by the VHA for prospective employees, which corroborates the Applicant's testimony about her essential tasks. The job description states that the position "involves considerable lifting, bending and moving in awkward positions." "Considerable" is defined as 51-75 per cent; it is not clear whether this is measured relative to time or job demands. The job description also states that employees "[m]ust be in good health and have the ability to lift or move light weight, and after instruction transfer clients." [emphasis added] The VHA's job requirements self-assessment checklist includes the following as "major" job requirements (normally encountered more than 3 hours a day):

Strength

Lifting and carrying: Assist client transfers, carry groceries, laundry, vacuum cleaner and supplies. Weight variance: 5-45 LB.

Mobility

Standing: While performing many aspects of work e.g. cooking, bathing client, dressings etc.

Walking, climbing stairs: When travelling between car and client, in client’s home.

Balancing: While carrying supplies e.g. basin of water, laundry, groceries.

Conditions of Work

Work alone: Majority of time spent working alone with clients in their homes.

Hours of work: Varies: 3-8 hours/day or shifts up to 12 hours.

Productivity: Work pressures, multiple clients.

Work Environment

Inside Work: Conditions variable with each client’s home environment, may include poor lighting, loose floor boards etc.

Daily requirements (normally encountered frequently, up to 3 hours a day), include:

Strength

Pushing, pulling and/or shifting: Assist and position clients in beds, wheelchairs, vacuuming.

Fine Motor Movement: For writing and most activities e.g. doing up buttons, personal care.

Handling and gripping: For most care, e.g. positioning client, equipment, supplies etc.

Reaching: Retrieve supplies, for most care e.g. bathing client, cooking, laundry.

Mobility

Sitting: Brief periods up to 15 minutes during work duties.

Kneeling, crouching (squatting): While performing care, retrieving supplies from low storage areas, dusting.

Work Environment

Outside Work: Trips to grocery store, laundromat, moving from one client to another.¹⁴

I accept that the employer’s position description and job requirements checklist represent the essential tasks of the Applicant's pre-accident job.

In June 1999, Dr. Mehta cleared the Applicant to return to modified work without heavy lifting. The VHA's refusal to reinstate the Applicant with this restriction is very persuasive evidence of disability. Ms. Goldlist reported that the Applicant exhibited "functional" weight bearing, standing, walking, forward reaching, handling and low-level ability. However, the issue under the SABS-1996 is not whether the insured person is "functional," but whether she is substantially unable to return to the essential tasks of her pre-accident employment. In this case, that employment imposes medium-level strength demands.

Another problem with Dr. Vadasz report is his finding that the Applicant failed to exert Maximum Voluntary Effort and showed "considerable non-organicity." He explained that he drew these conclusions because the Applicant’s complaints and tested functional abilities were not explained by the objective findings. There is no other evidence of motivational or functional problems in this case. In any event, arbitration decisions have consistently held that an insured person is not precluded from entitlement because psychological or functional factors contribute to her disability, as long as the accident plays a material or significant role.

An insured person's credibility is an important issue in cases of soft tissue injury where objective findings are minimal or absent. I found the Applicant open, unguarded and credible. She gave detailed evidence about the bus accident and the FCE. Although her testimony about when she developed her various symptoms was confusing at times, I am not persuaded this resulted from any intent to mislead. Neither Dr. Vadasz nor Mr. Cummins questioned the genuineness of the Applicant’s complaints, and I also found her sincere. Her decision to write to the TTC after the Clinic incident also speaks to her candour.

The Applicant’s work history does not suggest she is someone who was looking for a reason to stop working. The Applicant has raised three children on her own. She testified that she has worked as a homemaker and as a babysitter since she arrived in Canada in 1989. In 1991, her employer, Central Health Care, sent her to George Brown College, where she completed the level two homemaker course, at night, between September and December. The job description provided by the VHA confirms that this certificate was a required qualification. Although she had only worked for the VHA for a few weeks at the time of the accident, there is no evidence she was having problems on the job. After the accident, her attempts to return to work in late September 1998, and again in June 1999, speak to her motivation. The VHA’s stated willingness to rehire her, once she has medical clearance, also attests to satisfactory work performance.

The Applicant’s attempts to find alternative suitable work after the accident also indicate a desire to work. She testified that she contacted a Toronto hospital looking for a job feeding and transporting patients, but was unsuccessful. She also contacted another home care company (Spectrum), but they required homemakers to be able to lift 40 pounds. In October 1999, hoping to get a babysitting job with Comfort Care, the Applicant completed a CPR course and obtained a doctor’s report, blood test, and police report, which they required. The company did call her, and sent her to a nursing home, promising that she would be feeding and talking to patients, while someone else looked after the heavier tasks. However, when she got there, she was asked to lift a bedridden patient, and she was unable to do it. The Applicant also testified that she applied at Bi-Way and No-Frills stores, but the application forms said she would have to be able to lift 40-50 pounds.

I also heard evidence about two prior injuries. In 1994, the Applicant injured her low back in a slip and fall accident. She saw Dr. Labelle for chiropractic treatment. The Applicant fell again in May 1995, breaking her right ankle. Her leg cast was removed after about 45 days, but she continued to see Dr. Labelle, who now treated her right ankle as well as her low back, until around August 1995. The Applicant testified that her symptoms had resolved by that time. I accept the Applicant’s uncontroverted evidence, which is supported by her work history and the absence of any record of ongoing problems in Dr. Mehta's notes.¹⁵

Although the Applicant’s work history in the year prior to her 1998 accident was interrupted by the health problems of family members, I received no evidence that any of these problems were ongoing at the time of the accident.

I am satisfied that after February 17, 1999, the Applicant remained substantially unable to perform the essential tasks of her job as a homemaker because of ongoing symptoms in her shoulders, elbows, wrists, and low back, and intermittent symptoms in her right leg. I am not satisfied that she had significant residual neck symptoms distinct from her shoulder symptoms.

Were the injuries suffered during the FCE causally connected to the accident?

The TTC relies on the definition of "accident" in subsection 2(1) of the SABS-1996, which is repeated here for convenience:

"accident" means an incident in which the use or operation of an automobile directly causes an impairment¹⁶ or directly causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device; [italics added]

This definition differs from the definition set out in the two previous versions of the SABS-1996. Section 2 of the Statutory Accident Benefits Schedule - accidents on or before December 31, 1993 (the "SABS-1990") includes the following definition:

"accident" means an incident in which the use or operation of an automobile causes, directly or indirectly, physical, psychological or mental injury or causes damage to any prosthesis, denture, prescription eyewear, hearing aid or other medical or dental device; [italics added]

The definition in the Statutory Accident Benefits Schedule - Accidents after December 31, 1993 and before November 1, 1996 (the "SABS-1994") is substantially identical to the 1990 version.¹⁷

The TTC submits that the Applicant's FCE-related injuries fall beyond the scope of the direct causal connection test in the amended definition of "accident." In the Applicant's submission, once it is accepted that she was injured in an "accident," as defined, the focus of the enquiry turns to section 4 of the SABS-1996, which says:

4. The insurer shall pay an insured person who sustains an impairment as a result of an accident an income replacement benefit if the insured person meets any of the following qualifications:

5. The insured person was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment [italics added]

The Applicant submits that the "as a result of" test in section 4 is broad enough to embrace injuries sustained in approved treatment necessitated by the accident.¹⁸

It can be argued, in support of the TTC's position, that section 2 requires each impairment giving rise to benefit entitlement to be directly caused by the accident. However, the definition of "accident" in section 2 uses the indefinite article: it provides coverage where the use or operation of an automobile "directly causes an impairment." The preamble to section 4, the IRB entitlement section, sets out the pre-condition for entitlement: "an insured person who sustains an impairment as a result of an accident." Nothing in the wording of these sections limits benefits to those impairments directly caused by the accident. Moreover, in enacting the Bill 59 amendments to the SABS, the legislature chose not to amend the provisions setting out the entitlement criteria for various types of benefits, all of which retain the "as a result of" test. This supports the Applicant's view that the "as a result of test applies in determining the extent of an insurer's liability for the consequences of an accident. Reading subsections 2(1) and 4(1) together, I find that once the insured person proves that she sustained an impairment in an "accident," the test for entitlement to benefits is whether the impairments giving rise to the claim for benefits were sustained "as a result of" the accident.

FSCO decisions

Arbitration and appeal decisions have considered the definition of "accident" in the context of initial entitlement disputes, where, for example, the insured person committed suicide by inhaling exhaust fumes, or was injured in a "road rage" incident or without coming into direct contact with an automobile. Remoteness questions can arise where there is no dispute that the insured person was involved in an "accident," but the insurer disputes the extent of its responsibility for the consequences of the accident. In many FSCO cases, the insured person initially sustained a relatively minor soft tissue injury, but then developed complications (for example: deconditioning, weight gain, depression or the side effects of medication) that exacerbated the impairment or delayed recovery. In other cases, factors unrelated to the accident played a role, for example: personality factors, family or marital problems, or an unrelated illness or injury. In both types of cases, FSCO adjudicators have found entitlement where the accident significantly or materially contributed to the insured person's disability (in the case of weekly benefits) or impairment (for other types of benefits).¹⁹ The significant or material contribution test is consistent with common law principles of causation.²⁰

For example, in Barreira and Allstate,²¹ Arbitrator Evans found that the insured person’s fall downstairs, some three and a half years after her 1991 accident, "was related to the accident because the episodes of dizziness commenced after the accident and are linked by several medical hypotheses to the accident." The subsequent worsening of the insured person's condition, culminating in a diagnosis of fibromyalgia, was also found to be related to the accident.

In Gauthier and Allstate Insurance Company,²²Arbitrator McMahon found that the insured person’s accident-related knee injury had improved significantly by the time she re-injured the knee by falling downstairs, and did not make a material contribution to her ongoing disability after the fall. However, he found that as the accident had weakened the knee, making the applicant more susceptible to injury, the fall was caused by the accident. He drew the following conclusion:

I can find no logical reason to distinguish between incidents that merely exacerbate previous symptoms, and those that cause new injury. If the injuries sustained in the motor vehicle accident make the person more susceptible to further injury, and that unhappy consequence comes to pass, the subsequent injury can fairly be said to have been 'caused' by the motor vehicle accident, unless the insured person’s conduct was unreasonable and materially increased the risk of further injury.

Although the Arbitrator focussed on the SABS-1994 "accident" definition, this was not essential to his analysis, in my view. Because of the breadth of the causal test in the pre-SABS-1996 definition of "accident," it was not necessary for the Arbitrator to consider the interaction between that test and the "as a result of" test in the entitlement sections of the SABS.²³

At issue in Saliba and Allstate Insurance Company of Canada and Progressive Casualty Insurance Company²⁴ was whether the insured person was entitled to benefits relating to quadriplegia resulting from surgery for accident-related disc herniations. Arbitrator Alves' conclusion was as follows:

I find that Mr. Saliba sought medical treatment for his post-accident pain and symptoms and followed the advice of his treating practitioners. Medicine remains an inexact science and it would appear that there is a great deal of room for differing opinions and judgment. There is no suggestion that Dr. deVilliers failed to disclose the risks of surgery, or that he carried out the surgery in an improper manner. I find no new intervening act which would relieve Allstate and Progressive from responsibility for Mr. Saliba's statutory accident benefits. Although Mr. Saliba's disability has worsened following the surgery, this also does not relieve Allstate and Progressive from responsibility for Mr. Saliba's statutory accident benefits.²⁵

I agree with these arbitration decisions, which are consistent with common law principles of remoteness and intervening cause.

Remoteness and intervening cause at common law

The general rule is that a tortfeasor is responsible for all the reasonably foreseeable consequences of his wrongdoing.²⁶ That a subsequent event contributed to the victim's losses does not necessarily limit recovery:

The intervening conscious act of a third party will break the chain of causation and relieve the party who may be otherwise negligent of liability, unless to a reasonable man in the same circumstances that conscious act would have been foreseeable.²⁷

Where the intervening act is that of a health care provider, the law is as stated in Mercer v. Gray,²⁸ a decision of the Ontario Court of Appeal:

. . . if reasonable care is used to employ a competent physician or surgeon to treat personal injuries wrongfully inflicted, the results of the treatment, even though by an error of treatment the treatment is unsuccessful, will be a proper head of damages. . . .

There may be cases where the medical or surgical treatment is so negligent as to be actionable. This would be in effect novus actus interveniens and the plaintiff would have his remedy against the physician or surgeon. But this the defendant would have to prove . . .

The Court reaffirmed this principle in Papp v. LeClerc:²⁹

Every tortfeasor causing injury to a person placing him in the position of seeking medical or hospital help, must assume the inherent risks of complications, bona fide medical error or misadventure, and they are reasonable and not too remote. . . . It is for the defendant to prove that some new act rendering another person liable has broken the chain of causation.

In my view, these well-established common-law principles also apply in the accident benefits context.

Workers compensation law

While the compensability of treatment-related injuries is a relatively novel issue before the Commission, a number of workers' compensation cases have applied the common law principles in the context of very similar statutory language. The scope of coverage is described in the Workers' Compensation Act as follows:

Where, in any employment, to which this Part applies, personal injury by accident arising out of and in the course of employment is caused to a worker, the worker and the worker’s dependants are entitled to benefits in the manner and to the extent provided under this Act.³⁰ [emphasis added]

Temporary total disability benefits are provided "[w]here injury to a worker results in temporary total disability," and temporary partial benefits are provided "[w]here temporary partial disability results from the injury. "Non-Economic Loss benefits are provided where a worker "suffers permanent impairment as a result of an injury. "A worker "who suffers injury resulting in permanent impairment or resulting in temporary disability for twelve continuous months is entitled to compensation for future loss of earnings arising from the injury" (Future Economic Loss benefits).³¹

The Workers Compensation Appeals Tribunal described the relationship between the coverage and benefit entitlement provisions in its leading case, Decision No. 915, as follows:

In the Workers Compensation Act, entitlement to compensation is triggered by a relationship between a disability and an industrial injury which is defined by the words "results from". Subsection 45(1) [of the pre-1989 Act], for instance, provides for entitlement to compensation in respect of permanent disability where such disability results from the injury.

The reference to "injury" in that context is a reference to the injury described in s. 3(1) [the predecessor to subsection 4(1)] - an "injury by accident arising out of and in the course of employment." In these discussions, we are assuming the original injury arose out of and in the course of employment.³²

The Decision No. 915 Panel accepted, as a fundamental principle of statutory interpretation, that:

the Legislature cannot have intended to provide workers with less coverage for disabling consequences of an industrial injury than the common law provides for disabling consequences of negligent injuries.

. . . . There is nothing in the historical record to suggest that in giving up the right to sue and the right to damages for pain and suffering in exchange for the no-fault protection, it was intended that workers would accept, as well, a reduced breadth of protection in respect of consequential damages.

Accordingly, the Panel accepted that a disability resulted from the compensable injury if the injury made a significant contribution to the development of the disability, reasoning that this was "the plain meaning of the words 'results from'," as well as being consistent with the principle of parity with the common law. The Panel also adopted the common law notion of "intervening cause" before turning to the compensability of treatment-related injuries:

The classic instance in which intervening cause is argued is the case of negligent medical treatment. A minor injury to a leg necessitates minor surgery. The surgery is performed negligently and the leg has ultimately to be amputated. Should the defendant whose negligence caused the minor injury or a Workers Compensation scheme which is responsible for compensating the original injury, be held responsible for the disability arising from the amputation of the leg? . . . .

[G]enerally speaking, the common law test for distinguishing between events that are to be regarded as just another link in the chain of causation - which the surgeon’s negligence could arguably be - and events that are seen to break the chain, is, generally, the test of whether the event is a reasonably foreseeable result of the compensable primary injury. [emphasis in original]

Subsequent Tribunal decisions have accepted that if negligence in the treatment of a work-related injury is a reasonably foreseeable consequence of the injury, it is not an intervening cause.³³

Like workers compensation, the statutory accident benefits scheme represents a legislative policy decision about the appropriate allocation of certain costs of pervasive economic activities. It also involves an exchange of tort rights for statutory benefits. Both schemes aim to provide comprehensive benefits for injured persons while containing costs by restricting litigation. I find that the workers compensation and accident benefits schemes are statutes in pari materia and should be presumed to take a consistent and coherent view of accident benefits.³⁴ I can think of no reason why the common law principles of causation and remoteness governing the workers' compensation scheme would not apply to the very similar language of the SABS-1996 entitlement provisions.

Principles of Statutory Interpretation

Statutory language must be interpreted in accordance with its plain and ordinary meaning, in the context of the statute as a whole, and keeping in mind the underlying purpose of the statute. An early case addressing the nature of the accident benefit scheme was Meyer v. Bright,³⁵ a decision of the Ontario Court of Appeal. In that case, the appellants raised several issues concerning the interpretation of section 266 of the 1990 Insurance Act,³⁶ which allowed injured accident victims to recover damages only if they could pass a verbal threshold. Holding that the legislation "is essentially remedial," the Court made the following comments about its purpose:

In our view, the Ontario legislature enacted s. 266 and other related amendments to the Act for the purpose of significantly limiting the right of the victim of a motor vehicle accident to maintain a tort action against the tortfeasor. The scheme of compensation provides for an exchange of rights wherein the accident victim loses the right to sue unless coming within the statutory exemptions, but receives more generous first-party benefits, regardless of fault, from his or her own insurer. The legislation appears designed to control the cost of automobile insurance premiums to the consumer by eliminating some tort claims. At the same time, the legislation provides for enhanced benefits for income loss and medical and rehabilitation expenses to be paid to the accident victim regardless of fault.³⁷

The Court concluded that "the words in s. 266 should be interpreted in their ordinary and natural sense, and in harmony with the object and scheme of the Act."

The history and objectives of Ontario’s accident benefits scheme were reviewed in some detail in Hernandez v. Jevco Insurance Company, a challenge to section 266 under the Canadian Charter of Rights and Freedoms. Justice Stayshyn summarized the long policy development process that culminated in the introduction of the OMPP following the rate and liability crisis of the late eighties. Concerns about the tort system raised in the 1986 Slater Report included its "fundamental distortions, inefficiencies, inequities and lottery nature."³⁸ Mr. Justice Osborne raised another concern:

Rehabilitation is an essential objective of any compensation system and it cannot be realistically achieved through the tort system. Because no-fault compensation is delivered on a first party basis and because rehabilitation benefits must be made available without undue delay, the rehabilitation criterion is better served by no-fault than by tort law.³⁹

Justice Stayshyn also considered the government's stated goals in introducing the new scheme. Appearing before the Standing Committee on General Government while it considered Bill 68, the then Minister of Financial Institutions, the Hon. Murray Elston, stated that his government had established four "fundamental principles" in developing the new system: affordability, availability, timely delivery of accident benefits to accident victims, and comprehensive protection.

Although the terms of the current protection from liability provisions and the accident benefit scheme are different from the OMPP scheme at issue in Meyer v. Bright and Hernandez v. Jevco, the underlying legislative objectives are the same, and the basic exchange - tort rights foregone in favour of accident benefits - remains the cornerstone of the scheme. Like the Workers' Compensation Appeals Tribunal in Decision No. 915, I find there is no reason to believe that the legislature intended accident victims to accept, along with restrictions on the right to sue, "a reduced breadth of protection in respect of consequential damages."

The Supreme Court of Canada has accepted that common law terms and concepts are preserved in accident benefits legislation, absent statutory language to the contrary. The issue in Amos v. Insurance Corporation of British Columbia⁴⁰ was whether the driver of a van who was shot in an attempted carjacking suffered "an injury caused by an accident that arises out of the ownership, use or operation of a vehicle . . ." pursuant to subsection 79(1) of the British Columbia Automobile Insurance Act.⁴¹ Justice Major, speaking for the Court, made the following comments about the interpretation of accident benefits legislation:

Driedger on the Construction of Statutes, 3rd ed., by Ruth Sullivan (Toronto: Butterworths, 1994), at p. 301, states: "[w]hen used in legislation, common law terms and concepts are presumed to retain their common law meaning, subject to any definition supplied by the legislature": see R. v. Holmes (1988), 1988 CanLII 84 (SCC), 50 D.L.R. (4th) 680, 41 C.C.C. (3d) 497, [1988] 1 S.C.R. 914, and Woelk v. Halvorson (1980), 1980 CanLII 17 (SCC), 114 D.L.R. (3d) 385, [1980] 2 S.C.R. 430, 14 C.C.L.T. 181. There is no indication that the legislature has provided an alternative definition for the phrase in question, or has intended to modify the judicial interpretation given to that phrase in the case law. Consequently, prior jurisprudence concerning whether an injury arises out of the ownership, use or operation of a vehicle is useful in interpreting the provisions of s. 79(1). This approach is supported by Craig Brown and Julio Menezes, Insurance Law in Canada, 2nd ed. (Scarborough, Ont.: Carswell, 1991), at p. 158:

Automobile insurance has evolved to a point where statutory and contractual insurance doctrines converge in both private/competitive and public/monopoly systems. While legislators do intend to get the cost and other efficiencies when a monopoly is introduced, it does not follow that they also intend to re-invent the language. Where identical or similar concepts to private insurance are made a part of public plans it ought to be assumed that legislators intend identical or similar results.

The no-fault character of the benefits in question does not change the interpretation of s. 79(1). No-fault means that the respondent's liability to pay benefits occurs when injury arises out of the ownership, use or operation of a vehicle, regardless of the presence or absence of fault. The injury must still arise out of the ownership, use or operation. However, this does not mean that a narrow, technical interpretation is dictated. Traditionally, the provisions providing coverage in private policies of insurance have been interpreted broadly in favour of the insured, and exclusions interpreted strictly and narrowly against the insurer (Brown and Menezes, at p. 131). In Indemnity Insurance Co. v. Excel Cleaning Service, 1954 CanLII 9 (SCC), [1954] 2 D.L.R. 721, [1954] S.C.R. 169, [1954] I.L.R. 590, it was held that the construction given to a policy of insurance must not nullify the purpose for which the insurance was sold.

In the same way, while s. 79(1) must not be stretched beyond its plain and ordinary meaning, it ought not to be given a technical construction that defeats the object and insuring intent of the legislation providing coverage.⁴²

In my view, Amos represents the law in Canada with respect to the interpretation of accident benefits legislation. I find that in the absence of express language to the contrary, the words "as a result of" in the SABS-1996 should be interpreted so as to be consistent with common law concepts of causation and remoteness. This approach is consistent with the legislative objectives of the accident benefit scheme, including timely provision of comprehensive benefits, keeping in mind the notional "exchange" or "trade-off" between long-held common law rights and accident benefits.

Conclusion:

To the extent the SABS is ambiguous as to the extent of coverage for the consequences of an accident, I find that it should be given an interpretation that is consistent with the legislative objectives underlying the statutory accident benefit scheme, analogous common-law principles and related (workers' compensation) jurisprudence. I conclude that the extent of coverage for the consequences of an accident is governed by the "as a result of" test, which requires proof that the accident materially or significantly contributed to the disability or impairment that gives rise to the claim for benefits. I find that treatment and assessment-related impairments come within this rule where it is reasonably foreseeable that the insured person would seek treatment as a result of the accident and that treatment might result in further injuries or aggravation of the original injury.

Important policy considerations also favour this approach. Accident benefits are intended to be payable on a non-adversarial, expedited basis. Requiring an insured person to trace the "chain of causation" with precision is inconsistent with this policy. Early rehabilitation is another important objective of the accident benefits scheme.⁴³ For this reason, the SABS places special emphasis on prompt payment of medical and rehabilitation benefits, and requires insurers to pay certain benefits pending resolution of any dispute about entitlement. Moreover, the SABS-1996 explicitly requires an insured person to "obtain such treatment and participate in such rehabilitation as is reasonable, available and necessary" to permit her to engage in suitable employment.⁴⁴ Visiting the costs of therapeutic mishaps on insured persons is likely to discourage participation in therapy, contrary to the policy set out in the SABS-1996.

The Insurer submitted that this interpretation could lead to absurd results, including an insured person recovering benefits for a slip and fall accident suffered while getting dressed before going to therapy. FSCO jurisprudence suggests that the insured person in these circumstances could recover if an impairment suffered in an accident (for example, a knee injury) made her more vulnerable to falling, or if the fall aggravated an accident-related knee injury. Whether an insured person’s intention to attend therapy for an impairment suffered in an accident is, without more, enough to satisfy the "as a result of" test is a question for another day.

By attending physiotherapy treatment within weeks of the accident, the Applicant was taking reasonable steps to facilitate her return to work. The Clinic submitted a treatment plan, as it was required to do under section 38 of the SABS-1996. The TTC also fulfilled its obligations, accepting that it would pay for the treatment under subsection 14(2). Fortunately, the Applicant’s symptoms began to resolve soon after beginning therapy. She asked for a discharge note because she knew her employer would require a fitness certificate before she could return to work. When her physiotherapist refused to give her the certificate unless she passed a functional test, the Applicant had little option but to attempt the FCE, which resulted in further injury. I find that the Applicant acted reasonably in attending for physiotherapy at the Clinic, requesting a discharge note to allow her to return to work, and attempting the FCE as required by the Clinic. I find that the injuries the Applicant sustained in the FCE are reasonably foreseeable consequences of treatment required for the soft tissue injuries she sustained in the bus accident. I am not satisfied that anything done by the Applicant or the Clinic was an intervening cause breaking the chain of causation between the bus accident and the Applicant’s ongoing impairments after February 17, 1999. Accordingly, I find that the Applicant sustained neck, upper body and low back impairments, as well as residual right leg symptoms, as a result of the accident. I find that she became substantially unable to perform the essential tasks of her job as a homemaker as a result of these impairments. She is entitled to ongoing income replacement benefits after February 17, 1999. The parties did not address the Applicant’s entitlement to benefits after 104 weeks under paragraph 5(2)(b) of the SABS-1996.

Medical, rehabilitation, housekeeping and assessment expenses:

Medical benefits

The TTC paid for Dr. Labelle’s first treatment plan, covering the period from October 2 to December 11, 1998. On December 18, 1998, the TTC advised the Applicant that Dr. Deegan was of the opinion that no further treatment was required beyond the first treatment plan. The Applicant continued to see Dr. Labelle for chiropractic treatment between December 23, 1998 and March 23, 1999, and she claims medical benefits for the cost of this treatment, totalling $1,622.71.

For the reasons given above, I am satisfied that the Applicant needed this treatment as a result of the accident, and the expenses were reasonable and necessary. However, no treatment plan was ever submitted. This is understandable, since the TTC had already given notice that it did not accept responsibility for the injuries suffered by the Applicant in the College Street FCE. However, subsection 38(1) of the SABS-1996 states:

Before expenses in respect of which a medical or rehabilitation benefit may be payable are incurred, the insured person shall submit an application for the benefit to the insurer.

Subsection 38(2) states that the application "must include a treatment plan."

If an insured person incurs medical expenses without complying with subsection (1), subsection 38(17) requires her to submit the application within 30 days of incurring the expenses, but that provision is of no assistance to the Applicant in this case.

As the parties focussed their submissions on the causation issue, I heard no submissions about the consequences of an insured person's non-compliance with the provisions of subsection 38(1) and (2) in these circumstances. I remain seised of this issue. If the parties are unable to agree, the Commission should be contacted to arrange for further submissions on this issue.

The TTC did not dispute the Applicant’s entitlement to her travel expenses relating to attendances with Dr. Mehta, except for its general submissions regarding causation. These expenses are allowed. I may be contacted if the parties are unable to agree on the amount.

Rehabilitation benefits

The Applicant claims reimbursement for a CPR course, police report, and blood test, all of which she obtained in order to apply for alternative suitable employment. I find that these expenses were "reasonable and necessary measures undertaken by an insured person . . . to facilitate the insured person's reintegration into . . . the labour market."⁴⁵ The TTC did not raise any procedural objections under section 38 of the SABS-1996. The Applicant is entitled to payment of these benefits, totalling $112, plus interest under section 46 of the SABS-1996.

Cost of assessment

The Applicant is entitled to be reimbursed for the $15 she paid Dr. Mehta for a doctor’s note clearing her to return to modified work, under section 24 of the SABS-1996, with interest under section 46.

Housekeeping benefits

The Applicant claims $390 for the services of a housekeeper between December 28, 1998 and January 25, 1999. The invoices of the housekeeping service indicate that service was provided for two or three hours, two or three times a week, for a total of ten visits (26 hours) that month. The Applicant testified that she was able to do light housework at that time, but could not do heavier tasks like cleaning the bathtub, washing floors, or carrying heavy laundry. She testified the housekeeper did the laundry, mopped the floors and shopped for groceries.

I accept that the Applicant was unable to do the heavy household tasks described, but I do not accept that she required assistance for as many hours as she claimed. I accept three hours a week as a reasonable estimate. I find that the Applicant is entitled to twelve hours housekeeping assistance, at the billed rate of $15 an hour, for a total of $180, plus interest under section 46 of the SABS-1996.

EXPENSES:

If the parties are unable to agree on arbitration expenses, the matter may be dealt with pursuant to Rules 73-77 of the Dispute Resolution Practice Code (Third Edition).

October 27, 2000

Nancy Makepeace Arbitrator

Date

Neutral Citation: 2000 ONFSCDRS 196

FSCO A00-000045

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

ADOSINDA CORREIA

Applicant

and

TTC INSURANCE COMPANY LIMITED

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. The TTC shall pay Mrs. Correia income replacement benefits from February 17, 1999, and ongoing. No order is made with respect to benefits after 104 weeks, pursuant to paragraph 5(2)(b) of the SABS-1996.

2. Mrs. Correia is entitled to be reimbursed for her travel expenses relating to visits to her family doctor. I may be contacted if the parties are unable to agree on the amount. I remain seised of her claim for medical benefits for chiropractic treatment and related travel expenses. If the parties are unable to agree on this issue, I may be contacted to arrange for further submissions.

3. The TTC shall pay the Applicant $15 for her family doctor’s note clearing her to return to modified work.

4. The TTC shall pay Mrs. Correia the following rehabilitation benefits:

(i) $55 for a CardioPulmonary Resuscitation ("CPR") course the Applicant completed at the Red Cross;

(ii) $42 for a police report required in order to apply for another job as a homemaker; and

(iii) $15 for a blood test Mrs. Correia needed for the same purpose.

5. The TTC shall pay Mrs. Correia housekeeping benefits in the amount of $180.

6. The TTC shall pay Mrs. Correia interest on the amounts owing, pursuant to subsection 46(2) of the SABS-1996.

I may be spoken to about arbitration expenses, if the parties are unable to agree.

October 27, 2000

Nancy Makepeace Arbitrator

Date

(iv) The current scheme for accident benefits added a definition of accident and removed the exclusion for suicide. Although these amendments do not automatically mean that the Legislature intended to change the existing law, they take on significance in their broader context. They form part of a major legislative reform that ushered in a modified no-fault regime for compensation victims of car accidents;

(v) Under this new regime many victims lost the right to sue in exchange for more generous no-fault benefits from their own insurer. . . .

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended by Ontario Regulations 462/96, 505/96, 551/96 and 303/98.
2. 2The Applicant testified that she attended for her initial assessment on September 15th, and returned the next day to begin treatment. The clinic's records indicate the assessment was on the 16th, and the first treatment on the 17th. In her letter to the TTC dated October 7, 1998, the Applicant stated she was initially assessed on September 14th. I place no significance on the discrepancy.
3. 3Exhibit 6.
4. 4Exhibit 1, Tab 22.
5. 5Exhibit 5.
6. 6October 7 and 8, 1998.
7. 7In her letter of October 8, 1998, requesting reimbursement for her chiropractic fees, the Applicant stated that her "foot and leg got cured" at the Clinic.
8. 8For example, in her letter of October 7, 1998, the Applicant stated that Mr. Cordero "made the estimate [of] 6-7 weeks of treatment right away on the 14 Sept 98, when I went to Sport Clinic to mark a date for my treatment. He didn't even take a look into my foot and leg to see what was the problem, whether my foot and leg had a big or small damage. This is how the Sport Clinic earn their living on TTC case accidents."
9. 9The Applicant also reported a left shoulder injury to Dr. A. Kachooie, a physiatrist who assessed her at her counsel's request on February 16, 2000. According to Dr. Kachooie, the Applicant told him she hit her left shoulder against the bus.
10. 10She has never claimed that she injured her neck or low back in the fall from the bus.
11. 11Mr. Cummins also testified that he found the Applicant to be a credible claimant.
12. 12Letter of October 8, 1998 to Mr. Cummins: Exhibit 1, Tab 26.
13. 13Exhibit 1, Tab 29.
14. 14I omit job requirements not relevant to this dispute, especially with respect to sensory perception.
15. 15Dr. Mehta's note for March 24, 1995 indicates the Applicant complained of right shoulder pain after lifting a patient. The Applicant was not questioned about this. In any event, Dr. Mehta's next note is dated September 5, 1998 and concerns the bus accident. The gap of three-and-a-half years suggests the Applicant had no lasting right shoulder complaints.
16. 16"Impairment" is defined as "a loss or abnormality of a psychological, physiological or anatomical structure or function."
17. 17No change was made to the definition of "accident" in the amendments to the SABS-1994 that took effect on January 1, 1995.
18. 18The same tests are set out in section 14, which governs entitlement to medical benefits, and in the other entitlement provisions of the SABS-1996. The phrase "directly causes" appears nowhere in the SABS-1996 apart from section 2(1). Though the causation test was broader and the benefits available differed, the same general approach was used in the two predecessor schemes.
19. 19For example, Matichuk and Commercial Union Assurance Company (FSCO A98-000318, March 19, 1999) and the cases cited at footnote 3 therein; Turner v. Economical Mutual Insurance Company (FSCO A-012411, August 6, 1999); Ms. Z. v. Dominion of Canada General Insurance Company (FSCO A98-000124, March 7, 2000) under appeal; Argirovski v. Allstate Insurance Company of Canada (FSCO A98-000816, March 14, 2000) under appeal; and Gauthier and Allstate Insurance Company of Canada (FSCO A98-000805, June 21, 2000).
20. 20Athey v. Leonati (1996), 1996 CanLII 183 (SCC), 31 C.C.L.T. (2d) 113, 140 D.L.R. (4th) 235, 203 N.R. 36, [1996] 3 S.C.R. 458, [1997] 1 W.W.R. 97. (SCC), applied in Alderson v. Callaghan (1998), 1998 CanLII 895 (ON CA), 40 O.R. (3d) 136 (Ont. C.A.). A good review of the current state of the law, after Athey v. Leonati, is found in "Causation in Tort Law: Back to Basics at the Supreme Court of Canada," Mitchell McInnes, (1997) 35 Alta.L.Rev. (No. 4) 1013.
21. 21(FSCO A-951394, July 11, 1997).
22. 22(FSCO A98-000805, June 21, 2000).
23. 23Similarly, in Nelson v. Canadian General Insurance Company (OIC A-006686, July 19, 1995), Arbitrator Draper found that even if the insured person's post-accident knee injuries were the primary cause of his ongoing knee problems, the insured person "fell due to the weakness in his knee, making the accident the indirect cause of his injuries." In York v. Jevco Insurance Company (OIC A-008413, October 26, 1995), Arbitrator Jones concluded that the insured person suffered a flare-up of pre-existing left knee problems as a result of exerting extra pressure on that knee to compensate for his accident-related right knee injury. The insured person was found to be entitled to benefits with respect to both knees.
24. 24(FSCO A95-000629, September 16, 1999). A subsequent decision (FSCO A99-001179, August 28, 2000) is under appeal.
25. 25Alderson v. Callaghan [1998] 40. O. R. 3d, Ont. C. A. applying Athey v. Leonati, 1996 CanLII 183 (SCC), [1996] 3 S.C.R. 458, S.C.C. [footnote in original]
26. 26A good review of the cases is found in Cotic v. Gray (1981), 1981 CanLII 76 (ON CA), 33 O.R. (2d) 356 (Ont. C.A.), affirmed by the Supreme Court of Canada, 1983 CanLII 57 (SCC), [1983] 2 S.C.R. 2.
27. 27Jones v. Shafer, 1948 CanLII 32 (SCC), [1948] S.C.R. 166, at 170-1.
28. 281941 CanLII 91 (ON CA), [1941] OR 127, [1941] 3 DLR 564.
29. 29(1977), 1977 CanLII 1032 (ON CA), 77 D.L.R. (3d) 536, 16 O.R. (2d) 158 (Ont. C.A.) per Lacourciere J.A. See also: Winteringham v. Rae et al., 1965 CanLII 322 (ON HCJ), [1966] 1 O.R. 727 (Ont. H.C.J.); Watson v. Grant (1970), 1970 CanLII 1135 (BC SC), 72 W.W.R. 665 (B.C.S.C.) at pp. 671-672; Thompson et al. v. Toorenburgh et al. (1972), 1972 CanLII 981 (BC SC), 29 D.L.R. (3d) 608, affirmed (1973), 1973 CanLII 1149 (BC CA), 50 D.L.R. (3d) 717 (B.C.C.A.); Kolesar v. Jeffries (1976), 1974 CanLII 664 (ON HCJ), 9 O.R. (2d) 41 (Ont. H.C.J.); David et al. v. TTC et al.; Zaltz, Third Party (1976), 1976 CanLII 796 (ON HCJ), 16 O.R. (2d) 248 (Ont. H.C.J.); Katzman v. Yaeck; Silverman, Third Party (1982), 1982 CanLII 1752 (ON CA), 136 D.L.R. (3d) 536 (Ont. C.A.).
30. 30Subsection 4(1) of the Workers' Compensation Act, R.S.O. 1990, c. W. 11, which applies, with some exceptions not relevant to this decision, to injuries that occurred on and after January 2, 1990 (the "pre-1997 Act"). The same definition is found in the version of the Act that applies to pre-1989 injuries and pre-1985 injuries. The Workplace Safety and Insurance Act, 1997 ("WSIA") applies to injuries that occurred on or after January 1, 1998. It includes an amended scope of coverage provision, subsection 13(1), which says: "A worker who sustains a personal injury by accident arising out of and in the course of his or her employment is entitled to benefits under the insurance plan." The Tribunal has not yet considered the significance of this amendment. Although the WSIA significantly amended the benefit scheme, the "as a result of” and "results in" criteria for benefit entitlement were retained throughout. WSIA also changed the name of the Tribunal to the Workplace Safety and Insurance Appeals Tribunal ("WSIAT").
31. 31Respectively, subsections 37(1), 37(2), 42(1) and 43(1) of the pre-1997 Act.
32. 32(1986), 7 W.C.A.T.R. 1.
33. 33For a recent example, see Decision No. 1434/97 (1999), 49 W.S.I.A.T.R. 20.
34. 34Dreidger on the Construction of Statutes (third edition), Ruth Sullivan (Toronto: Butterworth's, 1994), at pp. 286-7: "Often two or more statutes enacted by a legislature touch on the same subject without actually constituting a single integrated scheme. Such statutes are presumed to operate together harmoniously and to reflect a consistent view of the subject in question."
35. 35(1993), 1993 CanLII 3389 (ON CA), 15 O.R. (3d) 129.
36. 36The amendments were introduced in the Insurance Statute Law Amendment Act, 1990, S.O. 1990, c. 2 (Bill 68). The threshold no-fault scheme was generally known as the Ontario Motorists Protection Plan ("OMPP"). First-party accident benefits had been a compulsory part of the automobile insurance package since 1972. The OMPP restricted the right to sue, enhanced the level of benefits, and introduced an alternative dispute resolution system
37. 37At p. 134 O.R.
38. 38Quoted by Stayshyn J. from the Slater Report, the Task Force on Insurance (1986).
39. 39Quoted by Stayshyn J. from the Osborne Report, Report of Inquiry into Motor Vehicle Accident Compensation in Ontario (1988).
40. 40(1995), 1995 CanLII 66 (SCC), 127 D.L.R. (4th) 618 (S.C.C.).
41. 41The only significant difference between this definition and the definition of "accident" in the SABS-1990 and SABS-1994 is that the two previous versions of the Ontario regulations specify a broader causal connection: "causes, directly or indirectly."
42. 42See also Morton v. Rabito, 1998 CanLII 5865 (ON CA), [1998] O.J. No. 5129 (Ont. C.A., per Catzman J.A.): "Part VI of the Insurance Act represents the expression of a social policy adopted by the Legislature of this province to deal with automobile insurance." In Vijeyekumar v. State Farm Mutual Automobile Insurance Co. 1999 CanLII 1640 (ON CA), [1999] O.J. No. 2178, the Ontario Court of Appeal upheld Justice Molloy's decision that the deceased's suicide by carbon monoxide poisoning was an "accident" under the SABS-1994 definition. Among the points Justice Laskin, speaking for the Court, considered "compelling" were:
43. 43See, for example, Gaba and Allstate Insurance Company (OIC A-000624, August 21, 1992); Puheiro v. Gan Canada Insurance Company (FSCO P97-00058, July 23, 1998); Harrison v. Wellington Insurance Company (FSCO A96-000785, July 23, 1998); Pintucci and Jevco Insurance Company (FSCO A97-000755, June 11, 1999); State Farm Mutual Automobile Insurance Company and Lopez (FSCO Appeal P98-00031, September 20, 1999); Persofsky v. Liberty Mutual Insurance Company (FSCO A99-000598, June 23, 2000) under appeal.
44. 44Section 55 of the SABS.
45. 45Subsection 15(2) of the SABS-1996.