Neutral Citation: 2000 ONFSCDRS 204

FSCO A99-000273

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

B. H.

Applicant

and

CITADEL GENERAL ASSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Beth Allen

Heard:

June 19, 20, and 21, 2000, at the Offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Jeffrey Raphael for B.H.

J. Claude Blouin for Citadel General Assurance Company

Issues:

The Applicant, Ms. B.H., was injured in a motor vehicle accident on June 15, 1996. She applied for and received statutory accident benefits from Citadel General Assurance Company ("Citadel"), payable under the Schedule.¹ Citadel terminated weekly caregiver benefits (CGBs) on February 5, 1999. Citdadel made a loss of earning capacity ("LEC") offer of zero. At the hearing, Citadel argued in the alternative that Ms. H was not entitled to a LEC offer. However, it did not raise this issue in its Response to an Application for Arbitration or at the pre-hearing discussion. Ms. H claims a LEC benefit of greater than the zero offer made by Citadel. The parties do not dispute the amount of Ms. H's residual earning capacity ("REC"). They seek a determination of her pre-accident earning capacity ("PEC"). Ms. H also claims a special award and the expenses associated with taxi fares, housekeeping and home maintenance services.

I find that the PEC issue is not properly before me. However, if it were appropriate to decide this issue, I would find that Ms. H's PEC is zero. Based on Ms. H's longstanding serious pre-accident medical problems, together with her lack of employment experience, I conclude that she would not have had the capacity to earn income at the positions she has designated.

For reasons discussed below, I find that the parties prematurely entered the LEC process under Part VI of the Schedule, before the requirements for entitlement to a LEC offer were met. I also conclude that, in pursuing the LEC process, the parties strayed significantly from the requirements of the Schedule. In my view, these deficits require that the issues in this case be redefined. The main issue is whether Ms. H is entitled to a LEC offer. The determination of this issue depends on whether Ms. H satisfied the requirements under subsection 21(1), paragraph 6 to elect to be governed by the LEC provisions.

The parties were unable to resolve their disputes through mediation, and Ms. H applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Was Ms. H entitled to a LEC offer?

2. Is Ms. H entitled to be reimbursed for transportation expenses?

3. Is Ms. H entitled to be reimbursed for housekeeping and home maintenance expenses?

4. Is Citadel liable to pay a special award for unreasonably withholding or delaying benefit payments?

5. Are the parties liable to pay each other's expenses incurred in respect of the arbitration hearing pursuant to subsection 282 (11) of the Schedule?

Result:

1. Ms. H. was not entitled to a LEC offer.

2. Ms. H. is entitled to be reimbursed for transportation expenses.

3. Ms. H is entitled to be reimbursed for housekeeping and home maintenance expenses.

4. Citadel is not liable to pay a special award.

5. If the parties do not settle the expense issue, they may seek a determination by the Commission.

EVIDENCE AND ANALYSIS:

Redefinition of the issues:

Subsection 21 of the Schedule:

The main issue that the parties brought to arbitration is the amount of Ms. H's pre-accident earning capacity or PEC under Part VI, section 28 of the Schedule. However, after a review of the evidence and the provisions governing CGBs and the LEC scheme, I conclude that the issues in this case require redefinition. The real issue is whether Ms. H was entitled to a LEC offer in the first place. I find that the parties entered the LEC process before the requirements of subsection 21(1), paragraph 6 of the Schedule were satisfied and made significant procedural errors in pursuing this process. I find that even if it were appropriate to have entered the LEC process, the parties in this case strayed significantly from the prescribed scheme.

My conclusion that the parties entered into the LEC scheme prematurely and inappropriately is based on looking at the particular requirements of subsection 21² at the104-week point after the onset of disability. The intention of the LEC provisions is to provide a lifetime benefit to insured persons who continue to qualify for a weekly benefit two years after the onset of their accident-related injuries. This benefit is calculated by taking into account the difference between the person's earning capacities before and after the accident. Subsection 21(1) provides that "certain circumstances must occur" before IRB (income replacement benefit), EDB (education disability benefit), CGB and other disability benefit (ODB) recipients are entitled to a LEC offer.

Subsection 21(1), paragraph 6 which applies to CGB recipients states:

21.-(1) Subject to subsections (7) to (9). An insurer shall promptly deliver a written offer to an insured person with respect to the payment of weekly loss of earning benefits if one or more of the following circumstances occurs:

6. The insured person qualified for weekly caregiver benefits under Part IV, is unable as a result of the accident to earn what he or she could reasonably have earned at the time of the accident, elects at any time 104 weeks or more after the onset of the disability in respect of which he or she first qualified for weekly caregiver benefits to be governed by this Part instead of Part IV or V and,

i. continues to qualify for weekly caregiver benefits, or

ii. ceases to qualify for weekly caregiver benefits because there is no longer any person who meets the qualifications set out in subsection 18(5). [emphasis added].

The 104-week mark can trigger the commencement of the LECB provisions, but this is not automatic. In the case of CGB and ODB recipients, they must (1) be "qualified" or "continue(d) to qualify" at the 104-week point; (2) be unable to earn what they reasonably could have earned at the time of the accident; and (3) (this inability to earn must be) as a result of the accident. According to subsection 21(1), paragraph 6 of the Schedule, those who qualified for weekly CGB at any time 104 weeks or more (after the onset of the disability in respect of which they first qualified for CGBs), may elect, if they meet the prescribed requirements, to be governed by the Part VI LEC provisions rather than the Part IV CGBs or Part V ODB provisions. As discussed below, under Part IV, section 18, caregivers can qualify for weekly benefits under one of two alternative disability categories with different consequences on entitlement at 104 weeks depending upon the category under which the person initially qualified.

Background to Ms. H's claim:

The errors that the parties made in accessing the LEC process highlight the necessity to redefine the issues in this case.

Ms. H made the choice to be governed by the LEC process. By letter dated March 29, 1999,³Ms. H's counsel simply advised Citadel pursuant to subsection 21(1), paragraph 6, that Ms. H elects to be governed by the Part VI LEC provisions and requested a LEC offer from Citadel. The March 29 letter does not refer to whether Ms. H was "unable to earn what she could reasonably have earned before the accident."

In response, Citadel made a written LEC offer which also does not conform with the relevant Part VI⁴ requirements. The offer is required to specify the person's PEC,⁵ the employment that best satisfies the prescribed criteria,⁶ the person's REC⁷ and the amount of the person's LEC.⁸ In its initial letter dated April 20, 1999,⁹ Citadel made its offer without specifying the PEC, the type of employment or the REC. This letter advanced a zero LEC offer and stated that Ms. H did not meet "the test enumerated in the Schedule for entitlement to a loss of earning capacity benefit offer" and alternatively asserted that "if she does [meet the test], our principal's position is that she is entitled to a zero offer." The letter did not specify the test to which it was referring. Since the LEC is the difference between the PEC and the REC, it is not clear from its offer how Citadel arrived at its LEC calculation. In any event, Ms. H rejected the offer by letter dated May 6, 1999¹⁰ and requested an assessment by a RECDAC under section 27 of the Schedule.

In a further letter dated June 15, 1999,¹¹ Citadel attempted to rectify the deficiencies in its April 20, 1999 letter by specifying that Ms. H's PEC was zero. However, this letter still did not specify the REC. Citadel stated that the PEC amount is based on its view that Ms. H suffered from severe pre-existing physical and chronic mental problems making it "most unlikely that your client would have joined or returned to the work force had the accident of June 15, 1996 not happened." Although Citadel's offer did not provide a REC amount, at the hearing, it stated its position that Ms. H's REC is zero. Citadel's zero LEC offer, it now appears, was based on zero pre-accident and residual earning capacities. Citadel did not rely on medical or vocational opinions to support its PEC or REC assessments. Ms. Carolan Shannon, a claims supervisor with Citadel, testified that for its PEC assessment, Citadel relied on Ms. H's medical and hospital records in arriving at its conclusion.

In response to Ms. H's request, a RECDAC was conducted over seven days in September 1999, which assessment, I find, was not necessary. Subsection 23(2) of the Schedule provides that the insured person must reject the REC aspect of the insurer's LEC offer to be entitled to request a RECDAC, which, of course, Ms. H did not do since there was no REC aspect in its offer. It became evident from the parties' submissions at the hearing that Citadel's assessment of the REC amount was zero and that Ms. H did not disagree with this amount, although she came to her position for different reasons.¹² A RECDAC is obviously not necessary unless there is a dispute as to the REC which leads me to my conclusion that the RECDAC was not warranted.

Section 23(3) permits the parties to bring a PEC dispute to the Commission's dispute resolution process. However, I find that before entering this step in the process, earlier requirements, as discussed below, would have had to be satisfied.

The issues to be determined:

I find that based on the above, the main issue to be determined in this case is:

■ Was Ms. H entitled to a LEC offer?

The sub-issues that arise from this issue are:

■ Did Ms. H qualify or continue to qualify for CGBs at the 104-week point after the onset of the disability for which she first qualified for CGBs? The parties dispute Ms. H's qualification for CGBs at 104 weeks.

■ Was Ms. H unable to earn what she reasonably could have earned at the time of the accident? The parties dispute that Ms. H was reasonably able to earn income at the time of the accident.

■ If Ms. H was able to earn income at the time of the accident, is her inability to earn what she could reasonably have earned, a result of the accident? The parties also dispute that the accident was the cause of any inability to earn income.

Ms. H's transportation, housekeeping and special award claims as well as the expense issue have also to be determined.

Did Ms. H qualify for caregiver benefits?

Under which disability test did Ms. H initially qualify for CGBs?

The evidence as to the CGB disability category under which Ms. H initially qualified is not clear. This is important to establish because there are consequences to entitlement at the 104-week mark depending on the disability category. Part IV, section 18, of the Schedule governs those insured persons who receive CGBs and sets out the categories of disability qualification. The relevant portions of this provision state:

18.-(1) An insured person who sustains an impairment as a result of an accident is entitled to a weekly caregiver benefit if the insured person meets the following qualifications:

1. At the time of the accident, the insured person was residing with a person in respect of whom the insured person was the primary caregiver and the person receiving the care was less than sixteen years of age or required the care because of physical or mental incapacity.

2. The insured person was not employed on a full-time basis and was not self-employed at the time of the accident.

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

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

ii. suffers a partial or complete inability to carry on a normal life.

Ms. H received CGBs under Part IV, section 18 of the Schedule from June 21, 1996 until February 5, 1999. Under this provision, an insured person who suffers an impairment as a result of an accident is eligible for CGBs if the person is living with a person for whom she is the primary caregiver who is either under age 16 or requires care due to physical or mental incapacity. At the time of the accident, Ms. H was the primary caregiver for her youngest daughter who was born on July 31, 1982 and was two weeks short of 14 years of age at the time of the accident. Section 18 also provides that the caregiver neither be self-employed nor employed full time at the time of the accident.¹³ Ms. H also met this requirement.

The insured person must also establish that she satisfies one of two alternative disability tests, namely, that at the time of the accident, she has a substantial inability to perform her caregiver activities or is partially or completely disabled from carrying on a normal life. It is not entirely clear from the evidence before me whether Ms. H qualified based on the substantial inability test or the partial/complete inability test. While Ms. H testified generally that before the 1996 accident, she was responsible for the care of her children, and the maintenance of the household and the lawn and gardens, I received no oral evidence or submissions directly pertaining to her disability category.

As noted earlier, different consequences result at the 104-week point (after the onset of the disability for which the insured person first qualified for benefits) depending on the disability category under which an insured person qualified for CGBs. Insured persons who qualified under the partial/complete disability category must establish at the 104-week mark that they have a complete inability to carry on a normal life.¹⁴

The evidence suggests that Ms. H qualified under the substantial inability test. Citadel filed Activities of Daily Living, OCF-12 forms dated June, July and August 1996 which indicate that after the 1996 accident she was unable to do some of her personal care activities; partially disabled from performing some of her mobility activities and completely unable to drive; able to grocery shop with assistance; unable to prepare and cook meals and do dishes; able to do all washing/drying of laundry but had not attempted to iron or sew. Citadel commissioned Assessment Resources Ontario Inc. in August 1996 to conduct a functional abilities assessment of Ms. H's ability to perform her homemaking activities.

The Designated Assessment Centre Disability Assessment (Disability DAC) report dated September 25, 1998 indicates that Citadel referred a question for assessment that suggests that it paid Ms. H benefits based on a substantial inability to perform her caregiver activities. The question however misstated the substantial inability test. That question was, "Is the client's [sic] substantially disabled from performing activities of daily living?"[my italics] Despite the misstatement of the test, based on the wording of this question, I conclude that Ms. H most likely qualified for CGBs based on a substantial inability to perform her caregiver activities.

Did Ms. H qualify for CGBs at the 104-week point?

Citadel paid CGBs for about nine months beyond the 104-week point until February 5, 1999, at which point it finally terminated benefits. However, the evidence reveals conflicting and inappropriate reasons for benefit termination.

Ms. Shannon testified that she took over Ms. H's file in November 1997. She testified that Citadel "paid" Ms. H benefits at 104 weeks but she did not "qualify" for benefits. Ms. H argued, on the other hand, that Citadel continued to pay her CGBs well beyond 104 weeks and as such she continued to qualify. Ms. H also submitted that Citadel did not show that she no longer qualified at 104 weeks since it did not rely on an insurer's medical opinion to this effect when it terminated benefits at this point.

Ms. Shannon stated that she initially advised Ms. H of termination by a letter and an Explanation of Assessment by Insurance Company, both dated June 15, 1998, enclosing a cheque for the period June 27 to July 3, 1998. The letter indicated that the 104 week point "was approaching." However, I find that this is a misstatement of the circumstances. That is, the 104-week point "after the onset of the disability in respect of which she first qualified" was actually June 15, 1998. According to the letter and the Explanation of Assessment by Insurance Company, Citadel terminated benefits based on Ms. H's purported unwillingness to participate in recommended rehabilitation programs. However, I find that this was an inappropriate reason for Citadel to terminate benefits. Although I did not hear submissions from counsel on this matter, Part XVI, section 73¹⁵ only allows an insurer to reduce the person's benefit by 50 percent for unwillingness to participate in rehabilitation. Insurers are not permitted to terminate benefits for this reason.

Citadel did not base its decision to terminate benefits at the 104-mark on a medical opinion that Ms. H was no longer substantially disabled from performing her caregiver activities. When cross-examined on the reason for termination, Ms. Shannon stated that she relied on the disability DAC findings in deciding to terminate benefits. However, this assessment was conducted over three months after the 104-week mark.

Ms. H argued that at the 104-week mark, Citadel failed meet its obligation under subsection 21(2) of the Schedule to notify her of her entitlement to elect to be governed by the Part VI LEC provisions, which prevented her from exercising her option nine months earlier. Citadel does not dispute that it did not provide notice. I find that this act of non-compliance with the Schedule triggered many subsequent procedural problems. Ms. H founds her claim for a special award under subsection 282(10) of the Act on this conduct. Citadel subsequently resumed benefits. Ms. Shannon testified that Citadel continued payments after Ms. H signed the OCF 14 on June 16, 1998 requesting a disability DAC. This assessment was completed in September 1998 with findings unfavourable to Ms. H.

Ms. H's benefit payments took a rather unconventional turn at this point. Citadel did not terminate benefits immediately following the outcome of the Disability DAC as customarily happens. Ms. Shannon testified that Citadel extended payments initially awaiting a Rehabilitation DAC addendum report which they received on December 10, 1998 — not typically a basis for extending disability benefits. Citadel even continued benefits after December 10. Ms. Shannon testified that at mediation on December 14, 1998, Citadel undertook to further extend benefits over the Christmas season and continued to pay until February 5, 1999 in recognition of Ms. H's dire financial circumstances. Citadel does not seek a repayment of any CGBs. From these developments, I gather Citadel's position to be that Ms. H continued to receive CGB payments after June 15, 1998 for technical reasons and for reasons of its own goodwill rather than because she continued to actually qualify. However, I am not persuaded that Citadel's stated reasons for extending payments go any distance in establishing that she did not qualify at the 104-week point.

According to Ms. Shannon, on January 6, 1999, Citadel issued a second termination letter dated January 6, 1999¹⁶ and an Explanation of Assessment by Insurance Company¹⁷ of the same date, terminating benefits effective February 5, 1999. It appears that the reason for the latter termination changed retrospectively from that expressed in the June 15, 1998 Explanation for Assessment by Insurance Company. According to Ms. Shannon, Ms. H alerted her at mediation that her daughter had turned 16 on July 31, 1998. When testifying about the February 5, 1999 termination, Ms. Shannon stated that Ms. H received CGBs until February 1999 when they ought to have been terminated in July 1998 when the daughter turned 16 years old.

Citadel's Response to an Application for Arbitration dated April 8, 1999 reflects the change in the reason for termination. It states that Ms. H's entitlement to CGB ceased on July 31, 1998 when her daughter turned 16, unless she met "the complete inability to carry on a normal life" test, which, in Citadel's view, Ms. H did not. In its January 6, 1999 letter, Citadel indicated that in arriving at this conclusion, it relied on the requirements of sections 18 and 19 of the Schedule.

However, I do not see how section 19 applies to Ms. H's circumstances. Under Part V, subsection 19(1), paragraph (c), a CGB recipient whose last qualifying child turns 16 before the 104-week mark, is entitled to receive ODBs if within two years and as a result of the accident, he or she suffers a partial or complete inability to carry on a normal life. Subsection 19(7), paragraph (c),¹⁸ applies to persons in the above circumstances who continue to qualify for ODBs after 104-weeks. The latter paragraph requires the CGB recipient to meet the complete inability test at this point. I find that section 19 clearly does not apply to Ms. H, assuming that Ms. H initially qualified for CGB under the substantial inability test under section 18, and given that her daughter turned 16 after the 104-week point. I therefore conclude that this was an inappropriate reason to terminate benefits.

For a number of reasons, I accept Ms. H's position that she continued to qualify for CGB at the 104-week point. Up to the time Citadel issued the June 15, 1998 Explanation of Assessment by Insurance Company, it did not raise the question of Ms. H's qualification for CGBs. I apply the approach the arbitrator used in the Morabito and Liberty Mutual Insurance Company¹⁹case. Although the parties in that case did not argue whether the applicant qualified for benefits at the 104-week mark, the arbitrator found that the insurer had conceded that the applicant qualified for benefits at the 104-week point by its failure to raise the issue before 104 weeks. In the case before me, Citadel terminated benefits by a notice dated exactly when the 104-point occurred, June 15, 1998. I received no evidence as to when Ms. H actually received this notice, but it was not likely to have been before June 15, 1998. In concluding that Citadel conceded that Ms. H qualified for benefits at 104 weeks, I considered that Citadel did not raise this issue before the 104-week point, coupled with the further fact that it did not have a medical opinion on Ms. H's disability at this point. Moreover, if one were to consider Ms. H's child turning 16 as a basis for disqualification, this did not occur until after the 104-week mark.

I therefore conclude that Ms. H meets the subsection 21(1), paragraph 6 test of continuing to be qualified for CGBs for the purposes of being entitled to a LEC offer.

Was Ms. H unable, as a result of the accident, to earn what she reasonably could have earned?

B.H., aged 41 at the time, was involved in a motor vehicle accident on June 15, 1996, which is the subject of this arbitration. Her car hit the soft shoulder of the highway and turned upside down in a roadside ditch. Her last memory before the accident was driving back from her cottage located about three-and-a-half hours from Toronto. She apparently had no recall of the accident. Her next memory was of being in a local hospital. She suffered from headaches and sustained injuries to her neck, left arm, lower back, knees and left ankle. Ms. H was also involved as a passenger in an earlier automobile accident on highway 401 in December 1985 in which the driver of the other vehicle was killed. As a result of the1985 accident, Ms. H sustained injuries to her right leg, right shoulder and neck and lower back and suffered from headaches.

Ms. H has to satisfy the further requirement of showing that at the time of the 1996 accident, she was unable, as a result of the accident, to earn what she reasonably could have earned. She argued that she had the capacity to have earned income at certain jobs at the time of the accident which the accident prevented her from doing. Citadel submitted that Ms. H did not have the capacity to earn income at the time of the accident because of severe pre-existing physical and psychiatric conditions.

The assessment of what a person might have had the capacity to earn before an accident is for the most part more straightforward with IRB recipients than with CGB and ODB recipients because the former recipients have generally had a recent connection to the workforce and earnings to consider in arriving at the assessment. Since IRB recipients would have already been connected in some way to the workforce pre-accident, subsection 21(1) does not require, before they are entitled to an LEC offer, that they show that their accident-related injuries have prevented them from earning their pre-accident level of income. This can be explained by the fact that to be entitled to IRBs under Part II of the Schedule, IRB recipients would have already had to establish before the 104-week point, a substantial diminution of their ability to do their pre-accident work and consequently, a diminution of their ability to earn.

The legislation does not expressly require CGB recipients to have actually been employed or connected to the workforce before the accident. The words "could reasonably have earned" in subsection 21(1), paragraph 6, in my view, leave open the possibility for a CGB recipient who has not been recently employed, to have her earning potential considered. According to this interpretation, I find that a CGB recipient seeking to meet the LEC election requirements, need not have actually been in the workforce at the time or before the accident, to be considered for a LEC offer. Earning potential might, for instance, be based on employment experience or skills from her more distant work history or on her aptitudes, talents and interests developed during her caregiving years.

However, as I understand the test, implied in the words "unable to earn" and "could reasonably have earned" are two requirements: that the insured person have had both the aptitude and abilities associated with earning a wage at particular types of work, as well as the physical and psychological functional capacity at the time of the accident to have earned the income. It appears to me that a consideration of the insured person's earnings and her functional capacity would reasonably involve the production of some sort of document-supported quantification and medical information before the person would be entitled to elect to be governed by the LEC process and be entitled to a LEC offer. As noted above, before making the LEC election, Ms. H did not produce an assessment or other evidence of the effect of her accident on her earning capacity before the accident. The March 29, 1999 letter of the Applicant's counsel simply advised Citadel of Ms. H's desire to make an election for a loss of earning capacity benefit without reference to the test.

The Schedule, however, does not provide procedural guidelines for how and in what form applicants are to show that they meet the test. It is reasonable to assume, however, that a simple request to make an election, as occurred in this case, or even a bald assertion that the insured person meets the test, would not be enough. One can assume that the drafters included the test in subsection 21(1), paragraph 6 for a purpose and that purpose would be to establish a threshold that the insured person is required to meet in order to be entitled to an offer.

Shortly before the hearing, Ms. H provided Citadel with a vocational rehabilitation assessment report dated May 16, 2000 by C. Divitkos Vocational Rehabilitation Services ("Divitkos"). This report which Ms. H filed into evidence, was commissioned by Ms. H in connection with her PEC claim and deals with the question of her earning capacity before the accident. Although the report was prepared for a later point in the LEC process, I find it is appropriate to use this evidence in determining whether Ms. H satisfied the test requirements in subsection 21(1), paragraph 6, since the report contains information relevant to this inquiry. As noted earlier, Citadel did not commission a report in response, but relied on Ms. H's pre-accident medical records to support its zero PEC position. I considered this evidence along with the testimony of Ms. H's witnesses, her doctors' reports and the written statements of her friends.

Ms. H's education and activities:

Ms. H left school at age 16 after completing grade 10. In 1970, at age 16, she married her first husband and bore two sons and a daughter. Ms. H separated from her first husband in about 1975. She attempted to get employment during this period but had difficulty because she had not attained grade 12. She then entered an adult upgrading program for two-and-a-half years and graduated with a grade 12 diploma in 1977. She next embarked on a program offered at a secondary school involving computers and accounting. In 1980, she met the man who would become her second husband in 1981. She continued her courses until 1982 when her second daughter was born. In about 1985, before her December 1985 accident, she attended a home renovation course once weekly between October and May.

Before the 1996 accident, Ms. H was principally a homemaker who managed the household and took care of her children and husband. Ms. H testified that her second husband told her to stop pursuing an education since he did not want her to work outside the home. To his way of thinking, her place was at home tending to the family's needs. Ms. H's evidence was that this was her main reason for not formally entering the work force. Maria Sivilla, a friend of Ms. H's for 15 years, testified on her behalf and supported her evidence that she did not seek employment outside the house because of her husband's restrictions.

In addition to her regular household tasks, Ms. H maintained beautiful lawns and gardens at her home before the 1996 accident. According to her evidence, she became very knowledgeable about lawns and vegetable and flower gardening and greatly enjoyed this work. Ms. H also testified that she worked at other endeavours, some for pay and others voluntary. She called Ms. Sivilla’s evidence in this regard and relied on the written statements of several friends and acquaintances that she did voluntary community work and renovation projects.

According to a written statement from a neighbour, Ms. Helen Johnson, dated November 30, 1999, Ms. H also sold Tupperware products. However, this statement did not indicate a period of time for this work. Ms. H testified that she also sold Avon products part time until 1988. A written statement dated May 25, 2000, from Mrs. Mary C. Walsh, a Girl Guide leader, states that Ms. H also volunteered on a part-time basis with the Girl Guides as a "mother-helper" until 1994, assisting at camps, with badge testing and driving girls to outings. The Divitkos report indicates that Ms. H stated that she had a talent for sewing and doing repairs which she did for family and friends before the accident.

Regarding the renovation work, Ms. H testified that she did projects at her own home and at the homes of friends. Ms. Johnson's statement and Ms. Nella Ieraci's statement dated November 21, 1999, with no details, also comment on this work. Ms. H stated that she gutted the bathroom in her basement and installed door frames, a basement stair bannister, a vanity, a basement subfloor, drywall, plumbing and a light fixture. Ms. Sivilla testified that Ms. H painted her (Ms. H's) daughters' bedrooms between the fall of 1995 and early spring of 1996. The written statement from Ms. Sandy Altum dated April 12, 2000 indicates that Ms. H did a number of repairs at her home in 1988. Ms. H also stated that she had offers to do other renovations which she could not accept because her husband forbade her to be away from the house.

Ms. Sivilla confirmed Ms. H's evidence that Ms. H had done renovations at her own house. She spoke in glowing terms about the renovations Ms. H had completed on hers (Ms. Sivilla's) and other friends' homes between 1985 and 1990 and described Ms. H as a very independent, hardworking woman who excelled at the tasks she undertook. Ms. H and Ms. Sivilla provided few details about the latter renovation work nor did they pinpoint exactly when the various jobs were performed. In his May 16, 2000 report (discussed more fully below), Mr. Christopher Divitkos, a vocational rehabilitation consultant, stated, based on Ms. H's self-report, that she did no renovations on hers or her friends' homes from March 1994 until the June 15, 1996 accident.

Both Ms. H and Ms. Sivilla testified about the renovations she did on her grandfather's home from January to the spring of 1996. She removed the kitchen tiles and old carpeting to prepare the room for contractors. Ms. Sivilla stated that people constantly sought Ms. H's advice about renovations and home improvements. Ms. H testified that she was very close to her grandfather who lived in a small community a three-and-a-half hour drive from Toronto. When he became ill, she travelled to care for him, do his housekeeping and clear his land between 1993 and 1994 until he died.

Ms. H also babysat Ms. Sivilla's children, and, for a number of months, her sister-in-law's two children before the 1996 accident. The Divitkos report states that Ms. H earned $125 per week, charging her sister-in-law $10 per child, per day. Ms. Sivilla testified that Ms. H babysat her children for a couple of hours after work and cooked for them. However, I received no evidence as to the period during which Ms. H babysat for Ms. Sivilla or her sister-in-law.

Ms. H also testified, and Ms. Ieraci's statement confirmed, that before the 1996 accident, Ms. H also did voluntary work through her church as a co-leader of a prayer group that did voluntary work helping the elderly and the needy. In 1993 she travelled to Jamaica for about 12 days with her church group to help repair and renovate missionary centres.

Could Ms. H reasonably have earned income at the time of the accident?

Skills and Abilities:

It is Ms. H's position that she had the capacity to perform a number of jobs and earn income at the time of the accident. She principally relied on the Divitkos report, her own oral evidence, that of Ms. Sivilla and the statements of friends and acquaintances to support this position. The Divitkos report provides an opinion as to Ms. H's vocational abilities and earning potential prior to the 1996 accident. Mr. Divitkos indicates that he based the report on a number of documentary sources such as the DAC assessments of September 25, 1998, the RECDAC assessment of September 1999, medical notes from Scarborough Grace Hospital, Dr. Tanzer's (Ms. H's doctor of over 20 years) report dated April 28, 2000 and Dr. Rafaela Davila's (her treating psychologist) report dated April 17, 2000. Mr. Divitkos' report also indicates that he gathered information from a telephone conversation on May 4 and a personal meeting with Ms. H on May 10, 2000, a case consultation with Ms. H's counsel on May 3 and 4, 2000 and 5.8 hours of labour market research and employer contacts.

The Divitkos report concludes that at the time of the 1996 accident, Ms. H had the ability and skills to earn income as either:

• a seamstress/alterationist at a dry cleaner, alterations shop or a ladies' clothing establishment, or

• a sales associate with a home hardware/renovations establishment

Mr. Divitkos' findings on Ms. H's aptitude and abilities to do this work were based on the interviews with Ms. H and on information from the labour market and employer contacts. Ms. H told Mr. Divitkos that she did not consider herself employable from her son's death in March 1993 until about March 1995, a year after her grandfather's death. However, she indicated that she was feeling better and had become more active from about March 1996 until the accident. Based on her improved health, she felt she could have taken on part-time employment, possibly increasing to full time, were it not for the accident.

Mr. Divitkos' market research involved presenting employer contacts at a dry cleaner, a clothing alteration shop, a women's clothing establishment and a Home Depot store with Ms. H's skills and abilities and asking for salary ranges she might earn at these jobs.

He found the hourly salary for a seamstress/alterationist at the dry cleaner business, with some fluctuations, would be $7 to $10 per hour. His research with the alteration shop, revealed a minimum hourly salary of $10 per hour to a maximum of $11 to $12 per hour, amounting to $400 to $480 per week and an alterationist at the women's clothing store could earn full time $400 to $600 per week. According to the 1999 Toronto Wage Guide, her salary as a seamstress/alterationist, would range from $7.50 to$13.86, at an average of $10.36 per hour. Mr. Divitkos also referred to the 2000 Residual Earnings Capacity Wage Table which provides the salary for a seamstress/alterationist for a 40-hour week. At $7 to $8 per hour with less than 36 months experience, the annual salary would be $14,852 per year and with 36 to 120 months of experience at $10 to $11 per hour, the annual salary would be $21,264.

From Mr. Divitkos' interview with the assistant store manager he concluded that, as a sales associate at Home Depot, Ms. H could earn a part-time salary of $10 to $11 per hour for 20 hours per week at $200 to $220, or for 30 hours per week at $300 to $330. The above wage guide and table did not provide specific salaries for a renovation assistant.

Mr. Divitkos stated that he could not comment on whether Ms. H could have worked on a part or full-time basis at the time of the accident, however, he stated that Ms. H told him she definitely could have worked on a part-time basis of at least 30 hours per week.

At the hearing, Ms. H argued that she would have been able to work part time for 30 hours to start, leading to full-time work as a seamstress, as a sales person at a Home Depot store, a garden nursery store or as a child care worker, at an hourly rate of $10 to $11, giving her a gross weekly pre-accident earning capacity of from $400 to $440. The words "designated jobs" used hereafter in the decision, refer collectively to the four jobs previously mentioned. Ms. H testified that her experience with home gardening and caring for hers, her sister-in-law's and Ms. Sivilla's children qualified her to work at a garden nursery and as a home child care worker. I did not receive a vocational assessment on the latter two jobs. Ms. H did not speak in any detail about her ability to do seamstress/alterationist work.

Ms. H submitted that Citadel has accepted that she had the capacity to care for children before the accident because it paid her caregiver benefits for two years based on her status as the primary caregiver to her own children. According to this argument, by logical extension, Citadel should at least be prepared to accept that she had the pre-accident earning capacity of a child care worker.

In arriving at his conclusion on Ms. H's employability, Mr. Divitkos chiefly relied on Dr.Tanzer's and Dr. Davila's medical opinions in their respective April 28 and April 17, 2000 reports. Dr. Davila began to see Ms. H on August 13, 1996, about a month after the accident, and concluded, principally from Ms. H's self-report, clinical observations and various other post-accident assessments by other medical practitioners, that Ms. H was employable before the accident. In his report, Dr.Tanzer stated that Ms. H was "definitely employable" before the accident and "capable of making at least minimum wages" and that her "unemployability is a direct result of the effects of the June 15, 1996 accident." Dr.Tanzer further opined that her "depression pattern was starting to clear and be controlled." For reasons I will discuss later, I did not find Dr. Tanzer's and Dr. Davila's evidence to be of great assistance to Ms. H.

I accept Mr. Divitkos' report as persuasive evidence that Ms. H had the requisite skills to earn income at the designated jobs, particularly the home renovation position. However, I do not accept the Divitkos report as persuasive of Ms. H's functional capacity to earn income at the jobs he assessed because of the shortcomings in the medical opinions he relied on to arrive at this conclusion.

Regarding her skills and abilities, Ms. H's and Ms. Sivilla's oral evidence in this area and the written statements from her friends and acquaintances impressed me as credible descriptions of some of Ms. H's abilities before the 1996 accident. I have no hesitation in accepting that before her family tragedies in the early 1990s, she performed commendably at projects she undertook when she felt well enough. However, I am not persuaded by the evidence before me that she was capable, at the time of the accident or for a reasonable period before the accident, of earning the income she claimed from the designated jobs. Judging by her many hospitalizations and medical problems from 1993 to 1996, I find that more likely than not she did the majority of the renovation work before her health seriously declined in 1993.

Pre-Accident medical evidence:

The pre-accident medical evidence discloses that Ms. H suffered from substantial psychological problems before the 1996 accident which, I find, significantly impacted on her income earning capacity at the time of the accident. The medical documentation filed for the hearing was quite extensive. It covers the period from 1987 to 2000 and refers back to the period following the 1985 accident. It is not in dispute that Ms. H had significant medical problems before the accident. However, Ms. H submitted that despite her pre-accident medical problems, she developed marketable skills from the work she did during periods of time before the accident which she might have employed to earn income if it were not for the 1996 accident. She asserted that after her discharge from a mental health facility on February 6, 1996, her condition improved in the three or four months before the 1996 accident, to the point that she was employable in the weeks leading up to the accident.

Ms. H submitted that a snapshot of her capacity during the four week-period, as opposed to the 52-week period before the accident, would fairly reflect her capacity at the time of the accident. Citadel argued that consideration must be given to a longer period before the accident because of her very extensive medical history, in order to capture a reasonable picture of what she was able to do at the time of the accident. It further argued that Ms. H's medical problems, which stem both from the physical injuries she sustained in her 1985 accident and her longstanding emotional problems, resulted in her lacking an earning capacity at the time of the accident. In support of its position, Citadel pointed to the following areas of Ms. H's medical history:

Dr. A. Kachooie, a physiatrist who treated Ms. H following the December 1985 accident, stated in a report dated August 28, 1987 that as a result of the accident, Ms. H suffers "quite marked depression and fibromyocitic syndrome." Medical reports from Scarborough Grace Hospital from March 1989 to June 1992, indicate that Ms. H displayed anxiety and continued to complain of neck pain and arm pain as a result of the 1985 accident. The medical documents also indicate that Ms. H had a history of childhood abuse and marital abuse in her first marriage. A Scarborough Grace psychiatric report dated August 4, 1992 (about 7 years post-1985 accident) states that during an assessment, Ms. H repeatedly complained about the ongoing physical and emotional problems she continued to suffer since the 1985 accident. She was diagnosed with chronic post-traumatic stress disorder.

Ms. H's life took a very tragic turn in March 1993 with the suicide of her second son and the illness and death of her grandfather. She admits that these tragic incidents had a debilitating effect on her life for a number of years. What followed was an extensive history of hospital emergency unit attendances and admissions from 1993 until 1996.

• Ms. H's history of hospitalizations started with her admission to North York General Hospital from May 3 to June 11, 1993 and to the Day Program from June 21 to July 9, 1993 for mood disorders associated with her son's death and her grandfather's terminal illness. From September 24 to October 6, 1993 she was also admitted to Scarborough Grace Hospital for depression, personality disorder and possible abuse of medication

• In 1994, Ms. H again attended the Day Program at North York General Hospital from April 19 to June 2, 1994. During this period, she was admitted to this hospital for two days and taken to Scarborough Grace emergency in a suicidal state following alcohol and medication overdoses. In June and July 1994, she was also admitted to Scarborough Grace for over a month in a suicidal state, suffering from alcohol and medication overdose and was diagnosed with depression, borderline personality disorder and post-traumatic stress disorder. In September and October 1994, for over a month, Ms. H was again admitted to North York General Hospital and was diagnosed with depression, psychosomatic disorder, borderline personality disorder and back pain as a result of her 1985 accident.

• In January, April, September and October 1995, for days and weeks at a time, Ms. H was admitted on and off to Scarborough Grace in suicidal states, suffering alcohol and medication overdoses and was diagnosed with major depression, substance dependency, a personality disorder, unresolved grief and chronic pain syndrome. Ms. H was also treated at North York General in September 1995 as a suicide risk. On November 30, 1995, Ms. H was admitted to Homewood Health Care Centre (where she had been in 1994 and earlier in 1995 for a drug and alcohol program) for depression, drug abuse and suicidal tendencies, where she remained into 1996.

• For all of January until February 8, 1996, when she was discharged, Ms. H remained in Homewood. On February 29 and March 4, 1996, Ms. H attended Scarborough Grace emergency unit and was diagnosed with, among other problems, chronic depression, suicidal thoughts, borderline personality disorder, fibromyalgia and lower back pain. From May 6 to July 12, 1996, Ms. H attended the Day Treatment Program at Scarborough Grace. She was diagnosed with major depression and a personality disorder.

Ms. H's testimony:

Citadel questioned Ms. H about her many hospitalizations from 1993 to 1996 following her son's death in March 1993. When cross-examined, she denied that her hospitalizations were "numerous" and that she consumed the reported amount of alcohol and medications in connection with admissions for drug overdoses. She also denied being an alcoholic, attempting to kill herself and attempted to minimize her medication and alcohol dependency problems. Her tendency to minimize and misrepresent the severity of her problems, I find, weakened the credibility of her evidence in this area. I prefer the evidence in the medical documentation over Ms. H's where there is conflict. I find Ms. H's denials were unreasonable in view of the extensive medical documentation from several hospitals and doctors which recorded her medical problems.

Citadel cross-examined Ms. H about her assertion that, following her discharge from Homewood on February 8, 1996 until the June 15, 1996 accident, her condition improved to the point of her being able to be employed for pay. Citadel referred to the emergency visits at Scarborough Grace Hospital in February, March, and April 1996 for physical and psychiatric problems. Ms H's answers were generally vague or amounted to denials. Ms. H admitted to being depressed, but denied severe depression. She pointed out that she took no further overdoses after she left Homewood. Dr. Tanzer's clinical notes and records and the Scarborough Grace records for the months preceding the June 15, 1996 accident note her continued problems.

Dr. Tanzer's March 4, 1996 note states, "She still wants to die. She says she can't take anymore." This note also indicates that she felt she was happy before the (1985) accident and she has gone downhill since then. Dr. Tanzer's May 22, 1996 note records depression, a complaint of chronic tiredness, sleeplessness and hopelessness that the Day Treatment Program would help her. This note also indicates, however, that she is not actively suicidal anymore and does not talk about it. His May 30, 1996 note indicates that Ms. H is still falling asleep midday (2 p.m.) and that she falls asleep at the day hospital (program).

The Scarborough Grace clinical progress notes for March 12 and March 29, 1996 record her chronic suicidal problems. The Scarborough Grace Day Treatment Discharge Summary dated July 17, 1996, indicates that when Ms. H was admitted on May 6, 1996 she was sad, had suicidal ruminations, decreased energy, a migraine, an inability to cope, chronic pain and fibromyalgia and felt no relief.

Upon discharge from the Day Treatment Program on July 12, 1996, Ms. H was described as improved with a final diagnosis of major depression, personality disorder (borderline), asthma, fibromyalgia, migraine headaches and an increase in her global assessment of functioning ("GAF") from 45 to 75 to 80. Ms. H points to this improvement in her condition upon discharge as evidence that she had the ability in June 1996 to earn income in her designated areas of employment.

Ms. Sivilla's testimony:

Ms. Sivilla supported Ms. H's position that despite her psychiatric and other problems, she was employable at the time of the accident. In chief, Ms. Sivilla testified that Ms. H began to feel better after the family deaths in about the fall of 1995 and spring of 1996. Ms. H started to go out, resumed her church work, started to do home maintenance repairs around the house and resumed gardening. This accords with what Ms. H told Mr. Divitkos during his assessment. Ms. Sivilla also testified that from January to spring of 1996, Ms. H did renovations on her friends' houses. Ms. H stated that she had seen some of this work.

During cross-examination of Ms. Sivilla, Citadel pointed out that Ms. H was hospitalized and/or undergoing psychiatric treatment as an out-patient during much of 1995 and 1996, and suggested that she could not have been as productive as she has claimed and certainly could not have held down a job during this period. Ms. Sivilla responded that Ms. H did renovations even when she was ill or would take breaks and start working when she felt better. Ms. Sivilla acknowledged that she was present through many of her friend's crises and hospitalizations. However, she maintained that she thought Ms. H's condition had improved sufficiently to make her employable. When presented with evidence of Ms. H's emotional and psychiatric problems and her chronic fibromyalgia condition at the time of the 1996 accident, Ms. Sivilla testified that Ms. H's health did not render her unemployable.

Ms. Sivilla's evidence failed to persuade me, in the face of the medical evidence, of Ms. H's capacity at the time of the accident to earn the income she claims. It was obvious from her testimony that Ms. Sivilla cares a great deal about Ms. H. and she struck me as a loyal friend doing her best to help Ms. H. As such, I did not find much of her evidence in this area to be objective.

Dr. Tanzer's testimony:

Dr. Tanzer testified that Ms. H was employable before the 1996 accident although, in his opinion, she would have needed ongoing psychiatric treatment. He stated that Ms. H was "acting out" her medical problems. He indicated that she could have worked at a home hardware centre or a home daycare centre. When cross-examined about Ms. H's suicide attempts, Dr. Tanzer referred to them as mainly attention-seeking gestures. Asked whether suicidal tendencies and falling asleep are contraindicated for a childcare worker, he said "no." When asked whether confusion and forgetfulness are contraindicated for employment, Dr.Tanzer commented that many employed people have these problems. He testified that if she were employed with something else to focus on besides her problems, she would be better.

Citadel also asked Dr. Tanzer about a reiteration letter to him from Ray Rehabilitation Consultants dated July 19, 1996²⁰ wherein the case manager summarizes a meeting between herself and Dr. Tanzer. Citadel pointed specifically to the following passage which Citadel argued is in contradiction with Dr. Tanzer's oral evidence:

Notwithstanding these existing problems you stated that Ms. H was, in your opinion, physically functional but definitely dysfunctional from a psychological point of view. You stated that Ms. H had attempted suicide twenty times in the last three years.

Dr. Tanzer testified that he did not say exactly those words to the case manager. However, he did not present evidence to persuade me of what he actually said or that he wrote to Ray Rehabilitation to correct this. I am inclined to think that this passage reflects Dr. Tanzer's opinion of Ms. H at the time. I find that it accords with the tone and concerns expressed in his March 4, May 22 and May 30, 1996 clinical notes referred to above. I find Dr.Tanzer unreasonably minimized Ms. H's suicide attempts and downplayed her hospitalizations and the diagnoses of her problems. I conclude that Dr.Tanzer's evidence was of limited assistance to Ms. H and that he acted more like an advocate than an objective medical witness. Consequently, he did not persuade me from a medical perspective that Ms. H had the capacity to earn an income from the designated types of employment at the time of the accident.

Ms. Davila's testimony:

I also heard evidence from Ms. H's post-accident psychologist, Dr. Davila. She prepared reports dated January 15, 2000 and April 17, 2000. She began seeing Ms. H on August 13, 1996, two months after the 1996 accident. In preparing her opinion on Ms. H's employability in her April 17, 2000 report, she relied largely on Ms. H's self-report of her medical background. She also referred to the written statements of Ms. H's friends and acquaintances, as well as to various psychological assessments generated post-accident. Citadel cross-examined Dr. Davila on the following statement regarding Ms. H's medical history:

...that Ms. H did not have a rather extensive documented history of mental illness. Except for the hospitalizations as a teenager and the hospitalizations in the two years preceding the accident, related to depression, there is not [sic] history of multiple hospitalizations in psychiatric institutions.

Citadel asked her whether she had seen Ms. H's 25-page OHIP report or reviewed Dr. Tanzer's clinical notes and the hospital records. Dr. Davila indicated that she had not seen these when she formed her opinion.

I have already found that Ms. H's evidence about her pre-accident medical condition is unreliable. Dr. Davila largely based her opinions on Ms. H's self-report and did not seek corroboration through pre-accident medical sources, and for this reason, I attribute limited weight to her evidence in this area. She expressed obvious sympathy and concern for Ms. H's well-being, which is certainly not to be discouraged. However, I find she, too, presented as an advocate rather that an objective medical witness.

Ms. Carol Bierbrier's reports:

Ms. Carol Bierbrier, an occupational therapist, prepared reports dated May 23, 2000 and June 17, 2000. The former report focuses on future care for Ms. H. In her June 7, 2000 report she states that before the 1996 accident, Ms. H was able meet the physical demands of either a seamstress/alterationist or salesperson in a home renovation store. She bases this opinion on the Divitkos report and Drs. Tanzer's and Davila's opinions, however, she did not note where she obtained the doctors' opinions.

I find that Ms. Bierbrier arrived at her opinion by simply adopting the opinions of the doctors without herself reviewing Ms. H's extensive pre-accident medical history. In preparing her May 23, 2000 future care report, she understandably relied on post-accident medical documentation. In any event, as an occupational therapist, she is not qualified to give an opinion on Ms. H's psychological function which I find was her greatest barrier to employability. For these reasons, I do not find Ms. Bierbrier's reports useful on the issue of Ms. H's ability to have earned income at the designated jobs.

Conclusion:

As I stated above, I accept that Ms. H acquired some of the skills and abilities to earn income as either a garden nursery worker, a home renovation associate, a seamstress/alterationist or a home child care worker. However, I conclude that the medical evidence discloses that Ms. H did not have the functional capacity at the time of the accident to employ these skills to earn income from these jobs.

Ms. H proposed that the four-week period before the accident presents a reasonable reflection of her pre-accident circumstances. I think this period is reasonable in many cases, but may not be in others. Which period of time to use is a question of fact to be determined based on the circumstances of each case. Ms. H had a substantial history in the three years before the accident of in-patient hospitalizations, in many instances for weeks and months at a time, for serious psychiatric and emotional problems. I find that unless there were evidence of a marked departure from this history before the four-week period, then a realistic picture of her pre-accident life would, to some extent, have to take into account this history. I find in Ms. H's case that there was no marked shift, although there is evidence of some improvement in the weeks before and after the accident. However, even if I assume that four weeks is the appropriate period in this case, I find that this would make little difference to my findings about her functional capacity to earn income at the designated jobs.

I will look at Ms. H's circumstances during the four weeks before the accident. During this period, she was attending, from 9 a.m. to 2 p.m., five days weekly, the Day Treatment Program at Scarborough Grace, receiving treatment for suicidal ruminations, decreased energy, inability to cope and chronic pain/fibromyalgia. She had difficulty remaining awake during sessions. A review of the clinical notes for the Program for the period from May 13 to June 14, 1996 reveal that Ms. H was having many difficulties with the Program during this period. The notes contain concerns about: lateness for the sessions; absenteeism for days at a time; inability to interact with others in the therapeutic environment causing Ms. H at time to angrily walk out of sessions; complaints about physical illnesses and pain; and attention deficit problems, causing her not to be able to drive.

The problems Ms. H was encountering at the Day Treatment Program appear to be the types of problems that would not be conducive to an employment environment. However, I am mindful that the possibility exists that these problems might have been specific to her experiences in the Program and may not have transferred to affect her capacity to earn income. But I did not receive evidence that this is the case. I find the evidence I do have suggests that in an employment context Ms. H would more likely than not have had many of the same problems — difficulty with attendance, punctuality, interacting with others, difficulty staying awake, paying attention and remaining on site during stressful times — problems which in my estimation, would definitely affect her ability to earn income if she were working with the public and co-workers at a garden nursery or at a home renovation establishment, or with children in a home child care environment.

I stated earlier that the lack of an actual history in the workforce is not determinative. However, I find the fact that Ms. H does not have a recent employment history weighs against her in her particular circumstances. Her lack of adult employment experience, coupled with her vulnerable psychological health at the time, makes the prospect of her having the capacity to earn income in the four weeks before the accident even more remote. I considered that her condition appeared to be improved on discharge from the Day Treatment Program on July 12, 1996, but I also took into account her experiences with many relapses and re-hospitalizations. I find, on the balance of probabilities, that more likely than not, Ms. H would not have been prepared under the circumstances at the time of the accident, to meet the rigours and demands of earning income. Mr. Divitkos gave no opinion on her capacity to do part-time or full-time work and Ms. H did not persuade me of her capacity to earn income at 30 hours per week at the designated jobs. Nor did I receive any evidence of her ability to work for a shorter period. Accordingly, Ms. H did not satisfy the requirements of subsection 21(1), paragraph 6 of the Schedule and is not entitled under section 22 to a LEC offer from Citadel.

Causation:

Ms. H argues that she had the capacity to earn income on a part-time basis at the designated jobs at the time of the accident, and that the accident was a material cause for her being physically and psychologically unable to do this. Assuming that Ms. H is correct, that she had an earning capacity, I do not find, on the evidence, that she could have succeeded on the causation issue.

As expected, the bulk of the medical evidence generated after the 1996 accident focuses on Ms. H's ability to resume her pre-accident level of caregiving activity, not on whether and to what extent the accident affected her earning capacity in relation to the designated jobs. Ms. H's case management, functional assessments and rehabilitation were all concerned with her caregiving and homemaking abilities. The only medical and vocational evidence before me that deals with the designated jobs does not focus on the causation issue. Clearly, Mr. Divitkos', Dr. Tanzer's and Dr. Davila's opinions were principally concerned with establishing Ms. H's capacity to earn income. They did not opine on whether the accident was a material cause of Ms. H being unable to earn income at the designated jobs.

Ms. H relies on the opinion of Dr. Deborah Cowman, the psychological assessor in the Disability DAC which was conducted in September 1998, to support his position on causation. She was, of course, assessing only Ms. H's ability to resume her caregiving activities. Dr. Cowman concluded that 40 to 50 percent of Ms. H's outstanding psychological symptomatology can be directly attributable to the 1996 accident. However, she further concluded that this accident-related symptomatology was not disabling. I do not find that this evidence assists Ms. H.

I therefore conclude that even if Ms. H was correct in her view of her capacity to earn before the accident, I did not receive persuasive evidence that the accident was a material cause of her subsequent incapacity to do the designated jobs. In making my decision, I did not ignore Ms. H's account of the 1996 accident and the evidence of its effect on her. I was faced with a lack of evidence demonstrating the effect of the accident relative to the effects of Ms. H's extensive pre-existing medical problems.

Pre-accident earning capacity:

Even if I were to assume that the PEC issue under section 29 of the Schedule were properly before me, I would find that Ms. H lacked an earning capacity before the accident, for the reasons I discussed above in dealing with the section 21 test. As noted above, I find that considerations for the assessment of a PEC are similar to those for the test under section 21. The method for calculating PEC is worded similarly to the section 21 test. Section 29 in its relevant part states:

29(3) ...

For the purpose of determining the amount of a weekly loss of earning capacity benefit under this Part, the pre-accident earning capacity of a person who is entitled to receive weekly income replacement benefits under paragraph 2 or 5 of subsection 7(7), weekly caregiver benefits under Part IV or weekly disability benefits under Part V shall be deemed to be the person's net weekly income determined in accordance with section 81 or 82 using the gross annual income from employment that the person could reasonably have earned at the time of the accident, having regard to the person's personal and vocational characteristics at that time. [emphasis added]

Section 29 requires consideration of Ms. H's "personal and vocational characteristics" which is defined under the Schedule as including: employment history; education and training; vocational interests and aptitudes; vocational skills; physical abilities; cognitive abilities; and language skills. I arrive at my conclusion by applying these criteria to Ms. H's circumstances. I conclude from the evidence and her presentation as a witness, that Ms. H has no language skill issues. She upgraded in secondary school to grade 12, took some secondary school level business courses and completed a course in home repair and renovation.

As I found above, Ms. H has a very limited employment history. She has not formally been part of the workforce and has not held down formal employment since her teenage years. As I also found earlier, from the mid-1980s to the early-1990s, Ms. H did a variety of renovation jobs on and off, at her own, her grandfather's and her friends' homes; did babysitting; seamstressing, gardening and various voluntary community activities which I conclude she did the for the most part, before her health declined in 1993.

I accepted that her courses, together with her interest in and aptitude for home repair and renovation and gardening afforded her the skills and abilities to work at a home improvement centre or a garden nursery centre. I also accepted that she had the skills and aptitude for childcare work and to work as a seamstress/alterationist. However, I concluded, and find for the purpose of the PEC issue, that in the years and weeks before the accident, she was not in a position to employ her skills and abilities to earn income on a part-time or full-time basis. The definition of "personal and vocational characteristics" requires me to consider the insured person's physical and cognitive abilities. Looking at the four weeks before the accident, Ms. H was attending a full-time day treatment program where she encountered problems with sleepiness, attention deficits, absenteeism, physical illness, chronic pain and anti-social behaviour. As I found earlier, these types of problems, coupled with a lack of employment experience, would not have been conducive to employment in the designated jobs, where Ms. H would have had to deal with the public, co-workers and children. I find that Ms. H would therefore not have been able to establish, on a balance of probabilities, that she had a PEC of more than zero.

Therefore, if required to decide this issue, I would have concluded pursuant to section 29 of the Schedule, that Ms. H had a zero pre-accident earning capacity.

Transportation and housekeeping expenses:

Pursuant to subsection 40(5)(d) of the Schedule, Ms. H claims entitlement to benefits for some transportation expenses she incurred. As I understand it, Citadel paid Ms. H's transportation expenses to and from medical appointments as required by the Schedule. However, at mediation, Ms. H claimed taxi expenses for trips to and from grocery stores and to intermittent social events. Citadel agreed to pay Ms. H's taxi expenses to and from certain grocery stores once every two weeks and undertook to investigate the possibility of paying for Ms. H's taxi fares one night per month for outings with her daughter. Ms. H maintained this claim at arbitration and argued that section 40 is broad enough to cover the additional transportation expenses. At the hearing, Ms. H submitted an assortment of taxi receipts totalling $133.50.

Citadel argued that before the hearing, Ms. H provided no evidence of unpaid taxi fares nor a need for these benefits. It further submitted that the Schedule provides that the insurer is only responsible to pay reasonable transportation expenses incurred as a result of the accident for trips to and from counselling, training and assessment sessions.

I find that the transportation expenses submitted by Ms. H have been reasonably incurred as a result of the accident. Ms. H testified that these expenses were incurred by her personally and I accept this evidence. I took into consideration Dr. Davila's recommendation in her April 17, 2000 report that after the 1996 accident, Ms. H developed a phobia to driving and public transit and needed assistance with transportation. I find that this type of assistance is within the purposes of section 40. Subsection 40(1)(b) requires the insurer to pay for reasonable measures "to facilitate the insured person's reintegration into his or her family, the labour market and the rest of society." I find that the transportation in question was conducive to encouraging her to get out and reintegrate into her family and social environment.

Ms. H also claimed certain housekeeping expenses pursuant to section 55 of the Schedule. This provision obligates the insurer to pay for additional expenses reasonably incurred by or on behalf of the insured person as a result of the accident for housekeeping and home maintenance expenses. At the hearing, Ms. H submitted two handwritten receipts dated July 3, 1997 and July 22, 1997 totalling $120. She argued that she needed the assistance of her son and daughter for cleaning her condominium and that the receipts represent payment for their services.

Citadel argued that Ms. H did not submit receipts for these expenses as required and has not substantiated her claim for housekeeping expenses, and accordingly, is not entitled to benefits.

I find that Ms. H is entitled to compensation for the housekeeping expense on the basis that it was reasonably incurred as a result of the accident. Citadel was paying Ms. H weekly CGBs in July 1997 in response to medical evidence that established her disability from performing her caregiver activities which include housekeeping. Accordingly, I find her claim meets the requirements of the Schedule.

Special Award:

Ms. H submitted, pursuant to subsection 282 (10) of the Act, that Citadel is liable to pay a special award for its conduct in not properly advising her at the 104-week point of her option to be governed by the LEC provisions. Citadel did not dispute that it failed to provide the proper notice.

I find this to be a significant error because it contributed to the delay in Ms. H exercising her rights at an earlier point in time. Moreover, it triggered a series of other errors by both parties, not the least of which were the errors Citadel made around the reasons for terminating Ms. H's CGBs. Citadel's errors were only mitigated by the fact it continued to pay CGBs after the Disability DAC findings, in consideration of Ms. H's financial hardships. The errors resulted in unnecessary delay and expense in dealing with Ms. H's claims. However, since a special award is predicated on a finding of entitlement, I am not in a position to consider an award in this case. However, if the parties do not settle the expense issue, I will consider this matter in assessing expenses.

EXPENSES:

I encourage the parties to settle the issue of their arbitration expenses. If the parties do not settle this issue, the matter can be brought to the Commission for a determination..

November 9, 2000

Beth Allen Arbitrator

Date

Neutral Citation: 2000 ONFSCDRS 204

FSCO A99-000273

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

B.H.

Applicant

and

CITADEL GENERAL ASSURANCE 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. H. was not entitled to a LEC offer.

2. Ms. H is entitled to be reimbursed for transportation expenses of $133.50.

3. Ms. H is entitled to be reimbursed for housekeeping and home maintenance expenses in the amount of $120.

4. Citadel is not liable to pay a special award.

5. If the parties do not settle the expense issue, they may seek a determination by the Commission.

November 9, 2000

Beth Allen Arbitrator

Date

SCHEDULE

Section 21

Insurer's Offer

21.—(1) Subject to subsections (7) to (9), an insurer shall promptly deliver a written offer to an insured person with respect to the payment of weekly loss of earning capacity benefits if one or more of the following circumstances occurs:

1. The insured person qualified for weekly income replacement benefits under Part II and continues to qualify for those benefits 104 weeks after the onset of the disability in respect of which he or she first qualified for those benefits.

2. The insured person qualified for weekly income replacement benefits under Part II, did not qualify for those benefits 104 weeks after the onset of the disability in respect of which he or she first qualified for those benefits, but subsequently becomes entitled to resume receiving weekly income replacement benefits under section 14.

3. The insured person qualified for weekly caregiver benefits under Part IV, subsequently elected under section 61 to receive weekly income replacement benefits under Part II, and 104 weeks after the onset of the disability in respect of which he or she first qualified for weekly caregiver benefits continues to qualify for weekly income replacement benefits.

4. The insured person qualified for weekly education disability benefits under section 15 and, 104 weeks after the onset of the disability in respect of which he or she first qualified for those benefits or on the date the person attains sixteen years of age, whichever occurs later, continues to qualify for weekly education disability benefits.

5. The insured person qualified for weekly education disability benefits under section 15, does not qualify for those benefits 104 weeks after the onset of the disability in respect of which he or she first qualified for those benefits or on the date the person attains sixteen years of age, whichever occurs later, but subsequently becomes entitled to resume receiving weekly education disability benefits under section 17.

6. The insured person qualified for weekly caregiver benefits under Part IV, is unable as a result of the accident to earn what he or she could reasonably have earned at the time of the accident, elects at any time 104 weeks or more after the onset of the disability in respect of which he or she first qualified for weekly caregiver benefits to be governed by this Part instead of Part IV or V and,

i. continues to qualify for weekly caregiver benefits, or

ii. ceases to qualify for weekly caregiver benefits because there is no longer any person who meets the qualifications set out in subsection 18(5).

7. The insured person qualified for weekly disability benefits under Part V, continues to qualify for those benefits 104 weeks after the onset of the disability in respect of which he or she first qualified for those benefits, and,

i. is unable as a result of the accident to earn what he or she could reasonably have earned at the time of the accident,

ii. would have joined or returned to the workforce at some time after the accident, and

iii. elects to be governed by this Part instead of Part V.

(2) If a person qualifies for weekly caregiver benefits under Part IV 104 weeks after the onset of the disability in respect of which he or she first qualified for those benefits, the insurer shall promptly provide the person with notice that he or she may be entitled to make the election referred to in paragraph 6 of subsection (1).

(3) If a person qualifies for weekly disability benefits under Part V 104 weeks after the onset of the disability in respect of which he or she first qualified for those benefits, the insurer shall promptly provide the person with notice that he or she may be entitled to make the election referred to in paragraph 7 of subsection (1).

(4) An election under paragraph 6 or 7 of subsection (1) may not be changed.

(5) An offer under subsection (1) shall specify,

(a) the insured person's pre-accident earning capacity determined in accordance with section 29;

(b) the type of employment that best satisfies the criteria set out in subsection 30(2);

(c) the insured person's residual earning capacity determined in accordance with section 30; and

(d) the amount of the weekly loss of earning capacity benefit, if any, determined in accordance with section 28.

(6) The offer shall include a notice that, if the offer is not accepted within forty-five days after its receipt or such longer period to which the insurer and the insured person may agree, the insured person shall be deemed to have rejected the offer in respect of both residual earning capacity and pre-accident earning capacity and the insured person will be required to be assessed under section 27.

(7) Subsection (1) does not apply if the insured person is sixty-five years of age or older.

(8) The time for delivering an offer under subsection (1) may be extended by agreement between the insurer and the insured person.

(9) If an insured person suffers an impairment as a result of an accident that occurs after the accident in respect of which an offer would, in the absence of this subsection, be given under subsection (1), and the latter accident results in a disability in respect of which weekly benefits are payable under Part II, section 15, Part IV or Part V, the operation of subsection (1) is delayed until 104 weeks after the latter accident.

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents after December 31, 1994 and before November 1, 1996, Ontario Regulation, called the "Schedule" in this decision. The Schedule is Ontario Regulation 776/93, as amended by Ontario Regulations 462/96, 505/96, 551/96 and 303/98.
2. 2The full text of section 21 of the Schedule is reproduced on the Schedule to this decision.
3. 3I marked this letter as Exhibit 15. This letter, and the documents I have marked as Exhibits 16, 17, 18, 19 and 20 (that follow in the decision) were submitted to me subsequent to the hearing as attachments to a letter from Mr. Blouin dated October 3, 2000 in response to my letter to counsel dated October 3, 2000 wherein I requested specific documents referred to during the hearing that were not filed as evidence.
4. 4Subsection 21(5).
5. 5Determined in accordance with section 29.
6. 6In accordance with the criteria set out in subsection 30(2).
7. 7Determined in accordance with section 30.
8. 8Determined in accordance with section 28.
9. 9Exhibit 17
10. 10Exhibit 16
11. 11Exhibit 20
12. 12As will be discussed later, Ms. H largely attributes her post-accident disability to the 1996 accident while Citadel argues that her pre-accident medical problems account for this.
13. 13Subsection 18(1), paragraph 2.
14. 14Subsection 18(4) states: "If an insured person qualifies for weekly caregiver benefits under subparagraph ii of paragraph 3 of subsection (1) and does not qualify under subparagraph i of paragraph 3 of subsection (1), no weekly caregiver benefit is payable under this section more than 104 weeks after the insured person first qualified for weekly caregiver benefits unless the insured person is suffering a complete inability to carry on a normal life as a result of the accident."
15. 15Subsections 73(3) and (4) of the Schedule.
16. 16Exhibit 18
17. 17Exhibit 19
18. 18Subsection 19(1), paragraph (c) and subsection 19 (7), paragraph (c).
19. 19Morabito and Liberty Mutual Insurance Company (FSCO A-98000643, January 31, 2000). In this case, the insurer terminated IRBs about a month after the 104-week point and argued that it was not required to make an LEC offer because an independent medical assessment had not been completed.
20. 20The letter actually bears the year "1966" but since it concerns Ms. H's recent June 15, 1996 accident, I take the year "1966" to be a typographical error and the correct year to be "1996."