Neutral Citation: 2000 ONFSCDRS 8

FSCO A97-001997

BETWEEN:

FILOMENA MORELLI

Applicant

and

ZURICH INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Joyce Miller

Heard:

September 21 and 22, 1999, at the Offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Mark Baker for Mrs. Morelli

Alan H. Bakker for Zurich Insurance Company

The Applicant, Filomena Morelli, was injured in a motor vehicle accident on December 4, 1996. She applied for statutory accident benefits from Zurich Insurance Company ("Zurich"), payable under the Schedule.¹ Zurich denied Mrs. Morelli claim for non-earner benefits on January 31, 1997. The parties were unable to resolve their disputes through mediation, and Mrs. Morelli applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

Is Mrs. Morelli entitled to receive a non-earner benefit pursuant to section 12 of the Schedule from 26 weeks after the December 4, 1996 accident and ongoing?
Is Mrs. Morelli entitled to receive transportation expenses for travel to therapy, claimed pursuant to section 14 of the Schedule?
Is Mrs. Morelli entitled to attendant care benefits pursuant to section 16 of the Schedule?
Is Mrs. Morelli entitled to payments for housekeeping services pursuant to section 22 of the Schedule?
Is Zurich liable to pay a special award pursuant to subsection 282(10) of the Insurance Act because it unreasonably withheld or delayed payments to Mrs. Morelli?
Is Mrs. Morelli entitled to interest on any outstanding amounts owing?
Is Zurich liable to pay Mrs. Morelli's expenses in respect of the arbitration under subsection 282(11) of the Insurance Act?
Is Mrs. Morelli liable to pay Zurich's expenses in respect of the arbitration under subsection 282(11) of the Insurance Act.

Mrs. Morelli is not entitled to receive a non-earner benefit pursuant to section 12 of the Schedule.
Mrs. Morelli is entitled to receive $15.53 for transportation expenses pursuant to subsection 14(2) of the Schedule.
Mrs. Morelli is not entitled to attendant care benefits pursuant to section 16 of the Schedule.
Mrs. Morelli is not entitled to payments for housekeeping services pursuant to section 22 of the Schedule.
Zurich is not liable to pay a special award pursuant to subsection 282(10) of the Insurance Act.
Mrs. Morelli is entitled to interest on outstanding amounts owing.
If needed, I may now be spoken to on the issue of expenses.

Mrs. Morelli did not testify at the hearing. In March 1999 she developed a serious medical problem, unrelated to the accident. At time of the hearing she had still not recovered and was unable to attend. Nevertheless, she decided to proceed with the hearing and that her daughter, son, son-in-law and her family doctor would testify on her behalf.

1. Disability:

Mrs. Morelli is presently 67 years old. She is a widow with three grown children. On December 4, 1996 she was driving her car westbound along Finch Avenue. While stopped in traffic her car was rear-ended. She turned to look around and felt a second jolt when the car behind her was rear-ended. Her car was pushed a short distance but did not strike the car ahead of her. She did not strike any part of her body against the interior of her vehicle. Her first reaction was shock.

A police officer, who was called to the scene of the accident, drove her to a nearby gas station and called her daughter, Ida Filippelli. Her daughter arrived, drove her to a collision centre to report the accident and then drove her home. The next day Mrs. Morelli went to see her family doctor, Dr. Karen Cronin.

In her Disability Certificate dated January 7, 1997, Dr. Cronin stated that the nature of Mrs. Morelli's impairment after the accident was "[h]eadache, restricted neck movements, insomnia, Reactive Depression." As well, she stated that as a result these impairments Mrs. Morelli was unable to do "heavy housework, e.g. laundry, vacuuming."

At the time of the 1996 accident Mrs. Morelli was 64 and living with her son, aged 36, who was then a full time student. Mrs. Morelli was not working and was receiving a Canada Pension Plan benefit ("CPP") because of a car accident she had in 1989.

Mrs. Morelli's injuries from the 1989 accident were soft tissue injuries to her neck, back and shoulders. At the time of the 1996 accident, Mrs. Morelli was still limited in her activities from the injuries of her first accident. She could not work. She could not do heavy house work.

According to the testimony of her daughter, Mrs. Morelli had some good days when she was more active. On her good days Mrs. Morelli would drive her car, visit with her daughter, go shopping and would do craft work at an organization called Evergreen.

Mrs. Filippelli stated that on a bad day, before the 1996 accident, Mrs. Morelli's shoulder, for example, would act up. She would be in pain. She would stay home and apply heat to the afflicted area. She would also have trouble sleeping because of the pain. Mrs. Filippelli testified that on Mrs. Morelli's bad days, she would visit her mother in the evening. However, if her mother was in a really bad state, Mrs. Filippelli stated she would come over during the day.

Mrs. Filippelli testified that she was very close to her mother and that prior to the accident she would visit with her weekly. She would help out with the heavier housework and go shopping with her. Her mother would also visit with her regularly.

Mrs. Filippelli stated that immediately after the 1996 accident she came to see her mother every day from 9:00 am to 4:30 pm, and then return in the evening from 6:30 pm to 10:00 pm. She stated that from the end of January 1997 until June 1997 she only came about one day a week for 8 hours and every evening from 6:00 pm to 10:00 pm. After her mother moved in with her² Mrs. Filippelli stated that she performed housekeeping duties for her mother five hours a week for 82 weeks and still continues to do so.

Mrs. Filippelli testified that her mother was frightened to be alone and that she would stay with her to keep her company. She would also drive her mother to her physiotherapy and medical appointments. As well, she cooked for her mother, did the laundry and cleaned the house.

According to Dr. Cronin, the 1996 accident left Mrs. Morelli with a debilitating reactive depression. Dr. Cronin testified that she prescribed antidepressant medication, but that Mrs. Morelli stopped taking the antidepressant in 1997 because she did not like to take the medication. Dr. Cronin was of the view that Mrs. Morelli was not going to get better.

In a statement given to Zurich on February 10, 1997, Mrs. Morelli stated that after the 1996 accident, she began to receive daily physiotherapy treatment for her neck and shoulders. She also stated that:

My injuries include headaches. I cannot sleep, I am tense. I am frightened to drive, though I have driven since the accident. ... These are all my injuries from the accident. Prior to this accident, I had a car accident, 8 years ago. I was rearended [sic]. I hurt my right shoulder, low back. I had headaches, and I was in shock. I never returned to work, since then. ... I also received C.P.P.... I have no other injuries from car accidents.

Before the accident, I go grocery shopping once a week, for main shopping sometimes, my daughter would accompany her [sic], maybe once every 2 weeks. Since the accident I have gone grocery shopping. Now, I am driven by my daughter. I do manage walking to nearby store, for small items. Before, I cooked once a day, for myself and son. Since the accident, I still cook once a day. Before I dusted once per week, since the accident I still manage. Before, I cleaned upstairs bathroom, once per week. Since the accident, I still manage this task. Before, I wet mopped once per week. Since the accident, I still do this. My son was responsible for garbage removal before. Before, I did laundry 2 times per week. Since the accident, my daughter helps me with this chore, sometimes. I am able to manage with personal care. Regarding mobility, I am able to walk, climb stairs, standing. Regarding sitting, I cannot manage too long due to my low back, pain from prior accident. I am afraid to drive, long distance. I can drive to doctor, therapy, grocery store, on good days. Before accident, my son was responsible for his own laundry, cutting grass, shovel snow, his bathroom, living room, kitchen. All of his rooms are in the basement. My daughter has assisted me since accident. At first she came every day for first month. She would be here from 9:30 am to 3 pm. From first Monday, January she would come 3 times per week. Now she comes 2 times per week, for 2-3 hours. She drives me where I have To go, assists with some household chores. She keeps me company. I am tired. Before the accident, she would come to visit, but she would not assist around house. I am exhausted and depressed and I have difficulties sleeping. Now she keeps me company, go together car, but in terms of assistance in home, I manage. I paid my daughter through her kids, husband, or I would take her out for dinner, or I would fill her gas tank up. She would refuse money I would give her. ...

Mrs. Morelli signed the statement with the following declaration: "I have had the above 4 pages and 16 lines read to me by my daughter, Ida Filippelli, and to the best of my knowledge, it is true."

Mrs. Morelli submitted that the car accident physically and psychologically disabled her from carrying on a normal life.

2. Findings on Disability:

Pursuant to section 12 of the Schedule Mrs. Morelli must prove, on a balance of probabilities, that she suffers a complete inability to carry on a normal life as a result of the 1996 accident.

The test of a "complete inability to carry on a normal life" is strict. It represents a higher degree of disability than "substantial inability." "Complete inability" basically encompasses substantially all of the activities in which a person would normally engage in before the accident.

Section 12 also states that an insurer is not required to pay a non-earner benefit for the first 26 weeks after the onset of the complete inability to carry on a normal life.³

For the following reasons I find that on a balance of probabilities, Mrs. Morelli has not met the "complete inability test" in section 12.

I find that at the time of the 1996 accident Mrs. Morelli was suffering from chronic pain and was limited in the activities that she was able to do because of a previous 1989 car accident. While there is no doubt that the December 1996 accident had physically and psychologically traumatized Mrs. Morelli, her statement of February 10, 1997 (the only direct evidence presented regarding Mrs. Morelli's abilities after the 1996 accident) as well as video surveillance of her activities conducted between January 31, 1998 and February 4, 1998, and August 2, 1998 and August 11, 1998, nevertheless show that Mrs. Morelli was able to carry out most of pre-1996 accident activities.

First, I find that Mrs. Morelli's ability to carry out her activities of daily living before the December 1996 accident was not significantly altered by any physical impairment she may have suffered as a result of this accident.

In her statement, Mrs. Morelli stated that prior to the 1996 accident she would go grocery shopping once a week. She cooked once a day for herself and son. She dusted her house and wet mopped the floor once a week. In February 1997 she stated she was still able to do these tasks. She stated that prior to the 1996 accident she did the laundry twice a week, but that after the accident her daughter helped her with this chore sometimes.

Mrs. Morelli stated she was able to manage her personal care after the 1996 accident. Regarding her mobility she stated that she was able to walk, climb stairs and stand. However, she could not sit too long because of low back pain, but this was due to her previous accident in 1989.

The testimony of her family also shows that prior to the December 1996 accident, Mrs. Morelli was unable to carry out heavy household tasks. Activities such as major housecleaning, taking down the curtains when they needed washing, spot cleaning the carpets, taking out the garbage, cutting grass, shovelling snow and gardening were done by her daughter, son and son-in-law. Her son, who lived with her, testified that prior to the accident he also assisted Mrs. Morelli from time to time with cleaning and vacuuming.

Succinctly, Mrs. Morelli's statement and the evidence of her family clearly show that there was no significant difference between her physical ability to carry out her daily activities before the 1996 accident and after the accident. In his report of November 6, 1997, Dr. Earnest J. White, who examined Mrs. Morelli on behalf of Zurich, concluded that "[f]rom a purely musculoskeletal aspect ... Mrs. Morelli does not have any substantial musculoskeletal impairments that would prevent her from performing her normal pre-current MVA activities." In my view, his conclusion, is supported by Mrs. Morelli's February 10, 1997 statement.

I also find that from a psychological perspective Mrs. Morelli does not suffer from a complete inability to carry out a normal life as a result of the 1996 accident.

As noted above, Dr. Cronin was of the opinion that Mrs. Morelli is suffering from a reactive depression as a result of the 1996 accident and her prognosis was that Mrs. Morelli would not get any better. The video surveillance of February and August 1998, however, shows Mrs. Morelli to be an active, well-groomed woman who appears to be "in a pleasant frame of mind and in good spirits."

The surveillance shows Mrs. Morelli driving her car, shopping with her daughter, briskly walking with her daughter, walking four kilometres to and from the store with her friend, carrying groceries, watering her flowers and socializing with her son. At one point in one of her walks in February 1998, Mrs. Morelli meets a friend and the video surveillance shows her engaged in a very lively, animated conversation where Mrs. Morelli appeared to be very happy, warm and joyful.

The surveillance shows that Mrs. Morelli is not only physically active, but that she is able to interact socially with family and friends with an ease that is not indicative of a depressed person who is suffering a complete inability to carry out a normal life. Dr. Lorne Chapman, a psychiatrist, who examined Mrs. Morelli on behalf of Zurich on November 19, 1997 acknowledged that Mrs. Morelli had "experienced significant impairment because of her psychological symptoms" but, nevertheless, he concluded that she did not suffer from "a complete inability to carry on a normal life."

For the above reasons, I find that Mrs. Morelli has not satisfied the burden of proof that on a balance of probabilities she suffered a complete inability to carry on a normal life as a result of the accident on December 4, 1996. Accordingly, I find that Mrs. Morelli is not entitled to "non-earner benefits" pursuant to section 12 of the Schedule.

3. Transportation Expenses:

Mrs. Morelli claims transportation expenses of 138 kilometres at 11.25 cents a kilometre for 13 visits to Dr. Cronin, 21 visits to Yorkview Physiotherapy Center and five visits to Dr. C. Vegna. Zurich does not dispute that the expense was reasonable and necessary as a result of the accident, but takes the position that pursuant to the Schedule Mrs. Morelli is not eligible for any transportation expenses since each of her trips to her medical appointments was under 50 kilometres.

Paragraph 14(2)(g) of the Schedule provides that an insurer shall pay an insured person's reasonable and necessary expenses incurred for transportation to and from treatment sessions, including transportation for an aide or attendant.

Subsection 14(6) states that the insurer is not liable to pay the transportation expenses claimed under paragraph 12(2)(g) that is related to the first 50 kilometres of transportation in the insured person's automobile to and from a treatment session.

Mrs. Filippelli testified that she drove Mrs. Morelli to and from her medical appointments in Mrs. Filippelli's own car. She stated that she was not familiar with her mother's car at that time. She knew how her own car worked and was more comfortable with it.

I find Mrs. Filippelli's testimony to be credible and plausible. In my view, if Mrs. Filippelli drove to Mrs. Morelli's house in her own car, there is no logical reason why she should change to Mrs. Morelli's car to drive the few additional kilometres to the medical appointments.

Subsection 14(6) applies only if the means of transportation is the "insured person's automobile." Since I find that Mrs. Filippelli used her own car to drive to the medical appointments, I find that the 50 kilometre deduction does not apply. Accordingly, I find that Mrs. Morelli is entitled to her transportation expenses of $15.53 plus interest, for 138 kilometres at 11.25 cents per kilometre, pursuant to subsection 14(2) of the Schedule.

4. Housekeeping and Attendant Care:

Mrs. Morelli claims her expenses for Attendant Care and Housekeeping provided by her daughter, Ida Filippelli at the rate of $7 an hour, pursuant to sections 14 and 22 of the Schedule.

As noted above, Mrs. Filippelli testified that immediately after the accident she stayed with her mother for 11 hours a day until the end of January 1997. From the end of January to June 1997 she visited with her mother one day a week for 8 hours and every evening from 6 pm to 10 pm. As well, Mrs. Filippelli testified that when her mother moved in with her in June 1997, Mrs. Filippelli performed housekeeping duties four to five hours a week for 82 weeks and still continues to do so.

However, Mrs. Morelli's statement of February 10, 1997 indicates that Mrs. Filippelli's attendance at her mother's home was much less. In fact it amounted to less then half the hours that Mrs. Filippelli had testified to.

Zurich disputes whether any housekeeping or attendant care should be paid to Mrs. Morelli. First, it notes there is a significant contradiction between Mrs. Morelli's statement and Mrs. Filippelli's testimony regarding the number of hours that she worked for her mother and this raises an issue of credibility. Second, Zurich submitted that Mrs. Morelli's statement and the evidence of her family shows that prior to the December 1996 accident Mrs. Morelli could not do any heavy housework and after the December 1996 she was basically able to do the things she was doing before the 1996 accident, such as light housekeeping and personal care. And third, even if some housekeeping assistance was provided, in her statement of February 10, 1997, Mrs. Morelli stated that Mrs. Filippelli has refused any money she offered to her.

For the following reasons I find that Mrs. Morelli is not entitled to any expenses for housekeeping and attendant care.

Leaving aside the issue of credibility, regarding the contradiction in the amount of time Mrs. Filippelli allegedly spent with her mother after the accident, and the fact that according to Mrs. Morelli's statement she was basically able to care for herself after the accident, I find that Mrs. Morelli has not proved, on a balance of probabilities that any monies are owed for any housekeeping services and attendant care allegedly provided for by her daughter.

Both sections 16 and 22 state that an insurer "shall pay for ... reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident."

Arbitrator Manji in the case of Jelisic and Guarantee⁴ stated that in order to incur an expense, such as housekeeping services, an insured person does not have had to make a payment for this service in order to be reimbursed for the services. In her view, an insured person can be said to have "incurred" the expense if he or she has promised to pay or is otherwise legally obligated to pay the expense. I agree with Arbitrator Manji's view.

In this case, I was not presented with any cogent or probative evidence that Mrs. Morelli in fact incurred the attendant care and housekeeping expenses, either by promising to pay her daughter for these services or by legally obligating herself to pay these expenses to her daughter.

Prior to the 1996 accident Mrs. Filippelli had a very close relationship with her mother. Mrs. Morelli had never fully recovered from her 1989 accident and Mrs. Filippelli was a strong source of care, companionship and comfort to her mother. In my view, after the 1996 accident Mrs. Filippelli continued to provide the normal loving support to her mother that she had always provided to her. Mrs. Morelli's statement makes it clear that Mrs. Filippelli refused any remuneration for her assistance.

Even if Mrs. Morelli, according to her statement, tried to pay her daughter for the extra time she spent with her, by buying her dinner, filling her gas tank or paying Mrs. Filippelli's children and her husband, I did not receive any specifics regarding these alleged payments. While I understand it is difficult when dealing with family members to think about keeping specific records of amounts owing for their services, nevertheless, in order to be successful in his or her claim, an insured must present some uncontradicted, verifiable, objective evidence that these expenses were in fact incurred and are owed to a family member.

On the facts of this case, I find that it is more likely than not that Mrs. Filippelli did spend more time with her mother after the 1996 accident than she normally would have. Nevertheless, I find that Mrs. Morelli has not presented any uncontradicted, verifiable, objective evidence that she in fact incurred expenses for any housekeeping and attendant care services that Mrs. Filippelli may have provided.

Accordingly, I find that Mrs. Morelli is not entitled to any housekeeping and attendant care expenses pursuant to sections 16 and 22 of the Schedule.

5. Special Award:

At the beginning of the hearing the issue of a special award was raised by Mrs. Morelli. However, I did not hear any evidence on this issue from either party. The burden of proof rests with Mrs. Morelli to prove on a balance of probabilities that she is entitled to a special award. Mrs. Morelli has failed to present any evidence in support of her claim. Accordingly I find that Mrs. Morelli is not entitled to a special award pursuant to subsection 282(11) of the Insurance Act.

EXPENSES:

If needed, I may now be spoken to on the issue of expenses.

January 14, 2000

Joyce Miller Arbitrator

Date