Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2005 ONFSCDRS 135

FSCO A98-000988

BETWEEN:

DONNA C. HART

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before:

Eban Bayefsky

Heard:

September 27, 28 and 29, 2004, in Hamilton, Ontario.

Appearances:

Mrs. Hart represented herself

Meredith J. Donohue for Allstate Insurance Company of Canada

The Applicant, Donna C. Hart, was injured in a motor vehicle accident on August 16, 1995. She applied for statutory accident benefits from Allstate Insurance Company of Canada ("Allstate"), payable under the Schedule.¹ Allstate denied Mrs. Hart's claim for "other disability benefits" pursuant to section 19 of the Schedule. The parties were unable to resolve their disputes through mediation, and Mrs. Hart 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:

Does Mrs. Hart have a reasonable excuse for not complying with the time limit for submitting an application for other disability benefits, pursuant to section 59(4) of the Schedule?
Is Mrs. Hart entitled to receive other disability benefits, from August 23, 1995, onward, with interest, pursuant to section 19 of the Schedule?
Is either party entitled to their expenses of the arbitration?

Mrs. Hart does not have a reasonable excuse for failing to comply with the time limit for submitting an application for other disability benefits.
Mrs. Hart is not entitled to other disability benefits.
If required, the parties may now make submissions on the issue of expenses.

The Proceedings To Date

Mrs. Hart's arbitration initially came on for hearing in January 1999. The issue at that time was whether Mrs. Hart had applied for mediation on the issue of other disability benefits ("ODBs") within two years of Allstate's refusal to pay such benefits, and whether the issue of entitlement to other disability benefits had been properly mediated. On January 22, 1999, the Arbitrator issued her decision, in which she held that Mrs. Hart had not applied for mediation on the issue of ODBs within the allotted two years and that Mrs. Hart's arbitration in respect of her claim for ODBs was, therefore, barred pursuant to section 281(5) of the Insurance Act and subsection 72(1) of the Schedule. Based on this finding, the Arbitrator held that it was unnecessary to decide whether the issue of entitlement to ODBs had been properly mediated.

By decision dated March 11, 1999, the Arbitrator confirmed that Mrs. Hart's application for arbitration was dismissed, as there were no further issues in dispute in the arbitration.

Mrs. Hart appealed these decisions. On July 13, 1999, Mrs. Hart's appeal was dismissed. Mrs. Hart then applied for a variation or revocation of the appeal decision. On November 7, 2000, Mrs. Hart's application was allowed in part. The arbitration order of January 22, 1999 was revoked. The appeal order of July 13, 1999 and the arbitration order of March 11, 1999 were varied as follows:

The question of Donna Hart's entitlement to other disability benefits is remitted to an arbitrator for a hearing. Unless otherwise ordered or agreed to, the issues for determination are as identified in the arbitration pre-hearing letter dated November 2, 1998 as amended on November 18, 1998 and December 4, 1998, and as identified herein.

For the purposes of this hearing, the principal issue identified in the variation/revocation decision was whether Mrs. Hart had a reasonable excuse for not complying with the time limit for submitting an application for ODBs.

In the variation/revocation decision, the Director's Delegate did not interfere with the previous findings that Mrs. Hart had not filed an application for ODBs, that Allstate had clearly and unequivocally refused to pay her such benefits and that Mrs. Hart had failed to apply for mediation and/or arbitration within the two year time limit. Instead, the Director's Delegate found that she "[could]...not be confident that the result in the prior proceedings would have been the same, had consideration been given to the question [of whether Mrs. Hart had had a reasonable excuse for failing to act sooner]." The Director's Delegate focussed on the previous appeal decision's comment to the effect that "had Mrs. Hart filed an application after receiving Allstate's [refusal], the analysis might have been different" (emphasis in original). The Director's Delegate then reasoned as follows: "...if whether Mrs. Hart had applied for benefits is material to the decision, it follows that so too are her reasons for not applying for benefits at that time" and this involves a consideration of an issue that had yet to be addressed, namely, whether, under s. 59(4) of the Schedule, Mrs. Hart had a reasonable excuse for not submitting an application for ODBs in a timely fashion.

Finally, the Director's Delegate outlined some of the factors potentially relevant to an inquiry as to the issue of reasonable excuse, namely, "whether the information provided to Mrs. Hart about her benefits was wrong or misleading" and whether "Mrs. Hart's understanding of the scope of the application that she filed, or the circumstances surrounding it, or of the assessment by the medical and rehabilitation designated assessment centre" excused her failure to act at an earlier stage. This matter, as well, as the substantive issue of Mrs. Hart's entitlement to ODBs, were "remitted to an arbitrator for a hearing."

Allstate appealed this variation/revocation decision. By decision dated November 24, 2000, Allstate's appeal was rejected, essentially on the basis that appeals only lay from decisions of an arbitrator.

Issue 1: Reasonable Excuse

Mrs. Hart's case was remitted to a new hearing primarily to address the issue of whether she had had a reasonable excuse for failing to apply for benefits in a timely manner. Pursuant to section 59(3) of the Schedule, an application for benefits must be submitted "within ninety days of receiving the application forms." Pursuant to section 59(4) of the Schedule, a failure to comply with the time limit under section 59(3) does not disentitle a person to benefits "if the person has a reasonable excuse." The issues before me are, therefore, as follows:

i) did Mrs. Hart receive an Application for Benefits and, if so, when?

ii) did Mrs. Hart submit an application within ninety days of receiving the forms?

iii) if not, did she have a reasonable excuse for failing to do so?

i) Did Mrs. Hart receive an Application for Benefits?

All three of the substantive decisions in this matter (the preliminary issue decision, the appeal decision and the variation/revocation decision) accepted that Mrs. Hart received an Application for Benefits shortly after the August 1995 accident. None of the decisions suggest that Mrs. Hart disputed this point. In the preliminary issue hearing, the Arbitrator found that between the accident and early October 1995, "an Allstate claims representative, Michelle Diletti, contacted Mrs. Hart and provided her with an Application for Accident Benefits." In the appeal decision, the Director's Delegate found that, in the same time period, "Allstate was aware of Mrs. Hart's accident and sent her the appropriate application forms." In the variation/revocation decision, the Director's Delegate reiterated the previous findings as follows:

Part XV of the Schedule deals with procedures for making a claim, as well as for payment and non-payment of benefits. The first step is the provision of notice [under section 59(1), which provides that a person who wants to apply for benefits must notify the insurer within 30 days after the circumstances arose that gave rise to the entitlement to benefits, or as soon as practicable thereafter], which then prompts the insurer's obligation to provide appropriate application forms. It was found that these requirements were fulfilled.

However, at the most recent hearing in this matter, Mrs. Hart testified both that she did not receive, and that she did not recall receiving, an Application for Benefits from Allstate before March 1996. She said that all she knew was that she received an Application for Benefits in March 1996 from her lawyer at the time, Mr. Gennaro Gatto. She said that she had not received an Application before Mr. Gatto had given it to her.

For the following reasons, I do not accept Mrs. Hart's most recent evidence on this issue. I find that Allstate sent the application forms as required and that Mrs. Hart received them shortly after the accident.

Allstate provided its computer and handwritten log notes for Mrs. Hart's claim. Ms. Margaret Sottile, a claims manager with Allstate, testified that the notes were taken in order to have a complete and accurate history of Mrs. Hart's claim, and that each entry was made either the same day or the following day of the noted action. Aside from her more general position that she did not receive an Application for Benefits until Mr. Gatto gave one to her, Mrs. Hart did not dispute the manner in which the log notes were kept. She simply maintained that she did "not recall much of any of this." I accept the notes as an accurate record of Allstate's actions on Mrs. Hart's file.

Allstate's computer log notes indicate that Mrs. Hart advised Allstate of her claim on August 17, 1995, the day after the accident. The notes also indicate that, on August 17, 2005, the adjuster at the time, Ms. Kim Camick, sent Mrs. Hart an Application for Benefits and that Ms. Camick advised Mrs. Hart by phone that the application needed to be completed and returned before the cost of any treatment could be authorized. Mrs. Hart testified that she could not recall this conversation. The notes indicate that, on August 30, 1995, Mrs. Hart called Allstate "to advise she received the forms" and that the adjuster at that time, Ms. Robin Tambur, assisted Mrs. Hart with the "insured section" of the form. The entry also indicates Mrs. Hart as saying various things about her condition and her coverage. Mrs. Hart testified that she could not recall this conversation and that she did "not believe [she] would say any of that." The notes indicate that on October 2, 1995, Mrs. Hart's lawyer at the time, Mr. Daniel Hall, spoke to Allstate's adjuster at the time, Ms. Michelle Diletti, concerning Mrs. Hart's claim and that Mr. Hall refused to have Mrs. Hart complete a "disability questionnaire" as it had "all those questions in [the] AB PKG [accident benefits package]."

At the hearing, Mrs. Hart acknowledged that she received the Health Practitioner's Certificate for her family doctor, Dr. Richard Black, to fill out. The Certificate was filled out by both Mrs. Hart and Dr. Black and received by Allstate on September 16, 1995. Mrs. Hart acknowledged that the Accident Benefits Application Package contained, among other things, the Health Practitioner's Certificate, and that this needed to be filled out. However, when asked whether it would make sense that she received the complete Application Package since she received the Health Practitioner's Certificate, Mrs. Hart simply said that she did not know because she only got the application form from her lawyer, Mr. Gatto, in March 1996.

I see no basis for Mrs. Hart's most recent assertion that she did not receive an Application for Accident Benefits until March 1996. I find that Allstate's log notes accurately record the transmission and receipt of these materials. I do not accept Mrs. Hart's very selective recollection of the relevant events (for example, that she received and returned the Health Practitioner's Certificate by September 16, 1995, but did not receive the Application for Benefits until March 1996). Nor do I accept her suggestion that Allstate fabricated the entry concerning her receipt of the application forms and her medical condition and coverage. I find that, on or about August 17, 1995, Allstate sent an Accident Benefits Application Package (including the Application for Accident Benefits) to Mrs. Hart and that she received it by August 31, 1995.

ii) Did Mrs. Hart submit an application within ninety days of receiving the forms?

I find that Mrs. Hart would have had to submit an application for benefits by November 29, 1995 (ninety days from the date by which she had received the application forms from Allstate, namely, August 31, 1995). Mrs. Hart did not dispute Allstate's evidence that it received an Application for Benefits from her on March 25, 1996. Mrs. Hart did not attempt to assert that she had submitted an application, in any form, prior to March 1996. Her position throughout was that she had not submitted an application previously since she had only received the Application for Benefits in March 1996 from her then lawyer, Mr. Gatto. I find that Mrs. Hart failed to submit an application for benefits within ninety days of receiving the forms from Allstate.

iii) Did Mrs. Hart have a reasonable excuse for failing to submit an application within ninety days of receiving the forms?

In her variation/revocation application, Mrs. Hart attempted to argue that she was experiencing "acute familial and legal problems apparently relating to her stepson's efforts to have her evicted from her home" and that "these ongoing problems presented a distraction, excusing her failure to file an application at that point." Before me, however, Mrs. Hart's principal argument was that she had not submitted an application prior to March 1996 because she had not received the forms before then. While she did mention her other problems, she did not attempt to suggest that they prevented her from acting sooner. When asked whether her eviction problems prevented her from submitting an application sooner, Mrs. Hart simply said that she did what the lawyers asked her to do and that she sent in the application when she received it from Mr. Gatto. Mrs. Hart mentioned that her stepdaughter had been seriously ill and had subsequently passed away in November 1999. When asked whether this affected her filing an application with Allstate, she stated that she had not been prevented from handing in the forms since she had not seen them prior to Mr. Gatto giving them to her. Mrs. Hart suggested that, if she had received the forms earlier, she would have sent them in a timely fashion, as she had done once she received them in March 1996. Given my finding that Mrs. Hart received the application forms shortly after the accident, I do not accept the main reason she offered for her delay.

I find it significant that, despite her position that she could not have filed an application sooner, Mrs. Hart took various other steps to further her claim for benefits before March 1996. On or about September 16, 1995, either Mrs. Hart or her family physician, Dr. Black, submitted to Allstate one of the forms contained in the Accident Benefits Package, the Health Practitioner's Certificate. I find it reasonable to infer that Mrs. Hart had given Dr. Black the Certificate to fill out, given that she had received the application package from Allstate and given the absence of evidence suggesting that Allstate had sent the Certificate directly to Dr. Black. Further, a rehabilitation clinic, International Managed Health Care, began to submit invoices and reports to Allstate in late August 1995 arising out of Mrs. Hart's physiotherapy sessions there commencing on August 18, 1995. Some time in August or September 1995, Mrs. Hart consulted her previous lawyer, Mr. Hall, about her entitlement to benefits. On October 2, 1995, Mr. Hall wrote Allstate inquiring as to whether Mrs. Hart's various collateral benefits (long-term disability benefits, workers' compensation benefits and Canada Pension Plan benefits) would be deductible from any other disability benefits to which she might be entitled, "thereby making it not worth my client's while to make a claim for Accident Benefits." Based on these activities, I find that, even if Mrs. Hart had been experiencing family and legal problems in the months following the accident, she was capable of submitting an application for benefits well before March 1996.

On October 4, 1995, Allstate responded to Mr. Hall's inquiry concerning Mrs. Hart's collateral benefits with an Explanation of Assessment indicating that Mrs. Hart was "not eligible" to other disability benefits and setting out the relevant calculations and deductions, concluding that "there would be no benefit owing." Allstate also advised that they still required a completed application from Mrs. Hart in order to consider any claims for medical benefits she might have. On October 16, 1995, Allstate advised Mr. Hall again of Mrs. Hart's need to submit a completed application for accident benefits. Allstate reiterated its previous questions concerning the relationship between Mrs. Hart's motor vehicle accident and her subsequent medical state and treatment.

At the initial hearing of this matter, Mrs. Hart acknowledged receiving Allstate's October 4, 1995 letter and reviewing it with Mr. Hall. This finding was accepted on appeal and in the variation/ revocation hearing. In the current proceeding, Mrs. Hart did not attempt to suggest that she did not receive Allstate's letter. She simply said that she "was not sure" if her benefits had been refused before March 1996, that "there may have been letters" and that she just remembers Allstate saying that she was "not entitled, period." Mrs. Hart also testified that she disagreed with the calculations and conclusions set out in Allstate's October 4, 1995. On the basis of the evidence before me, I find that Mrs. Hart received Allstate's October 4, 1995 letter and was aware of its contents, specifically that she was not entitled to other disability benefits.

Mr. Hall ceased being Mrs. Hart's lawyer in approximately December 1995. Between mid-October and December 1995, Allstate sent out at least two more letters to Mr. Hall and International Managed Health Care concerning their inability to authorize payments in the absence of a completed application for benefits. Mrs. Hart denied knowing about this continuing problem. However, Mrs. Hart also stated that she sent in the Application she received from Mr. Gatto when she felt she "did qualify" for benefits. She also stated that she could not recall a telephone conversation on February 5, 1996 recorded in Allstate's log notes in which the adjuster advised Mrs. Hart that Allstate could not pay for her medical bills because she had not submitted a completed application. The log note indicates that Mrs. Hart had "no idea as to what [the adjuster] was talking about," that Mrs. Hart had "since changed lawyers" and that her new lawyer would "contact [Allstate] for the appropriate forms." I find that Mrs. Hart had already received the appropriate forms, that Allstate had advised her well before March 1996 of the need to complete and submit the Application for Benefits and that Mrs. Hart could have done this both before and after Allstate's October 4, 1995 letter, just as she had done almost six months later in late March 1996, when she felt she "did qualify" for benefits.

I find that Mrs. Hart likely filled out and submitted the Application for Benefits on her own in March 1996. Allstate's log notes only indicate that the application forms were sent to Mrs. Hart. They do not show that the forms were sent to the lawyer whom Mrs. Hart stated was representing her at the time, Mr. Gatto. The log notes only indicate that the adjuster received a message from an "Eileen" at the solicitor's office, and that the adjuster called back and left a message. I note the evidence of Allstate's claims manager, Ms. Sottile, that if an application had been sent to Mr. Gatto, his contact information would have been recorded in the log notes, as had Mr. Hall's. However, the notes contain no mention of Mr. Gatto or his contact information. I, therefore, find that the Application for Benefits Mrs. Hart submitted in March 1996 was the one she originally received in August 1995 and that she likely filled it out and submitted it without Mr. Gatto's assistance. At the very least, I find that Allstate had not sent Mr. Gatto the application forms and that Mrs. Hart had, therefore, not been prevented from filing them earlier on the basis that she only saw them in March 1996 when Mr. Gatto gave them to her.

As noted earlier, the variation/revocation decision outlined some of the factors potentially relevant to the issue of whether Mrs. Hart had a reasonable excuse for not acting sooner. Regarding the question of whether the information provided to Mrs. Hart about her benefits was wrong or misleading, Mrs. Hart maintained that she did qualify for benefits, that Allstate's October 4, 1995 letter was incorrect and that she applied when she received the forms from Mr. Gatto. On the issue of the nature of the medical and rehabilitation DAC assessment which Allstate began to set up in December 1996, Mrs. Hart simply said that it was to determine the extent of her injuries in relation to her claim for medical expenses.

Regarding the scope of Mrs. Hart's March 1996 application, Mrs. Hart testified that she understood her application to include a claim for other disability benefits. In the three previous decisions in this case, the adjudicators found that Mrs. Hart had never submitted a formal application for ODBs. However, the application form she submitted did not contain a section in which she could specifically claim ODBs. It simply contained a section regarding the Applicant's employment status, in which Mrs. Hart checked off the box stating "have not worked in the last 3 years." In my view, it was not necessary for Mrs. Hart to specifically state she was claiming ODBs. The information she provided on her employment status was sufficient for this purpose. In this regard, I note Allstate's handwritten log notes at the time in which the adjuster records that she had received the "insured portion of the application" and that Mrs. Hart "can't claim disability as benefits not greater than other disab. benefits received - denied." While the adjuster also states "nothing claimed on app - dropped to file," I find that the application Mrs. Hart submitted was sufficient for Allstate to consider her entitlement to ODBs and that Allstate did, in fact, do this, concluding that she was not so entitled.

As was stated in the appeal decision, "even if Mrs. Hart had been able to persuade the arbitrator that her formal application included a claim for ODBs, she would have faced serious questions about the timeliness of her application." While I have found that Mrs. Hart's application did include a claim for ODBs, I find that she has not satisfied the onus on her of establishing that she had a reasonable excuse for failing to submit the application within ninety days of receiving the forms from Allstate. Regarding the factors set out in the variation/revocation decision, I find that neither Allstate's October 4, 1995 letter nor (to the extent that it is relevant) the DAC process more than a year later, delayed Mrs. Hart in the submission of her application. As suggested in the appeal decision, while Allstate could not "unilaterally turn a preliminary inquiry into an application," its October 4, 1995 letter, in fact, emphasized the importance of Mrs. Hart submitting an application for ODBs in a timely fashion. However, nearly six months passed before she acted, which was approximately seven months after she had received the application forms. I find that Mrs. Hart was fully aware of the issue of ODBs and the need to submit an application in a timely manner. I find that she has not satisfactorily addressed the issues raised in the variation/revocation decision. I find that she has not established a reasonable excuse for submitting her application beyond the ninety day time limit.

Issue 2: Entitlement to other disability benefits

The variation/revocation decision suggests that the issue of Mrs. Hart's substantive entitlement to ODBs ought to be addressed regardless of the finding on the issue of reasonable excuse. Therefore, despite my finding that Mrs. Hart did not have a reasonable excuse for failing to submit her application in a timely manner, and, therefore, my view that the previous arbitration and appeal decisions dismissing Mrs. Hart's arbitration should be confirmed, I will proceed to consider Mrs. Hart's substantive entitlement to ODBs.

Pursuant to section 19(1) of the Schedule, Mrs. Hart would be entitled to other disability benefits if, as a result of and within two years of the accident, she suffered a partial or complete inability to carry on a normal life. Pursuant to section 19(7) of the Schedule, Mrs. Hart would be entitled to other disability benefits beyond 104 weeks of her first qualifying for such benefits if, as a result of the accident, she suffered a complete inability to carry on a normal life. Pursuant to section 2 of the Schedule, a person suffers a partial inability to carry on a normal life if, and only if, as a result of the accident, the person suffers an impairment that results in a substantial inability to engage in,

(a) personal care activities in which the person ordinarily engaged before the accident;

(b) mobility activities in which the person ordinarily engaged before the accident;

(d) activities in which the person ordinarily engaged before the accident that require the exercise of cognitive powers;

(e) activities in which the person ordinarily engaged before the accident that require the ability to control emotions or behaviour; or

(f) activities in which the person ordinarily engaged before the accident that require communication abilities.

Pursuant to section 3 of the Schedule, a person suffers a complete inability to carry on a normal life as a result of an accident if, and only if, as a result of the accident, the person suffers an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.

Mrs. Hart did not focus on a particular category under section 2 of the Schedule. She simply maintained that by virtue of her being a "homemaker" and in light of her severe disability (as documented in the available medical reports), she was entitled to other disability benefits. I will consider Mrs. Hart's entitlement in light of all of the noted categories, having regard to her pre- and post-accident condition.

i) Mrs. Hart's pre-accident condition

Mrs. Hart stated that, at the time of the accident, she was a homemaker. She had previously been a telephone operator with Bell Canada. She had not worked since 1989 due to ongoing symptoms from a 1979 elevator accident at work (where she injured her right arm, neck and shoulders) and work-related carpal tunnel syndrome in 1984. By 1989, Mrs. Hart had developed widespread pain and was diagnosed as suffering from fibromyalgia. At the time of the 1995 motor vehicle accident, Mrs. Hart continued to be treated for these problems (including temporomandibular joint pain from 1993). Mrs. Hart was receiving a workers' compensation pension, Canada Pension Plan disability benefits and long-term disability benefits from Bell Canada.

Mrs. Hart applied for CPP disability benefits in 1990. At that time, she complained of widespread pain which limited her ability to sit, stand, walk, drive, sleep and lift even small objects. Mrs. Hart was initially denied benefits, and in appealing, she wrote as follows: "My disability is severe prolonged and excruciatingly painful which prevents me from working at any gainful occupation or employment on a regular or part-time basis."

Mrs. Hart was admitted into the chronic pain programme at Chedoke-McMaster Hospital in 1992. The admission report notes that Mrs. Hart had severe and frequent headaches, bilateral shoulder, arm, hand and leg pain, as well as neck and back pain. At the same time, Mrs. Hart's family physician, Dr. Richard Black, noted that Mrs. Hart's daily activities were limited in a variety of ways. For example, she could not do yard work, she could only wash some dishes, she could do some dusting, but no vacuuming, and she needed to have assistance when shopping.

In April 1993, Mrs. Hart reported to Dr. Black the following restrictions in her daily activities:

could not sit or stand for long periods of time (approximately ten minutes)
could not do heavy housework (such as washing floors, vacuuming and lifting heavy pots)
could not remove caps from bottles, and could only open door handles with trouble due to shaking and pain in her hands
concentration span and reading ability were limited due to pain
could only walk short distances at a slow pace and on warm days
could no longer lift or hold her grandchildren, play the piano, garden, cook, ski, golf, bowl, play tennis or knit due to widespread pain
could only drive short distances (for approximately half an hour)

In July 1993, Dr. Black noted that Mrs. Hart felt "disabled for most activities of daily living" and that "even speaking and talking causes her a lot of problems."

In December 1994, Dr. Lawrence Hart, a rheumatologist, reported as follows:

Mrs. Hart's usual activities have been curtailed as a result of her musculoskeletal pain. She reports difficulties with basic elements of self care such as brushing her teeth, taking a bath, doing her hair, or cutting her own food. She is unable to do any of her household chores, and she has particular difficulty with activities that require lifting. She also reports that she has great difficulty with walking and ascending or descending stairs. She is unable to drive her car.

In addition to these functional limitations, Mrs. Hart has problems concentrating and needs help in dealing with her personal matters.

Dr. Black's clinical notes from February 1995 indicate that Mrs. Hart's problems continued in that she was "unable to do housework, vacuuming, and complains of difficulty even climbing stairs." Mrs. Hart was experiencing financial and social problems with certain members of her family, notably her husband and stepchildren. In May 1995, Dr. Black reported to Bell Canada that Mrs. Hart was suffering from a "complete disability," that she had "made little if any progress" and that she "feels incapable of any work however modified." Dr. Black notes that, as of mid-July 1995, "really nothing physically has changed and nothing socially has changed," although Mrs. Hart seemed "a lot brighter." Dr. Black noted that Mrs. Hart "still is quite disabled, being unable to climb stairs."

ii) Mrs. Hart's post-accident condition

On August 21, 1995, five days after the motor vehicle accident, Dr. Hart reported that "as a result [of the accident], all of her soft tissue pain has flared up to a very significant extent." Dr. Hart stated that "what seems to be of greater stress to her, at the present time, is the absolute disruption of her family life." Dr. Hart continued to see Mrs. Hart periodically following the accident but did not report any improvement in her condition, and on some occasions reported a worsening. Dr. Hart essentially maintained that until Mrs. Hart's family and legal problems "settled down," there was not much he could do to assist her.

On August 24, 1995, Dr. Black recorded that "generally MVA increased pain from 6/10 to a 9/10 on a scale of 1-10." On September 13, 1995, Dr. Black noted that "all restrictions from 'prior to' MVA are intensified - problem driving, very little cooking, needs help with children to do homework" and her "son does most of the laundry."

Dr. Black referred Mrs. Hart to a course of physical and psychological treatment at International Managed Health Care. In late November 1995, the physiotherapist reported that Mrs. Hart was "making minimal improvements." In mid-December 1995, the psychologist reported that Mrs. Hart "for the most part, appears to be dealing with her difficulties and appears to have reached maximum psychological improvement." Mrs. Hart was then discharged from the programme.

In Dr. Black's clinical notes for December 20, 1995, under a heading of "main problem related to MVA," Dr. Black noted Mrs. Hart's head, neck and back problems and stated that it was "hard to determine what is MVA." However, he stated that Mrs. Hart's headaches and nightmares were related to the accident. Regarding Mrs. Hart's activities of daily living, Dr. Black recorded that Mrs. Hart "isn't able to do heavy housework, now virtually no housework," that Mrs. Hart "was ok driving somewhat, prior, now short distances," that she needed to sit frequently while shopping and had problems carrying any parcels and wrapping Christmas gifts.

In February 1996, Dr. Black noted that Mrs. Hart's energy was low and that she was not swimming (which she had been doing as therapy for her pain). Dr. Black stated that Mrs. Hart had "difficulty doing dishes, difficulty lifting anything and she said she needs help." In March 1996, Dr. Black noted that Mrs. Hart's various pre-accident physical problems had increased following the accident and that she was "worse now physically and mentally than at time post MVA." In July 1996, Dr. Black noted that Mrs. Hart had started swimming again.

Mrs. Hart began a new course of physiotherapy in late 1996 at Upper Ottawa M.V.A. Services. In January 1997, Ms. K. Kulkarni, the physiotherapist there, reported that Mrs. Hart felt she was improving, "but that her tolerance to activity is reduced in general following this accident." Ms. Kulkarni noted Mrs. Hart as saying that "she is unable to function socially, [and] has not returned to her normal recreational activity." Ms. Kulkarni indicated that Mrs. Hart did "realize that she had multiple pre-existing problems."

In July 1997, Dr. Black noted that "things haven't changed but she again said things are getting to a critical level and each visit seems to be an exacerbation of the previous symptoms, and it is hard to believe that they can get much worse." In November 1997, Dr. Black noted that he "can't be sure how much of the current pain is MVA and how much pre MVA."

Allstate sought to introduce a December 23, 2000 surveillance tape of Mrs. Hart, to which Mrs. Hart objected, in part, on the basis that the tape did not show her and that other people were shown without their consent. Allstate had served the videos on Mrs. Hart prior to the hearing and in accordance with the Dispute Resolution Practice Code. Mrs. Hart had previously viewed the tapes, but refused to review them with Allstate's counsel to determine if her concerns were justified. After hearing submissions on the matter, I ordered Mrs. Hart to review the tape with Allstate's counsel to at least determine whether she was, in fact, shown. After reviewing the tape, Mrs. Hart confirmed that it did show her. She consented to my viewing the tape. Even if Mrs. Hart had not consented, I would have admitted the tape into evidence. I find that it shows Mrs. Hart and that it is not necessary to obtain the consent of the other people shown on the tape in various public places.

The video begins by showing Mrs. Hart scraping ice and snow off of her minivan in a parking lot. Mrs. Hart is seen bending up and over the windshield of the van to scrape away ice. She gets in and out of her van a number of times while scraping and brushing the ice and snow from her front windshield. She moves freely at all times, including when she walks around her car over the snow and when she moves around inside her car to pull out and drive away. The tape then shows Mrs. Hart over approximately four hours driving to various locations while shopping and doing errands. She walks and moves easily and without any apparent discomfort. Mrs. Hart testified that she only goes shopping when she needs to and when she does, she gets assistance to put things into her car.

In October 2001, Dr. R. Hershberg, a psychiatrist, conducted a file review of Mrs. Hart's condition on behalf of Allstate. Dr. Hershberg made various comments, including the following:

the psychological impact of Ms. Hart's August 1995 motor vehicle accident paled in comparison to the emotional devastation at the time caused by her husband and stepdaughter's scorn and rejection
Ms. Hart in fact had been well entrenched in the role of the Chronic Pain Disorder patient well before her August 1995 motor vehicle accident and subsequent changes in mood, general behaviour and daily functioning have reflected an already well established pattern which tended to mirror her affective state at the time
there is no documentation of increased cognitive, communicative or emotional distress indicated in the psychological reports from IMH, either from Dr. Kahgee or Belfage, nor in the general practitioner (Dr. Black's) notes, including indication of increasing depression or anxiety or symptoms of PTSD, including simple driving phobia
Ms. Hart's limitations with respect to her personal care, household activities, and mobility activities do not seem to have been substantially impacted by this accident; they remain in keeping with a pattern already well established years earlier in response to her diagnosis of Fibromyalgia Syndrome and adoption of the chronically disabled role
in a like manner, cognitive and communicative abilities and control of emotions and behaviour have continued to reflect non-motor vehicle accident related psychosocial stressors in Ms. Hart's life and the limitations of her personality style and ego defenses to cope adequately with day to day life

In November 2001, Dr. Black made the following typewritten notes regarding Mrs. Hart's activities of daily living:

she is able-to do a little dusting at home, she is not able to bend at all. She is able to do some dishes. She can drive short distances. She is not able to vacuum. She is able to read. She can do a [little] cooking in the microwave but can't [bend] to put things in the oven. she is able to make the bed if she uses a comforter. She is able to [put] things into the washing machine but unable to take clothes out. She has [a] problem chewing and [talking] for any length of time.

In October 2003, Dr. M. Lacerte, a physical medicine and rehabilitation specialist, conducted a file review of Mrs. Hart's condition on behalf of Allstate. Dr. Lacerte stated: "it is my strong opinion that the August 16, 1995 MVA has not resulted in any physical injuries or impairments that would have significantly altered [Mrs. Hart's] pre-existing limited ability to perform her pre-accident activities." Dr. Lacerte noted that Mrs. Hart's "functional level prior to the [accident] was quite limited...." Dr. Lacerte also found that "while [Mrs. Hart's] pain symptoms have been reported as increased, there is little available documentation to support the presence of any clinically significant (objective and measurable) physical impairment as a result of the August 16, 1995 MVA."

At the hearing, Mrs. Hart denied Dr. Hart's December 1994 report that she could not do any of her household chores. She testified that she could dust with a feather duster, and that she still does this today. She also said that, with the help of therapy, she got back to driving after the accident. However, she stated that her mobility has decreased since the accident. She testified that she is able to cook in a microwave and on the barbecue. She said that she continues to have concentration problems.

Dr. Black was asked at the hearing whether he inquired as to the causal relationship between Mrs. Hart's limited daily activities and the motor vehicle accident. He testified that he did not differentiate between Mrs. Hart's pre- and post-accident daily activities and that he did not know if she had new restrictions, just that she had greater problems. Dr. Black stated that Mrs. Hart's pain had increased after the accident and that the accident had exacerbated her condition. However, he also said that Mrs. Hart's fibromyalgia symptoms varied after the accident, just as they had done before the accident, and that it was, therefore, difficult to sort out whether her increased pain was related to the accident. Dr. Black also testified that Mrs. Hart's family problems would have exacerbated her symptoms.

iii) Is Mrs. Hart entitled to other disability benefits?

I find that Mrs. Hart has not, as a result of the August 1995 motor vehicle accident, suffered a partial or complete inability to carry on a normal life. I, therefore, find that she is not entitled to other disability benefits.

I find that Mrs. Hart's pre- and post-accident activities were essentially the same. Prior to the 1995 accident, Mrs. Hart was severely disabled. She suffered from widespread and debilitating pain. She had not worked for six years before the motor vehicle accident. Her daily activities had been severely restricted for at least three years before the accident. While Mrs. Hart disputed Dr. Hart's December 1994 report that she could not do any of her household chores, she simply said that she could dust with a feather duster, which I find to be a very light activity. Even if Mrs. Hart could do some household chores, this is still consistent with both Dr. Hart's and Dr. Black's reports that Mrs. Hart was significantly restricted in her daily activities and, particularly, in doing the heavier of her household chores. Mrs. Hart's pre-accident disability extended to all of the categories enumerated in the statutory definition of "partial inability to carry on a normal life."

I accept that Mrs. Hart suffered an increase in her pain as a result of the August 1995 motor vehicle accident. I also accept that Mrs. Hart suffered some decrease in her ability to perform her daily activities. However, I do not find either that the accident resulted in Mrs. Hart being substantially unable to engage in any of her ordinary pre-accident activities or that the accident continuously prevented her from engaging in substantially all of her ordinary pre-accident activities.

I find that Mrs. Hart’s previous activities remained essentially unchanged in the months and years following the accident. For example, despite reports of a significant increase in pain immediately following the accident, Dr. Black reported a month post-accident that Mrs. Hart had problems with driving, cooking, doing the laundry and helping her grandchildren do homework. However, this was virtually identical to Dr. Black's and Dr. Hart's pre-accident reports to the effect that Mrs. Hart suffered significant and persistent restrictions in her daily activities, including only being able to drive short distances, being unable to cook, being unable to do housework (particularly heavy housework or housework requiring lifting) and having problems concentrating and reading. Mrs. Hart, in fact, testified that she regained her ability to drive following the accident.

From four to six months post-accident, Mrs. Hart may have suffered some increase in her symptoms. However, her previously low level of activity (both before and immediately after the accident) remained essentially the same. For example, Dr. Black continued to report that Mrs. Hart could not do heavy housework, could only drive short distances and had difficulty doing dishes and lifting anything. Dr. Black also reported that Mrs. Hart needed to sit frequently while shopping, which was consistent with his pre-accident report that Mrs. Hart could not stand for long periods of time and could only walk short distances. While Dr. Black reported that Mrs. Hart could "now [do] virtually no housework," he also reported that Mrs. Hart was still doing dishes and lifting things, but with difficulty, and that she still needed help. Mrs. Hart was also still capable of shopping and carrying parcels. To the extent that there was any deterioration in Mrs. Hart's ability to perform her usual activities, I find that it was insignificant.

In the winter of 1996, Mrs. Hart apparently stopped the swimming she had been doing as part of her therapy. However, she started this activity again five months later. In the winter of 1997, a physiotherapist reported that, while Mrs. Hart felt she was improving, her "tolerance to activity [was] reduced in general following the accident." However, Mrs. Hart also acknowledged at the time that she had had various significant problems before the accident. Further, even if Mrs. Hart had, in fact, suffered a "generally reduced tolerance to activity," this would not satisfy the statutory test of "substantial inability" to engage in her ordinary pre-accident activities. In any event, I have found that Mrs. Hart suffered, at the very most, a marginal decrease in her functional abilities following the accident.

By two years post-accident, Dr. Black was simply reporting that "things [had not] changed," that each of Mrs. Hart's visits "seem[ed] to be an exacerbation of the previous symptoms" (emphasis added) and that he had trouble believing that Mrs. Hart's condition was significantly worsening. As was the case four months post-accident, Dr. Black questioned the extent to which the motor vehicle accident was contributing to Mrs. Hart's reported symptomatology. At the hearing, Dr. Black reiterated his view that the accident had increased Mrs. Hart's pain and exacerbated her condition, but acknowledged the similarity between her pre- and post-accident functional limitations. Dr. Black even pointed out the difficulty of differentiating between Mrs. Hart's pre- and post-accident symptoms, given their fluctuating nature both before and after the accident. This is further evidence that, despite some increase in Mrs. Hart's pain, her ability to engage in her normal activities remained essentially the same after the accident.

Therefore, for the purposes of her entitlement to other disability benefits under section 19(1) of the Schedule, I find that Mrs. Hart did not, as a result of and within two years of the accident, suffer a partial inability to carry on a normal life, as that is defined under section 2 of the Schedule.

I further find that, for the purposes of her entitlement to other disability benefits beyond the two-year period (under section 19(7) of the Schedule), Mrs. Hart did not, as a result of the accident, suffer an impairment that continuously prevented her from engaging in substantially all of her ordinary pre-accident activities. This is, of course, a much stricter test. However, the evidence is very similar to that from before and within two years of the accident.

In a manner similar to his earlier reports, Dr. Black reported in November 2001 that Mrs. Hart was doing a variety of her daily activities, but with certain restrictions. For example, Mrs. Hart could wash some dishes, drive short distances and put things into the washing machine. Mrs. Hart continued to be unable to do heavy housework, such as vacuuming. As he reported before the accident, Dr. Black noted that Mrs. Hart continued to have difficulty talking for any length of time. Mrs. Hart's condition may even have improved somewhat, since Dr. Black reported that Mrs. Hart could read, whereas before the accident Dr. Black reported that Mrs. Hart's reading ability was limited due to pain. Further, unlike his December 1995 report that Mrs. Hart was doing virtually no housework, Dr. Black now noted that Mrs. Hart was doing a variety of household chores (although with restrictions), such as dusting, washing dishes, cooking, making the bed and doing the laundry. Therefore, contrary to a worsening in her condition such as to satisfy the more onerous test under sections 3 and 19(7) of the Schedule, I find that Mrs. Hart's condition remained much the same as (and potentially better than) before and within two years of the accident.

This is further borne out by Mrs. Hart's testimony at the hearing, where she confirmed that she could dust before the accident and continues to do so today, that she returned to driving after the accident (although she appears to have been able to drive short distances before the accident) and that she now cooks in the microwave and on the barbecue (where she could cook and prepare her meals with difficulty before and shortly after the accident). Just as before the accident, Mrs. Hart stated that she continues to have concentration problems.

Mrs. Hart testified that her mobility has decreased since the accident. However, with the possible exception of some further difficulties in bending, Mrs. Hart's mobility remained the same as before the accident. Prior to the accident, she could not sit or stand for long periods, she could not do heavy lifting, she could only walk short distances and she had difficulty ascending and descending stairs. All of these problems reduced her ability to do her usual daily activities, including participating in various sports. However, as discussed above, these difficulties and restrictions simply continued after the accident. There is no evidence to suggest that Mrs. Hart suffered a further reduction in her already limited ability to move around, either within or outside her home. Mrs. Hart could still do a variety of activities, simply with certain limitations. Within a few months of the accident, Mrs. Hart was driving and shopping, simply with some difficulty. Mrs. Hart's continuing ability to move and remain active is confirmed in the December 2000 surveillance which shows her walking, driving and shopping, as well as doing the more strenuous activity of scraping snow and ice from her car, all in a fluid and easy manner. I find that Mrs. Hart did not, as a result of the accident, suffer a substantial inability to engage in her ordinary mobility activities.

Finally, while Drs. Lacerte and Hershberg only conducted file reviews of Mrs. Hart's condition, I agree with their findings that Mrs. Hart did not, as a result of the accident, suffer an impairment that continuously or substantially prevented her from engaging in any or all of her already limited physical and psychosocial activities. I note, in reference to Mrs. Hart's psychosocial condition, that she suffered tremendously before the accident as a result of conflicts within her family. These problems continued after the accident, to the point that Dr. Black noted immediately following the accident that, despite an increase in Mrs. Hart's soft-tissue pain, what seemed to be of greater stress to her was the significant disruption in her family life.

Four months post-accident, the psychologist at International Managed Health Care reported Mrs. Hart as having reached maximum psychological improvement and as dealing with her difficulties. The problems Mrs. Hart was experiencing at the time were noted as mild in nature, except for her headaches, which were noted to be moderate. Mrs. Hart had suffered from severe headaches prior to the accident. The psychologist did not indicate that Mrs. Hart had suffered any significant or substantial interference with her previous activities.

The only other evidence on the issue of Mrs. Hart's psychosocial condition is a physiotherapist's report in January 1997. The physiotherapist reported Mrs. Hart as stating that she was unable to function socially and had not returned to her normal recreational activity. However, the physiotherapist rightly pointed out that Mrs. Hart had had various problems before the accident. Specifically, there is no evidence that Mrs. Hart had been functioning well socially or had been able to engage in her recreational activities before the accident. On the contrary, Mrs. Hart was experiencing significant disruption in her family life and (as Dr. Black reported in April 1993) had long been unable to participate in a variety of recreational and sporting activities. While Mrs. Hart may have experienced some further social difficulties following the accident, I do not find that her situation significantly changed as a result of the accident. I find that her physical and psychosocial condition remained essentially the same following the accident.

I, therefore, find that Mrs. Hart did not, as a result of the accident, suffer the requisite degree of disability under sections 19(1) or 19(7) of the Schedule and that she is not entitled to other disability benefits.

EXPENSES:

The parties did not address the issue of expenses. If required, they may now make submissions on this issue, in accordance with the procedure set out in Rule 79 of the Dispute Resolution Practice Code.

September 23, 2005

Eban Bayefsky Arbitrator

Date