Neutral Citation: 2005 ONFSCDRS 62

FSCO A03-001085

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

V. LEONA COOK

Applicant

and

PILOT INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Robert A. Kominar

Heard:

September 20, 21, 22, 2004, in Barrie, Ontario.

Appearances:

Annette Casullo for Mrs. Cook

Tricia McAvoy for Pilot Insurance Company

Issues:

The Applicant, V. Leona Cook, was injured in a motor vehicle accident on October 28, 2001. She applied for and received statutory accident benefits from Pilot Insurance Company (Pilot), payable under the Schedule.¹ Pilot denied Mrs. Cook's entitlement to non-earner benefits. The parties were unable to resolve their disputes through mediation, and Mrs. Cook 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. Is Mrs. Cook entitled to receive a non-earner benefit pursuant to section 12 of the Schedule?

2. Is either party liable to pay the other's expenses in respect of the arbitration under section 282(11) of the Insurance Act

3. Is Mrs. Cook entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?

Result:

1. Mrs. Cook is not entitled to receive a non-earner benefit pursuant to section 12 of the Schedule.

2. The parties shall have 30 days to agree on expenses. If they cannot do so within that time frame an expense hearing can be arranged through the case administrator and I will determine the matter.

3. Mrs. Cook is not entitled to interest on overdue payments.

EVIDENCE AND ANALYSIS:

Mrs. Leona Cook was involved in an automobile accident on October 28, 2001. While driving her vehicle another car, travelling in the opposite direction, veered towards her. She tensed up and lost control of her car ending up in a roadside ditch.

Mrs. Cook applied to Pilot for non-earner benefits as well as various medical benefits. None of the medical benefits are in dispute in this arbitration. The only question before me is whether Mrs. Cook meets the entitlement test for non-earner benefits as a result of this accident.

There are two sections of the Schedule which are relevant to Mrs. Cooks claims. Section 12(1) of the Schedule states, in the relevant part:

The insurer shall pay an insured person who sustains an impairment as a result of an accident a non-earner benefit if the insured person meets any of the following qualifications:

1. The insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident and does not qualify for an income replacement benefit.

The criteria for entitlement to a non-earner benefit explicitly require an arbitrator to determine what "complete inability to live a normal life" for any applicant is. Section 2(4) of the Schedule specifies that 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 sustains an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.

Based on the evidence presented during the hearing, I find that Mrs. Cook has not met the test of proving, on the balance of probabilities, that she meets the statutory test to quality for a non-earner benefit. Therefore, her claims in this arbitration are dismissed.

Mrs. Cook testified that, prior to the accident, she was married for approximately 37 years. Her marriage broke down, much to her dismay, around January 2003. She was a homemaker who cooked and cleaned and did the laundry regularly. She and her husband lived on a farm in small trailer-type accommodations, and it is fair to say that her life was not easy. She testified, for instance, about the significant effort she expended to reuse heavy buckets of rinse water due to their well never being very strong. She also testified that she engaged in doing a bit of gardening. She did not tend the livestock on the farm, other than milk a cow occasionally.

However, Mrs. Cooks pre-accident life was not restricted to participating in domestic activities on the farm. There were two other very important and meaningful dimensions of her life. She and her husband used to enjoy going dancing whenever they could, often at the Durham legion. In fact, she testified that dancing "really was our life", when asked about her marital relationship. Based on the evidence I heard, it is clear that dancing was one of the few mutual interests Mrs. Cook and her husband shared during much of their long marriage.

The other very important dimension of Mrs. Cook’s life is her religious faith and practice. She is a devout member of the Jehovah's Witnesses. Her normal routine was to attend services at the Kingdom Hall on Tuesdays, Thursdays and Sundays. In addition, on Wednesdays and Saturdays she would normally accompany others from her congregation in door to door ministry work. Typically she would be the driver of the car. Since they were ministering in an assigned territory which was rural there was a lot of driving involved as they travelled from one home to another. There were also out of town Jehovah’s Witnesses conventions which she attended twice yearly. These normally extended over two or three days. When Mrs. Cook relaxed she liked to crochet and to read the Bible, as well as the Watchtower and Awake, two publications of the Jehovah’s Witnesses.

Mrs. Cook’s husband did not share her faith and did not participate in this part of her life. In fact, her devotion to her congregation and her ministry work became a contentious issue in their marriage.

Mrs. Cook took her faith very seriously and always attempted to be helpful to others. In addition to her regular attendance at religious services and her missionary outreach work, she volunteered in many capacities. She would often give haircuts and permanents to sisters in her congregation and frequently assisted others by offering rides when needed for activities such as doing groceries. In a rural area she was much appreciated for offering these valued services to others. Mrs. Cook also cared for her aging mother and another elderly lady who lived in Georgetown. She, from time to time, did some housekeeping for others as well.

Mrs. Cook testified that she was an active, engaged and enthusiastic person prior to the accident. This was supported by the evidence of Dave Harbottle and Sheila Marie Seifrid, who are friends and members of her congregation, and her daughter Cathy Andrews.

The questions I have to determine are whether Mrs. Cook ever suffered a complete inability to carry on a normal life after the accident on October 28, 2001 and, if I find that to be the case, whether it occurred as a result of the accident and prior to October 28, 2003.

According to Mrs. Cook’s testimony her life drastically changed after the accident. She testified that she was driving and that her husband was a passenger in the vehicle at the time of the accident. He apparently saw the oncoming car first and cried out "she’s going to hit you." Mrs. Cook reacted by hitting the brakes and losing control of her vehicle, ending up in a roadside ditch. She was seat belted but her husband was not and he apparently hit his head on the dashboard. The car could still be driven afterwards so they first returned to their nearby home and then her husband drove them both to the hospital.

Mrs. Cook sought medical attention from Dr. Whaley after the accident, but testified that he did not strongly support her need for therapy for approximately six months. Ultimately, she did receive a course of physiotherapy and acupuncture. In addition, she testified that she had a round of Bowen therapy, which she described as being "like acupuncture but without the needles," and that she found this Bowen treatment to have been extremely beneficial. Mrs. Cook also did some swimming at a community pool and engaged in self exercise and massage therapy.

Mrs. Cook’s position in this arbitration is that her life after the accident was no longer normal, in any meaningful sense, when compared and contrasted with her life prior to the accident. There were many activities she could no longer do and many activities which she could not do with the same enthusiasm, endurance or enjoyment. Specifically, she had to stop using the old laundry machinery on the farm and started going to either her daughter’s house or the Laundromat with her family’s and her mother’s clothing. She had to pace herself when she cooked, which was, by her evidence, an activity usually restricted to the weekends as she did not like to cook. She also had to monitor her pace when doing the dishes. She found it difficult to make the beds and change the sheets in the cramped quarters of her trailer. At the grocery store she would ask the clerks to help her bring her bags out to the car. When she arrived at home her husband would normally carry the bags into the house. If he was not home, Mrs. Cook would take what she needed from the grocery bags and leave the rest for her husband to bring in later.

With respect to her personal care activities, Mrs. Cook testified that after the accident she had to start using a hand held hose in the shower to wash her hair, whereas she used to wash her hair in the sink. She stated that she really did not like having to use the hose. She found it challenging to put her nylons on and do up the zippers on her winter boots – although she advised she intended to buy boots without zippers for next winter. She also stated that she had to raise her feet to tie her shoes after the accident, rather than simply bend down to tie them.

Mrs. Cook testified that her involvement with the Jehovah’s Witnesses changed as well. Her attendance at meetings declined somewhat. Her evidence was that there were a few times that she could not go to meetings right after the accident, as it required too much effort to get dressed. The more prevalent and continuous change she experienced was that she had to stand up during meetings after the accident, as it was uncomfortable to sit for prolonged periods of time. She would therefore alternate between sitting and standing at the meetings. With respect to her door to door ministry activities, Mrs. Cook testified that even though it was often uncomfortable she would still go out on the ministry with the others in her congregation. However, she stated that she would often get out of the car and stretch, even if it was not her turn to actually go up to the door. Apparently it was the practice for the people in the car doing this outreach ministry to alternate approaching a door; so typically she used to only get out of the car on every third or fourth stop. It is notable that Mrs. Cook testified that she continued in the door to door ministry work because life with her husband was becoming increasingly difficult and she believed that it was important for her to keep active and engaged in something. Her specific evidence was that she did not want to go "mental." Also, she stated that she limited her participation in out of town conventions to those where it was possible to stay over night in a hotel, so that she did not have to drive too much in any one day. She found that she needed at times to lie down after meetings, something she did not need to do before the accident.

Mrs. Cook testified that after the accident she did not go dancing any longer. She did at times accompany her husband to listen to the music. She also found it frustrating to watch him dance with other women.

After the accident Mrs. Cook reduced the number of permanents she gave to others. She noted that it was difficult to stand long enough to do them properly. In addition, she stated that she was not able to properly concentrate on what she was doing and she did not want to ruin anyone’s hair. She stopped offering to drive people on grocery trips and ultimately stopped visiting the lady she was assisting in Georgetown. The housekeeping that she did for others stopped at some point. Mrs. Cook testified that this was before the accident and was due to one lady whom she worked for not being able to afford the service any longer and also because she was required to care for her mother. Although she did continue to do housekeeping for the woman in Georgetown after the accident, she described it as "swiffering." When asked in cross-examination about when she stopped working as a housekeeper for others, Mrs. Cook was unable to say with any certainty whether it was after she injured herself while picking her mother up off the floor, or after she injured herself in a fall in her garden. Her best estimate was that she was unable to do housekeeping for others after picking up her mother and injuring herself. The question is, do these changes in Mrs. Cook’s post-accident life amount to a complete inability to carry on a normal life?

Arbitrators and judges have clearly articulated that "normal life" cannot be simplistically reduced to a list of discrete activities which can then be summed up in two columns – Can Do/Can’t Do – to determine if the applicant is continuously prevented from engaging in "substantially all" of them. The test, in other words, is not solely quantitative.² Arbitrator Sandomirsky states in Da Ponte and Motor Vehicle Accident Claims Fund:

["engaging in"] means more than isolated post-accident attempts to perform activities that an applicant was able to perform prior to the accident. The manner in which an activity is performed, or the quality of the performance, must also be considered. If the degree to which an individual can perform an activity is sufficiently restricted, it cannot be said that they are truly "engaging in" the activity. The activity must be viewed as a whole and should not be broken down into its constituent parts. An applicant who is merely "going through the motions" cannot be said to be "engaging in" an activity.³ [footnotes omitted from original]

Although I accept that Mrs. Cook experienced changes in her post-accident life, I am not satisfied on the evidence before me that they amounted to her being continuously prevented from engaging in substantially all of her pre-accident activities.

To use Arbitrator Sandomirsky's phrase, I don't find that Mrs. Cook was "sufficiently restricted", either physically or psychologically, from engaging in most of her pre-accident activity, which is the threshold set for this benefit. Specifically, I find that Mrs. Cook was not simply "going through the motions" after the accident, again to adopt Arbitrator Sandomirsky’s language. Rather, she was adapting her life, as best she could, to the pain and discomfort she was experiencing, the unwanted breakdown of her marriage, and challenges she was facing due to her mother’s illness and problematic relationship she had with the lady whom she helped in Georgetown. Looked at holistically, the substance of Mrs. Cook’s life after the accident was basically what it was before, albeit a layer of pain and discomfort hung over it for some period of time.

Looking at Mrs. Cook’s post-accident activities related to her involvement with the Jehovah’s Witnesses, her evidence, which I accept, was that she missed a few meetings after the accident. When she went to meetings she at times found that it was uncomfortable to sit for prolonged periods of time and so she would alternate sitting with standing. With regards to her door to door ministry work, her evidence was that she continued to participate in it; once again adapting her behaviour by getting out of the car to stretch more often than she used to do. She testified that when she drove, she would often pull over to the side of the road and "tell whatever was going on with her back to 'cut it out.'" While driving she also would use the cruise control on her car more often than she apparently did in the past. However, she did note that this choice was also partially related to her desire to keep within the posted speed limits. She continued to attend the out of town Jehovah’s Witnesses conventions, but on an adapted basis. Thus, she would stay overnight in hotels rather than drive too much in one day.

Significantly, Mrs. Cook did not testify that she has suffered any loss of interest in her faith or reading religious literature. In fact, her evidence was that it was her faith and the continued support offered by others in her Kingdom Hall that sustained her through some very difficult times. She stated unequivocally that her faith was her "way of life."

I find that, with respect to the religious dimension of Mrs. Cook’s life, the dimension, which was most pervasive and significant to her, she continued to participate regularly and meaningfully in it throughout the period in question in this arbitration. She certainly was not continuously prevented by an accident related impairment from so doing. At best, the evidence supports that the accident may have had a sporadic effect on preventing her from participating in this part of her life. I do not dismiss that Mrs. Cook suffered discomfort during some of her activities, but as Ms. McAvoy submitted, the evidence supports the conclusion that Mrs. Cook did not let this accident fundamentally alter her "way of life." My general impression of Mrs. Cook, is that she is a very honest and committed woman, and her evidence can be summed up as saying that, after this accident, she just kept on going as best she could, adapting as necessary. However, she clearly remained fully "engaged in" the faith related aspects of her life. And although the task for an arbitrator is not to dissect "normal life" into a set of discrete activities, it is absolutely clear that the most important dimension of Mrs. Cook’s life was, and continues to be, related to her religious activities, and that she continued to engage in them after the accident.

The evidence related to Mrs. Cook’s home life consistently leads me to the inference that she had a very difficult time dealing with the separation from her husband. When she was asked about the separation during cross-examination, Mrs. Cook stated that from sometime around May 2002 she began to be concerned her husband was having an extra-marital affair. She was asked if there were problems in the marriage prior to that and answered that "whatever there was, I endured them." Mrs. Cook believes that her husband changed dramatically after the accident, and she attributes that to his hitting his head on the dashboard.

Mrs. Cook, after a very long marriage by current standards, found it extremely difficult to cope with the breakdown in her relationship and the loneliness associated with it. This is supported by evidence from her daughter and the reports of her attending psychologist, Dr. Avrum Green. She related how she was unable to tell her mother for a long period of time that she was separated. She also noted that she had temporarily separated four times in the past, but each time chose to return to her husband. As a Christian she wanted to make her marriage work and only left permanently when she finally realized that her husband had no interest in reconciling. She ultimately communicated to Dr. Green that she would need to seek a "Scriptural divorce" to be free of her husband.

Mrs. Cook’s evidence was largely confirmed by that of her daughter, Cathy Andrews. She spoke of a marriage where Mrs. Cook and her husband did not communicate much and shared very little in common. The exception was their mutual enjoyment of dancing. After the accident Mrs. Cook’s spouse started to dance and associate with other women and attend casinos. According to Ms. Andrews, he was less and less inclined to "babysit" and expressed a desire to "live a little" and to "not die without doing anything." Ms. Andrews believed that he emotionally abandoned Mrs. Cook. She described how Mrs. Cook had contemplated suicide, due to the deteriorating marital relationship, and was talked out of it on at least two occasions during this period by Ms. Andrews husband.

Regarding Mrs. Cook’s caring for her ailing mother and the woman in Georgetown, Ms. Andrews testified that her grandmother, due to her declining health, needed to be admitted to a full-time care facility sometime around November 2001. Mrs. Cook had been caring for her mother regularly prior to that. However, Ms. Andrews acknowledged that the auto accident was not, in her view, the reason that Mrs. Cook could no longer care for her grandmother; rather it was her grandmother’s increasing need for around-the-clock care that accounted for that. When she spoke of the woman in Georgetown whom Mrs. Cook had been assisting, Ms. Andrews stated that she always believed that this woman was "abusing" Mrs. Cook and that her mother was frequently distressed by the situation. Ms. Andrews had therefore been encouraging her mother to withdraw from the relationship for some time and Mrs. Cook finally came to accept this advice. Ms. Andrews stated that Mrs. Cook ultimately came to realize that she could only stretch herself and her volunteer efforts so far, and that she needed to cut back on her activities in general.

Finally, with regard to other evidence of Mrs. Cook's changed status after the accident, I find that the evidence that she could not do housekeeping was not proven for a number of reasons: she did not apply for housekeeping benefits to the insurer, notwithstanding that she testified she could have used them, and she continued to do housework for others. It is difficult to understand why Mrs. Cook could not do her own work if she was able to do it for others. Also the OCF-12 dated November 18, 2001 which she submitted to Pilot did not disclose that she was unable to do anything she was able to do pre-accident, apart from partial restrictions on vacuuming, bedmaking, cleaning the oven and refrigerator. Mrs. Cook’s and her daughter’s evidence was that she must have been mistaken in filling the form out, but I find that the information on the form is consistent with the other evidence I heard and it supports the inference that Mrs. Cook’s life, as it related to performing home maintenance type tasks, was not grossly or continuously affected by the accident

An issue was raised that Mrs. Cook had to rely on using a cane after the accident, the inference being that this dramatically affected the quality of her life. Mrs. Cook stated in her evidence that she used a cane prior to the accident for stability. Although her daughter thought that Mrs. Cook was wrong about this, and did not recall seeing her mother use a cane prior to the accident, I accept Mrs. Cook’s evidence that the cane was always in the car with her, and that over time she had come to rely on it for stability.⁴

It was submitted by Ms. Casullo that, after the accident, Mrs. Cook increasingly presented to others as confused and unable to think straight, lacked enthusiasm for life, showed flattened affect and was less sociable. On the evidence before me, I find that these patterns of behaviour have, on the balance of probabilities, more to do with the breakdown of Mrs. Cook’s marriage, and her struggle to integrate that experience into her religious beliefs, than with the automobile accident. Throughout her evidence Mrs. Cook clearly reflected how difficult the marriage breakup was for her and how dramatically it changed her life. When she was testifying about the automobile accident her evidence was much more matter of fact, and much less impassioned. Even though the accident was emotional and challenging for Mrs. Cook, I find on the evidence before me, that the experience did not cause any dramatic change to Mrs. Cook’s marriage relationship. That relationship continued on the trajectory it had started on long before. One could say that the "normal" marital life Mrs. Cook was living prior to the accident was that of a dysfunctional marriage heading for divorce. After the accident "normal" remained the same. It is important to be mindful of the fallacy expressed in the maxim post hoc ergo propter hoc here.⁵

The legislature set the bar high when it established the test for entitlement to non-earner benefits under the Schedule. Although it is clear that Mrs. Cook’s life changed after the accident, I am not prepared to find that her life radically changed "as a result of" the accident, or that she was continually prevented from engaging in substantially all of her normal pre-accident activity. The accident may have caused her some minor physical impairment, or may have triggered some of her many pre-existing medical conditions to worsen, but the plain facts in evidence are that her life went on pretty much as it had before, allowing for adaptations she needed to make while she was seeking and undergoing treatment for her symptoms. Her evidence, supported by her daughter, was that once she found the Bowen treatment, she was transformed almost into a new person. Ms. Andrews described her on one occasion as being able to "skip across the road" without relying on her cane after this treatment.

Pain can be disabling, but it is not necessarily so. I find that Mrs. Cook is an individual who did not allow her pain, discomfort, or emotional challenges to disable her from engaging in most of her pre-accident life. Mrs. Cook worked her way through a very difficult period in her life, seeking out treatment and adapting to her pain and distress as best she could. Her religious beliefs and the friendships with the people in her Kingdom Hall ran so deep that the pain she was experiencing did not prevent her from continuing to meaningfully participate in what was and remains a very large and important dimension of her life. Although I accept that after the accident she presented to others as less cheerful, less energetic, more tired, etc., I find that this was largely due to the very difficult experience of marital breakdown. She never spoke during the hearing of the accident as having any such effect, other than on her husband, or so she believes. Finally, her withdrawing from caring for her aging mother and the lady in Georgetown, and her cutting back on housekeeping, were all matters which I find are related to other exigencies and were not the result of the accident.

Mrs. Cook impressed me as being a very honest person, and her evidence was uncontrived and candid, even when what she had to say did not always support the claim for non-earner benefits she is advancing. I find that to be an admirable reflection of her faith and willingness to come to the arbitration and tell the truth as she sees it. I also find that Pilot approached this arbitration in a respectful manner, never adopting an overly adversarial perspective, but rather advancing the argument, which I have accepted as sound, that the facts in evidence, even if believed, do not support entitlement to this benefit.

The non-earner benefit is not intended to compensate Mrs. Cook for having to engage in post-accident activity with pain and discomfort, barring that pain becoming continuously disabling in its own right. That is not what happened here. Other recourse in law governs that aspect of Mrs. Cook's situation, not the non-earner benefit. For these reasons I dismiss Mrs. Cook's claims for non-earner benefits and interest.

EXPENSES:

No submissions were made on expenses. The parties shall have thirty days after the date of this decision to agree on expenses. If they cannot resolve the matter, an expense hearing may be arranged after that date through the case administrator and I shall decide the matter.

May 9, 2005

Robert A. Kominar

Arbitrator

Date

Neutral Citation: 2005 ONFSCDRS 62

FSCO A03-001085

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

V. LEONA COOK

Applicant

and

PILOT INSURANCE COMPANY

Insurer

ARBITRATION ORDER

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

1. Mrs. Cook’s claims for non-earner benefits and interest are dismissed.

2. The parties shall have 30 days from the date of issuance of this order to agree on expenses. If agreement cannot be reached an expense hearing may be arranged to determine the matter.

May 9, 2005

Robert A. Kominar

Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2See the decision of Justice Brockenshire in Walker v. Ritchie 2003 CanLII 17106 (ON SC), [2003] O.J. No 18, as well as the decision of Arbitrator Sandomirsky in Da Ponte and Motor Vehicle Accident Claims Fund, (FSCO A01 -000486, October 28, 2002)
3. 3Da Ponte and MVAC, at page 5.
4. 4Without going into the details, significant evidence was led in the arbitration that confirms that Mrs. Cook has a very longstanding and significant pre-accident medical history, including back problems, etc. Given that I have found that Mrs. Cook does not satisfy the test for entitlement, it is unnecessary to consider the issues of causation.
5. 5The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.