Neutral Citation: 1992 ONICDRG 7

File No. A-000322

ONTARIO INSURANCE COMMISSION

BETWEEN:

DIANE POWER

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

DECISION

Issue:

The Applicant, Diane Power, was injured in an automobile accident on August 24, 1990. She was insured under an automobile owner's standard insurance policy issued by the Insurer. Every motor vehicle liability policy provides for the no-fault benefits set out in Ontario Regulation 273/90, ("the No-Fault Benefits Schedule"), and enacted under the Insurance Act, R.S.O. 1990, c. I.8.

The Applicant applied for and received weekly income benefits under the policy, until March 31, 1991. At that time, the Insurer terminated benefits, on the basis that the Applicant was not disabled to the extent required under the No-Fault Benefits Schedule. Mediation of this issue was unsuccessful, and the Applicant subsequently applied for the appointment of an arbitrator under Section 282 of the Insurance Act.

The issue to be determined in this arbitration is:

Is the Applicant entitled to weekly income benefits from March 31, 1991 onwards?

The Applicant also claims interest upon any amounts found to be owing, and her costs.

Result:

The decision is:

The Applicant is not entitled to weekly income benefits for the period from March 31, 1991 onwards.

Hearing:

An arbitration hearing was conducted at Brampton, Ontario on November 12, 1991, before me, Frederika Rotter, Senior Arbitrator. Present at the hearing were:

The Applicant:

Diane Power

The Insurer Represented by:

Fred Luchak Barrister & Solicitor

Documents before the Arbitrator

Exhibit 1

Note from Dr. J.W. Moody, Queen Square Doctors, dated October 22, 1991

Exhibit 2

Report from Michael West, M.D., F.R.C.S.(C), to Rapid-Med Plus Inc., dated February 7, 1991

Exhibit 3

Report from Michael West, M.D., F.R.C.S.(C), to Rapid-Med Plus Inc., dated April 24, 1991

Exhibit 4

Report from George Aitken, M.D., F.R.C.S.(C), Brampton Orthopaedic Associates, to Cathy Cameron-Smith, Senior Claims Manager, Allstate Insurance, dated May 21, 1991

Exhibit 5

Report from John Darracott, M.D., B.S., D.Phys.Med., F.R.C.P.(C), to Mr. F. Luchak, Barrister & Solicitor, dated November 4, 1991

Exhibit 6

Curriculum Vitae of Dr. John Darracott

Exhibit 7

Report from D.F. Prior, M.D., F.R.C.S.(C), Brampton Orthopaedic Associates, to F. Luchak, Barrister & Solicitor, dated October 8, 1991

Exhibit 8

Letter from Dr. J.W. Moody, to Cathy Cameron-Smith, Allstate Insurance, dated February 18, 1991

Exhibit 9

Letter from Dr. George Aitken, Brampton Orthopaedic Associates, to Dr. J. Moody, dated February 15, 1991

Exhibits10 & 11

Clinical notes of Dr. J.W. Moody, from January 29, 1987 to September 9, 1991

Exhibit 12

Transcription of Clinical Notes of Dr. J.W. Moody

Exhibit 13

Termination Letter from Carol Ann Dick and Mike Morra, Maritime-Ontario Freight Lines Limited, dated April 23, 1991

Exhibit 14

Video Tape, taken September 5, 1991

Exhibit 15

Video Tape, taken May 19, 1991

Exhibits 16,17,18

Photographs taken from video tape of May 19, 1991

Documents before the Arbitrator, but not marked as exhibits:

• Application for Appointment of an Arbitrator, filed on August 22, 1991

• Response of Insurer, filed on September 6, 1991

• Report of Mediator, dated July 9, 1991

Evidence:

The Applicant, Diane Power, testified that she worked as an accounts receivable clerk in a transportation company, Maritime-Ontario Freight Lines Limited. The office is not modern. The Applicant was required to work at a computer screen and her job duties included calling customers and applying cheques to their accounts. Her job required heavy lifting. Much of her job involved digging into files for old invoices. She had to lift and pull out heavy cardboard file storage boxes, many of which were filed in a storage area at the back of the office. The Applicant testified that to hold files, she depended a great deal on her left side. She even wrote and typed with her left hand. The Applicant testified that as a result of the accident she could no longer do this work.

The Applicant stated that her job was difficult: on a day to day basis, it is a heavy, physical job. She had to lift and climb up ladders to get files from trailers. When her right wrist was bothering her, she at least had the full use of her left arm. After the accident, she had no use of either her left or her right side.

The Applicant testified that on Friday, August 24, 1990, she left her home at 7:40 in the morning to go to work. She had a splint on her right wrist that day because of tendinitis. She therefore opened her car door with her left hand. The car door partially opened and fell off its hinges. The Applicant was holding the door when it fell. She tried to lift and move the door but was not able to do so because of its weight. The car is a two-door model. Two people later had to lift the door and carry it to the garage.

The Applicant testified that shortly after the accident she called her supervisor to explain what had happened and to advise that she would not be at work that day. The Applicant was shaken and felt that she could not work. She also wanted to attend to the car.

The Applicant testified that as a result of the accident she was tense and shocked. Over the weekend, she became sore and stiff and had problems sleeping.

Pain first manifested itself on the evening of the accident. By the next morning, the Applicant found it hard to get out of bed. She has suffered pain ever since.

On Monday, August 27, 1990, she saw Dr. Moody, her family doctor. She subsequently saw Dr. Moody on September 4, 12, 25, and on October 9, 1990. On October 9, Dr. Moody referred her to an orthopaedic specialist, Dr. Aitken. At this time, the Applicant was still experiencing pain and problems sleeping.

The Applicant was examined by Dr. Aitken on November 30, 1990. As by now she had tried various analgesic medications to no effect, Dr. Aitken suggested a cortisone injection for the pain in her arm. The Applicant discussed Dr. Aitken's suggestion with her family doctor on December 4, 1990. On January 10, 1991, she saw Dr. Moody again and decided to proceed with the cortisone injection. She received the injection on January 15th and was advised to return to see Dr. Aitken in one month.

The Applicant saw Dr. Moody again on January 29. He advised her to see him again after her next appointment with Dr. Aitken.

At the request of the Insurer, the Applicant saw Dr. West, a second orthopaedic specialist, on February 6, 1991. Dr. West ordered x-rays of the Applicant's shoulder. After seeing the x-rays and examining her shoulder, Dr. West told the Applicant there were two types of people in the world - those who work and those who do not. Dr. West advised the Applicant to go back to work immediately. The Applicant told Dr. West that she intended to go back to work when she was ready. The Applicant's benefits were subsequently terminated on the basis of Dr. West's report to the Insurer.

The Applicant saw Dr. Aitken again on February 15, 1991. Dr. Aitken felt that the cortisone injection had been of no use. The Applicant testified that when she asked the doctor what she should do about work, he stated that she could not return to work now, and said that he was stumped as to what to do further.

The Applicant saw Dr. Moody again on February 25, March 19, 25, April 2, 9, and May 14. Dr. Moody promised to arrange a consultation with another orthopaedic surgeon. The Applicant testified that she had days when the pain would go down her arm and her hand would go numb.

On May 30, the Applicant saw Dr. Prior, a third orthopaedic specialist, who, she testified, said that she could not go back to work, even just to answer the telephone. Dr. Prior suggested a nerve block injection, an operation that had to be performed in hospital. The Applicant saw Dr. Moody again on June 20, and he felt that the nerve block procedure was worth trying.

On June 11, the Applicant saw Dr. Hirano, who explained the nerve block procedure, and indicated that if the first injection gave her some relief, she could come back for another four or five injections.

The Applicant had the first injection on July 16. It had no effect on her pain, and therefore the Applicant decided not to pursue the treatment. On July 30, she saw Dr. Moody again, and August 1 she saw Dr. Prior. The consensus was that the nerve block injection had not helped. Dr. Prior stated that there was nothing more to be done for the Applicant and referred her to a chronic pain clinic, as the condition of pain in her arm had persisted for almost a year.

On August 17, the Applicant saw Dr. Moody again, and he made the referral to the pain clinic. Dr. Moody advised the Applicant to avoid exertion and to stay as comfortable as possible. The Applicant saw Dr. Moody again on August 25, and September 19. Her condition remained unchanged.

The Applicant saw Dr. Tyl at the pain clinic on October 4, 1991. The Applicant testified that Dr. Tyl found that her trapezius muscle was in severe spasm and very tender, and that the transcapular nerve area of her left shoulder was in spasm. She identified Exhibit 1, a note from Dr. Moody dated October 22, 1991, which refers to Dr. Tyl's findings. Dr. Tyl ordered an x-ray of the Applicant's spine, and advised her to see a rehabilitation specialist. He also suggested more cortisone injections and an occipital nerve block, which would be performed under sedation.

The Applicant testified that she saw Dr. Moody on October 22, 1991 when he gave her the note marked Exhibit 1 to the hearing.

On October 25, 1991, the Applicant was again seen at the pain clinic. She attended the post-trauma rehabilitation unit and also had an acupuncture treatment. She saw Dr. Ko, a nerve specialist, and underwent a test for nerve damage. The Applicant indicated that there were plans to send her to Sunnybrook Hospital in Toronto to test further for nerve damage. Dr. Tyl performed an occipital nerve block. She returned home at 3:30 that afternoon in severe pain as a result of the nerve block procedure.

On November 1, the Applicant had a second set of appointments at the pain clinic. She again attended the rehabilitation centre and had acupuncture treatments. She was given exercises to perform. The Applicant again saw Dr. Tyl. The Applicant testified that on this day she was in terrible pain and shaking uncontrollably. She had two injections and then went straight home to bed.

The Applicant testified that she saw Dr. Moody on November 5, when he gave her a prescription for her nerves. She saw Dr. Moody again on November 7 and, at that time, he expressed concern about her physical and mental health.

On November 8, the Applicant re-attended at the pain clinic, and $100.00 worth of medications were prescribed for her.

The Applicant testified that after all the treatments she feels no better. She finds it difficult to regularly look after her own personal hygiene and other needs. She still has trouble sleeping, and cannot sleep on her left side. She is unable to do normal activities without pain. Even her bra or slip strap sometimes irritates her shoulder. She is unable to lift certain objects, move furniture or even put away her dishes. She could not take the turkey out of the oven on Thanksgiving. The Applicant testified that she cannot drive her car, and she finds knitting difficult. She cannot do the normal things that she used to do for herself and her family.

The Applicant does not do much housework. Her husband and children do the laundry and vacuuming. The children get their own meals and do the dishes. She does no yard or gardening work. The Applicant used to mow the lawn, but now she cannot do it. She does not vacuum. The Applicant conceded that she did vacuum out her car on one occasion and stated that she tries to do what she can on her good days.

The Applicant testified that on bad days she does not even bother to get dressed. She simply sits at home or lies down. On her good days, she does light chores, like the dishes and dusting. She sometimes goes for a walk. She finds walking more difficult in cold winter weather because she must wear a heavy coat. The Applicant testified that sometimes she has two or three good days in a week, and sometimes she has no good days. On average, she has more bad days than good days.

The Applicant testified that she currently takes no pain medication other than after her injections. She has tried 222's and Tylenol 2 and 3, but they do nothing to relieve her pain. On bad days, the Applicant simply sits as quietly and comfortably as she can, and tries to avoid movement. The Applicant described her pain as a tight aching feeling. Sometimes she feels a stabbing pain with movement.

The Applicant testified that the pain is always there to some extent. She has pain down the back and left side of her neck, and in her left shoulder into the joint at the collar. Sometimes she has pain down her arm.

In cross-examination, the Applicant testified that her motor vehicle is a Baretta. The handle is up beside the window, flush with the door, and to open the door, the handle is pulled out. The Applicant stated that during the accident she must have held onto the door. The door fell straight down, away from her hand and did not tip. It missed her toes. The Applicant herself did not fall down or lose her balance when the door fell out.

The Applicant testified that the door probably came free of her hand when it was opened. The next morning she noticed that her shoulder and arm were in significant pain. She could hardly move her shoulder, arm and neck. She saw Dr. Moody the following Monday. She confirmed that Dr. Moody's notes show no reference to shoulder pain on that Monday, and that the first reference to shoulder pain in Dr. Moody's notes was on September 4, 1990.

The Applicant identified Exhibit 2, the letter from Dr. West, dated February 7, 1991. She indicated that she probably told Dr. West that she had had no previous problems with her shoulder. She stated that that was true as far as she could remember. She confirmed, however, that in 1987 she had suffered from pain in her left shoulder which was diagnosed as supinator tendinitis. At that time, she also had problems with her foot and had been using a cane. She stated that she did not remember this when she was examined by Dr. West.

The Applicant testified that in February 1987, she had physiotherapy and ultrasonic treatments for her foot, and not for her left shoulder. She testified that the shoulder injury of 1987 was not something serious that she would have remembered. The problem with her foot arose from using a cane and crutches.

The Applicant testified that she had a nerve block in the dorsal ganglion on May 29, 1990, before the accident. This nerve block was to deal with her right wrist problem. The right wrist goes from great to awful. Before the accident, she constantly had a splint on the wrist.

The Applicant testified that she saw Dr. Prior on May 30, 1991. Exhibit 7 is Dr. Prior's report. When she spoke to Dr. Prior, she also failed to mention her earlier problem with her neck and shoulder.

The Applicant testified that she thought the weight of the door falling pulled and jolted her arm. She confirmed that Dr. Moody's report (Exhibit 8) indicates that the door did not particularly jolt her arm. The Applicant stated that she does not now recollect whether she wrenched her arm. She testified that she was not aware of her arm being pulled or wrenched at the time of the accident, because it all happened so quickly.

The Applicant was questioned about Exhibit 4, Dr. Aitken's letter to the Insurer, dated May 21, 1991. Dr. Aitken did not understand how the accident could have damaged her shoulder. She was also questioned about Exhibit 9, Dr. Aitken's note to Dr.Moody of February 15, 1991, where he states that he does not think the shoulder pain is related to the car accident, other than temporally. The Applicant testified that, since Dr. Aitken had nothing more to offer her, she did not continue to see him.

The Applicant confirmed that Dr. Moody subsequently referred her to Dr. Prior who advised her not to go back to work, even to a telephone answering job. She testified that all the doctors that she has consulted have said that she could not go to work. In response to Dr. Prior's comment, in his letter marked Exhibit 7, that the Applicant's "pain was out of proportion to the accident", the Applicant stated that since the pain and discomfort did not exist prior to the accident, then the reason for the pain was the accident.

The Applicant confirmed that Dr. West advised her to go back to work in four to six weeks and also told her that if modification was required at work, there would be no problem. She did not recollect that Dr. Moody ever agreed to this. She agreed that Dr. Aitken's letter, Exhibit 4, indicated that he believed that she could resume her duties.

The Applicant testified that she did not try to return to work because she was told by her employer that modification was not available. She was advised that if she could not come back to work 100 per cent, she should not attempt to come back. She therefore did not try to go back and do her job, as no one told her that she should, other than Dr. West. She did not find out about Dr. West's view until June 1991.

The Applicant testified that when she spoke to Dr. Moody on March 25, 1991 he did not feel that she was ready to return to work. Dr. Moody's note of March 25, 1991 states that she does not feel able to return to work. She testified that she always asked Dr. Moody if she could go back to work, and she did not know why he wrote the note in the those terms.

The Applicant identified Exhibits 10, 11 and 12, which are copies of Dr. Moody's notes. She confirmed that the insurance adjuster had indicated that she should go back to work. When she asked the adjuster what would happen if she could not work, the adjuster responded that Dr. West had said that she could work, and that modification would be no problem. The Applicant did not recollect that the adjuster told her that she would be reassessed if she could not successfully return to work.

The Applicant testified that her shoulder has never recovered normally. She now has no job to go back to because she was let go. She stated that she was let go because she could not work. It was put to her that she did not contact her place of employment for months before she was let go on May 7, 1991. The Applicant testified that she called her employer if there was a change in her condition, but she did not call on a daily or weekly basis. The Applicant identified Exhibit 13, a letter from her employer dated April 23, 1991, which indicated that she would be terminated on May 7, 1991. She stated that although she did not contact her employer regularly, she had attempted to have her job description modified. She believed she last contacted her employer, before being dismissed, some time between February 8 and 12, 1991.

The Applicant confirmed that her left arm was bothering her up to the present time. She was shown a video tape which was taken on September 5, 1991. The video depicted the Applicant cleaning and vacuuming her car, taking the mats out of her car, and shaking them with her left hand. She was also depicted rolling up the car window, washing the car windows working at shoulder height, spinning the steering wheel, and reaching back into the car, all with her left arm. The Applicant agreed that the video tape depiction was accurate.

The Applicant indicated that on the day in question, the heaviest item she had picked up was a bottle of spray detergent. She confirmed that she had no problems lifting and shaking the mats, and she had easily rolled up the car windows. The Applicant testified that that was clearly a good day, since she was able to do these tasks. On good days, she tried to do what she could. She was aware, while she was washing the car, that she was being watched and photographed by an investigator.

The Applicant was shown a second video tape which was taken on May 19, 1991. This tape, which shows the Applicant walking with her husband, was marked Exhibit 15 to the hearing. Exhibits 16, 17 and 18 are photographs which reproduce some of the actions depicted in the video.

The Applicant confirmed that since the accident she has never gone back to work at any form of gainful employment. She plans to return to work when she is able to, but at present, she cannot work on a regular, daily basis. Until her job was terminated, only one doctor ever told her to try to go back to work.

The Applicant accepts that her doctors' opinion is that she should return to work. However, she knows that she cannot perform her job on a Monday to Friday basis. She is not saying the doctors are wrong, but she alone knows what her job entails and whether she can do it. Modifications were not available for her to try. The Applicant has not tried to find other work since her accident.

Carol Ann Dick, the Applicant's former supervisor at Maritime-Ontario Freight Lines Limited, gave evidence under oath on behalf of the Applicant. She testified that the Applicant telephoned her after her accident, although she cannot recollect exactly when. She did not keep notes of her conversations with the Applicant.

The witness testified that some time after April 23, 1991 she spoke with the Applicant about modifying her job, but indicated that no modifications were possible. April 23 was the date she wrote to the Applicant terminating her employment. Prior to that date, she had not heard from the Applicant in a while.

The witness testified that the place of employment is a transportation company and the Applicant works in the accounts receivable department. If a bill is not correct, it can be over six months old. The Applicant's job required her to sit and work on the phone and at a computer. She was also obliged to pull relevant documents, such as proofs of shipment, from the files where they were stored, take the documents to her desk, photocopy them and then re-file them in the appropriate file box. Metal file cabinets are not used by the company. The documents are all filed in heavy paper boxes. The boxes are stacked approximately five high - at or about shoulder height. In order to get a document out of the files, the Applicant must brace the box with her knee. The witness testified that the files can be very heavy and that removing the files from the file box was probably the most difficult portion of the Applicant's job. The witness testified that she has never seen the Applicant carry a ladder. The Applicant would not be expected to carry a ladder in the normal course of her employment.

The Applicant's job required her to go in and out of the boxes frequently. The Applicant's job also required her to talk on the telephone and cradle it in her neck while she was looking at a computer printout. The Applicant must be able to simultaneously crook her neck over the phone and work. The witness testified that the Applicant has been with the company since 1987, and knows whether or not she can do her job.

The company had to let the Applicant go because she could not return to work. The company had to get someone else to fill her position. The witness understood that the Applicant could not do even a file clerk's job, because a file clerk is also always pulling and re-filing the documents.

The company's decision to terminate the Applicant was based on information which the witness received from the Applicant. She testified that she communicated with the Applicant largely by way of phone calls, although from time to time the Applicant came in to say "hello".

Vito Brundia gave evidence under oath on behalf of the Insurer. He testified that he works for Province-wide Investigations, and he was retained in the spring of 1991 to investigate the Applicant's case. He testified that he recorded the video tape, which depicted the Applicant walking from her house with her husband, on May 19, 1991. The photographs marked Exhibit 16, 17 and 18 are pictures taken from the video tape. The investigator testified that the photographs are a fair representation of what is in the video tape. The video tape itself was over one hour long. The tape was edited, because the Applicant's activity walking was observed from 2:05 to 3:45 in the afternoon.

The investigator testified that the Applicant walked from her residence on Denlow Drive in Brampton to Chinguousy south of Queen Street. The investigator did not notice anything unusual in the Applicant's use of her left arm.

In response to this testimony, the Applicant confirmed that the witness' evidence is truthful, that she did go walking on that day, and that her doctors have advised her to walk regularly. She has also been advised to relax her arm and let it hang rather than tense it up. She stated that the video tape was a fair representation of her activities that afternoon.

Frank Brundia gave evidence under oath for the Insurer. He testified that he works for Province-wide Investigations and is the brother of the previous witness. He testified that he was also assigned to investigate the Applicant's case and he video taped the Applicant in September 1991. He testified that the video tape of the Applicant washing her car was the complete tape, and that nothing in that tape is distorted. The tape is a fair representation of the Applicant's activities, and it was his view that the tape showed that the Applicant was able to use her left arm in a normal fashion.

Cathy Cameron-Smith gave evidence under oath for the Insurer. She testified that she is a registered insurance broker and has worked as a staff claims representative for the Insurer since October 1987. She took over the Applicant's file on January 10, 1991. Before that time, the Applicant's file was dealt with by another claims representative.

She testified that the Insurer's records indicate that the Applicant received $353.60 per week, based on 80% of her gross weekly earnings, from September 1, 1990 to March 31, 1991. The Applicant also received compensation for her travel and medical expenses to the end of March 1991.

The witness testified that her first contact with the Applicant was on January 10, 1991, when she telephoned the Applicant and arranged to meet with her. On January 21, 1991, an independent medical examination was set up with Dr. West.

The witness testified that the Insurer received a report from Dr. West (Exhibit 2) on February 20, 1991. The report stated that the Applicant should return to work within four to six weeks. At that point, the witness called the Applicant at home and left a message.

The witness met with the Applicant on February 21, 1991. She showed the Applicant Dr. West's report but the Applicant did not say much. She indicated that she would discuss the report with her family doctor, Dr. Moody, when she next saw him. The witness testified that on February 25, 1991, she received a report from Dr. Moody, which also gave a return to work date of four to six weeks. The witness therefore called the Applicant again and left a message. She also sent a copy of Dr. West's report to Dr. Moody.

The witness testified that on March 1, 1991 she called the Applicant at home and left another message. The Applicant returned the call on March 5, 1991. At that time, the witness advised the Applicant that, based on the medical reports which had been received, her benefits would cease on March 31, 1991. The Applicant asked the witness what would happen if she went back to work but found she could not do it. The witness advised the Applicant that her situation would then be reassessed. The Applicant indicated that she had a further appointment with her family doctor.

The witness testified that on March 25, 1991, the Applicant advised her that she could not return to work and also advised her to call her family doctor if she required a further medical report. The witness again explained to the Applicant that her benefits would cease on of March 31, 1991 based on the medical reports, unless Dr. West's opinion changed as the result of new information from Dr. Moody.

The witness testified that the Insurer decided to seek a follow-up report from Dr. West on March 26, 1991. On April 21, 1991, Dr. West provided his follow-up report, indicating that his opinion regarding the Applicant remained unchanged. This information was communicated to the Applicant.

The witness testified that if Dr. West had changed his mind, the Applicant's benefits would have been reinstated.

The witness testified that the Insurer subsequently received the report of Dr. Aitken, who agreed with Dr. West that there was no reason why the Applicant should not use her left shoulder. At this point, the matter was in mediation and she was no longer handling it.

In cross-examination, the witness confirmed that Dr. Moody had definitely indicated that the Applicant could return to work. The Applicant's benefits were terminated based on Dr. West's opinion, and also on the follow-up report from Dr. Moody. The witness knew nothing about Dr. Aitken, but his report confirmed the reports of the other two doctors and would not have changed the Insurer's position.

Submissions

The Applicant made oral submissions indicating that she has shown that she could not work, and still cannot work. She is still attending treatments and having injections. She is still not well. She submitted that no one would give her treatments unless there were a need for such treatments. She stated that she wishes to get better and will continue to attend treatments until she is better. The Applicant stated that she has had a few good days here and there, where she could go for a walk or clean her car. However, she submitted that the fact that she has a few good days does not prove that she can go back to work. She submitted that much of the medical assessments depend on interpretation. She has no control over what the doctors write.

Counsel for the Insurer made submissions stating that the evidence shows that the Applicant has been fairly treated.

Counsel submitted that the Applicant must show a substantial inability to perform her work, in order to qualify for continued weekly benefits. The Applicant's testimony must be tested against the medical evidence and the video evidence which suggests that she was not substantially disabled from working.

Moreover, counsel submitted that the Applicant's complaints were out of proportion to the trauma or injury she received, according to all the medical evidence.

Counsel submitted that the issue of credibility is very important and that the video tape impairs the Applicant's credibility. The Applicant also had a previous history of tendinitis in her shoulder, and failed to give an accurate medical history. She did not advise the specialists of her previous shoulder complaints. Counsel submitted that the Applicant has the onus to show that her injury is sufficient to keep her from working, and the fact that she refused to try is crucial.

In response, the Applicant argued that she has been following doctor's orders and that none of her doctors told her to go back to work. With respect to the videos, the Applicant stated that she knew she was being watched. She always did what she could do when she felt she could do it. She submitted that Dr. Darracott never examined her, therefore his ability to assess her behaviour is questionable.

Findings:

Entitlement to weekly income benefits is governed by the provisions of Section 12 of the No-Fault Benefits Schedule. The relevant subsection provides as follows:

(1) The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident a weekly income benefit during the period in which the insured person suffers substantial inability to perform the essential tasks of his or her occupation or employment if the insured person meets the qualifications set out in subsection (2) or (3).

The issue in this arbitration is whether the Applicant was disabled from her employment to the extent required under this subsection, for the period following March 31, 1991, as a result of an injury from an accident.

The Applicant has the onus of proving the essential elements of her claim. That is, the Applicant must prove, on a balance of probabilities, the following facts:

(1) She sustained physical, mental or psychological injury as a result of an accident.

(2) Her injury resulted in a substantial inability to perform the essential tasks of her occupation.

I find that the Applicant has failed to establish both essential aspects of her claim.

1. The Question of Causality

The first issue is whether the injuries complained of by the Applicant actually resulted from the automobile accident.

The Applicant's position is straightforward: she feels her inability to work is the result of an injury incurred when her car door fell off its hinges.

However, the overwhelming weight of the medical evidence does not support her position. Dr. Aitken, in his letter of February 7, 1991, (Exhibit 9) states:

I really don't know why she is having her symptoms and I really have difficulty in believing that they are directly associated with the car incident other than temporally.

In a subsequent letter dated May 21, 1991 (Exhibit 4), Dr Aitken reiterates this view. He states, at page 3:

My initial impression was that I wasn't sure why she was having so much discomfort with her left shoulder. The physical examination did not suggest any significant evidence of a subacromial bursitis and certainly no evidence of a significant rotator cuff pathology. I recommended that she continue with Dr. Edey, the therapist. I recommended that if her symptoms persisted and she wished a subacromial injection with local anaesthetic and Cortisone be performed, to see, in fact, if her symptoms were coming from the shoulder area.

Mrs. Power was subsequently reviewed on January 15, 1991. She stated that she continued to have troubles with the left shoulder and neck region which were very much the same as when I had previously seen her. Using an aseptic technique, the subacromial space was injected on the left side with 1 cc of Celestone and 2 cc of Xylocaine. She was subsequently reviewed on February 15, 1991. She stated that she had noticed absolutely no change in her symptoms following the injection. Physical examination remained unchanged.

From the report provided by you of Dr. Michael West, he describes x-rays of the shoulder, dated February 7, 1991, as being normal.

In summary, this lady has left shoulder pain for which I have no diagnosis. I do not believe that she has a significant intra-articular or extra-articular periscapular abnormality. I do not believe that she has a subacromial bursitis or a rotator cuff tendinitis. I do not feel that her symptoms are related to the incident with the car door other than temporally.

Dr. Prior, the third orthopaedic specialist to examine the Applicant, was also dubious about causality. In his letter dated October 8, 1991 (Exhibit 7), he remarks:

It was my opinion at that time, that the patient has sustained a relatively minor strain to the left shoulder if, in fact the weight of the car door was taken by her left upper extremity, pulling the shoulder. Her disability appeared to be rather prolonged and out of proportion to the relatively minor trauma sustained.

I felt that she had developed a significant shoulder/hand syndrome i.e. pain about the left upper extremity as a consequence of restricted use because of fear of pain. This is a variant of a sympathetic dystrophy and can be associated with the development of a chronic pain syndrome.

(emphasis added)

Dr. Prior's letter expresses doubts about whether the Applicant indeed traumatized her arm and shoulder. If such trauma was incurred, Dr. Prior concludes that it was "relatively minor", and he finds that the disability or pain reported by the Applicant is "out of proportion" to any organic injury which may have been sustained. Dr. Prior's conclusion is that the Applicant has developed a "shoulder/hand syndrome" as a consequence of "fear of pain", and that no underlying organic pathology exists. In short, Dr. Prior suggests that the Applicant's pain is psychological rather than physiological in origin.

Dr. Darracott is a physical medicine and rehabilitation specialist who was asked by the Insurer to comment on the Applicant's case. He did not examine the Applicant, but based his comments on the reports of the various physicians who attended the Applicant, and his impression of her function from looking at the video film.

After reading the various physician's reports, Dr Darracott states at page 3 of his report: From the assessment of the various physician's (sic) who have seen her, it seemed apparent that there were no clear physical findings related to the neck or shoulder, to explain her continuing symptoms, and that her complaints were disproportionate to the findings.

I therefore conclude that the Applicant has failed to prove, on a balance of probabilities, that her complaints result from an injury sustained as a result of an accident. I am not satisfied that the relatively minor trauma or strain to the Applicant's arm, which may have occurred as a result of the car door falling off its hinges, has produced the pain and injury of which the Applicant complains.

It is possible that the Applicant's chronic pain may have been psychologically generated, as suggested by Dr. Prior, since none of her physicians can provide a physiological or organic explanation for her symptoms. However, no psychological evidence was introduced by the Applicant, which could warrant the finding that she sustained injuries of a psychological nature, as a result of the accident.

I also note that the medical records of Dr. Moody (Exhibit 10) indicate that from January through to March, 1987 the Applicant suffered from and was treated for a similar left shoulder pain, which Dr. Moody diagnosed as "supinator tendinitis". The Applicant did not advise the specialists she consulted about this previous history. Her evidence was that she failed to mention it because she had forgotten about it.

In the absence of any medical evidence about this condition, I cannot fairly draw conclusions about the persistence or significance of this prior episode of pain. However, the absence of such evidence does raise further doubts about the issue of causality.

2. Substantial Inability to Work

The second question is whether the accident caused an injury which substantially prevents the Applicant from performing the essential tasks of her employment.

The evidence indicates that the Applicant's job as an accounts receivable clerk involved lifting and manipulating fairly heavy paper cartons containing files. She was also obliged to use the telephone while cradling it in her neck, in order to leave her hands free for paperwork or work on a computer. She often had to sit at her desk with her body twisted sideways, in order to simultaneously talk on the telephone and do her other work. The Applicant's testimony is that, as a result of the pain from her injury, she could not perform these essential tasks.

She also testified that her ability to work was impeded because she relied a great deal on her left arm and hand, as at the time of the accident her right hand was in a splint.

Again, the medical evidence does not support the Applicant's position. The orthopaedic specialists who first saw the Applicant - Dr. Aitken and Dr. West - both thought the Applicant could resume her duties by the end of March 1991. Dr. Moody, the Applicant's family doctor, also expected that the Applicant would go back to work by then.

The Applicant's position is that she stayed home on Dr. Moody's orders, and that he never told her to return to work. However, Dr. Moody's notes clearly indicate that it was the Applicant who told the doctor that she could not go back to work. In fact, in her evidence, the Applicant made it clear that she had rejected the medical opinion that she should resume her duties, since she felt that she knew better than the doctors what she was capable of doing.

Although she was urged to do so by the orthopaedic specialists and also by the insurance adjuster, the Applicant did not attempt to go back to work on a trial basis. She did not discuss with her employer the possibility of modifying her job duties, until after she was terminated from her employment.

The Applicant testified that she had been attending a pain clinic, and was seen by various specialists, including rehabilitation experts. However, she failed to present any evidence from the consultants at the pain clinic about her ability to work.

In short, no evidence other than the Applicant's own testimony supports her view that she was unable to work. Moreover, part of the Applicant's evidence about her inability to work relates to her problems with her right hand, which, it is clear, cannot be attributed to the accident.

Furthermore, the video-tape evidence showing the Applicant cleaning her car suggests that she was exaggerating her complaints. While the video tape does not depict the Applicant lifting heavy objects, it does show that she was able, on the day in question, to use her left arm freely and vigorously, in an apparently normal manner. She rolled windows up and down, reached backward and extended the arm with no apparent limitations, and used the hand and arm in an elevated position to energetically wash the car windows. I find that this evidence casts doubt on the Applicant's assertions that she was physically unable to perform her essential job tasks.

Although the Applicant's explanation of the video was that it showed "a good day", Dr. Darracott's impression from viewing the video (page 4 of Exhibit 5) was that the Applicant:

"has a free and normal functional range of movement in the shoulder and that she uses it normally for bimanual activities, and relatively heavy activities with the left arm such as cleaning the windows with the arms elevated."

In summary, while I do not doubt that the Applicant suffered and continues to suffer a degree of pain in her left hand and arm, it is my view that she is exaggerating the negative effect of her pain on her ability to function. The Applicant's refusal to even try to resume her job duties reinforces my view that an absence of motivation may be a factor which complicates her problem. In any event, as set out in my findings above, I am not satisfied that the Applicant's pain is causally connected to the accident with her car door.

The Applicant is entitled to an award for her ordinary expenses incurred in respect of participating in the arbitration proceeding, as prescribed in Ontario Regulation 275/90 and Schedule 1 of the Dispute Resolution Practice Code.

Order:

1. The Applicant is not entitled to weekly income benefits from March 31, 1991 onwards.

2. The Applicant is entitled to her expenses incurred in the arbitration proceeding under Ontario Regulation 275/90, and Schedule 1 of the Dispute Resolution Practice Code.

March 12, 1992

Frederika Rotter Senior Arbitrator

Date