Neutral Citation: 1994 ONICDRG 105
File No. A-004981
ONTARIO INSURANCE COMMISSION
BETWEEN:
MARIAM AUDISHO
Applicant
and
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Insurer
DECISION
Issues:
The Applicant, Mariam Audisho, was injured in a motor vehicle accident on August 23, 1992. She applied for and received statutory accident benefits from the Insurer, State Farm Mutual Automobile Insurance Company ("State Farm"), payable under Ontario Regulation 672.1 The Insurer terminated weekly income benefits on April 20, 1993. Mrs. Audisho claims benefits from that date. The parties were unable to resolve this dispute through mediation and the Applicant applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
Issues about the proper amount of weekly income benefits and entitlement to transportation expenses were resolved at the outset of the hearing.
The issues in this hearing are:
Is Mrs. Audisho entitled to weekly income benefits after April 20, 1993?
Mrs. Audisho also claims interest on any outstanding amounts owing, and her expenses incurred in the arbitration.
Result:
Mrs. Audisho is entitled to weekly income benefits after April 20, 1993. The total amount of benefits payable should be reduced by $1,702.50, the amount by which benefits were overpaid to April 20, 1993. Mrs. Audisho is entitled to interest as provided under section 24 of the Schedule.
Mrs. Audisho is entitled to her expenses incurred in the arbitration.
Hearing:
The hearing was held in London, Ontario, on March 30 and 31, 1994, before me, Nancy Makepeace, arbitrator.
Present at the Hearing:
Applicant:
Mariam Audisho
Applicant's
L. Scott Smith
Representative:
Barrister and Solicitor
Insurer's
David Nash
Representative:
Barrister and Solicitor
Insurer's
Robbin Weare
Officer:
The Applicant's husband was also present at the hearing.
Witnesses:
Dr. Robert Teasell, physiatrist
Mr. Ab Chabhar, former manager of a Becker's store Mrs. Audisho
Dr. Michel Lacerte, physiatrist
Proceedings were recorded by Ms. Dorothy Marchant, of Triune Reporting, and a transcript was provided.
Exhibits entered into evidence, and other documents on the record, are listed in an Appendix to the decision.
Background facts:
The Applicant, Mrs. Mariam Audisho, is in her early thirties. She and her husband moved to Canada about 12 years ago. After arriving in Canada, Mrs. Audisho worked in a factory for several years while completing high school. She then worked for about a year and a half as a cashier-supervisor at K-mart. At the time of the accident, she had worked for about three and a half years as manager of a Becker's store.
On August 23, 1992, Mrs. Audisho was the seatbelted driver of a motor vehicle which was struck on the left front and side by another car. She testified that she immediately had a headache and felt pain in her neck, knee, and back. The vehicle was written off.
Mrs. Audisho has not returned to work since the accident. She claims that she cannot work as a Becker's store manager because of neck pain, low back pain radiating into her left hip and leg, shoulder pain, left knee pain, and headaches. She terminated her relationship with Becker's about five weeks after the accident, and has not returned to work since. She also contends that she can no longer do her heavy housework, and is assisted by her husband and mother-in-law; she can do light housework, such as dusting, setting the table, and some cooking. She has difficulty with childcare, and relies on her husband to help her.
The Insurer terminated Mrs. Audisho's weekly income benefits effective April 20, 1993. The Insurer contends that Mrs. Audisho's ongoing problems are related to other events in her life and do not result from the motor vehicle accident.
Mr. and Mrs. Audisho have a daughter, born in March 1990. Mrs. Audisho gave birth to a son on June 1, 1992. Because of her responsibilities at the store, she returned to work after one week, placing her son in a daycare centre. On July 31, 1992, about three weeks before the motor vehicle accident, her son died of Sudden Infant Death Syndrome while at the daycare centre. Mrs. Audisho remained off work for a week, then returned to work. The notes of her family doctor describe her grief, depression, and guilt, both before and after the accident.
Mrs. Audisho became pregnant again after the accident. However, she miscarried in April 1993, at about 16 weeks gestation, because of medical problems unrelated to the accident.
The Insurer contends that these events have caused emotional difficulties which have interfered with her recovery.
At the time of the hearing, Mrs. Audisho was expecting twins in August of 1994. The Insurer claims that Mrs. Audisho's current condition is related to her pregnancy rather than the accident. The Insurer also claims that Mrs. Audisho is not motivated to rehabilitate herself and intends, after the birth of her twins, to remain at home with her children.
At the outset of the hearing, the parties agreed that the proper amount of weekly income benefit is $416.96. They also agreed that Mrs. Audisho had received an overpayment of $1,702.50, as of April 20, 1993. A dispute about transportation expenses was also resolved.
Entitlement to weekly income benefits:
Weekly income benefits are provided under subsection 12(1) of the Schedule, which provides as follows:
12.--(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).
(2) The following qualifications apply to an insured person who claims a weekly benefit under subsection (1):
- He or she must have been at the time of the accident,
i. employed or self-employed,
ii. on a temporary lay-off, or
iii. entitled to start work within one year under a legitimate offer of employment made before the accident and evidenced in writing.
Mrs. Audisho is entitled to weekly income benefits after April 20, 1993, if she continues to be disabled from performing the essential tasks of her pre-accident occupation as a Becker's store manager after that date.
Essential tasks:
Evidence about Mrs. Audisho's duties as a store manager came from Mrs. Audisho and Mr. Ab Chabhar. Mr. Chabhar is a former Becker's store manager. He and his wife operated a store in London, with the assistance of one part-time employee. Mr. Chabhar and Mrs. Audisho testified that they did not know each other and had not met before the hearing. Their testimony about their duties was consistent and uncontroverted. I accept their testimony about a store manager's essential tasks. It is consistent with the contract between Mrs. Audisho and Becker's (Exhibit 2, Tab 1), and with the nature of this occupation.
The contract between Becker's and Mrs. Audisho states that the store manager is an independent contractor. The contract contains specific provisions governing remuneration, store hours, standards, prices, inventory, banking, and other matters. Mrs. Audisho and Mr. Chabhar testified that Becker's monitors its stores closely, conducts random spot-checks, and holds store managers responsible for any losses or problems. The contract is reviewed annually.
I find that Mrs. Audisho's essential tasks as a Becker's store manager were as follows:
Sales and customer service: Serving customers was the first priority, and took about half the manager's time throughout the day. Because of the demands of customers, other tasks had to be done in the short periods between customers. A large part of the store's business was selling cigarettes, which were kept in overhead racks at the cash counter. Also at the cash counter were lottery tickets, a slush machine and two juice machines, some fast foods, an ice cream cone area, and a microwave oven. No chair was kept behind the counter. Mrs. Audisho and Mr. Chabhar testified that neither customers nor Becker's management would like to see a chair behind the counter.
Stocking product: Mrs. Audisho was responsible for receiving deliveries, stocking, displaying and taking inventory of: newspapers, milk, fruit juice, pop, ice cream and other novelties, meat, canned goods, groceries and other products. Products were delivered everyday throughout the day from early morning until 3:00 or 4:00 in the afternoon. Stocking, especially of milk and pop, might have to be done several times a day.
Cleaning and maintenance: Mrs. Audisho was responsible for: general cleanliness in the store; mopping the floor and cleaning the coolers (once a day); cleaning the cash and fast food area; cleaning the grocery shelves; cleaning the windows; defrosting the coolers (once a month); and mopping the outside entry (perhaps six or seven times on a slushy day), shovelling snow, and throwing down salt in the wintertime.
Administration: Regular daily administrative duties included: cigarette inventory; lottery forms; delivery reports; inventory and sales reports; cash register readings; and the daily bank deposit. Mrs. Audisho estimated that she spent about one and a half hours each day doing paperwork. Cigarette inventory was done every morning, and took about half an hour. Bank deposits were prepared in the back of the store every night. Other paperwork was done at the cash area throughout the day, as business allowed, or in the back room, if there was someone else to handle cash. Mrs. Audisho would sit on a milk case while doing her paperwork in the back room.
Mrs. Audisho testified that Becker's required her store to be open between 7:00 a.m. and midnight, a total of about 119 hours a week. She worked about 50-60 hours in total, Monday through Saturday, and took Sundays off. Her children attended a daycare centre all day, Monday through Friday. She had one full-time employee, her husband, who worked 40-45 hours per week, Monday through Saturday. She opened the store in the morning, and her husband would take the children to daycare. He or another employee would generally close the store at night.
Mrs. Audisho also had two part-time employees, who between them worked about 50 hours per week. They would work half a day each on Sunday. Through the week, they would work during busy periods; generally, they would look after customers, leaving Mrs. Audisho free to do other things. Mrs. Audisho testified that she worked alone about 40 hours a week; the rest of the time, she had someone helping her. She rarely had time to sit down for lunch, but usually had a snack while working. Mr. Chabhar testified that he never had time to sit for even 10 or 15 minutes. I accept the evidence of Mrs. Audisho and Mr. Chabhar about the pace of work. It is consistent with the contract's financial arrangements, which, as Mr. Chabhar testified, mean a store is profitable only if run as a family business.
I find that the functional requirements of this job included: standing and walking; bending, reaching, and twisting; and lifting and carrying. I accept that the job involved long hours and allowed few opportunities for rest, although it did allow for frequent changes of position.
The Applicant's condition after the accident:
Immediately following the accident, Mrs. Audisho was taken by ambulance to St. Joseph's Health Centre, where she complained of a headache and pain in her neck and left knee. X-rays of her knee and cervical spine were negative. She was discharged with Tylenol 3.
Mrs. Audisho terminated her contract with Becker's around October 10, 1992. She testified that she left the store because she was worried about shortages or other problems arising in her absence, and she didn't think Becker's management would put up with her absence for long.
Dr. M. Hickey was Mrs. Audisho's family doctor at the time of the accident. His records were filed (Exhibit 1, Tab 2). Mrs. Audisho saw him on August 24, 1992, the day after the accident, complaining of pain in her neck, back, hips, legs and left knee. Her back pain had gotten worse since the accident. Dr. Hickey prescribed analgesics, muscle relaxants, and antidepressants. He also referred Mrs. Audisho to the Physiotherapy Centre of Southwestern Ontario, where she attended about seven times a month between September 18, 1992 and April 7, 1993 (letter of Julie Holmes, dated March 16, 1994, Exhibit 1, Tab 6). In his report to the Insurer dated December 27, 1992, Dr. Hickey stated that Mrs. Audisho could not yet return to work, but after finishing physiotherapy, "she may be able to start on a gradual return to work on light duties with no heavy lifting or repetitive bending or twisting jobs".
Dr. E.J. White, orthopaedic specialist, examined Mrs. Audisho at the Insurer's request on February 8, 1993 (report, dated February 8, 1993, Exhibit 1, Tab 3). He recommended exercise and a back education program. He opined that no more than another six weeks of physiotherapy would be useful. He did not feel that "she could legitimately handle" the "physically demanding" work at the store yet, but he expected that she would be able to return to work part-time in another six to eight weeks, gradually increasing to full-time over a further period of six to eight weeks.
On final physiotherapy assessment on April 7, 1993, Mrs. Audisho said her neck felt better, but she still had low back pain and headaches. Physiotherapist Theresa Donovan felt her progress had plateaued, but recommended she continue with strengthening exercises at home (Discharge summary, dated June 8, 1993, Exhibit 1, Tab 6).
On April 27, 1993, Mrs. Audisho was examined by Dr. Robert Teasell, a physiatrist, to whom she had been referred by Dr. L. Wills, her family doctor after December 1992. Dr. Teasell also examined the Applicant on August 18 and October 26, 1993. Dr. Teasell testified at the hearing, and his report, dated October 8, 1993, was filed (Exhibit 1, Tab 7).
On examination, he found tenderness over the sacral, lumbar and cervical areas, and in the shoulders. Motion was restricted in the neck and low back. Examination, CT scan and EMG were negative for neurological problems. The CT scan of the lumbosacral spine showed degenerative changes consistent with normal wear and tear, though "a little unusual" for a 31-year old. Dr. Teasell did not believe these changes were the source of her current problems, and noted that asymptomatic individuals may have similar findings. Dr. Teasell found no evidence of left leg radiculopathy, and opined that Mrs. Audisho was not a candidate for surgery. He recommended strengthening exercises, analgesic and antidepressant medication, and stated that a psychologist "might be of some benefit in helping her to cope better".
In his October 1993 report, Dr. Teasell stated that he did not expect that Mrs. Audisho would return to her pre-accident job on a full-time basis (40 hours a week), given the persistence of her symptoms. He would put the following restrictions on her: no repetitive bending or twisting at the waist, no heavy lifting (more than 10 kg), no repetitive lifting of more than 5 kg, no lifting from floor to waist, and no prolonged standing or sitting.
Dr. Teasell referred Mrs. Audisho for physiotherapy at University Hospital. She attended four times between June 8 and August 6, 1993, for exercises and TENS treatment. On discharge it was recommended that physiotherapy be discontinued because of Mrs. Audisho's pain behaviours, anxiety and apprehension, and poor insight into her problems. She was advised to continue with home exercises (Exhibit 3).
Dr. V. Papukna took over Dr. Wills' practice and began treating Mrs. Audisho in September 1993. In her report of March 23, 1994 (Exhibit 1, Tab 12), Dr. Papukna gave her opinion that Mrs. Audisho could not yet "manage a full time job especially one involving lifting, stocking shelves, stocking freezers or cleaning floors."
On October 20, 1993, Mrs. Audisho was examined at the Insurer's request by Dr. Michel Lacerte, physiatrist. Dr. Lacerte testified at the hearing, and his report, dated November 15, 1993, was filed (Exhibit 1, Tab 9). Dr. Lacerte identified a number of indications that Mrs. Audisho's symptoms were non-organic. He recommended an Obus Forme, and assessment and treatment by a psychologist. He also recommended that an occupational therapist should develop a "progressive return to essential home activities and work program". In his opinion, Mrs. Audisho was "medically fit" to do all her administrative tasks at work, but should avoid "repetitive bending, lifting, twisting and carrying or one time lifts greater than 10-15 lbs, for the first 2-3 months."
Reasoning:
None of the doctors who have examined Mrs. Audisho question the authenticity of her complaints. Even Dr. Lacerte agreed, in his testimony at the hearing, that her pain is "real". Nor have the doctors suggested that Mrs. Audisho is able to return to her pre-accident occupation. Mrs. Audisho's testimony at the hearing was consistent with her reports to all the doctors who examined her. I am satisfied that Mrs. Audisho cannot perform the essential tasks of her job as a Becker's store manager. Aside from a small amount of administrative work, the job involves repetitive bending, reaching, twisting, lifting, carrying, standing, and walking. Hours are long. I find that while Mrs. Audisho might be able to perform some of her tasks for a limited time, she is not able to return to the full-time work she was doing before the accident on a remunerative basis.
The Insurer submits that because Mrs. Audisho worked as an independent contractor, she had some control over her tasks, and could assign the heavier jobs to employees. In particular, the Insurer suggested that Mrs. Audisho's husband could have helped her. It was also suggested that he might have replaced her right after her accident, so that she would not have had to terminate the contract with Becker's.
I accept that Mrs. Audisho had more control over her work than a typical employee who responds to the direction of management. However, the evidence is compelling that the job imposed its own very stringent requirements on her throughout the day. The store had to be opened on time and kept open all day, as Becker's management required. Customers had to be served promptly. Deliveries had to be dealt with when they arrived. Paperwork had to be done on a regular schedule, and had to be signed by the manager. Staff had to be supervised. Maintaining the security, safety and cleanliness of the store was a constant concern.
Because the contract manager was liable under the contract for any inventory losses, and was subject to rigorous scrutiny by Becker's management, I accept that Mrs. Audisho could delegate only a few of her duties. In any case, it is the Applicant's disability for which the Insurer is liable; that her husband could step in for her is no answer to the claim. Mrs. Audisho's disability meant that the family now had only one person working in the store, rather than two. Part-time employees might not be reliable, and increasing staff time would reduce the profitability of the business. I accept that Mrs. Audisho terminated the arrangement with Becker's in October 1992 because she felt she could not perform her essential tasks.
The main issue in this case is the dispute between Dr. Teasell and Dr. Lacerte about the proper approach to chronic pain. They agree that there is a significant behavioural or psychological element contributing to Mrs. Audisho's disability. Both suggest psychological assessment and treatment. They agree that Mrs. Audisho cannot return to full-time work, but may be able gradually to return to part-time modified work. Though Dr. Teasell would place more restrictions on Mrs. Audisho than would Dr. Lacerte, the doctors agree that she should avoid repetitive bending, twisting, or lifting, and one-time heavy lifting. At the hearing, Dr. Lacerte testified that the restrictions he recommended in his report are not necessary from a medical point of view, but are intended to "get a buy-in from the person". This view is not reflected in the report. In fact, he states in his report that failure to involve an occupational therapist in Mrs. Audisho's return to work "will significantly jeopardize vocational outcome".
The different approaches to chronic soft tissue pain have been dealt with in a number of previous arbitration decisions. I agree with the comments made by Arbitrator David Draper in his decision, Jodi E. Wiseman and Coachman Insurance Company, June 10, 1994, OIC File No. A-005706, as follows:
After reviewing the medical evidence, I am left with the impression that the differences in the medical opinions relate as much to the philosophy and approach that each professional takes to soft tissue injuries, as it does to Ms. Wiseman's particular situation. The dilemma that they all face is how to respond to chronic complaints of pain when there is no evidence of bony or neurological injury. The professionals supporting Ms. Wiseman's claim, Dr. Walsh, Dr. Finestone and Ms. Gowen, seem to accept pain as a limiting factor, and are more accepting of therapy as a means of helping people deal with their pain. The orthopaedic surgeons, particularly Dr. Hall, express the view that although the pain is real, the best approach is to get the person back to work after a short period of physiotherapy. Dr. Hall emphasized that working through her pain could not harm Ms. Wiseman, and would probably help.
In my view, the test under section 12 of the Schedule, "substantial inability to perform the essential tasks of his or her occupation or employment", is not limited to a consideration of whether the person can perform his or her pre-accident job tasks without risking further injury. It requires an assessment of whether or not the person is reasonably able to return to his or her pre-accident work. As Dr. Finestone said in his testimony, the question in this type of case is always, how much pain is too much?
The Insurer contends that Mrs. Audisho has not demonstrated any intention to return to work and has been non-compliant with the recommendations of her doctors. In October 1992, Dr. Hickey arranged an appointment with Dr. Clifford, an orthopaedic consultant, for May 1993. Shortly thereafter, Mrs. Audisho stopped seeing Dr. Hickey and began seeing Dr. Wills as her family doctor. Mrs. Audisho testified that she cancelled the appointment with Dr. Clifford when Dr. Wills suggested she see Dr. Teasell instead, because Dr. Teasell could see her sooner. I think it likely that Mrs. Audisho preferred to see Dr. Teasell rather than Dr. Clifford because the different approaches these two doctors take to chronic pain are well known. I am troubled by this pattern of events. Further, Mrs. Audisho testified that her ongoing exercise program consists only of walking about 15 minutes a day, when the weather is nice, and doing some "turning around" and "forwarding" exercises. Finally, she refuses to see a psychologist, despite the recommendation of both Dr. Teasell and Dr. Lacerte.
An insured person claiming statutory accident benefits has an obligation to actively pursue her own rehabilitation. However, chronic pain is so commonly associated with depression, a focus on pain and disability, and a sense of helplessness, that the presence of these psychological factors cannot by itself preclude entitlement to statutory accident benefits. In this case, I am not persuaded that Mrs. Audisho's failure to embark on a vigorous rehabilitation program is so significant a factor in her ongoing disability as to amount to an intervening cause which would preclude her from receiving benefits.
In April 1993, when benefits were terminated, none of the doctors who had examined Mrs. Audisho felt that she was ready to return to work. At the hearing, the Insurer did not explain the termination of benefits in April, but relied on Dr. Lacerte's October 1993 report. However, Dr. Lacerte did not say in his report that Mrs. Audisho could return to full-time regular work. He opined that she was fit to do her administrative tasks, but he placed restrictions on her physical activities, and recommended that an occupational therapist be retained to develop a progressive return to work program; this was not done.
I accept that at the time of the accident Mrs. Audisho was depressed over the death of her son, and that her depression will likely prolong her recovery from her accident-related injuries. However, at the time of the accident, Mrs. Audisho was working long hours at a demanding and responsible job, despite the tragic death of her son several weeks earlier. The pre-accident medical records suggest that she was depressed because of her son's death, but she was not disabled.
The Insurer submits that Mrs. Audisho has made "other life choices", that she does not want to return to work, but intends to stay home to raise her family. I heard no evidence in support of this submission. The fact that an insured person has family responsibilities is not evidence of poor motivation.
Finally, the Insurer contends that Mrs. Audisho's problems relate to her current pregnancy. This submission is not borne out by the records of Mrs. Audisho's family doctors, which indicate that Mrs. Audisho has complained about headache, neck and back pain from the time of the accident, and not before. Mrs. Audisho testified that the pain she feels during the pregnancy is the same kind of pain she had before the pregnancy, only worse. This is consistent with her complaint to Dr. Papukna on March 22, 1994. I accept that the pregnancy has aggravated her pain, but is not of such causal significance as to relieve the Insurer of liability for benefits.
I accept that Mrs. Audisho remains substantially unable to perform the essential tasks of her pre-accident occupation as a Becker's store manager.
Expenses:
The Applicant is entitled to her expenses incurred in the arbitration. I will remain seized of the issue of expenses. If the parties are unable to agree on the amount owing, either of them may bring the matter before me for determination.
Order:
Mrs. Audisho is entitled to weekly income benefits after April 20, 1993. The total amount of benefits payable should be reduced by $1,702.50, the amount by which benefits were overpaid to April 20, 1993. Mrs. Audisho is entitled to interest as provided under section 24 of the Schedule.
Mrs. Audisho is entitled to her expenses incurred in the arbitration.
November 7, 1994
Nancy Makepeace
Arbitrator
Date
APPENDIX - THE RECORD
Exhibits:
Exhibit 1
Joint medical brief
Tab 1
Emergency Record of St. Joseph's Health Centre, dated August 23, 1992
Tab 2
Records of Dr. Hickey
Tab 3
Report of Dr. White, dated February 8, 1993
Tab 4
Curriculum Vitae of Dr. White
Tab 5
Tab 6
Report of the Physiotherapy Centre of Southwestern Ontario, dated March 16, 1994
Tab 7
Report of Dr. Teasell, dated October 8, 1993
Tab 8
Curriculum Vitae of Dr. Teasell
Tab 9
Report of Dr. Lacerte, dated November 15, 1993
Tab 10
Curriculum Vitae of Dr. Lacerte
Tab 11
Records of Dr. Wills
Tab 12
Report of Dr. Papukna, dated March 23, 1994
Exhibit 2
Joint income and expenses brief
Tab 1
Becker Milk Company Contract
Tab 2
Statement of Income of Mariam Audisho for Year End, dated September 30, 1992
Exhibit 2
cont'd
Tab 3
Notice of Assessment for Taxation Year 1992
Tab 4
Report of Coopers & Lybrand, dated August 27, 1993
Tab 5
Correspondence of Kingston & Co., dated March 10, 1993
Tab 6
Correspondence of Kingston & Co., dated July 20, 1993
Tab 7
Tab 8
Tab 9
Taxi Records
Exhibit 3
Consultation note, Dr. R. Teasell, dated October 27, 1993
Exhibit 4
Discharge summary, University Hospital Physiotherapy Services, dated August 6, 1993
Exhibit 5
Becker's Store Manager of the Month Certificate
Exhibit 6
Letter from Robbin Weare to Dr. Lacerte, dated August 18, 1993
Other documents before the arbitrator:
Report of Mediator, dated July 15, 1993
Application for Appointment of an Arbitrator, dated October 6, 1993
Response by Insurer, dated November 1, 1993
Reply by Insured Person, dated November 25, 1993
Pre-hearing letter, dated January 12, 1994