Neutral Citation: 1994 ONICDRG 107
File No. A-003929
ONTARIO INSURANCE COMMISSION
BETWEEN:
BRUNA PISANI
Applicant
and
SIMCOE & ERIE GENERAL INSURANCE COMPANY
Insurer
File No. A-005693
BETWEEN:
BRUNA PISANI
Applicant
and
CANADIAN GENERAL INSURANCE COMPANY
Insurer
DECISION
The Applicant, Bruna Pisani, was injured in a motor vehicle accident on November 13, 1990. She applied for and received statutory accident benefits from the Insurer, Simcoe & Erie General Insurance Company ("Simcoe & Erie"), payable under Ontario Regulation 6721. Simcoe & Erie continued to pay weekly income benefits of $600 per week until October 1, 1992, when benefits were terminated. The Applicant seeks further weekly income benefits between October 1, 1992 and September 25, 1993, when she returned to work.
On April 30, 1992, the Applicant was injured in a second motor vehicle accident. Canadian General Insurance Company ("Canadian General") is liable for any statutory accident benefits that are payable in connection with that accident. Simcoe & Erie seeks repayment from Canadian General of benefits paid between April 30 and October 1, 1992. Canadian General contends that on April 30, 1992, the Applicant was still disabled as a result of the November 13, 1990 accident.
The parties were unable to resolve their disputes through mediation and the Applicant applied for arbitration under the Insurance Act, R.S.O. 1990, c. I.8, as amended.
The issues in this hearing are:
Is the Applicant entitled to weekly income benefits between October 1, 1992 and September 25, 1993?
If benefits are payable between April 30, 1992 and September 25, 1993, are they owed by Simcoe & Erie or Canadian General?
Is the Applicant entitled to reimbursement for her rehabilitation expenses?
The Applicant also claims interest on any outstanding amounts owing, and her expenses incurred in the hearing.
Result:
The Applicant is not entitled to weekly income benefits after October 1, 1992. Further to the parties' agreement at the pre-hearing conference, the Applicant must pay Simcoe & Erie $1,200, with interest, on account of post-accident real estate income she received.
Simcoe & Erie is liable for benefits paid between April 30, 1992 and October 1, 1992. Canadian General is not liable to pay benefits.
The Applicant is not entitled to reimbursement of her rehabilitation expenses.
The Applicant is awarded her expenses incurred in the arbitration.
Hearing:
The hearing was held in North York, Ontario, on February 16 and 17, 1994, before me, Nancy Makepeace, Arbitrator.
Present at the Hearing:
Applicant:
Bruna Pisani
Applicant's Representative:
Altor Shields
Barrister and Solicitor
Insurer's Representative:
(Simcoe & Erie)
Ralph D'Angelo
Barrister and Solicitor
Insurer's Representative:
(Canadian General)
Brian Atherton
Barrister and Solicitor
Witnesses:
Bruna Pisani, the Applicant
Dr. Michael Weinstock
Tricia Doyle, Claims Examiner, Simcoe & Erie
The proceedings were recorded by Louise Perkins, of Rosenberger Weir MacDonald, Court Reporters.
Background:
Bruna Pisani was 29 years old at the time of the hearing. The first of the two motor vehicle accidents with which I am concerned occurred on November 13, 1990. In the year before that accident, Ms. Pisani had begun working as a real estate agent. She contends that she has been substantially unable to return to full-time real estate work since that accident because of pain in her left ankle, left shoulder, neck, and low back. Between January and April 1991, she worked as a host at a restaurant. She claims that she was unable to continue with this job because of her accident-related disabilities. She also received real estate income in 1991. In January 1992, she began working part-time at a cafe owned by her mother. She left this job in mid-April, just before the second accident. She claims that the April 30, 1992 accident aggravated her pre-existing disabilities. She was diagnosed with fibromyalgia in March 1993. In September 1993, she returned to work in a cafe owned by her husband.
Weekly Income Benefits:
The test for entitlement to weekly income benefits is set out in subsection 12(1) of the Schedule, 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.
The Applicant is entitled to weekly income benefits from Simcoe & Erie during the period when she was substantially unable to work as a real estate agent as a result of injuries sustained in the November 13, 1990 accident. At the pre-hearing, the parties agreed that any weekly income benefits for which Simcoe & Erie is liable are payable at the rate of $600 per week.
(a) The Applicant's essential tasks as a real estate agent:
Ms. Pisani testified about her duties as a real estate agent. I accept that her essential tasks included: researching the market; preparing and distributing advertising flyers; listing properties; measuring and inspecting the interior and exterior of properties; hosting and attending open houses; negotiating with buyers and sellers; preparing, presenting and receiving offers; and attending development and staff meetings.
I find that the functional requirements of the job included: driving, sitting, walking, standing, using the telephone, climbing stairs, typing and computer work, working long hours, being available by pager 24 hours a day, bending and reaching, light lifting and carrying.
(b) Prior Injuries:
Prior to the November 13, 1990 and April 30, 1992 motor vehicle accidents, Ms. Pisani had been injured in two previous motor vehicle accidents, and two slip-and-fall accidents. She testified about these injuries, which were also documented in the records of Dr. M. Weinstock, who has been her family doctor since October 1988, the reports of Dr. K. Budhwa, her previous family doctor, and the reports of Dr. J. Ogilvie-Harris, orthopaedic specialist, who examined her in respect of the previous accidents.
On August 1, 1986, Ms. Pisani's vehicle was rear-ended, and she suffered headaches and pain in her neck and low back. She was seen in emergency the same day. She saw Dr. Budhwa on August 7. On examination, he found tenderness in the left paracervical muscle, and reduced motion of the cervical spine. On August 15, Ms. Pisani had "improved a great deal" (report of September 10, 1986, Exhibit 1, Tab 1). Dr. Budhwa's report of June 3, 1987 (Exhibit 1, Tab 2), states that he had not seen her since August 15, 1986.
At the time of the 1986 accident, Ms. Pisani worked full-time at a clothing store which she owned. After the accident, she took a couple of weeks off. When she returned to work, she cut the store's hours, because she could not afford to hire someone to help her.
Ms. Pisani was involved in another rear-end collision on May 26, 1987. She testified that by this time, she had returned to "a fair number" of her activities after the 1986 accident, but the 1987 accident aggravated her previous injuries, and "put [her] back to square one". Dr. Ogilvie-Harris' report of August 19, 1987 (Exhibit 1, Tab 3), says that "before the second motor vehicle accident she continued to have pain in the left side of her neck. It would radiate down into her left shoulder and shoulder blade. Sometimes she would have numbness of the whole left arm." She also had low back pain. According to Dr. Ogilvie-Harris, she had not resumed doing her heavier tasks at home or at work.
Ms. Pisani testified that after the second accident she stayed home for "a couple of days", then returned to work with the help of her mother and her cousin. When she saw Dr. Ogilvie-Harris on August 10, 1987, she reported that her neck, shoulder and low back pains were worse, and she continued to have pain "most days". Dr. Ogilvie-Harris opined that the May 1987 accident had aggravated the soft tissue injuries to the cervical and lumbar spine sustained in the 1986 accident. He expected that Ms. Pisani would have pain for "at least another two or three years" from the time of the 1987 accident, and that she would not be able to resume her heavier activities for about six months.
In the winter of 1987-88, Ms. Pisani fell on a friend's driveway and fractured her tailbone. She had headaches, and pain in her lower back and tailbone. She was in hospital for almost two weeks, then spent a couple of weeks at home; she testified that eventually she recovered completely. Dr. Ogilvie-Harris stated in his report of June 8, 1988 (Exhibit 1, Tab 4), that this accident did not aggravate her previous injuries. However, she continued to have pain in her left shoulder blade, radiating into the supraspinatus and upper paracervical area, which was sometimes associated with numbness in her left arm and tingling in her fingers. Ms. Pisani also reported ongoing neck and left shoulder pain to Dr. Budhwa on July 14, 1988 (report of July 15, 1988, Exhibit 1, Tab 5).
Dr. M. Weinstock has been the Applicant's family doctor since October 21, 1988. He testified at the hearing, and his reports and clinical notes were filed. On her first visit, Ms. Pisani complained of left neck and left trapezial muscle pain "almost all the time", left parascapular pain, upper back pain and tenderness, lower back ache, occasional tingling and numbness in her left arm. Left shoulder movements were limited to about 90% of normal (report of September 7, 1989, Exhibit 1, Tab 6).
On November 7, 1988, Ms. Pisani slipped on a wet floor in the produce department of a supermarket. She fell onto a display case, cutting her left shin open, and twisting her back. She reported to Dr. Weinstock that her mid-back was sore. On April 7, 1989, she told him this incident had affected her back problem for only about a week (report of September 7, 1989, Exhibit 1, Tab 6).
Ms. Pisani's last visit with Dr. Weinstock before the November 30, 1990 accident was on May 15, 1990. She complained of intermittent left shoulder pain at least once every two days, neck and lower back ache, and right rib pain. Dr. Weinstock understood that she was working full-time as a real estate agent, but they did not discuss her ability to work.
Ms. Pisani was examined by Dr. Ogilvie-Harris on November 7, 1990, just six days before the first of the two motor vehicle accidents at issue in this case. In his report (November 20, Exhibit 1, Tab 7), Dr. Ogilvie-Harris stated that Ms. Pisani continued to complain of pain in her left shoulder (about two days a week), pain at the base of her skull, numbness in the fingers of her left hand, and occasional headaches. She told him that she had "no particular problems" with her real estate work. On examination, Dr. Ogilvie-Harris found tenderness in the left shoulder blade and supraspinatus area. He diagnosed "a chronic muscle sprain to the left supraspinatus area and to the area of the left shoulder blade", resulting from the motor vehicle accidents of 1986 and 1987. He predicted that she would gradually recover from the 1987 accident over a period of five years or so.
(c) The November 13, 1990 motor vehicle accident:
Ms. Pisani testified that on November 13, 1990, she was the unrestrained front-seat passenger in a southbound vehicle which was broad-sided on the driver's side by a westbound vehicle. She fell forward to the dashboard, then onto the floor, hit her left wrist on the heating and air conditioning control, hit her knees under the dashboard, and hit her head on the panel between the right front and back doors. She immediately had pain in her left wrist and thumb, left shoulder, neck, and back. She also had a headache.
She went to Mississauga Hospital, where x-rays of her knees and left wrist were taken; results were negative. She was discharged with Tylenol. The next day, November 14, 1990, she saw Dr. Weinstock. She complained of pain in her neck, left shoulder and scapula, low back, and right rib cage. She was anxious and had knee contusions (Form 4 report, Exhibit 1, Tab 20). Ms. Pisani claims that these injuries have affected her activities of daily living. She is stiff in the morning and needs a long time to loosen up and prepare for the day. Her husband, her mother and a friend help with the household tasks. She cannot use the vacuum, drive long distances, downhill ski, play tennis, decorate, or sew.
According to Ms. Pisani, she has not been able to return to full-time work as a real estate agent since the accident. Her main problem has been left neck, shoulder and low back pain. Headaches lasting between half an hour and a day accompany her shoulder pain. Because of these problems, she could drive only a short distance to view a house, and she would have neck and back pain and a headache by the time she returned. She could not drive prospective buyers to enough showings to make a sale. She also developed a problem with her left foot and ankle. Because of this problem, she could distribute flyers on foot for a day at a time, but not on a daily basis. She also found it difficult to get in and out of a car, to climb stairs, to bend and reach (when inspecting and measuring a house), and to lift, install and remove "for sale" signs.
Ms. Pisani tried to return to work, but found she could not meet clients' demands, and needed assistance from her co-workers to do many of her tasks. She found it difficult to get going in the morning. It was also difficult to be on call, and at times she could not respond to calls because she was resting or in pain. She recalled an incident when someone called her to list a cottage in Wasaga Beach. She was forced to refer the property to another agent because she was unable to drive there. However, she admitted in her testimony that she received real estate commission in connection with six transactions in 1991, as set out in a letter from Nu-Vista Realty, dated February 8, 1993 (Exhibit 7).
In January 1991, Ms. Pisani began working as a host at Tony's Trattoria, a restaurant. Her duties were to greet, chart and seat customers, hang their coats, and give them a menu. According to Ms. Pisani, she had constant low back problems while doing this job. She also complained of left ankle pain which she described as "just unbelievable". She testified that with every ten steps or so, her ankle would "crack". She would have a piercing pain for about five minutes, and the ankle would continue to ache afterwards. The restaurant's stairs and terracotta floor added to her problems. She took Tylenol "all the time", and wore rubber-soled shoes. She testified that she resigned in April 1991 because she could not do the work, and felt co-workers were irritated with her, because of her disability.
Dr. J. Halpenny examined Ms. Pisani at the Insurer's request on July 11, 1991 (Exhibit 2, Tab 1). It was his opinion that the November 13, 1990 accident aggravated her left shoulder and scapula injury, and her mid and low back problems, both of which she had suffered from before the accident. According to Dr. Halpenny, Ms. Pisani told him that the shoulder bothered her on an almost daily basis, and that she had had these symptoms since the 1986 accident. Dr. Halpenny thought that the ankle symptoms "did not develop until December 1990 and are likely not related to her accident". He expected that she would be able to resume part-time work as a real estate agent after another four to six weeks, and resume full-time work within another four weeks. He found her well-motivated, but did not expect total resolution of the shoulder and back problems.
In January 1992, Ms. Pisani began working in a small cafe owned by her mother. She worked between two and five days a week, two to four hours a day. She was paid $120 cash per week, no matter how many hours she worked. Her duties included: cash; making and serving coffee; slicing, serving, and decorating cake; ordering milk and cake by phone; preparing gift baskets; clearing tables; and a little paperwork. The Applicant's mother, husband and cousin also worked in the cafe. Ms. Pisani testified that while she worked, she had pain in her left arm, shoulder and neck, mid-back, left ankle and left wrist. Prolonged standing or sitting caused problems. She continued to take Tylenol and muscle relaxants. Sometimes she would have to go home to lie down; the cafe was next door to her home.
At the Insurer's request, Ms. Pisani was examined by Dr. Halpenny again on April 10, 1992 (Exhibit 2, Tab 2). According to Dr. Halpenny, Ms. Pisani said that her neck and shoulder problems "were worse" and her ankle and foot problem "much worse" than in July 1991. She continued to report headaches, low back pain, and tingling in her left hand.
Dr. Weinstock reported that Ms. Pisani was unable to work as of April 15, 1992, because of worsening left neck and shoulder, lower and mid-back, and left ankle pain (reports of May 28, 1992 and July 8, 1993, Exhibit 1, Tabs 10 and 14).
Ms. Pisani stopped working at the cafe around April 20-25, 1992, shortly before the second accident. Simcoe & Erie continued to pay benefits until October 1, 1992, when benefits were terminated.
(d) The April 30, 1992 accident:
On April 30, 1992, Ms. Pisani was involved in another accident. She was driving southbound when a car travelling northbound turned west, hitting her car between the front and back doors on the driver's side. Her head and neck struck the headrest, and her left forearm hit the car door. She described this as the more serious of the two collisions, and stated that the car had over $4,000 damage.
After the accident, she testified that she was "in shock" and trembling. Her neck was very sore and stiff, and she had a bad headache. She was taken by ambulance to hospital. X-rays showed no fractures. She was discharged, and stayed with her mother for a couple of days. Her neck and lower back pains were worse. Her headache was constant for about two weeks. She also began having trouble sleeping, which made it difficult to get up in the morning, and she found she had little energy throughout the day.
Ms. Pisani's first visit to Dr. Weinstock after this accident was on May 22, 1992. She complained that her neck, lower back, and left ankle pain were worse, and she had more frequent headaches. She had a new problem in her left hip.
Dr. Ogilvie-Harris examined Ms. Pisani on January 18, 1993. It was his opinion that the 1990 and 1992 accidents had aggravated her shoulder, neck and lumbar spine injuries, and it would be around five years (from 1992) before she saw substantial resolution of those symptoms (report dated January 28, 1993, Exhibit 1, Tab 12).
Ms. Pisani next saw Dr. Weinstock on February 1, 1993. According to Dr. Weinstock, symptoms of fibromyalgia began to appear about this time. He referred her to Dr. Israelson, a neurologist, and to Dr. Chaiton, a rheumatologist. A diagnosis of fibromyalgia was confirmed. Dr. Weinstock prescribed an antidepressant and an active exercise program. Dr. Weinstock testified that Ms. Pisani began to improve around the summer of 1993.
At the end of September 1993, Ms. Pisani returned to work at a cafe opened by her husband. The cafe was similar to her mother's cafe, and her duties were also similar. Her hours of work varied, depending on how she felt. She tried to work five days a week, but sometimes could only manage several hours in the evening. She earned $300 per week.
Ms. Pisani claims that she continues to suffer pain in her neck, left shoulder, low back, and left ankle. She still has headaches, and her sleep is disturbed. She has had more sciatic problems since returning to work. She now has a problem with her left thumb, which "locks" and must be adjusted. Finally, she still has the tenderpoints characteristic of fibromyalgia. She continues to receive chiropractic care, and sometimes has physiotherapy or massage treatment. She has returned to most of her household tasks, but "most of the time" she cannot complete them. She still dances and sews less frequently than before the accident.
(e) Reasons:
I am satisfied that Ms. Pisani was injured in the accident of November 13, 1990. I am also satisfied that she continues to suffer pain and disability as a result of that accident. However, I am not satisfied that she was substantially unable to work as a real estate agent after October 1, 1992, when Simcoe & Erie terminated her benefits.
Ms. Pisani's 1991 real estate income included two referral commissions, and commissions in connection with the purchase of a business, two purchases of property, and a lease. Ms. Pisani testified that she only got involved in these transactions because friends had called her, and she didn't want to turn them away. She testified that she was unable to do the work herself, and another agent in her office, a Mr. J.S., did the work on these deals. However, she received commission of $7,826.25, as set out in the letter from Nu-Vista and in her 1991 T4 slip (Exhibit 8). She says that J.S. had already been paid by the broker for his involvement. J.S. did not testify at the hearing. Trade Record Sheets were filed pertaining to the lease and one of the property purchases. Neither indicates any special arrangement with regard to commission (Exhibits 3 and 4), nor does the letter from Nu-Vista. In the absence of persuasive evidence corroborating the Applicant's testimony, I think it is likely that the Applicant did the work on these transactions herself.
I find that Ms. Pisani was actively pursuing real estate work throughout 1991. Her gross real estate income in 1991 ($7,826.25) was half her 1990 income ($16,058.56), but no evidence was presented to corroborate Ms. Pisani's claim that her income fell in 1991 because she was disabled and unable to work full-time. Moreover, I am troubled that she did not tell the Insurer about her 1991 real estate income until February 1993 (Exhibit 7). In her testimony, she did not explain why she failed to disclose this income. Ms. Pisani had just started working in real estate the year before the accident. I find it likely that her low income in both years - 1990 and 1991 - was a function of her being a new agent in a difficult market.
On cross-examination, Ms. Pisani conceded that an insurance investigator could have observed her "walking briskly" for 3.4 km through her neighbourhood on May 12, 1992. I am troubled by this admission, which is inconsistent with Ms. Pisani's testimony that she could work as a real estate agent only "if she could work from a phone".
However, on balance, I am prepared to accept that she was substantially unable to work as a real estate agent until October 1992. The records of her treating doctors and the doctors who examined her on the Insurer's behalf, indicate that Ms. Pisani made consistent and specific complaints about her problems. None of the doctors suggested that her problems were not genuine.
Moreover, I accept that she was unable to work part-time in her mother's cafe after April 1992 because of her ongoing problems. I find that this job was much less demanding than real estate work. The hours were fewer and more flexible, and there was no driving involved. Her duties were flexible, so that she was not required to stand or sit too long. She received the same pay no matter how many hours she worked. Most importantly, since the cafe was owned by her mother, she did not feel the need to be competitively productive.
I accept that an insured person should not be precluded from receiving weekly income benefits because she has tried to return to work. As long as an insured person remains "substantially disabled" from performing the essential tasks of her pre-accident occupation as a result of the accident, she is entitled to receive weekly income benefits, less 80% of income received or available, further to section 15 of the Schedule. I also accept that an insured person who is able to perform her pre-accident occupation on such a limited basis that the occupation is not remunerative, remains substantially disabled, within the meaning of section 12. (See, for example, Donna Flemming and Wawanesa Mutual Insurance Company, April 28, 1992, OIC File No. A-000406, and Vincenza Di Censo and Wellington Insurance Company, August 31, 1994, OIC File No. A-004198).
Ms. Pisani's complaints of neck and left shoulder pain, occasional numbness in her left arm and tingling in her fingers, began after the accident of August 1, 1986. These problems were serious enough that she cut her store's hours after the 1986 accident, because she could no longer work full-time. The May 26, 1987 accident aggravated these symptoms, and she eventually closed the store.
In this case, involving two prior motor vehicle accidents and two prior slip-and-fall incidents, it is difficult to determine the significance of the November 13, 1990 accident. If I am wrong in finding that Ms. Pisani was able to return to real estate work by October 1, 1992, I am not satisfied that any subsequent disability resulted from the November 13, 1990 accident. I find it likely that the Applicant decided to make a career change some time in late 1991, and that her injuries resulting from the November 1990 accident contributed to this decision, along with general economic conditions, opportunities presented by her family, and her ongoing problems resulting from prior accidents.
Aside from her neck and shoulder problems, Ms. Pisani also contends that she suffers from left ankle and foot problems as a result of the November 1990 accident. I am not satisfied that the accident significantly contributed to these problems. There is no suggestion that the accident involved any injury to her left ankle and foot. Ms. Pisani testified that she first had serious ankle problems while working at Tony's Trattoria in early 1991, though her ankle had "cracked" once or twice in December. The ankle problem is first reported in Dr. Weinstock's note of March 13, 1991, some five months later. It is given little attention in the note for April 16, when Ms. Pisani's main complaint was thoracic back pain. Dr. Weinstock's Form 4 report of May 3, 1991 does not mention the problem at all.
Dr. Weinstock referred the Applicant to Dr. English, an orthopaedic consultant, for the ankle problem. In his consultation note of March 21, 1991 (Exhibit 1, Tab 18), Dr. English reported that Ms. Pisani "has a several year history of left ankle pain which came once in a while....However it has recently become quite a bit worse." [emphasis added] Dr. English thought the problem was related to tendon inflammation; he did not mention the motor vehicle accident in his report.
I am not persuaded that Ms. Pisani's left ankle and foot problems are disabling. The medical records of Dr. Weinstock and Dr. English suggest that in her visits with her doctors, Ms. Pisani did not give these problems the emphasis she did in her testimony at the hearing. I am also troubled by her admission with regard to the surveillance conducted on May 12, 1992. In any case, I am not satisfied that any ankle and foot problems she has resulted from the November 13, 1990 accident.
For all these reasons, I am not satisfied that Ms. Pisani was substantially unable to work as a real estate agent after October 1, 1992, as a result of the November 13, 1990 accident.
Counsel for Canadian General contended that since the Applicant was not employed at the time of the April 30, 1992 accident, and had not worked for 180 days in the previous year, she is entitled only to benefits of $185.60 per week under section 13 of the Schedule for any period during which she was substantially disabled from the essential tasks in which she would normally engage. Applicant's counsel submitted that the Applicant should be treated as employed, on the basis of her work in her mother's cafe (January through April 1992) and her work as a real estate agent in the year prior to the accident. Applicant's counsel further submitted that the Applicant's total income from both jobs should be averaged over the number of weeks she actually worked, using the formula set out in Vincenzo Scavuzzo and Canadian Home Assurance Company, March 18, 1992, OIC File No. A-000626, upheld on appeal. Counsel for Canadian General contended that if the Applicant is treated as employed under section 12, her income should be averaged over 52 weeks, using the formula set out in Chuong Vo and Maplex General Insurance Company, October 4, 1993, OIC File No. A-002777, under appeal.
I do not find it necessary to decide these issues. Whether Ms. Pisani's essential tasks at the time of the April 30, 1992 accident were those of a real estate agent, cafe worker, or unemployed person, I am not satisfied that the accident of April 30, 1992 substantially contributed to any disability she suffered between that date and October 1, 1992.
The medical documents filed confirm that Ms. Pisani suffered a flare-up of her neck, shoulder and back problems, as well as her left ankle problems, shortly before the 1992 accident. Ms. Pisani agreed in her testimony that she had told Dr. Halpenny that her symptoms were "much worse" on April 10, 1992 (Exhibit 2, Tab 2). It was because of this flare-up of her pre-existing problems that she quit the cafe job in late April 1992.
Despite Ms. Pisani's testimony that the second accident was the more severe of the two, it does not seem to have significantly aggravated her symptoms. As stated above, she admitted that she might have been observed "walking briskly" for 3.4 km on May 12, 1992, less than two weeks after the accident. Moreover, she did not see Dr. Weinstock until May 22, about three weeks after the accident. Her next visit with Dr. Weinstock was some eight months later, on February 1, 1993. Dr. Weinstock's note for that visit states "this flareup could have occurred after she went to a dance and she danced four dances". In cross-examination, Ms. Pisani admitted that this "could be" accurate.
Ms. Pisani claims that she began to develop sleeping problems and "a different kind of pain" after the April 1992 accident. She was diagnosed with fibromyalgia in 1983 (report of Dr. A. Chaiton, rheumatologist, April 22, 1993, Exhibit 1, Tab 17).
It is very difficult to determine which accident or accidents significantly contributed to the Applicant's fibromyalgia. The April 30, 1992 accident was the Applicant's sixth soft tissue injury in six years. The diagnosis of fibromyalgia was made some ten months after the 1992 accident and a little over two years after the 1990 accident. I accept that the 1990 and 1992 accidents aggravated Ms. Pisani's neck, shoulder and upper back symptoms and contributed to her subsequent development of fibromyalgia. I am not satisfied that they significantly contributed to the severity or duration of her symptoms.
(f) Repayment:
Arbitrator K. Julaine Palmer's pre-hearing letter of November 9, 1993, says:
The parties agree that, because of amounts earned by Ms. Pisani while she was receiving weekly income benefits in June 1991 and October, 1991, Simcoe & Erie is entitled to a credit of $1,200 against any weekly income benefits owed by them or to a repayment of $1,200 in the event no further sums are owing by them.
Tricia Doyle, Supervisor of the Accident Benefit Unit at Simcoe & Erie, testified that Ms. Pisani's weekly income benefits of $600 per week were suspended after January 28, 1991, when the Insurer learned, through its investigation, that she was working at Tony's Trattoria. Benefits were resumed on April 25, 1991, when the restaurant confirmed Ms. Pisani's income and dates of employment (Exhibit 9).
In his submissions at the hearing, the Applicant's counsel argued that Simcoe & Erie cannot have the benefit of set-off where the post-accident income was earned during a period when no benefits were being paid. Further, Applicant's counsel argued that where post-accident income in a given week is higher than the benefit owing, the insurer cannot make a deduction from benefits payable for weeks when no post-accident income was received.
Given the agreement reached by the parties at the pre-hearing conference, I do not find it necessary to decide this issue. Further to that agreement, Ms. Pisani will repay $1,200 to Simcoe & Erie, with interest as provided under subsection 27(4) of the Schedule.
Supplementary Medical and Rehabilitation Benefits:
The parties agreed that the Applicant's entitlement to massage therapy and chiropractic treatment in 1993 should be determined in this arbitration, although it was not dealt with at mediation. The expenses incurred are set out in the Applicant's Document Brief (Exhibit 1). The For Your Health Massage Therapy Clinic invoiced Ms. Pisani $1,102.50 for services provided between February and October 1993 (Tab 25). There are also two invoices for chiropractic treatment from Premier Treatment & Health Management Centre (Tab 26) for $100.85 (July 17, 1992) and $877.70 (January 19, 1994), totalling $978.55.
I heard no evidence which would establish that Ms. Pisani's chiropractic treatment in 1993 was of any therapeutic benefit to her.
In his report of July 8, 1993 (Exhibit 1, Tab 14), Dr. Weinstock stated that Ms. Pisani was treated appropriately for fibromyalgia starting in February 1993. Treatment included antidepressants and active exercise. Dr. Weinstock also stated that "massage therapy also helps". For the reasons given above, I am not satisfied that the November 13, 1990 or April 30, 1992 accidents significantly contributed to Ms. Pisani's fibromyalgia. Therefore, I do not accept that Ms. Pisani required treatment in 1993 as a result of the 1990 or 1992 accidents.
Expenses:
I find it appropriate in this case to award the Applicant her expenses incurred in the arbitration. Although she did not succeed, the Applicant brought a legitimate claim raising a difficult question of causation. The Applicant's expenses should be apportioned equally between the Insurers. I remain seized of the issue of expenses. If there is any dispute about the amount of expenses payable, any of the parties may bring the matter before me for determination.
Order:
The Applicant is not entitled to weekly income benefits after October 1, 1992. Further to the parties' agreement at the pre-hearing conference, the Applicant must pay Simcoe & Erie $1,200, with interest, on account of post-accident real estate income she received.
Simcoe & Erie is liable for benefits paid between April 30, 1992 and October 1, 1992. Canadian General is not liable to pay benefits.
The Applicant is not entitled to reimbursement of her rehabilitation expenses.
The Applicant is entitled to her expenses incurred in respect to the arbitration. The expenses should be shared equally by the Insurers. I remain seized of the issue of expenses.
November 7, 1994
Nancy Makepeace
Arbitrator
Date
APPENDIX - THE RECORD
Exhibits:
Exhibit 1
Applicant's Document Brief
Tab 1
Dr. K. Budhwa's Medical Report, dated September 10, 1986
Tab 2
Dr. K. Budhwa's Medical Report, dated June 3, 1987
Tab 3
Dr. D.J. Ogilvie-Harris' Medical Report, dated August 19, 1987
Tab 4
Dr. D.J. Ogilvie-Harris' Medical Report, dated June 8, 1988
Tab 5
Dr. K. Budhwa's Medical Report, dated July 15, 1988
Tab 6
Dr. M. Weinstock's Medical Report, dated September 7, 1989
Tab 7
Dr. D.J. Ogilvie-Harris' Medical Report, dated November 20, 1990
Tab 8
Dr. M. Weinstock's Medical Report, dated October 3, 1991
Tab 9
Dr. D.W. Proud's Medical Report, dated May 1, 1992
Tab 10
Dr. M. Weinstock's Medical Report, dated May 28, 1992
Tab 11
Dr. D.W. Proud's Medical Report, dated November 27, 1992
Tab 12
Dr. D.J. Ogilvie-Harris' Medical Report, dated January 28, 1993
Tab 13
Dr. D.J. Ogilvie-Harris' Clinical Notes
Tab 14
Dr. M. Weinstock's Medical Report, dated July 8, 1993
Tab 15
Dr. M. Weinstock's Clinical Notes to July 1993
Tab 16
Dr. M. Weinstock's Clinical Notes from July 1993
Tab 17
Dr. Chaiton's Medical Report, dated April 22, 1993
Tab 18
Dr. English's Medical Note, dated April 24, 1991
Tab 19
Dr. Kupa's Medical Report, dated November 25, 1993
Tab 20
Dr. Weinstock's O.M.P.P. Report, dated November 14, 1990
Tab 21
Dr. Weinstock's O.M.P.P. Report, dated May 3, 1991
Tab 22
Dr. Weinstock's O.M.P.P. Report, dated December 4, 1991
Tab 23
Dr. Weinstock's O.M.P.P. Report, dated March 5, 1992
Tab 24
Dr. Weinstock's O.M.P.P. Report, dated May 24, 1992
Tab 25
Therapy Expenses, "For Your Health" Massage Therapy Clinic
Tab 26
Therapy Expenses, Premier Treatment & Health Management Centre
Exhibit 2
Insurer's Medical Brief
Tab 1
Dr. J. Halpenny's Medical Report, dated July 11, 1991
Tab 2
Dr. J. Halpenny's Medical Report, dated April 10, 1992
Exhibit 3
Trade Record Sheet, June 19, 1991
Exhibit 4
Trade Record Sheet, October 21, 1991
Exhibit 5
Letter from Judith Anne Pisani, Barbara Caffé, dated February 1, 1994
Exhibit 6
T4 slip, Tony's Trattoria (Classico) I
Exhibit 7
Letter from Philip Sbrocchi, Nu-Vista Realty, to Simcoe & Erie, dated February 8, 1993
Exhibit 8
T4A slips, Nu-Vista Realty, 1990 and 1991
Exhibit 9
Employer's Confirmation of Income, Tony's Trattoria, June 4, 1991
Exhibit 10
Letter from Jeannie Lofranco, Lofranco & Sabetti, to Simcoe & Erie, dated June 10, 1992
Exhibit 11
Letter from Jeannie Lofranco, Lofranco & Sabetti, to Simcoe & Erie, dated September 9, 1992
Other documents before the Arbitrator:
Simcoe & Erie (November 13, 1990 accident):
Report of Mediator, April 7, 1993
Application for Appointment of an Arbitrator, April 9, 1993
Response by Insurer, May 13, 1993
Pre-hearing letter, July 14, 1993
Canadian General (April 30, 1992 accident):
Report of Mediator, August 16, 1993
Application for Appointment of an Arbitrator, August 29, 1993
Response by Insurer, September 16, 1993
Both Insurers:
Pre-hearing letter, November 9, 1993