Neutral Citation: 1994 ONICDRG 12

File No. A-002539

BETWEEN:

JENNIFER I. RUSTICO

Applicant

and

ROYAL INSURANCE COMPANY OF CANADA

Insurer

DECISION

The applicant, Jennifer Rustico, was injured in a motor vehicle accident on October 25, 1990. She applied for accident benefits from the insurer, Royal Insurance, payable under Ontario Regulation 672 as amended under the Insurance Act, R.S.O. 1990, c. I.8.¹

Weekly benefits of $185 per week were paid until September 10, 1991, when they were terminated. Mediation was unsuccessful in resolving the dispute between the applicant and the insurer, and the applicant applied for arbitration under the Insurance Act.

The issues in this hearing are:

Is Mrs. Rustico entitled to weekly benefits after September 10, 1991?
Is Mrs. Rustico entitled to a special award?

Mrs. Rustico also claims interest on any outstanding amounts owing, and her expenses in the arbitration.

Mrs. Rustico is entitled to weekly benefits from September 10, 1991, with interest as provided under section 24 of the Schedule. Mrs. Rustico is also entitled to interest as provided under section 24 on benefits which were overdue when paid as a lump sum in June, 1991.
Mrs. Rustico is entitled to a special award of $2,000, with interest as provided under subsection 282(10) of the Act.

Mrs. Rustico is entitled to her expenses incurred in respect to the arbitration. I remain seized of the issue of the amount of expenses payable.

If the parties are unable to agree, either party may bring the matter before me for assessment.

The hearing was held in Windsor, Ontario, on May 10 and 11, 1993, before me, Nancy Makepeace, arbitrator. Post-hearing written submissions were complete as of July 26, 1993.

Present at the hearing:

Applicant:

Mrs. Jennifer Rustico

Applicant's

Mr. Richard Dinham

Representative:

Barrister and Solicitor

Insurer's

Ms. Jane Milanetti

Representative:

Barrister and Solicitor

Mrs. Rustico's husband also attended the hearing.

Witnesses were Mrs. Rustico and Dr. Maytham, her former family physician, who testified for the insurer.

The proceedings were recorded by Ms. Carolyn Smith of Maxim Reporting Services.

Cases referred to in the insurer's submissions were: Pineda v. Co-operators Group Limited (1985), 1985 CanLII 1924 (ON HCJ), 51 O.R. (2d) 587, and Frezludeen v. Safeco Insurance Company of Canada (1984), 1984 CanLII 2130 (ON HCJ), 47 O.R. (2d) 258.

Background facts

Jennifer Rustico is 25 years old. Until shortly before the motor vehicle accident, she worked at two part-time jobs. She had worked about 15 hours per week as a housekeeping aid at Leamington Nursing Home since August 1986. Beginning in January 1989, she was also employed as a receptionist and chiropractic assistant at Kingsville Chiropractic Clinic, working an average of 15 hours per week.

On June 23, 1989, Mrs. Rustico felt a sudden onset of left neck and shoulder pain while working at the nursing home. She was off work from both jobs for about six months, and received temporary total disability benefits from the Workers' Compensation Board. She returned to light duties at the nursing home on January 2, 1990, and resumed regular duties on March 12, 1990. She returned to her job at the chiropractic clinic several weeks after returning to work at the nursing home. She worked at both jobs until August 26, 1990, when she suffered a recurrence of the left neck and shoulder pain while at work at the nursing home. At the time of the motor vehicle accident, she was off work from both jobs, and receiving temporary total workers' compensation benefits. She was subsequently awarded a 30% permanent partial disability pension from the Workers' Compensation Board for chronic pain, retroactive to August 31, 1990. Temporary total and temporary partial disability benefits were also paid for various periods following the accident.

Mrs. Rustico claims that as a result of the accident, her neck and left shoulder problems are worse and she has new problems with her low back, left hip, left leg, knees and feet. She has not returned to either of her jobs since the accident, and she contends that she is substantially unable to perform the essential tasks of both jobs as a result of the accident.

The insurer paid weekly benefits of $185 per week from November 1, 1990 until September 10, 1991. The insurer contends that by September 11, 1991, Mrs. Rustico was able to return to work. Alternatively, the insurer submits that any remaining disability results from Mrs. Rustico's work-related injuries, or other factors unrelated to the motor vehicle accident. The insurer did not dispute entitlement before September 10, 1991.

Preliminary issues

On behalf of the insurer, Ms. Milanetti submitted that Mrs. Rustico is precluded from receiving weekly benefits related to the nursing home job because at the time of the accident she was receiving workers' compensation benefits related to that job. Ms. Milanetti stated that the insurer had paid benefits at the rate of $185 per week based on Mrs. Rustico's earnings from the chiropractic assistant job only, and had not deducted workers' compensation benefits received after the accident. She submitted that if Mrs. Rustico's disability in respect of the nursing home job is an issue in the arbitration, the issue of the deductibility of her workers' compensation benefits should also be considered.

Subsection 12(1) provides that the insurer will pay weekly income benefits "during the period in which the insured person suffers substantial inability to perform the essential tasks of his or her occupation or employment." Subsections 12(4) and (7) require the insurer to calculate weekly income benefits on the basis of the insured person's "gross weekly income from his or her occupation or employment." Nothing in the language of the Schedule precludes an applicant from receiving statutory accident benefits in respect of a particular job on the basis that workers' compensation benefits have been paid for a period of disability in respect of that job. The applicant is entitled to benefits based on 80% of her pre-accident income from any and all employment from which she is substantially disabled as a result of the accident.

The issue of whether workers' compensation benefits may be deducted from Mrs. Rustico's statutory accident benefits was not dealt with in mediation, and the applicant did not consent to its being dealt with in the arbitration.

For the guidance of the parties, and without deciding the issue, previous arbitration decisions have held that temporary workers' compensation benefits are deductible from statutory accident benefits (Ralph McCormick and Economical Mutual Insurance Company, File No. A-000139, dated October 2, 1991), but permanent partial disability benefits (pensions) are not deductible (Antonio Pallotta and Alpina Insurance Co. Ltd. (Zurich Insurance Company), File No. A-000808, dated April 22, 1992; Carlo Caringi and The Wawanesa Mutual Insurance Company, File No. A-000860, dated February 18, 1993, pending application for variation; Norma Shehadeh and The General Accident Assurance Company of Canada, File No. A-001177, dated May 21, 1993, under appeal).

Essential tasks

(i) Housekeeping aid

There is no dispute between the parties about Mrs. Rustico's duties as a housekeeping aid. Mrs. Rustico worked an 8-hour shift, with a half-hour lunch and two fifteen-minute breaks. She usually worked two days a week for a total of 15 hours. She was one of two housekeeping aids on duty on any given shift. The two aids would divide up the cleaning of the 60 residents' rooms and the common areas, which included the entrances and two hallways, the recreation room, pool room and dining rooms, three offices, two staff lounges, two nurses' stations, the laundry room and two utility rooms, the visitors' lounge and two visitors' washrooms. At the beginning of the day, each aid would load a supply cart and begin her rounds, starting from opposite ends of the building. Mrs. Rustico testified that she would be on her feet for most of her shift, had an opportunity to sit down only during her breaks, and rarely had any time to spare throughout her day.

Mrs. Rustico's essential daily tasks as a housekeeping aid were as follows: helping residents move; dusting the furniture; dry-mopping, wet-mopping, and vacuuming the floors; moving furniture, as needed, in order to clean the floors; cleaning the sinks, toilets, rails and mirrors in the residents' rooms and washrooms; distributing tissues, toilet paper, and paper towels; collecting the garbage; restocking garbage bags, paper supplies and cleaning supplies in the housekeeping closet and utility rooms; displaying flowers donated in memory of deceased residents and removing dead flowers; and watering the plants in the front entrance.

In addition to these daily tasks, the following essential tasks were performed as needed and as daily duties allowed: washing the windows inside and out, every spring and summer; stripping and waxing the floors; washing the walls in the residents' rooms and common areas; carbolizing night tables, beds and ceiling strips in residents' rooms; looking after plugged toilets; folding and labelling clothes in the laundry; and wiping down the refrigerator and microwave oven in the staff kitchen.

The insurer did not dispute that the physical requirements of the job included repetitive bending, stooping, and twisting, lifting and carrying, pushing, pulling and reaching, and prolonged standing.

(ii) Chiropractic assistant and receptionist

There was no dispute between the parties about the range of Mrs. Rustico's duties as a chiropractic assistant, although the parties disputed the amount of time spent on each task, and the physical components of each task.

Mrs. Rustico worked about fifteen hours — two days — a week at the clinic. Mrs. Rustico's essential tasks were as follows:

reception duties: answering the phones, making appointments by phone and in person, taking cancellations, pulling the files for the day's patients and placing them in the doctor's office, opening files for new patients, filing, checking the cash float in the morning, accepting payment for services and providing receipts, selling vitamins, reviewing patient files, and completing OHIP cards at the end of each month
escorting patients to and from the treatment rooms (three patients were seen every 15 minutes)
assisting in treatment: turning on the diapulse machine and adjusting the power or position of the machine; refilling bottles of gel and wetting the pads of the ultrasound machine; applying the ultrasound, diapulse or massage machine to the injured area
restocking the paper towels and paper for the treatment tables
taking out the garbage at the end of the day

Dr. Maytham opined in September of 1991 that Mrs. Rustico would be able to do the chiropractic assistant job, but "she should rarely lift and/or carry greater than 10 pounds, and avoid twisting and lifting at the same time." His opinion was based on the job description set out in the Job Analysis Form Worksheet provided by Ms. Solomon (Exhibit 31). It lists Lina Crawford as the contact person, and is dated August 26, 1991. In her testimony, Mrs. Rustico agreed that the job description set out in the Job Analysis Form Worksheet was accurate on many points, but she contended that it underestimated the amount of standing, sitting, bending, twisting, pushing and pulling involved in the job.

In her testimony, Mrs. Rustico agreed that the chiropractic assistant job was the lighter of her two jobs. In his letter of August 7, 1991 (Exhibit 32), Dr. Crawford stated that "in a 15 minute period, 5 minutes would be spent at front reception desk, 5 minutes in using arms, hands, applying a therapeutic ultrasound or electrical massager (standing), and 5 minutes walking, escorting patients to various rooms." Mrs. Rustico testified that the job involved standing, while giving treatment, and sitting, especially while preparing OHIP records at the end of each month. However, she also testified that even with two receptionist-assistants working, both would "be kept running," there was little opportunity take a break, except during the half-hour lunch, and she would be constantly getting in and out of her chair. I find that the job involved only occasional prolonged sitting and standing, did not require repetitive bending, and allowed for frequent changes of position.

The accident and its aftermath

On the afternoon of October 25, 1990, the car in which Mrs. Rustico was a passenger was hit on the right side by a tractor-trailer. Mrs. Rustico estimated the speed of the truck at about 10 km an hour. The accident occurred while the car was stopped at a light just on the United States side of the border, in the customs area. Mr. and Mrs. Rustico reported the accident at a police station in Detroit, then returned to Windsor.

Mrs. Rustico testified that initially she had pain in her neck. Late that evening, she went to the emergency department of Windsor Western Hospital, complaining of neck pain, and a whiplash injury was diagnosed (Exhibit 26C, p. 83). Her lower back started to hurt the next morning. Her left hip began to hurt either that day or a couple of days later. She has aching and shooting pains from her lower back through her left hip, and occasionally has pain in her right hip. The pain is "pretty well constant" if she is active, and gets worse during physiotherapy, or if she does any bending or is on her feet for a long time. She also has pain in both arms, whereas before the accident she only had problems with her left arm. Her feet began to cramp shortly after the accident. Months, or even a year later, her knees started to swell. They become sore and weak if she is on them too long. She sometimes has pain in both knees during physiotherapy. Her knees sometimes "turn" when she walks. She suffers from headaches almost every day. She had headaches before the accident as a result of her prior injury, but they have been worse since the accident.

Since the accident, she has taken analgesics (aspirin with codeine), and Amitriptyline to sleep. She has received physiotherapy for her neck, shoulder, back, hips and knees. Physiotherapy gives her relief for about a day. She uses ice packs. She has also received psychiatric treatment. Orthopaedic shoes have helped with the cramps in her feet, but she has problems if she wears dress shoes. There has been little change in her condition since the accident.

Was the applicant disabled after September 10, 1991?

The insurer terminated Mrs. Rustico's benefits on the basis of the September 11, 1991 opinion of Dr. Maytham, her family doctor, set out in a confirmation letter prepared by Kathy Solomon of Crawford & Company Associates (Exhibit 14), as follows:

Ms. Rustico described having increased pain immediately post-MVA, as compared to her baseline level of pain pre-MVA. It is your opinion, however, that presently this patient is currently probably functioning at her pre-MVA level of activity.

Immediately post-MVA, you diagnosed Ms. Rustico as having left cervical syndrome, as evidenced by her complaints of left arm and shoulder pain, a decreased range of motion in her left arm and shoulder, and complaints of numbness radiating into her left arm.

You were provided with a copy of a Job Analysis Form Worksheet outlining the physical demands of Ms. Rustico's previous job as a chiropractic assistant. After reviewing this form, it was your opinion that Ms. Rustico is now physically capable of performing the demands of this previous job. You indicated that her current physical restrictions are that she should rarely lift and/or carry greater than 10 pounds, and avoid twisting and lifting at the same time.

It is your opinion that Ms. Rustico's prognosis for a complete recovery is poor, as judging by the length of time that she has displayed her present symptoms.

In his testimony at the hearing on behalf of the insurer, Dr. Maytham confirmed his opinion that Mrs. Rustico would have been able to return to her job as a chiropractic assistant by September 10, 1991. He added that in his view she would have been able to return to light work at the nursing home. However, it was his opinion that she would not have been able to return to regular duties at the nursing home at any time before November 1991, when she left his care and began seeing Dr. Price. The letter makes no reference to Mrs. Rustico's job at the nursing home.

Mrs. Rustico contends that she remains unable to return to either of her pre-accident jobs. Her back gets sore if she sits or stands more than half an hour at a time. Standing too long also causes her knees to get stiff and swell. She cannot bend or stoop. Getting into and out of a chair aggravates her back. She contends the her neck and lower back problems are about equal in severity. She relies on the opinions of Dr. J. Price, Dr. G.M. Annisette, Dr. Chakravarthi, and Dr. B. Crawford. She also contends that Dr. Maytham's clinical notes (Exhibit 34) do not support his opinion that she could return to work by September 1991.

Dr. Maytham's clinical note for October 29, 1990, Mrs. Rustico's first visit after the accident, referred to reduced range of motion, reduced straight leg raising, and lumbo-sacral tenderness, as well as neck pain and headaches. Subsequent notes indicate that Mrs. Rustico complained of neck and shoulder pain, and lower back pain throughout the period when she was treated by Dr. Maytham.

Dr. Maytham referred Mrs. Rustico to Dr. J. Berkeley, a physiatrist, who summarized his findings as follows: "1) The motor vehicle accident of two months ago has produced a strain of the lumbosacral facet and also probably a nipping of the L1 nerve root on both sides. 2) There has also been a pre-existing strain of a left neck joint with a loss of extension movement at the neck which may have been aggravated by the accident." (Report of January 7, 1991, Exhibit 13) The September 11, 1991 confirmation letter sets out Dr. Berkeley's findings, but makes no other mention of Mrs. Rustico's complaints of lower back pain following the accident. At the hearing, Dr. Maytham stated that he had not noticed this omission before, and could not explain it. He admitted that it was an important omission.

The clinical notes for the summer of 1991 indicate continuing disability. At best, they support Dr. Maytham's testimony that he was "starting to wonder about her going back to clerical work." In standard form reports prepared for the WCB by Dr. Maytham after the accident, no definite return-to-work date is given, and "limited" or no further improvement is expected. In the July 5, 1991 report, Dr. Maytham states "could do clerical type work only," improvement expected in "6-9 months." In the July 5 and 26, 1991 reports, he states that improvement is expected in "6-9 months" time. In the August 26, 1991 report, he states "will need restrictions." I heard no evidence that Mrs. Rustico's condition improved between July and September 1991.

Dr. Maytham last saw Mrs. Rustico on November 7, 1991. Dr. Price became Mrs. Rustico's family doctor in December 1991. The insurer suggested that Mrs. Rustico left Dr. Maytham's care because he had formed the opinion that Mrs. Rustico could return to work. I am satisfied that the doctor-patient relationship had broken down for a number of reasons, none of which suggests that Mrs. Rustico changed doctors in order to avoid returning to work. Dr. Price diagnosed chronic neck pain and lower back pain, along with chondromalacia patella. Dr. Price's clinical notes and records between December 1991 and the date of the hearing (Exhibit 28) indicate that Mrs. Rustico continued to complain of neck and shoulder pain and lower back pain. In his September 11, 1992 report (Exhibit 7), he stated that Mrs. Rustico is unable to work as a chiropractic assistant

as it involves prolonged standing. This will unfortunately aggravate her knee condition. She apparently was required to apply ultrasound treatments and this requires repetitive bending forward for prolonged periods of time. This will unfortunately flare up her back condition. She is also required to sit for prolonged periods of time which would also flare up her back condition. Getting in and out of her chair on a repetitive basis will also significantly affect her pain.

Dr. Price's April 29, 1993 report (Exhibit 15) is the most recent expert opinion on Mrs. Rustico's condition. His opinion about her condition was unchanged:

I feel at the present time she has chronic pain, and will not improve in the future. She, in fact, may worsen.

I do not see her returning to her previous occupation, as either working in a nursing home or as a chiropractor assistant. Restrictions now, for her, are as follows: No repetitive bending or stooping. No heavy lifting. No prolonged sitting or walking. No prolonged standing. No heavy lifting with her arms. No repetitive activity with her upper extremities.

Similar restrictions were set out in the November 20, 1992 confirmation letter prepared by Edward Woelk of Crawford & Company, and signed by Dr. Price on November 23, 1992 (Exhibit 33).

Dr. Price referred Mrs. Rustico to Dr. Annisette, an orthopaedic consultant. Dr. Annisette's April 12, 1993 report (Exhibit 17) states that Mrs. Rustico "continues to manifest a significant level of soft tissue [injury] to her neck, back and knees....She has now fallen, as far as I am concerned, into a chronic pain syndrome category and will probably remain at this level of symptomatology indefinitely. I do not feel that she is able to return to her pre-accident employment of a housekeeper or chiropractic assistant ...". He recommended psychological counselling and a return to modified work.

Dr. S.C. Chakravarthi, neurosurgeon, opined in his report of November 17, 1992 (Exhibit 20) that Mrs. Rustico suffers from diffuse muscular injuries of the cervical, thoracic and lumbar spine that "will take a prolonged period of time to recover from, sometimes 5-6 years. Some people have chronic pain syndrome."

Dr. B. Crawford, chiropractor, opined in his reports of October 22, 1992 (Exhibit 18), November 9, 1992 (Exhibit 19), and May 2, 1993 (Exhibit 16) that Mrs. Rustico would be disabled for "a very long time for the foreseeable future" by her muscular cervical and lumbar symptoms.

The WCB referred Mrs. Rustico to Goodwill Industries for a vocational rehabilitation assessment between October 28 and December 6, 1991. The insurer relied on the December 16, 1991 vocational rehabilitation assessment report prepared by the Goodwill Industries Vocational Services Department (Exhibit 29). The Goodwill evaluator found Mrs. Rustico to be pain-focused and not motivated to pursue options for employment. Relying on this report, the WCB reduced Mrs. Rustico's temporary benefits on the ground that Mrs. Rustico was capable of modified work but claimed to be totally disabled (Exhibits 12 and 25).

The Goodwill report identifies Mrs. Rustico's assets as: "able to work a 4 hour day, able to follow instructions, punctual, quality of work, able to work without supervision, standing tolerance, horizontal reaching, able to lift sedentary weights." Her limitations are: "mobility (climbing), physical conditioning, chronic pain, perceived limitations, low level positions, fatigue, grip strength, manual dexterity, slow work pace, reaching overhead." A WCB follow-up report (Exhibit 11) also noted that Mrs. Rustico "tires very quickly and is unable to keep up with the pace" and is completely exhausted after 3 or 4 hours.

Mrs. Rustico testified that after the first week, Goodwill cut her hours from 8 to 2 a day, then gradually increased them to 4 hours a day. Her testimony about her experience at Goodwill was consistent with the report. She started out in the production department, but sitting bothered her back. She did better in the cafeteria, where she could stand, but she worked slowly, with many breaks, and could not work longer than 4 hours a day. The report notes that she had difficulty when repetitively changing position. Nothing in the report suggests that Mrs. Rustico's complaints were not genuine. The Goodwill Report is consistent with the reports of Mrs. Rustico's treating doctors, who have predicted prolonged disability from chronic pain.

In his testimony at the hearing, Dr. Maytham agreed that Mrs. Rustico had not, in the time he treated her, recovered to a point where she could return to her regular duties at the nursing home. This view is supported by the opinions of Mrs. Rustico's other treating doctors — Drs. Price, Annisette, Chakravarthi and Crawford. I was offered no evidence that Mrs. Rustico would be able to perform her essential tasks at the nursing home. I am satisfied that Mrs. Rustico remains disabled from her regular duties at the nursing home, which involve prolonged standing, repetitive bending, stooping, twisting, pushing, pulling, lifting and carrying.

In January and February 1991, at Dr. Maytham's suggestion, Mrs. Rustico approached Dr. Crawford about returning to work. She was told that they no longer needed her and had recently replaced her with someone else. She was laid off effective February 15, 1991 (Exhibit 30). Mrs. Rustico testified that the office had been computerized in January, and she had not received any computer training. The record of employment prepared by Lina Crawford also says "no longer feasible to have part-time help" (Exhibit 30). Mrs. Rustico testified as well that Dr. Crawford was unwilling to take her back until she had returned to her job at the nursing home, because the chiropractic clinic had no workers' compensation coverage. Ms. Milanetti noted that it was after February 15, 1991 that Mrs. Rustico's reports to the WCB changed, no longer indicating a return-to-work date. In cross-examination, it was suggested to Mrs. Rustico that after February 15, the reason she could not return to the clinic was not because of any disability, but because she had been replaced. She responded that she did not disagree, although the reason she had not received training was that she had been off work as a result of the accident.

Dr. Price's opinion that Mrs. Rustico could not return to the chiropractic assistant job was based on his understanding that the job involved prolonged standing and sitting, and repetitive prolonged bending. However, Mrs. Rustico's evidence was that she was "kept running" on the job. While the pace of the job and repetitive changes of position may have caused Mrs. Rustico some difficulties, I am not persuaded that she was substantially disabled from performing the essential tasks of this job after September 10, 1991.

Did the applicant's disability result from the accident?

Considerable evidence as to Mrs. Rustico's pre-accident condition was contained in the WCB file and in Dr. Maytham's clinical notes. These documents indicate that before the motor vehicle accident, Mrs. Rustico complained of left neck and shoulder pain, diagnosed as left cervical strain, following her compensable accidents of June 1989 and August 1990. After the 1989 incident, she was able to return to light duties at the nursing home in January 1990, and she returned to regular duties in March. She returned to the chiropractic clinic job within weeks of going back to the nursing home. In her WCB report of September 14, 1990 (Exhibit 26, p. 79), Mrs. Rustico stated that after returning to work in January 1990, "the pain continued for about 2 months. At times after that I had some minor pain like headaches and neck pain." Roxanne Belli, Administrator of the nursing home, reported on September 4, 1990 (p. 81) that "provided that she did not work for long stretches, Jennifer was able to do regular duties. She did complain about soreness on some occasions." Mrs. Belli also said that Mrs. Rustico "complained about soreness periodically ... especially if working several days consecutively." (See also Exhibit 26T, p. 58.) Dr. Maytham's clinical notes indicate that between January 1990 and August 26, 1990, Mrs. Rustico complained about continuing neck and shoulder pain on two occasions.

Dr. Maytham's note for August 28, 1990, notes "recurrence of June 26/89 injury... sudden onset of pain, tender along left side of neck, tender medial side left scapula, good range of motion but pain at extremes." Complaints of neck and shoulder pain continued on September 7, September 19, September 28, October 12 and October 25. In his clinical note for September 28, 1990, Dr. Maytham indicated that Mrs. Rustico would be off work until November 1. His standard form report of April 15, 1991 (Exhibit 27) states "condition worsened by MVA Oct. 25/90 - was to go back to work November 1, 1990." The last pre-accident report to the WCB was a standard form report prepared by Dr. Kelton, Dr. Maytham's partner, on the morning of the accident. It records left neck and shoulder symptoms, and predicts that Mrs. Rustico will be disabled another 7-14 days (Exhibit 26U, p. 84). Dr. Kelton's August 31 report (Exhibit 26V) gave the same prognosis.

The first reference to lower back pain in Dr. Maytham's clinical notes is dated October 29, 1990, the date of Mrs. Rustico's first visit after the accident.

WCB documents prepared after the accident indicate that Mrs. Rustico was complaining of new lower back pain and aggravated neck and shoulder pain which she attributed to the accident. The WCB denied benefits for Mrs. Rustico's lower back complaints because they appeared only after the motor vehicle accident. The only pre-accident record of lower back pain in the WCB file is found in the September 25, 1989 report of the Canadian Back Institute (Exhibit 26E, p. 73), which indicates that Mrs. Rustico was treated for lumbar, thoracic and cervical pain. In her testimony, Mrs. Rustico admitted to having had lower back pain before the accident, but stated that it was never a problem, and that she had never lost time because of lower back pain. Nothing in the WCB file indicates any lost time due to lower back pain before the accident.

Dr. Crawford stated in his October 22, 1992 report (Exhibit 18) that in June 1989, there was no lumbo-sacral complaint.

In the approximate 80 office visits between June/89 and October/90, there were fewer than a half dozen visits when the low back was looked at at all -- the only problem being the neck and shoulder region. My clinical records show that on October 29/90 (her first visit after the m.v.a.), her first complaint was of left leg and hip pain. On examination, the 4th lumbar spinous was extremely tender to palpation. This was a new situation for this patient.

Dr. Crawford stated that Mrs. Rustico was disabled both before and after the accident. Since the accident, "the new lumbar injury has been probably more disabling than the compensation injury."

Dr. Berkeley's opinion was that the motor vehicle accident caused a lumbosacral facet strain and probably nipping of the L1 nerve root on both sides, and aggravated a pre-existing left neck strain.

Dr. Annisette reported, on April 12, 1993 (Exhibit 17), that Mrs. Rustico's neck pain was the most severe. Her lower back pain "bothers her with repetitive bending, lifting and twisting. It is fairly constant and tends to keep her awake at night."

On October 18, 1991, the WCB awarded Mrs. Rustico a 30% permanent partial disability pension for chronic pain, retroactive to August 31, 1990 (Exhibit 35). The July 16, 1991 WCB social work report prepared in contemplation of the pension award (Exhibit 26B, p. 18) described the history of disability as follows:

Physically, she tells me that the pain symptoms caused by the whiplash type of injury have subsided to a level approaching the pain she was experiencing prior to the MVA. As a result of her compensable injuries, she complains of experiencing intermittent headaches, constant pain in her neck, constant pain across the top of her left shoulder, intermittent pain in her left shoulder blade, and intermittent pain in her right shoulder. She complains that these symptoms are aggravated by stress, sleeping the wrong way, twisting and turning her head/neck, repetitive use of her left upper extremity, and driving long distances at times.

As a result of her motor vehicle accident, she complains of experiencing constant pain in her lower back which intermittently refers into her left hip. She complains that these symptoms are aggravated by bending, lifting, sitting the wrong way and "pretty well anything". She estimates that she can sit for 20 minutes, stand for 30 minutes, walk for 2 hours and drive for 30 minutes. she attempts to manage her various pains symptoms by attending physiotherapy, taking medications, wearing a soft cervical collar when she has a headache and when she performs exercises for her neck, wearing a restrictive elasticized arm/body band to keep her left arm close to her body, wearing a low back brace when performing activities within the home, exercising, having hot showers followed by the application of ice packs, lying down and sleeping for one hour during the afternoon, and avoiding strenuous activities. She says the pain in her neck and lower back are of equal severity.

It is noted that Mrs. Rustico "does not believe that she will be able to return to her regular work. She questions her ability to work in a clerical capacity."

The insurer submitted that the WCB's award of a 30% pension for chronic pain arising out of Mrs. Rustico's work-related accidents suggests that Mrs. Rustico was totally disabled by her compensable injuries before the car accident. However, while a 30% pension is a significant award, it represents partial, not total, disability. Mrs. Rustico's pension was awarded for chronic pain related to her neck and shoulder symptoms only. I find it significant that when discussing her problems with the WCB social worker and in her dealings with the WCB (for example, Exhibit 9), Mrs. Rustico consistently distinguished between her neck and shoulder symptoms, which she attributed primarily to her work-related injuries, and her lower back pain, which she attributed to the car accident. I am satisfied that any lower back problems Mrs. Rustico may have had before the accident were minimal and not disabling. Since the accident, her lower back pain, which radiates into her left hip and leg, has been comparable in severity to her neck and shoulder pain. While Mrs. Rustico was unable to work before the accident, I conclude that on the day before the accident, there was reason to expect that she would return to work, as she had recovered from her previous similar neck and shoulder injury. I am satisfied that the accident contributed significantly to her lower back pain which interferes with prolonged standing or sitting, heavy lifting and carrying, and repetitive bending or twisting. I am satisfied that Mrs. Rustico is disabled from her nursing home job as a result of lower back, left hip and leg pain resulting from the accident.

Based on Mrs. Rustico's statements to the WCB social worker, I find that by September 1991, her neck and shoulder problems had returned to the pre-accident level. I heard little evidence about Mrs. Rustico's knee and foot problems, and I am not satisfied that they resulted from the accident.

The insurer did not dispute Mrs. Rustico's claim that she earned $11.59 per hour for an average of 15 hours per week at the nursing home. I make no finding as to what, if any, amount should be deducted from the minimum weekly benefit of $185.60 on account of Mrs. Rustico's workers' compensation benefits.

INTEREST

Mrs. Rustico applied for benefits on November 1, 1990. No benefits were paid until June, 1991, when she received a lump sum payment of benefits owing from November 1, 1990. Benefits were then paid until September 10, 1991. In her post-hearing submissions, Ms. Milanetti conceded that interest is payable on benefits owed and paid by lump sum. Interest is also payable on benefits owing from September 10, 1991.

Ms. Milanetti submitted that it would be premature to make an interest order before any issue about deductibility of workers' compensation benefits is resolved.

Subsections 24(3) and 24(4) provide for the mandatory payment of interest on overdue benefit payments. The proper amount of benefits owing was not an issue in the arbitration.

SPECIAL AWARD

Mrs. Rustico claims a special award under subsection 282(10) of the Act, which provides as follows:

If the arbitrator finds that an insurer has unreasonably withheld or delayed payments, the arbitrator, in addition to awarding the benefits and interest to which an insured person is entitled under the No-Fault Benefits Schedule [now the Statutory Accident Benefits Schedule - Accidents before January 1, 1994], shall award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.

Mrs. Rustico applied for benefits on November 1, 1990. The application referred to both pre-accident jobs (Exhibit 22). On November 19, she met with Diane Varlaki, the insurer's claims adjuster, to prepare the "Job Disability Questionnaire" which sets out her job duties for both her pre-accident jobs. Employer's Confirmation of Income forms were obtained from both employers in December 1990 (Exhibits 23 and 24). Dr. Maytham's standard form medical report of November 30, 1990 (Exhibit 36) indicated complaints of neck pain and low back pain first appearing October 25, 1990, and gave a return to work date of January 1991.

The insurer paid no benefits until June 1991, when it made a lump sum payment for benefits owing to date, at a rate of $185 per week. The insurer provided no Assessment of Claim form or other written or oral notice of its reasons for not paying benefits until June. No explanation was given at the hearing. I find that between November 1, 1990 and June 1991, the insurer delayed benefits unreasonably and without giving notice of its reasons as required under subsection 24(8) of the Schedule. I order a special award of $2,000, with interest as required under subsection 282(10) of the Act.

EXPENSES

Mrs. Rustico claims her expenses in the arbitration. An award for expenses may be made under section 282(11) of the Insurance Act, which provides as follows:

The arbitrator may award to the insured person such expenses incurred in respect of an arbitration proceeding as may be prescribed in the regulations to the maximum set out in the regulations.

The prescribed expenses and maximum amounts are set out in Schedule 1 of the Dispute Resolution Practice Code and in Ontario Regulation 664 (R.R.O. 1990), Dispute Resolution Expenses.

Mrs. Rustico was partly successful in her claim, and in the circumstances of this case, I find it appropriate to exercise my discretion to award Mrs. Rustico her expenses in the arbitration.

The parties' written submissions indicated that there may be a dispute with regard to the amount of expenses payable. I will remain seized of the issue of expenses. If the parties are unable to agree, either may apply for assessment of the expenses before me.

Order

Mrs. Rustico is entitled to weekly benefits from September 10, 1991, with interest as provided under section 24 of the Schedule. Mrs. Rustico is entitled to interest as provided under section 24 on benefits which were overdue when paid as a lump sum in June 1991.
Mrs. Rustico is entitled to a special award of $2,000, with interest as provided under subsection 282(10) of the Act.

Mrs. Rustico is entitled to her expenses incurred in respect to the arbitration. I remain seized of the issue of the amount of expenses payable. If the parties are unable to agree, either party may bring the matter before me for assessment.

February 15, 1994

Nancy Makepeace Arbitrator

Date

APPENDIX - THE RECORD

Exhibits introduced into evidence were:

Exhibit 1 Summary prepared by Mrs. Rustico of her duties as a housekeeper at Leamington Nursing Home

Exhibit 2 Summary prepared by Mrs. Rustico of her duties as a chiropractic assistant

Exhibit 3 Disability Questionnaire, November 19, 1990, signed by Mrs. Rustico and Diane Varlaki

Exhibit 4 Authorization for Medical Information (Dr. Crawford, Dr. Berkeley, Dr. Maytham), July 23, 1991, signed by Mrs. Rustico

Exhibit 5 Authorization for Information from the Workers' Compensation Board (Goodwill Industries Assessment Report only), January 23, 1992, signed by Mrs. Rustico

Exhibit 6 Authorization for [Medical and Employment] Information, November 2, 1992, signed by Mrs. Rustico

Exhibit 7 Letter from Kathryn Dymczak to Mrs. Rustico, February 12, 1993, with attachments: letter of Dr. J.J. Price, September 11, 1992, and confirmation letter of E.A. Woelk to Dr. Price, November 20, 1992

Exhibit 8 Letter from Mrs. Rustico to Ms. Dymczak, February 25, 1993

Exhibit 9 Workers' Compensation Board Vocational Rehabilitation Report, August 22, 1991

Exhibit 10 Workers' Compensation Board Vocational Rehabilitation Services Follow-up Report, October 10, 1991

Exhibit 11 Workers' Compensation Board Vocational Rehabilitation Services Follow-up Report, November 27, 1991

Exhibit 12 Workers' Compensation Board Vocational Rehabilitation Services Closure Report, January 16, 1992

Exhibit 13 Letter of Dr. J. Berkeley, July 1, 1991

Exhibit 14 Confirmation letter, Dr. J.C. Maytham, September 11, 1991

Exhibit 15 Letter of Dr. Price, April 29, 1993

Exhibit 16 Letter of Dr. B. Crawford, May 2, 1993

Exhibit 17 Letter of Dr. G.M. Annisette, April 12, 1993

Exhibit 18 Letter of Dr. Crawford, October 22, 1992

Exhibit 19 Letter of Dr. Crawford, November 9, 1992

Exhibit 20 Letter of Dr. S.C. Chakravarthi, November 17, 1992

Exhibit 21 Assessment of Claim by Insurer, October 3, 1991

Exhibit 22 Application for Accident Benefits, not signed or dated

Exhibit 23 Employer's Confirmation of Income, December 17, 1990, signed by Roxanne Belli (Leamington Nursing Home)

Exhibit 24 Employer's Confirmation of Income, December 11, 1990, signed by Mrs. L. Crawford (Kingsville Chiropractic Clinic)

Exhibit 25 February 27, 1992 letter of WCB Vocational Rehabilitation Caseworker to Mrs. Rustico

Exhibit 26 Workers' Compensation Board file

Exhibit 27 Accident Benefits Medical Report, Dr. Maytham, April 15, 1991

Exhibit 28 Clinical notes and records of Dr. Price (48 pages)

Exhibit 29 Goodwill Industries Comprehensive Evaluation, December 16, 1991

Exhibit 30 Record of employment, Dr. Crawford, February 20, 1991

Exhibit 31 Job Analysis Form Worksheet, Chiropractic Assistant, August 26, 1991

Exhibit 32 Letter of Dr. Crawford, August 7, 1991

Exhibit 33 Confirmation letter, Dr. Price, November 20, 1992

Exhibit 34 Clinical notes and records, Dr. Maytham

Exhibit 35 Letter of Pensions Adjudicator, Workers' Compensation Board, February 27, 1992

Exhibit 36 Form 4 report, November 30, 1990, Dr. Maytham

Footnotes

Prior to January 1, 1994, Ontario Regulation 672 was called the No-Fault Benefits Schedule. After that date it became the Statutory Accident Benefits Schedule - Accidents Before January 1, 1994. In this decision, the term "Schedule" will be used to refer to Regulation 672.

Jennifer I. Rustico v. Royal Insurance Company of Canada, 1994 ONICDRG 12

Case Summary