Neutral Citation: 1994 ONICDRG 122
File No. A-006445
ONTARIO INSURANCE COMMISSION
BETWEEN:
MARIA PUOPOLO
Applicant
and
WELLINGTON INSURANCE COMPANY
Insurer
DECISION
The Applicant, Maria Puopolo, was injured in a motor vehicle accident on February 13, 1992. She applied for and received statutory accident benefits from the Insurer, Wellington Insurance Company ("Wellington"), payable under Ontario Regulation 6721. Wellington terminated her weekly income benefits effective February 24, 1993. Mrs. Puopolo claims ongoing weekly income benefits after that date.
The issues in this hearing are:
Is Mrs. Puopolo entitled to weekly income benefits of $185 per week, under section 13 of the Schedule, after February 24, 1993? She also claims interest on any outstanding amounts owing, under subsection 24(4) of the Schedule.
Is Mrs. Puopolo entitled to a special award under subsection 282(10) of the Insurance Act, R.S.O. 1990, c. I.8, as amended?
Is Mrs. Puopolo entitled to be reimbursed for her expenses incurred in the arbitration?
Result:
Mrs. Puopolo is not entitled to weekly income benefits after February 24, 1993.
Mrs. Puopolo is not entitled to a special award.
Mrs. Puopolo is entitled to her expenses incurred in the arbitration.
Hearing:
The hearing was held in North York, Ontario, on May 30 and May 31, 1994, before me, Nancy Makepeace, arbitrator.
Present at the Hearing:
Applicant: Maria Puopolo
Applicant's Representative: Ian A. Little Barrister and Solicitor
Insurer's Representative: Ted Kent Barrister and Solicitor
Insurer's Officer: Robb Walker
Witnesses: Maria Puopolo, the Applicant Giovanni Puopolo, the Applicant's husband Lane Bailey, private investigator Dr. Arthur Ameis, physiatrist
Exhibits and other documents before the arbitrator are listed in an appendix to this decision.
The proceedings were recorded by Mr. Ray MacDonald, of Rosenberger, Weir, McDonald, Court Reporters.
Entitlement to Weekly Income Benefits:
An insured person is entitled to weekly income benefits under subsection 13(1) of the Schedule for the period during which she is substantially unable to perform the essential tasks in which she would normally engage.
The Applicant's Activities Before the Accident:
Mrs. Puopolo is in her mid-thirties, and has been married for about 10 years. At the time of the motor vehicle accident, she was a homemaker. Her husband, Giovanni, works full-time for Mississauga Transit. The Applicant and her husband live in a two-storey detached house. They testified about the division of work in the household. Theirs was the traditional arrangement whereby Mrs. Puopolo did virtually all the inside work, and Mr. Puopolo did the yard and maintenance work. Occasionally Mr. Puopolo would make dinner.
Mrs. Puopolo's mother died in 1986. Mrs. Puopolo testified that she visits her father regularly, and takes him to the cemetery every three or four months.
The Applicant's Condition and Activities After the Accident:
On February 13, 1992, Mrs. Puopolo was driving her car, and wearing a seatbelt. The car in front of her rear-ended the car in front of it. According to Mrs. Puopolo, it then backed into the front of her car. She struck her kneecap and the outside of her left knee against the car door.
Immediately after the accident, she drove to The Mississauga Hospital. The hospital's Emergency Treatment Record (Exhibit 1, Tab 1) states that she complained of headache, right-sided neck ache, bilateral lower back ache, and left lateral thigh pain. Cervical spine x-rays were negative.
Mrs. Puopolo testified that her neck and back pain subsided after the accident, but there has been little improvement in her knee function. She is still unable to complete any task that requires bending, crouching, kneeling, or prolonged standing (more than 10 or 15 minutes). She cannot iron, wash the floors, clean the appliances, dust below waist level, vacuum, prepare meals, shop or drive. She cannot do the laundry because she has trouble with the stairs. Her husband has taken on these tasks. Sometimes she sleeps on the couch, to avoid climbing the stairs to the bedroom.
Mrs. Puopolo was initially treated by her family doctor, Dr. G. Pontarini. Dr. Pontarini's clinical notes are brief, mostly illegible, and not very helpful (Exhibit 1, Tab 2). Dr. Pontarini prescribed analgesic and anti-inflammatory medication, and referred Mrs. Puopolo to Dr. D. Simmonds, an orthopaedic specialist. Mrs. Puopolo was later treated by another orthopaedic specialist, Dr. D. Ogilvie-Harris. She has received physiotherapy treatment at various periods since the accident, to little benefit.
The Insurer paid weekly income benefits until February 24, 1993, when benefits were terminated. At the hearing, the Insurer relied on surveillance evidence gathered in June 1993, and on Dr. Ameis' subsequent reports.
Reasons:
Mrs. Puopolo has consistently complained about her knee to all the doctors who have examined her, and her testimony at the hearing was consistent with her previous descriptions of her problems. She impressed me as a sincere and generally candid person who is troubled and frustrated by her condition. She made the same impression on the doctors who have examined her, including Dr. Ameis, who examined her on the Insurer's behalf. No one has suggested that she is malingering or that her complaints are not genuine. I accept that Mrs. Puopolo injured her left knee in the accident of February 13, 1992, and that she continues to suffer pain and some degree of disability as a result of this injury.
Mrs. Puopolo's entitlement to weekly income benefits between February 20, 1992 and February 24, 1993, is not at issue in this case. The only issue is whether she continues to be substantially disabled from performing her essential pre-accident tasks after February 24, 1993. I find that she is no longer disabled, based on the medical evidence, her own testimony in cross-examination, her husband's testimony, and her history of non-compliance with treatment and rehabilitation recommendations.
Dr. Simmonds examined Mrs. Puopolo on February 27, 1992. He found that the knee was swollen, but there was no effusion, no restriction of movement, and no neurovascular abnormality. It was his opinion that if x-rays and an arthrogram turned out to be negative, "then we have to consider this to be a soft tissue injury and this will simply get better on its own" (Exhibit 1, Tab 8).
The results of investigations performed on Mrs. Puopolo's left knee -- an x-ray and arthrogram (March 5, 1992), CT scan (December, 1992), magnetic resonance (MRI) scan (October 23, 1993), and bone scan (March 31, 1994) -- have all been negative, indicating that there are no bony injuries, no ligament or meniscal tears, no circulatory abnormalities, and only minimal effusion.
At the Insurer's request, Mrs. Puopolo was examined by Dr. Ameis on October 22, 1992. Dr. Ameis found "mild-moderate effusion" and "rather modest" swelling of the left knee, as well as wasting of the left thigh. He stated that Mrs. Puopolo had full range of movement, but tended to hold her knee slightly flexed. She reported a little pain on patellofemoral grinding, and "much more" pain on palpation of the medial joint line. It was Dr. Ameis' opinion that Mrs. Puopolo had "a significant knee problem" which would cause difficulties in performing heavy housework, especially tasks involving repetitive or prolonged crouching or kneeling, like cleaning the floors and the bathroom, and some of the heavier periodic tasks. He did not feel it would preclude her from doing light tasks -- sweeping, vacuuming, cleaning the kitchen, doing laundry, or making beds.
When Dr. Ogilvie-Harris examined Mrs. Puopolo on September 24, 1993, he found no effusion, no synovitis, no abnormality in the ligaments, and full range of movement in the knee. However, he noted that Mrs. Puopolo did not like to fully extend or flex the knee. He also found some wasting of the quadriceps muscle. Mrs. Puopolo reported pain in the medial side and underneath the patellofemoral joint. Dr. Ogilvie-Harris stated that Mrs. Puopolo "would have difficulty in kneeling and squatting, doing floors, going up and down stairs or any of the heavier household tasks" (Exhibit 1, Tab 4, report of September 30, 1993).
Dr. Ogilvie-Harris felt that Mrs. Puopolo had "reflex sympathetic dystrophy of the knee" (Exhibit 1, Tab 4, report of September 30, 1993). In order to clarify this diagnosis, he ordered a bone scan and MRI scan. He examined Mrs. Puopolo again on March 16, 1994. He found that she still held her knee stiffly and in slight flexion. The knee was "very hypersensitive" and showed vasomotor changes. There was wasting of the quadriceps muscle. He noted that the MRI scan performed on October 23, 1993 showed no significant pathology. He did not comment on the (negative) bone scan. He reiterated his view that Mrs. Puopolo "almost certainly has a reflex sympathetic dystrophy" (Exhibit 1, Tab 4, report of April 5, 1994).
Dr. Ameis did not accept this diagnosis. In his report of November 16, 1993 (Exhibit 1, Tab 7) and in his testimony at the hearing, he stated his opinion that Dr. Ogilvie-Harris did not have enough evidence to diagnose reflex sympathetic dystrophy (RSD). Dr. Ameis testified that this condition occurs extremely rarely in the knee. He suggested that RSD was an unlikely diagnosis given the degree of function Mrs. Puopolo has in her knee, and also given the negative bone scan. I do not accept that Mrs. Puopolo suffers from RSD.
Dr. Ameis examined Mrs. Puopolo for the second time on May 16, 1994 (Exhibit 1, Tab 7). On this occasion, he found the thighs to be of equal girth (no wasting). Knee temperature was normal. Though Mrs. Puopolo continued to hold the knee in partial flexion, there was full range of movement. There was no evidence of effusion. The knee had full power. Further, though Mrs. Puopolo had an antalgic gait, Dr. Ameis felt that the limp was dramatic, inconsistent and deliberate. It was Dr. Ameis' opinion that Mrs. Puopolo's knee injury had resolved and that she was now able to return to her usual roles without restriction.
The minimal objective findings are, in my view, consistent with Mrs. Puopolo's own evidence in cross-examination. She admitted that around the end of 1992, she began doing more: light dusting and cleaning, putting water on the stove for meals, washing dishes, cleaning the bathroom, and sometimes making the beds and doing the laundry. She stated that she began shopping again after one and one-half to two years, but always escorted by her husband.
Furthermore, Giovanni Puopolo, the Applicant's husband, testified that the Applicant "tries" to do all her household tasks since the accident, but cannot do them for long, and often leaves her chores unfinished.
When asked whether Mrs. Puopolo can drive, Mr. Puopolo responded, "I don't see why not". I heard no explanation of why Mrs. Puopolo's knee injury would prevent her from driving, and I do not accept that it does.
While both Giovanni Puopolo and Maria Puopolo testified that the house had been "let go", especially since Mr. Puopolo took on a part-time job in addition to his regular full-time job, I heard no detail about the condition of the house, or about Mr. Puopolo's contribution to the housework.
In my view, the testimony of both Giovanni Puopolo and Maria Puopolo suggests that Mrs. Puopolo is able to perform many of her essential tasks, although she may have some pain and she may need to take periodic breaks while performing tasks requiring crouching and kneeling. Further, Mr. and Mrs. Puopolo may have shifted the distribution of chores between them. In E. Simpson and Royal Insurance Company of Canada, April 6, 1994, OIC File No. A-003863 (under appeal), I made the following comments about a homemaker's entitlement to section 13 benefits:
Whereas the employer generally determines the essential tasks of an employee, and how they will be accomplished, a person who is not working has much more flexibility in deciding what his tasks are and how he will accomplish them. This is especially the case with the division of household chores within a family. In my view, it is appropriate to recognize this flexibility by considering whether the insured person's pre-accident essential tasks could be accomplished with reasonable and practical modifications.
I find the same approach to be applicable in this case. I find that since February 24, 1993, Mrs. Puopolo is substantially able to perform her essential tasks with reasonable and practical modifications.
My assessment of Mrs. Puopolo's ability to perform her essential tasks is supported by the Insurer's surveillance evidence. Mr. Lane Bailey, a private investigator, testified at the hearing. On June 23, 1993, he observed Mrs. Puopolo as she left her physiotherapy clinic at 11:30 a.m. He observed that as Mrs. Puopolo walked to her car after leaving the clinic, she walked at a slower pace than normal, and somewhat favoured her right leg. She then drove to a cemetery a short distance away, where she parked her car and walked about 30 yards to a grave. (Mrs. Puopolo testified that this was her mother's grave.)
Mr. Bailey videotaped Mrs. Puopolo from his vehicle about 50 yards away from the grave, and this videotape was entered into evidence (Exhibit 2). It shows Mrs. Puopolo rearranging some flowers, walking twice to a water fountain about 20 yards from the grave, and returning to the grave to water the flowers. After speaking to some cemetery staff, she walked back to her car.
Visiting and tending a parent's grave is likely to be an occasional task and one which an injured person is determined to perform, even if her pain prevents her from performing other tasks on a regular basis. However, it is of some significance that the tape shows Mrs. Puopolo driving, walking, and repeatedly crouching and bending from the waist for about 20 minutes. These are exactly the activities which Mrs. Puopolo claims she cannot perform. The tape reveals Mrs. Puopolo performing these functions without apparent discomfort, medical aid, or restriction of movement. I conclude that she is also able to drive, walk, bend, and crouch as required in performing her essential tasks.
In addition, I find that Mrs. Puopolo has shown a pattern of non-compliance with treatment and rehabilitation recommendations. She began attending physiotherapy at the Mississauga Centre For Physiotherapy on June 11, 1992. She attended four times, then discharged herself in order to care for her father, who was seriously ill.
Mrs. Puopolo testified that her father was hospitalized in June and July of 1992 for liver failure. She visited him in the hospital "most days". After his discharge, he returned home, but remained ill for some months. Mrs. Puopolo continued to visit him almost daily, and felt that she did not have time for physiotherapy. She did not do her home exercises during this period; according to Mrs. Puopolo, visiting her father gave her enough exercise. At a later point in her cross-examination, she testified that she did her home exercises "when she could", but every time she tried, her brother called to make arrangements for them to visit their father. Mrs. Puopolo also stated, in cross-examination, that she would not have been able to visit her father if she had not been injured, because she would have been working.
Mrs. Puopolo testified that she did not return to physiotherapy in the fall of 1992, despite the recommendations of Dr. Pontarini and Dr. Ameis, because she "may have" been sick with asthmatic bronchitis. Dr. Pontarini's clinical notes do not refer to any respiratory complaint during this period. In cross-examination, Mrs. Puopolo stated that "any time" she has missed physiotherapy, it has been on account of her father's illness or her own recurrent respiratory problems. She testified that she had been ill many times in the past few years, but she "could not say what it was".
Mrs. Puopolo returned to physiotherapy on March 29, 1993, and attended several times a week until late September 1993, when she quit again because of her respiratory problems, which she described as "close to pneumonia".
She attended again between November 30 and late December 1993, and again discharged herself in order to care for her father. She returned to physiotherapy on March 28, 1994. At the time of the hearing, she continued to attend. In her testimony at the hearing, Mrs. Puopolo stated that she had had a "possible miscarriage" in 1994. I could find no reference to this in the medical documents.
According to Dr. Ameis and Rehabilitation Counsellor, Dorothy Liptrot, Mrs. Puopolo reported to them that she had refused Dr. Pontarini's recommendation that she undergo a knee aspiration, to release the fluid on her knee (Dr. Ameis' letters of October 22, 1992, to Dr. Pontarini, and November 17, 1992, to the Insurer, Exhibit 1, Tab 7, and Ms. Liptrot's letter of August 31, 1992, to the Insurer, Exhibit 1, Tab 6). At the hearing, Mrs. Puopolo denied this. I prefer the evidence of Mrs. Puopolo's contemporaneous reports to Dr. Ameis and Ms. Liptrot to her rather confusing testimony at the hearing. Mrs. Puopolo appears to believe that the painful arthrogram she had on March 5, 1992, was a knee aspiration; in fact, an arthrogram is a diagnostic procedure. My impression of Mrs. Puopolo's testimony on this point is that she fears any invasive or painful procedure on her knee.
I also find it significant that Mrs. Puopolo did not return to Dr. Simmonds, despite Dr. Ameis' recommendation that she do so "as soon as possible, for consideration of arthroscopy, injection or just restarting physio" (Exhibit 1, Tab 7, Dr. Ameis' October 22, 1992 report to Dr. Pontarini). Instead, her counsel sent her to Dr. Ogilvie-Harris. Nor did she return to physiotherapy until late March of the following year.
In her report of August 31, 1992 (Exhibit 1, Tab 6), Ms. Liptrot stated, "[a]s Mary openly reports, she continues to demonstrate non-compliant behaviour...." In her September 21, 1992 report (Exhibit 1, Tab 6), Ms. Liptrot identified barriers to rehabilitation including Mrs. Puopolo's reluctance to undergo a knee aspiration because of her painful arthrogram in March 1992, and her failure to attend at physiotherapy because of her father's illness. In addition, as Mrs. Puopolo's testimony made clear, she has not performed the home exercises recommended by her physiotherapists, and she has not participated meaningfully in the program to increase her activities of daily living, as advised by her rehabilitation caseworker.
Mrs. Puopolo's fear of further procedures on her knee is understandable, but the Insurer cannot be expected to subsidize the prolonged recovery which may be the result of this decision. Nor is the Insurer obliged to pay benefits for periods of disability which are attributable to unrelated personal or family circumstances.
In my view, Mrs. Puopolo's non-compliant behaviour provides further support for my finding that her knee injury no longer substantially disables her from performing the essential tasks in which she would normally engage. In addition, I find that the motor vehicle accident is not a significant contributing factor in causing any ongoing disability Mrs. Puopolo has suffered after February 1993.
Special Award:
Given my finding that Mrs. Puopolo is not entitled to additional weekly income benefits after February 1993, she is not entitled to a special award.
Expenses:
Although Mrs. Puopolo did not succeed in this matter, I accept that she suffers ongoing pain and some degree of disability as a result of the accident. Further, her case was put forward expeditiously. I find it appropriate in this case to award Mrs. Puopolo her expenses incurred in the arbitration proceeding.
Order:
Mrs. Puopolo is not entitled to weekly income benefits after February 24, 1993.
Mrs. Puopolo is not entitled to a special award.
Mrs. Puopolo is entitled to her expenses incurred in the arbitration.
December 20, 1994
Nancy Makepeace Arbitrator
Date
APPENDIX A
Exhibits
Exhibit 1 Medical Brief of Maria Puopolo
Tab 1 Photocopies of records from The Mississauga Hospital
Tab 2 Photocopies of documents from Dr. Galdino Pontarini
Tab 3 Photocopies of documents from the Mississauga Centre For Physiotherapy
Tab 4 Photocopies of documents from Dr. D.J. Ogilvie-Harris
Tab 5 Photocopies of documents from The Toronto Hospital
Tab 6 Photocopies of documents from Canadian Rehabilitation Consultants Inc.
Tab 7 Photocopies of documents from Dr. Arthur Ameis
Tab 8 Letter dated February 27, 1992, to Dr. G. Pontarini from Dr. David F. Simmonds, together with a Radiology Report dated March 5, 1992
Tab 9 Clinical notes of Dr. S. Silver
Tab 10 OHIP Summary for Maria Puopolo dated April 25, 1994
Exhibit 2 Videotape taken on June 23, 1993, of Maria Puopolo
Other Documents Before the Arbitrator
Report of Mediator dated November 24, 1993
Application for Appointment of an Arbitrator dated December 19, 1993
Response by Insurer dated February 1, 1994
Pre-hearing letter dated March 18, 1994