Neutral Citation: 1994 ONICDRG 39
File No. A-001116
ONTARIO INSURANCE COMMISSION
BETWEEN:
P. S.
Applicant
and
TORONTO TRANSIT COMMISSION (MARKEL INSURANCE)
Insurer
DECISION
Issues:
The Applicant was the unfortunate victim of three accidents while travelling on the Toronto Transit Commission ("TTC"). She was injured in an accident in 1987 and again in 1989. She was involved in a third incident on a TTC bus on June 14, 1991, which is the subject of these present proceedings.
The TTC paid statutory accident benefits under Ontario Regulation R.R.O. 6721 in respect of the Applicant's injuries from this accident. It terminated disability benefits on December 6, 1991, and disputed payment of certain ongoing medical and rehabilitation expenses.
The issues to be determined at this arbitration hearing are:
Is the Applicant entitled to weekly benefits from December 6, 1991 onwards, under section 13 of the Schedule?
Is the Applicant entitled to recover specified expenses to pay for treatment from the Post Injury Rehab Centre, from the Whiplash and Headache Clinic, for chiropractic treatment, for a TENS machine and "back buddy" seat, and for transportation expenses, under section 6 of the Schedule?
The Applicant also claims interest on any outstanding amounts and her expenses incurred in respect to the arbitration.
Result:
The Applicant is not entitled to weekly benefits from December 6, 1991 onwards.
The Applicant is not entitled to recover the specified expenses under section 6 of the Schedule.
The Applicant is entitled to her expenses reasonably incurred in respect to the arbitration.
Hearing:
The hearing was held for ten days in North York, Ontario, on February 11, 15, 16, March 12, May 3, 4, 5, 7, 11 and 12, 1993, before me, Susan Naylor, Senior Arbitrator.
Present at the hearing were:
The Applicant:
P.S.
Applicant's Representative:
David S. Wilson Barrister and Solicitor
Insurer's Representative:
Robert Zigler Barrister and Solicitor
Mr. Garry Leary and Mr. Paul Ballantine from the Toronto Transit Commission attended.
Nine witnesses testified at the hearing. The names of the witnesses are set out in Appendix 1.
Seventeen exhibits were filed at the hearing. They are set out at Appendix 2.
Numerous evidentiary and procedural rulings were made during the course of the hearing. Written reasons were given in a number of instances. These written rulings are reproduced at Appendix 3.
1. Summary:
The Applicant has been involved in three accidents while a passenger on the TTC. All three accidents involved similar circumstances -- the Applicant was a passenger on a TTC bus and apparently suffered soft tissue injuries as a result of striking or falling against a supporting pole or rail in the bus when the bus suddenly stopped or started (the first accident involved a collision with another vehicle; the other two did not). Unfortunately, it is clear that the first two accidents had severe consequences for the Applicant's physical and emotional well-being. Their combined effect disabled her from work indefinitely and also seriously limited her ability to function normally in her day-to-day activities. The issue in this proceeding is the effect of the third accident on June 14, 1991 ("the June 1991 accident"), on her condition.
The Applicant contends that the June 1991 accident materially contributed to her physical and mental problems, and rendered her more disabled than before.
The Applicant claims ongoing disability benefits arising from the June 1991 accident. These benefits are payable under section 13 of the Schedule if the Applicant establishes:
that she sustained physical, psychological or mental injury as a result of the June 1991 accident; and
that, as a result of those injuries, she has suffered substantial inability to perform the essential tasks in which she would normally engage, from December 6, 1991 and thereafter.
2. The Applicant's Condition Before the 1991 Accident:
(a) The Period from June 1987 to December 1990:
The Applicant was 36 years old at the time of the June 1991 accident. She was living with her son, A., whom she had raised on her own. A. was 17 years old and was going to high school in 1991.
In the years before the first TTC accident in 1987, the Applicant was employed as a health care aid and housekeeper. The evidence indicates that she was in good health; her health troubles seemed to start from the time of this first accident.
On June 5, 1987, the Applicant was involved in an accident, while a passenger on a TTC bus. The bus braked in the course of a collision with another vehicle. The Applicant apparently struck her head and left shoulder on a pole attached to the seat, and also hit her lower back against the seat. She suffered soft tissue injuries to her neck, left shoulder and lower back. Her symptoms did not resolve over time.
The Applicant did not return to work for two years after the first accident. She complained of constant, disturbing, headaches and of a pinching sensation in her left shoulder, "like there were little things walking over her shoulder". The severity and persistence of her pain affected her psychologically. She stated that she became sad, lonely and very depressed by the unresolved pain.
The Applicant was examined by her family practitioner, Dr. Cohen, shortly after the first accident. Dr. Cohen testified at the hearing, and his clinical notes and records were marked Exhibit 4, Tab 2. A number of medical-legal reports from Dr. Cohen were contained in Exhibits 2 and 5.
Dr. Cohen diagnosed a cervical and lumbar myofascial strain of mild to moderate severity and fibromyalgia related to the accident.
When the Applicant's symptoms persisted, Dr. Cohen concluded that there was some degree of functional overlay because the Applicant "tends to overreact to her symptoms, especially to painful stimuli" (Report, September 1, 1988, Exhibit 5, Tab 7).
The Applicant was treated with medication, which was changed from time to time. The medication included non-steroid, anti-inflammatory drugs, analgesics such as Tylenol #2 and #3, Robaxisal with codeine, and Amitriptyline, an anti-depressant and pain-reliever. She also received physiotherapy and chiropractic treatment. None of the treatment helped in the long run.
Diagnostic tests disclosed no significant pathology in the Applicant's neck and back; however, Dr. Robert Owen, a specialist in physical and rehabilitation medicine, found degenerative changes in the left shoulder, made symptomatic by a rotator cuff injury and contusion at the time of the accident. Dr Owen concluded:
she is in the process of developing a chronic pain syndrome with multiple areas of muscle tenderness which may well develop into a post-traumatic muscular rheumatism fibrositis type syndrome.
(Report, May 3, 1989, Exhibit 5, Tab 9)
He concluded that, in view of the passage of time, he saw little prospect of the Applicant making a major improvement. He also thought that steroid injections into the left shoulder were contra-indicated because of the osteoarthritic changes identified.
Dr. Cohen shared Dr. Owen's view that the Applicant had chronic pain syndrome and was unlikely to improve. He tried to admit her into the Sunnybrook Pain Clinic but was unsuccessful. (Report, October 6, 1989, Exhibit 5, Tab 11).
The Applicant returned to work as a health care aid in June 1989, although her symptoms had not resolved. She cared for an elderly person who suffered from Alzheimer's disease, doing light housekeeping, accompanying the patient out of the house and ensuring the patient's safety.
The Applicant had only been back at work between three to four months, when she was unfortunately involved in a second accident on the TTC, on September 23, 1989. The circumstances were similar to the first TTC accident. The Applicant was thrown against the seat rail, striking her breast and the left side of her head and her left shoulder at the collar bone. She re-injured her back, neck and shoulder.
After a short absence from work, the Applicant returned to a job similar to what she had been doing before. However, her pain symptoms and depression were compounded by this second accident, and her physical and psychological condition worsened.
According to the medical reports and the Applicant's own testimony, she had numerous complaints during the year after the second TTC accident. These included: numbness, pain and weakness in her back, neck pain, tightness and pain in her left shoulder "like something was eating at it", pain moving across to the right shoulder, chest pain, numbness in her right leg, tingling and weakness in her left hand, pain in both knees, discomfort in her right and left feet, severe headaches, upset stomach, shortness of breath, forgetfulness, nausea, dizziness, blurred vision, diarrhoea, incontinence, insomnia, shortness of breath, difficulty swallowing, anxiety and depression. The unremitting nature of her pain symptoms increased her state of depression and resulted in interpersonal conflicts with her son, in a cycle of cause and effect.
Dr. Robert Owen, the physical and rehabilitation medicine specialist who saw the Applicant after the first TTC accident, continued to see her after the second accident. He concluded that the Applicant was suffering from a chronic muscular and ligamentous strain of her neck and back, and would likely experience permanent symptoms because of the probability of earlier degenerative changes in these areas. He also thought she would suffer ongoing post-traumatic migraines for the rest of her life (Exhibit 5, Tab 17).
Other specialists, notably Dr. Gawel and Dr. Rowsell, later agreed with this prognosis. Dr. Cohen's reports confirm the entrenchment of the Applicant's chronic pain syndrome, and the deterioration of her already fragile mental health. He referred the Applicant for psychiatric attention. The Applicant saw several psychiatrists, including, in December 1989, Dr. Hans Arndt, whom she has continued to see on a regular basis.
Dr. Arndt's clinical notes and records were filed at Exhibit 4, Tab 1. In addition, a number of medical-legal reports were filed at Exhibits 2 and 5.
Dr. Arndt recorded the Applicant's presenting symptoms in the following words:
I'm just not functioning. I'm not the person I used to be - this goes back about two years.
Dr. Arndt diagnosed depression, chronic pain syndrome, and provisionally, post-traumatic stress disorder. He started the Applicant on a regime of anti-depressant medication, which he adjusted from time to time.
It appears that the Applicant's condition did not improve with the medication. In May 1990, Dr. Arndt's notes record, of the Applicant:
I feel totally burned out - yet she is at work but has to push herself severely I feel so sick, I can't even look at self - - she has to take off time from work, at times can't get off bus from work because of legs hurt: has to miss her stop. I have a hard time talking about that. I ache so much most of the time.
The evidence indicates that the Applicant was unstable on her feet and apparently had one, and possibly several falls at home. She testified that, in the summer of 1990, she was having difficulty retaining her urine and had constant diarrhoea. She testified that she was nervous when she travelled on buses. The normal constant jerking movements of a bus in transit made her fearful and nauseous; she was constantly afraid of losing control of her bowels in public.
At some point in the fall of 1990, the Applicant stopped working altogether, after gradually reducing her hours, because of her problems. The Applicant's mental condition deteriorated even more after she stopped work. In November 1990, Dr. Cohen reported that she complained that she was unable to leave home for two weeks and had difficulty doing her housework.
The Applicant and her son, A., testified that the Applicant's chronic physical and emotional problems and her inability to function normally seriously affected their relationship. They testified that the Applicant took out her frustrations on her son and picked arguments with him. They quarrelled because she felt that she was not getting the support she needed around the house. The conflicts at home were reflected in A.'s performance at school and he was suspended on several occasions for being absent. A. did not want to come home to face the problems and spent a great deal of time at his aunt's house. A. stated that things got worse after his mother stopped working in 1990 and she started "talking crazy", threatening to hurt him or herself.
The Applicant started to express thoughts of suicide and of hurting her son, reflecting her increased depression and desperation. This led to her admission as an in-patient at Northwestern General Hospital from November 29 to December 6, 1990. It appears from the hospital records that the Applicant may have been re-admitted briefly on December 30, 1990.
The Northwestern General Hospital records, marked Exhibit 3, Tab 6, and Exhibit 5, Tab 18, were signed by Dr. Rosenblat, the attending psychiatrist. The hospital records refer to a prior suicidal incident by the Applicant, rather in the nature of an "appeal for help" by the Applicant, when she apparently took three extra-strength Tylenol.
Dr. Rosenblat, the attending psychiatrist, diagnosed a major depressive episode, chronic pain syndrome and post-traumatic stress disorder. The Applicant was treated with Sinequan, an anti-depressant, and anti-inflammatory medication and was given supportive psychotherapy.
(b) The Six Months Before the June 1991 Accident:
After her discharge, the Applicant was returned to the psychiatric care of Dr. Arndt. In early 1991, she was also referred to a pain clinic, the Whiplash and Headache Clinic, for the treatment of her headaches.
Dr. Arndt's notes make it clear that, in his view, the Applicant's mental state had not improved materially after her hospitalisation in early December. On December 13, 1990, he reported:
Unfortunately [the Applicant] felt that the hospitalization did not do any good at all, and she complained that she essentially did not obtain any treatment while in hospital.
Frankly, at this point, I would have to agree with [the Applicant] that she has not improved too much, if at all, as a result of the hospitalization. I took the liberty of increasing the medication at night which is an antidepressant with sedative effect, hoping that she would be able to get some better sleep, and as a result would improve overall.
(Report, December 27, 1990, Exhibit 5, Tab 19)
Dr. Arndt saw the Applicant again on March 13, 1991. In his report of March 25, 1991 (Exhibit 5, Tab 21), he stated:
Since my last contact with her on the 13th of December, 1990, [the Applicant] again seemed to not really have improved, but rather, if anything, she might well have retrogressed.
Dr. Arndt indicated that, despite adjustments in the Applicant's medication, she had not improved and that her prognosis was "very guarded".
On May 13, 1991, some six weeks before the accident, the Applicant reported "strange moods" and being "really stressed out". Dr. Arndt recorded being told that the Applicant felt "more sick now; have more pain",
I had a relapse, totally couldn't move, I couldn't function, I have this sick notion that I want to overdose myself - I don't feel I'm getting better.
(Exhibit 4, Tab 1)
Dr. Arndt changed the Applicant's medication regime again.
The Applicant's last visit before the June 1991 accident was on June 3, 1991. At that time, the Applicant reported feeling a little better.
Dr. Arndt increased the Applicant's medication. His explanation for this is contained in a letter to Applicant's counsel, dated November 4, 1992, marked Exhibit 5, Tab 41:
My recommendation to increase the medication was not in response to her feeling well, but rather due to the fact that, in my opinion, she was still suffering from depression of such magnitude, that such an increase was indicated.
In early January 1991, the Applicant had also started to attend the Whiplash and Headache Clinic ("the Clinic"), under the care of Dr Tyl. Dr. Tyl testified at the hearing. In addition, his clinical notes and records and a number of reports were filed at Exhibits 2, 4 and 5.
When Dr. Tyl examined the Applicant on January 7, 1991, she complained of headaches, a buzzing noise in her left ear and shooting pain in her neck. Dr. Tyl found the left side of her neck and shoulder to be painful, especially around the occipital nerves behind each ear. He stated that the occipital nerve can be stretched in trauma, creating a tearing force on the tissue. He ranked tenderness of the occipital nerve on a range of +1 (the least) to +4 (the most tender). He found that the left occipital nerve exhibited maximum tenderness at +4, while the right occipital nerve was slightly less tender at +3. He found pain and limited range of motion in the neck, tenderness and spasm in the left shoulder and pain in the left upper arm and low back.
Dr. Tyl testified that a patient cannot "fake" tenderness of the occipital nerve, because of the nature of the test, and concluded that the Applicant's complaints of pain were genuine. He diagnosed post-traumatic occipital neuralgia (irritation of the nerve) with obesity and a psychological component. He recommended a series of occipital nerve block injections and a neurological examination. He started the injections at that visit. (Report, January 9, 1991, Exhibit 5, Tab 22)
Dr. Gawel performed the neurological examination on February 1, 1991. His record was marked Exhibit 5, Tab 20, and shows that the Applicant complained of continual severe headaches, dizziness, and nausea and was in "exquisite pain" at the visit.
Dr. Gawel's neurological examination revealed normal findings, as did the CAT scan he ordered for her concomitant memory problems. He concluded that the Applicant was suffering from post-traumatic headaches, vascular in nature, and prescribed migraine medication. Between January and June 1991, the Applicant received occipital nerve blocks, trans-scapular nerve blocks and other injections of trigger points on a monthly basis. Dr. Tyl explained that the treatment involved injecting local anaesthetic and a steroid to reduce inflammation and headaches.
The Applicant also received laser treatment and Codetron treatment, and education on exercises and pain management at the Post Injury Rehab Centre, which was at this time in the same location as the Whiplash and Headache Clinic. Exhibit 1 is a treatment brief, listing the number of treatments received by the Applicant and details of payment. The Applicant also received massage treatments in February and March 1991.
Dr. Tyl testified that the Applicant made slow, if any, progress. but the injections helped her headaches temporarily. The Clinic records report that the Applicant experienced transient relief from her headaches for about 12 days after the injections.
In her visits, the Applicant complained primarily of headaches and left shoulder and arm pain although she also complained of pain in both shoulders, upper back, and low back pain. Dr. Tyl testified that he always noted objective signs of organicity in the form of tenderness and spasm in the Applicant's left shoulder and neck, and some tenderness and spasm on her right side, although not as much. Occipital nerve "readings" remained the same as on the Applicant's first visit. The Applicant also complained about diarrhoea.
The Clinic records indicate that on April 18, 1991, the Applicant was rushed from the Clinic to the emergency department of a local hospital by ambulance. She had complained of low back pain radiating to her abdomen, and was in respiratory distress. She was taken by ambulance to hospital, and was discharged after nothing wrong could be found. The Applicant testified that she started to experience terrible muscle spasms on the way to the Clinic, and started to hyperventilate.
Dr. Tyl referred the Applicant to Dr. Rowsell, a psychiatrist. He testified that he did not know that the Applicant was already under the care of a psychiatrist, and felt that she should see a specialist because she was upset and experiencing nightmares and diarrhoea, signifying a nervous component to her problems. Although Dr. Rowsell did not see the Applicant until June 20, 1991, (after the June 1991 accident), he addressed her pre-accident condition in a medical-legal report, dated October 26, 1992. He agreed with the psychiatric diagnosis made by Drs. Arndt and Rosenblat, and described the Applicant as in a state of "helplessness", indicating a general diagnosis of post traumatic neurosis. He also agreed with the finding of post traumatic migraine. He described the prognosis as "very questionable indeed", and agreed with Dr. Owen that "this could be a life-long thing" and that the Applicant's symptoms would come and go but would not likely disappear.
The Applicant continued seeing her family physician, Dr. Cohen, regularly between January and June 1991. She reported physical complaints in a number of areas and Dr. Cohen found tenderness and tightness over the back and both shoulders, findings similar to those he had made in the previous months. On January 22, 1991, his records show that the skin on her back and shoulders was "exquisitely tender".
In addition to complaints of a physical nature, the Applicant had numerous complaints of a psychological nature, for which she was encouraged to see her psychiatrist. She reported problems with her bowels throughout the period. On February 18, 1991, she described shaking, crying and nervousness; on March 11, she described depressive symptoms; on May 13, she was depressed and "pseudo-suicidal", talking about death. On June 3, 1991, shortly before the June 1991 accident, Dr. Cohen reported:
She noted a one week history of a decreased appetite and abdominal pains. She felt anergic for three days. She noted nightmares, was crying and was depressed. She noted that she could not do her housework. She had problems with her bowels.
(Report, October 17, 1991, Exhibit 5, Tab 28)
Dr. Cohen testified that, in his opinion, the Applicant's physical and emotional state, though still symptomatic, had "levelled-off" or "plateaued" before the June 1991 accident. He felt that her symptoms were not getting better, but they were not getting worse. However, he felt that her physical and mental state started to deteriorate again after the June 1991 accident.
This testimony was consistent with the testimony of the Applicant and several other non-medical witnesses. In addition to the Applicant, her son, A., testified, as did her cousin, Ms. Foreman, and a family friend, Ms. Reid.
A. lived with the Applicant, while Ms. Foreman and Ms. Reid visited her on a frequent and regular basis both before and after the June 1991 accident. The witnesses acknowledged that the Applicant was not "in good shape", either physically or mentally, before the accident, but testified that she got worse afterwards.
Their testimony indicates that, in the first six months of 1991, the Applicant had difficulty walking, bending, standing, or sitting for any length of time. The Applicant testified that she could do the rehabilitative exercises that she had learned at the Post Injury Rehab Centre for only about 10 minutes, even with a break. She was able to do only light house-chores, such as dusting, sweeping and arranging her ornaments. She could not make her bed every day or do the laundry, but would accompany her son to the laundry room. She could not prepare food, other than the most simple meals, and relied on her son to help with the cooking. Her cousin, Ms. Foreman, would bring pre-prepared meals to the house several times a week, to save them cooking.
The Applicant often accompanied one or other of the witnesses to the supermarket to go shopping, but would make her own selection. Sometimes, she went on her own.
The Applicant had some difficulty dressing herself and rarely took baths, but was able to shower and take care of her own personal care needs.
A., her son, thought that his mother had improved after she left the hospital in December 1990. He felt that she was calmer and more cheerful. He thought that he and his mother were on better terms with each other, and that she was not talking about harming herself or hurting him. He noted that his mother felt well enough to accompany him to a movie, about three months before the June 1991 accident, whereas they had not been able to go to a movie together before.
3. The Applicant's Condition After the June 1991 Accident:
(a) The Accident on June 14, 1991:
The third accident on the TTC happened on June 14, 1991. The Applicant was going to the Clinic for treatment. She had walked to the bus stop with her son, who left when the bus arrived. She got on the bus.
The Applicant was standing at the back of the bus, holding on to a pole with her right arm for support. The driver started up the bus and then braked suddenly and hard (she did not know why). The Applicant testified that she twisted, striking her right shoulder, back and head against the pole. The driver continued driving.
A. observed the bus pulling away and stopping sharply in the middle of an intersection because a car was in front of it.
The Applicant testified that she felt a "snap" in the centre of her back, as though she had twisted it. She started to hyperventilate and to feel nauseous. As the bus continued, the Applicant vomited. When the bus arrived at the subway entrance, the Applicant was able to get off the bus. She stated that she did not complain to the driver or other TTC authority, because she was too angry to do so. The Applicant did not wish to miss her treatment so continued on her journey, which took approximately an hour in total. She felt worse as she travelled on the subway. She left the subway at the Museum Station, and took another bus to Avenue Road, where the Clinic was. She testified that she felt nauseous on the bus and vomited again. She became extremely dizzy and started to perspire heavily. She tried to get off the bus when it arrived at the stop outside the Clinic. A passenger told the driver that the Applicant was ill, and he told her to sit on the step of the bus. The Applicant testified that she had to lay down because she was so dizzy. An employee from a near-by store telephoned the charge nurse at the Clinic, who came down to get the Applicant. The charge nurse called an ambulance and the Applicant was taken to the Emergency Department at Mount Sinai Hospital. She was discharged the same day and returned home by taxi.
The hospital records are marked Exhibit 5, Tab 24. Normal range of motion was found in her neck, with slight tenderness in the right upper trapezius muscle. Analgesics were prescribed.
The Applicant testified that she experienced a sharp intermittent pain in the centre of her back and between her shoulder blades. She stated that "heavy pain" came on about a week after the accident and was more severe than before. She started to experience more nightmares about a month afterwards.
The Clinic records for June 14, 1991, are found at Exhibit 4, Tab 3. The charge nurse reported that she had been called by a passer-by after the Applicant had collapsed on the bus. She noted that the Applicant was weepy but alert and told her she had collapsed after getting dizzy from a headache. The report indicated that the pain did not appear to be muscle-related because the Applicant related it to her headache. The report questioned whether a hysterical component was involved.
(b) The Period From the June 1991 Accident to the End of 1991:
The Applicant went to see Dr. Cohen on June 17, and told him that she had hurt her head, right arm and right flank in another accident. She complained of nausea, vomiting, nervousness, insomnia and of falling over to the side.
Dr. Cohen examined the Applicant and made a number of objective findings of physical injury. Her lower back was tight -- in spasm -- and her trapezius was tender and also tight, but neurologically sound. He noted spasm in the right shoulder. He described spasm as an involuntary contraction of the muscle in reaction to a noxious stimulant, such as pain. He testified that a patient can "fake" an objective finding, such as spasm. However, he felt that the overall picture presented was genuine.
Dr. Cohen diagnosed myalgia in the back, which he described in his testimony as a clinical diagnosis of a sleep disorder in which the person will awake, feeling tired, with aches and pains, especially across the shoulder girdle and the spine.
In subsequent visits in the summer and fall of 1991, the Applicant complained of a number of physical problems including generalised pain, especially in her back, shoulders and arms, and of muscle spasms. Dr. Cohen continued to find tightness in her lower back and shoulders, essentially the same findings as he had made at the beginning of the year. On July 23, 1991, the Applicant complained that she could not look after her apartment. At that time, Dr. Cohen diagnosed bilateral rotator cuff tendinitis.
Dr. Cohen's notes show that the Applicant also complained of nervous or depressive symptoms in these visits, including a two year history of diarrhoea, hair loss, neurodermatitis, dizziness, insomnia, anxiety and depression. He felt that her principal problem was depression.
Dr. Tyl had already referred the Applicant to Dr. Rowsell, a psychiatrist. He saw the Applicant on June 20, 1991 and on several other occasions in 1991 and 1992. Dr. Rowsell noted that, when he first saw the Applicant, she was staggering from side to side and that the worst of her symptoms appeared to be continuing diarrhoea.
Dr. Tyl first saw the Applicant after the June 14, 1991, accident on June 24, 1991. He recorded that the Applicant told him that she had suffered a "slight injury" on the TTC, in which she had injured her right arm and hit her head.
According to Dr. Tyl's records (Clinical Notes, Exhibit 4, Tab 3, and Report, July 27, 1992, Exhibit 2, Tab 6), the Applicant complained of continued pain in her left shoulder and arm, of headaches and of a two year history of diarrhoea. She also complained of generalised "shakiness" and trembling. These complaints continued in the summer and fall of 1991.
Dr. Tyl found both shoulders and her back to be tender and in spasm, although the Applicant's principal problem continued to be her left shoulder and arm. The Applicant continued to receive the same treatment at the Clinic in the summer and fall of 1991, as she had before the June 1991 accident.
The Applicant also continued to see her psychiatrist, Dr. Arndt, after the June 1991 accident, the first time being on June 27, 1991. His notes do not mention the most recent accident, and he confirmed in his testimony that the Applicant did not mention it at that time. Dr. Arndt wrote to Applicant's counsel the following month and attributed the Applicant's symptoms to the two prior accidents. (Report, July 18, 1991, Exhibit 5, Tab 27)
Dr. Arndt noted that she had a poor appetite, had lost over twenty pounds of weight, had difficulties sleeping and was depressed. Her symptoms appeared to come and go:
- she still does not see a great deal of improvement in mood....."I don't want to live anymore - other days I'm feeling fine".
He subsequently noted that the Applicant's family physician had stopped the Applicant's medication and wrote to him expressing his concern about the Applicant's lack of progress and, indeed, declining condition. (Letter, October 25, 1991, Exhibit 5, Tab 25)
When Dr. Arndt saw the Applicant again in late September, she was not doing well mentally. She complained of nightmares, insomnia, and diarrhoea and stated that she was in so much pain she wanted to take her own life. Dr. Arndt placed her on the waiting list for re-admission to Northwestern General Hospital. However, the Applicant did not go in to hospital at this time, because she was unable to make arrangements for the care of her son.
(c) The Period from January 1992 Onwards:
The medical reports continued to record similar ongoing physical complaints, including several falls in early 1992. The Applicant continued to get weekly injections from Dr. Tyl's Clinic, apparently receiving some transient relief from them. In late September 1992, Dr. Tyl noted painful swelling or puffiness in front of the left shoulder for the first time. On Dr. Tyl's recommendation, the Applicant started chiropractic treatment with Dr. Deltoff in the fall of 1992. Dr. Deltoff's report dated November 5, 1992, is contained at Exhibit 2, Tab 12.
The Applicant's mental state did not improve. She was finally admitted to Northwestern General Hospital on March 19, 1992, where she remained as an in-patient until the end of the month. She then attended at the psychiatric day hospital until July 1992. The reasons for her admission were the same as before: a major depressive episode and chronic pain. She had suicidal ideation and threatened to harm her son.
Dr. Rosenblat, again the attending psychiatrist at the hospital, added mixed personality disorder to the prior diagnosis. However, he did not feel this time that the Applicant was suffering from post traumatic stress disorder.
The Applicant was placed on a medication regime, and provided with supportive psychotherapy. More diagnostic tests were done to identify whether there was a physical basis for the Applicant's long-standing complaints, but these revealed nothing.
Dr. Rosenblat concluded that, at the end of the day hospital treatment, the Applicant seemed "mildly improved"; although less so than in 1990. Her chronic pain was unchanged. He suggested several programs from which the Applicant might benefit. Unfortunately, it appears that she was unable to attend any of them, in the words of Dr. Arndt "somehow simply being overwhelmed" (Exhibit 2, Tab 9).
The Applicant was re-admitted to Northwestern General Hospital the following year, on January 15, 1993, on the same grounds as before. The hospital records in respect of this admission are marked Exhibit 10.
(d) The Testimony of the Applicant and Other Witnesses:
The Applicant testified that her problems have not resolved and she remains in a great deal of pain and discomfort, with "good days and bad days". She continues to have frequent, severe, headaches. The headaches are more disturbing than before the June 1991 accident, "like pushing a sharp knife right through my head...feels like my whole head is coming off". Her left shoulder is very sore and has swollen up along the collar bone to the arm - "if someone blows on it I would feel it". The Applicant noticed that her shoulder was swollen before the June 1991 accident, but it has worsened. She can see her right shoulder palpitating. Her lower back has shown no improvement; since the June 1991 accident, she has felt a sharp pain "like someone is pushing a knife into my back". She experiences more muscle spasms than she did before. She has nightmares and experiences flash-backs of the TTC accident. She is nervous and feels frightened. She has blurry vision which makes her nauseous. She is forgetful, cannot concentrate and feels confused.
The Applicant testified that her level of functioning deteriorated after the June 1991 accident. She became unable to do those activities that she could do before, with perseverance. She felt that she could no longer "push through" the pain, as before. The Applicant's testimony as to her reduced level of functioning was supported by the testimony of A., Ms. Foreman and Ms. Reid, all of whom testified to being aware of the June 1991 accident shortly after it occurred.
According to their testimony, the Applicant complained of more pain, particularly back pain, after the June 1991 accident, and her mental state worsened. Ms. Foreman noticed things getting progressively worse about two months after the June 1991 accident, while Ms. Reid pegged the change at two to three weeks.
Both Ms. Foreman and Ms. Reid testified that the Applicant has got progressively worse since then, Ms. Reid noticing further deterioration in late 1991, whereas Ms. Foreman indicated changes in late 1992.
According to the testimony, the Applicant has not been able to walk, sit or stand for as long as she could before the June 1991 accident. For example, her son testified that she occasionally accompanied him on the four to six minute walk to the TTC main intersection before, but was unable to do so afterwards. Ms. Reid stated that the Applicant no longer accompanied her to the elevator and had to lean onto the walls for support, when Ms. Reid visited her.
The witnesses testified that the Applicant was unable to do even light housework, although they differed on who did the housework. They testified that the Applicant's bed was rarely made or tidied up. The Applicant apparently was no longer able to prepare even simple meals, and relied on her son or Ms. Foreman to do the cooking. Ms. Foreman testified that she brought pre-prepared meals round to the Applicant's home much more frequently five times a week, and in late 1992 arranged for breakfast to also be delivered. The witnesses testified that the Applicant no longer helped with the shopping, but would sit in the car or the lobby of the supermarket.
The Applicant testified that she had more difficulty dressing herself, and attending to her personal needs. She testified that she rarely took showers any more -- she estimated that she had taken four showers since the accident.
The Applicant stated that she sleeps in her pantyhose about three or four times a week, because she is embarrassed to have to ask her son to help her dress and because it cuts down on time in the morning, if she has an appointment. She stated that she did this a few times before the accident, but she does it more frequently now.
She cannot do the exercises that are necessary for her rehabilitation. She has discontinued the magazine subscriptions she used to enjoy and no longer enjoys watching television because the noise bothers her. She rarely goes out socially.
Ms. Foreman testified that the Applicant cried a lot after the June 1991 accident and became much more unhappy. The Applicant repeatedly talks about committing suicide, whereas she had only heard the Applicant refer to this once before. It appeared that Ms. Foreman either did not know about the Applicant's first hospitalisation, or was confused about the timing of the respective re-admissions.
Ms. Reid also testified about the Applicant's deteriorating mental condition. She testified that the Applicant had not talked to her about suicide before the June 1991 accident. She was unaware of her first hospitalisation.
Both Ms. Foreman and A. testified that A.'s relationship with his mother went downhill after the June 1991 accident. They testified that, after June 1991, A. left home several times and had more difficulties at school.
A. left home to live with his aunt for two weeks in the summer of 1991, because of all the problems at home. However, A. could not recall whether this happened before or after June 14, 1991.
4. Findings:
a) The Issue of Causality:
Entitlement to section 13 benefits is established if the Applicant's physical, psychological or mental condition is "as a result of" the June 1991 accident.
It is a well-established principle that the accident need not be the sole, or even the primary cause of the continuing problems; it is sufficient if the accident contributes to the development or continuation of the condition, to a material degree.
Under the "thin-skull" rule, the condition is attributable to the accident if an applicant suffers injury in the accident because of an underlying physical or psychological vulnerability or if the accident aggravates a pre-existing physical or psychological condition.
This is essentially the Applicant's position - that a minor trauma (the June 1991 accident) aggravated the pre-existing physical and mental condition of a highly vulnerable individual.
The medical doctors involved in this case agree that the Applicant's condition is difficult and complex. There is no doubt that, at the time of the June 1991 accident, she was suffering physically and emotionally from the effects of the two prior motor vehicle accidents, and that her ability to function normally was severely limited. I accept that her prior physical condition and her fragile mental state made her more vulnerable to injury.
The Applicant's physicians generally agree about the diagnosis and cause of the Applicant's condition before the June 1991 accident, and the genuiness of her complaints.
The Applicant suffered soft tissue injuries to her neck, left shoulder and back in a first accident, which did not resolve and were aggravated in a second accident. The medical evidence indicates that the Applicant suffered from a degenerative condition and that she would likely suffer symptoms in these areas, and post-traumatic migraine, from time to time, on a permanent basis. The Applicant's symptoms developed into a full-blown chronic pain disorder, and led to severe depression.
The Diagnostic and Statistical Manual of Mental Disorders, (DSM-III-R) the publication issued by the American Psychiatric Association, defines chronic pain at paragraph 307.80 under the heading "Somatoform Pain Disorder" in the following terms:
The essential feature of this disorder is preoccupation with pain in the absence of adequate physical findings to account for the pain or its intensity.
Essentially, although the Applicant continued to exhibit objective signs of organicity, her complaints far outweighed the physical findings.
The Applicant's specialists also added the diagnosis of post-traumatic stress disorder, although Dr. Rosenblat did not think that the Applicant was suffering from this condition by her second admission in 1992. Dr. Rowsell suggested a generic term, post traumatic neurosis, to describe her nervous symptoms.
The majority of doctors who saw the Applicant (and all of those who treated her) are convinced of the genuiness of her complaints. The exception to these largely uniform medical views are the opinions of Dr. Ford and Dr. Furlong, two specialists who examined the Applicant at the request of the Insurer. They both questioned the diagnosis, cause and the genuiness of the Applicant's complaints.
Dr. Michael Ford is an orthopaedic specialist. He examined the Applicant on October 28, 1992. His report is marked Exhibit 11. Dr. Ford's report was not limited to the June 1991 accident, but to the effect of the three accidents, viewed globally. He testified at the hearing.
Dr. Ford found no objective sign of organic injury or indication of musculoskeletal pathology, and felt that the Applicant's complaints were "more diffuse and bizarre" than those of other chronic pain sufferers. He concluded that the Applicant was either "frankly malingering" or had "some bizarre psychosomatic, psychological, abnormality", unrelated to any of the accidents.
Dr. Ford based his assessment of possible malingering, in part, on the Applicant's elaborate hairstyle, which he assumed she had done herself. He felt that her well-groomed physical appearance was not in keeping with her history of severe depression or functional limitations. This assumption turned out to be incorrect, as the Applicant testified that she was wearing a wig so that she did not have to groom her own hair.
Dr. Ford indicated that his speciality was orthopaedic medicine and not psychiatry, and he deferred to the specialists in the diagnosis of any psychiatric disorder or psychological condition. I agree that the Applicant's psychiatrists are more qualified to opine as to her mental or psychological health, and I place more weight on their opinions in this area.
The Applicant was also examined, at the request of the Insurer, by Dr. F.W. Furlong, a psychiatrist. He examined the Applicant on October 25, 1992, and issued a 30 page report of his examination, marked Exhibit 12. A subsequent follow-up report dated December 16, 1992, was marked Exhibit 13, after Dr. Furlong had reviewed further hospital records. Dr. Furlong testified at the hearing.
Dr. Furlong concluded in his report that the Applicant was greatly exaggerating her complaints, although she likely had some organic pathology in her shoulder from the first accident. He concluded that she had a "severe character disorder" of a dependant and histrionic type with severe relationship problems, which accounted for her continuing problems. Dr. Furlong commented critically on the Applicant's demeanour in the examination and noted her "aggressive subtext". He continually drew inferences and conclusions from what the Applicant told him or from his review of her records, that were unfavourable, and unfair, to her. For example, he drew negative inferences from notations about the Applicant's relationships with other members of her therapy group, stating that one notation suggested "an angry if not vicious intolerance for criticism on her part". He also referred, in aid of his findings, to a study which he admitted was discredited in the profession. He concluded that she was grossly exaggerating her complaints based, in part, on the results of a simplistic "illness behaviour questionnaire", marked Exhibit 14, which, according to the evidence, is not a psychological test that has general acceptance or wide usage in Ontario.
In my view, Dr. Furlong assumed the role of an advocate for the Insurer in these proceedings, rather than an objective medical assessor. Accordingly, I cannot rely on his evidence.
I am satisfied as to the diagnosis of the Applicant's condition before the June 1991 accident and its relationship to the two previous automobile accidents. I am also satisfied, based on the weight of the evidence before me, and on my observations of the Applicant in the course of this prolonged proceeding, that the Applicant's experience of pain is very real and that she is tormented by the pain she feels.
The Applicant's family physician, Dr. Cohen, and the attending doctor at the Whiplash and Headache Clinic, Dr. Tyl, attribute the Applicant's continuing problems, including her suicidal ideation and two subsequent hospitalisations, in significant measure, to the June 1991 accident.
Dr. Abraham Cohen is an experienced family practitioner and has been the Applicant's family doctor since 1984. He has seen her regularly, at least once a month, and frequently, more often, since the first TTC accident.
Dr. Tyl has also been in practice for many years. He is an anesthesiologist by specialty. In the last few years, he has been working almost exclusively in the area of pain management. His practice is mainly concerned with the treatment of chronic pain and post traumatic injuries of the head, neck and back.
Both Dr. Cohen and Dr. Tyl testified at the hearing.
Dr. Cohen testified that the Applicant's physical and mental condition had plateaued or levelled-off in the six months before the accident. She was not getting worse. However, the clinical notes and records covering the period that were filed, including Dr. Cohen's records, do not seem to support this.
The evidence indicates that towards the end of 1990, the Applicant's mental condition had got markedly worse, although it is not clear why this was so.
Although a year had passed since the second accident and the Applicant was back at work for most of that time, her mental condition started to deteriorate inexplicably. The Applicant stopped working full-time, and then stopped working altogether in the fall of 1990. For two weeks in November 1990, the Applicant was unable to function at home, or even to leave the house. She became more and more depressed, and began thinking about committing suicide and of harming her son. This led to her hospitalisation in December 1990.
Dr. Arndt was the Applicant's attending psychiatrist. His notes of December 13, 1990, indicate that the Applicant's condition had not improved after she left hospital in early December. This was consistent with Dr. Cohen's testimony, who agreed that the Applicant's depression did not appear to be much improved when he saw her on December 7, 1990.
Although Dr. Rosenblat, the attending psychiatrist at Northwestern General Hospital seemed to think that the Applicant's condition had improved somewhat at the time she left hospital (more so, in any event, than after her 1992 day hospital admission), the evidence suggests that any such improvement was, at best, fleeting.
Dr. Arndt suggested that things seemed to get worse in the following months; in March 1991, he reported "if anything, she might well have retrogressed". In mid-May, the Applicant told him that she had relapsed and could not function, that she wanted to overdose herself, and that she was not getting any better.
The clinical notes and records of Dr. Tyl and Dr. Cohen show that the Applicant reported numerous physical complaints, including severe headaches, back, neck, shoulder and arm pain, principally on the left side, but also at the right shoulder. On examination, the Applicant showed objective signs of physical injury, including spasm, tenderness and occipital nerve tenderness on both sides.
The Applicant was rushed to hospital in April with low back pain, radiating to her abdomen, but again nothing was found. Her description of her feelings precipitating this incident suggested similarities with the events on June 14, 1991.
The same records also reveal the Applicant's mental state. They show that the Applicant suffered from a variety of problems, including shakiness, nervousness, crying, nightmares, diarrhoea and depression.
The history of the Applicant's complaints do not suggest that she had "plateaued". If anything, she seemed to be in worse shape as time progressed. In mid-May, Dr. Cohen recorded that she was depressed and "pseudo-suicidal". On cross-examination, Dr. Cohen conceded that "if you are depressed and talking about suicide, the only way you can be more depressed is to do it".
In early June 1991, immediately before the 1991 accident, Dr. Cohen's notes indicate that the Applicant reported that her symptoms were so disabling that she was unable to do her housework, the first time that Dr. Cohen had recorded this since the period leading to her 1990 admission.
The apparent severity of the Applicant's complaints at this time, as recorded by Dr. Cohen, is consistent with Dr. Arndt's view of the Applicant's mental state over the same period.
The Applicant did report to Dr. Arndt on June 3, 1991, that she felt somewhat better during that visit. However, Dr. Arndt disagreed that this indicated any improvement, noting that he had increased her medication at this time, because of the severity of her depression.
I cannot conclude, based on the clinical notes and records, that the Applicant's mental condition had levelled-off or plateaued in the months before the accident. If anything, her problems seemed to be worsening.
A., the Applicant's son, testified that his mother's mental condition had improved in the months before the accident. I do not question that he had a honestly held belief that this was the case. I accept his testimony that there was a period when his mother seemed better, and he clearly recalled their being able to enjoy a normal family activity, like going to a movie, which, sadly, they had not been able to do at other times.
However, A.'s testimony as to his mother's overall condition in the months immediately before the June 1991 accident is not consistent with the picture that emerges from a review of the clinical notes and records of her doctors.
A. was relying on his present memory of day-to-day observations and impressions of almost two years earlier. It would be easy enough to mistake the month or week when his mother seemed calmer, how long the period lasted, and, in retrospect, its significance. I note that the medical evidence indicates that the Applicant's emotional and physical state went up and down.
A. testified that things had improved at home before the June 1991 accident. However, he could not remember when he had gone to live with his aunt because of all the problems at home, and whether this occurred immediately before or after that time. This illustrates the difficulty of placing weight on evidence that is based solely on a witness's power of memory.
In all the circumstances, the clinical notes and records of the Applicant's treating doctors are a more reliable guide to her physical and mental condition in the months before the June 1991 accident.
The incident on June 14, 1991, as described by the Applicant at the time, was minor. The Clinic nurse who attended to her at the bus stop understood only that she had become dizzy from a headache. The Applicant described her own injury as "slight" to Dr. Tyl, and did not mention the incident at all to Dr. Arndt.
Dr. Cohen and Dr. Tyl testified that the Applicant's physical condition deteriorated after the June 1991 accident, and they attributed this deterioration, at least in part, to the June 1991 accident. They pointed to the Applicant's complaints of pain in her back and left shoulder, additional complaints of pain in the right shoulder, to objective findings of tenderness, muscle spasm, and occipital tenderness, and to the Applicant's reports of reduced functioning.
However, the pattern of the Applicant's physical complaints was essentially the same before and after the accident, both in nature and in degree. This was conceded by Dr. Cohen on cross-examination. Although the Applicant had complained primarily of left shoulder pain before, her complaints also included right shoulder pain and back pain. Furthermore, Dr. Tyl continued to record left shoulder and arm pain as the Applicant's principal problem after the June 1991 accident.
Counsel for the Applicant stressed the presence of objective signs of organic injury. However, the Applicant has consistently manifested these same signs of tenderness, spasm, and occipital nerve tenderness on both the right and left side over time. The pattern of physical complaints and findings after the June 1991 accident are consistent with the Applicant's pre-existing diagnosis of chronic pain syndrome, superimposed on a degenerative physical condition.
Another physical finding emerged much later. In September 1992, Dr. Tyl found edema, or puffiness in the left shoulder, which he also attributed to the June 1991 accident, because, in his view, it was the closest causal event in temporal terms. However, there are other possible explanations, including a number of falls that the Applicant reported between June 1991 and September 1992, which could equally account for these symptoms. I cannot conclude that there is a reasonable probability of a relationship between the left shoulder puffiness and the June 1991 accident, almost fifteen months earlier.
In response to counsel's questions, Dr. Tyl also testified that the Applicant had appeared to suffer a dramatic weight gain. The Applicant herself testified that, after the June 1991 accident, her weight had increased from 170-180 pounds to 270-280 pounds as of the date of the hearing. Dr. Tyl testified as to a possible relationship between the weight gain and the disabling effect of the June 1991 accident. However, he conceded that he had never weighed the Applicant before the hearing and he made no notation of her weight. There are a few scattered references in the material to the Applicant's weight, but the evidence as to how much she had gained, when, and why, is speculative.
I cannot conclude, based on the evidence, that the June 1991 accident aggravated her physical condition, to a material extent.
In Dr. Cohen's view, the real difference after the June 1991 accident was in regards to the Applicant's mental state. He testified that she had more nervous complaints, and that her state of depression became more severe, to the point that she was suicidal -- "I can't say anything stronger than that" -- and required hospitalisation in 1992 and 1993.
Dr. Cohen thought that the Applicant was not suicidal before the June 1991 accident, and could find no other explanation for the deterioration in the Applicant's mental health. He felt the June 1991 accident was "another nail in the coffin". He testified that it was "very probable" that the Applicant's increased depression was due "in a large part" to the June 1991 accident.
He also felt that the Applicant seemed less able to cope with the demands of everyday life and testified that her complaints of reduced functioning were consistent with his findings.
In my view, Dr. Cohen's clinical notes and records do not support the thrust of this testimony. As stated previously, they show that in the period immediately preceding the June 1991 accident the Applicant was severely depressed, was "pseudo-suicidal", and was unable to do her housework. This suggests that the problems which Dr. Cohen attributed to the June 1991 accident were manifesting themselves before then, and were not precipitated by it.
Dr. Cohen's clinical notes do not indicate that, in the months immediately following the June 1991 accident, her psychological problems were different in nature or degree than they had been before. Her complaints included diarrhoea (Dr. Rowsell found this to be her principal complaint when he saw her the week after the June 1991 accident), nervousness, insomnia, nightmares, and depression, all of which she suffered significantly from in the period before the June 1991 accident.
At the hearing, Dr. Cohen testified that the Applicant was not suicidal before the June 1991 accident, believing that this was an entirely new development in respect to the Applicant's mental state. He was not aware that the Applicant had expressed suicidal ideation in late 1990, and that this was the grounds for her admission to hospital at that time. His clinical notes also recorded that the Applicant was "pseudo-suicidal" in May of 1991, further evidence that the basis for his opinion was flawed.
Dr. Cohen also pointed to the Applicant's reports of her reduced level of functioning, which he attributed to the June 1991 accident. However, his notes do not record significant complaints in this area in the summer of 1991, except for July 23, when the Applicant told him that she was not looking after her apartment. This was essentially the same complaint that she made on June 3, 1991. Dr. Cohen conceded that it was possible that the Applicant's problems in functioning pre-dated the June 1991 accident. His clinical notes suggest this to be the case.
Dr. Cohen is the Applicant's family doctor. He has had the opportunity to observe the Applicant throughout the period in issue. However, the doctors are in agreement that this is a difficult and complex psychiatric case and Dr. Cohen is not a specialist in psychiatry.
The Applicant has been under the care of several psychiatric specialists, and in particular Dr. Arndt. None of these specialists were called to testify on behalf of the Applicant. There is little evidence in their reports that they share Dr. Cohen's view about the significance of the June 1991 accident in precipitating the Applicant's subsequent psychiatric problems.
Dr. Arndt has been the Applicant's treating psychiatrist since 1989, and has seen her regularly before and after the June 1991 accident. He is a well-respected and experienced psychiatrist, in practice more than 20 years. His curriculum vitae, marked Exhibit 17, attests to his qualifications and experience. I find it telling that he was not called to testify on behalf of the Applicant in this matter.
Dr. Arndt did not feel that the Applicant's condition had changed in the months after the June 1991 accident, and he did not relate her subsequent problems to it. In his report, he stated:
[The Applicant] did not mention the motor vehicle accident in question, and frankly I do not see any real change in her mood, as well as ability to function prior to the accident and subsequent to that particular accident.
As her ability to perform the usual tasks of one's life are concerned, since the period of December 1991, I can say without any question, that she is in my opinion unable to perform the usual tasks and in my opinion the long term prognosis for [the Applicant] is at best guarded. I am saying that because in spite of the various rather significant attempts at helping this woman, there really is no particular progress noticeable due to one reason or another.
(Report dated October 15, 1992, Exhibit 2, Tab 9)
Dr. Arndt's professional opinion with respect to the Applicant's mental state before and after the accident is directly in the area of his expertise. I find that he is qualified to opine on the Applicant's mental and psychological condition, and I place more weight on his opinion in this area than I do on the opinions of non-psychiatric experts. The opinion he expressed is consistent with the information recorded in his own and Dr. Cohen's clinical notes and records.
The Applicant was also treated by Dr. Rosenblat, the attending psychiatrist at Northwestern General Hospital. He saw her during her admissions in 1990 and 1992. He provided a report, indicating that her depression seemed to be worse at the second admission, but did not provide an opinion as to a causal link between the June 1991 accident and the 1992 admission. He provided a general report relating the Applicant's pain-related diagnosis and depression globally to the automobile accidents, but "with the greater emphasis" on the first two. (Reports dated November 4 and 6, 1992, Exhibit 2, Tab 10 and 11)
Finally, Dr. Rowsell, a psychiatrist who also saw the Applicant on several occasions, did not provide an opinion on the causal relationship between the June 1991 accident and her subsequent condition.
In my view, the weight of the medical evidence does not support a finding that the June 1991 accident aggravated the Applicant's psychological condition, or precipitated a deterioration in her mental state.
I heard evidence from a number of non-medical witnesses about the Applicant's condition and level of functioning before and after the June 1991 accident. These included the Applicant, her son, Ms. Foreman and Ms. Reid. They testified that the Applicant's level of functioning deteriorated after that time. Counsel for the Applicant attributed the change to the accident.
I have found that the clinical notes and records of the Applicant's treating physicians do not support this suggestion. I do not question the honesty and frankness of the witnesses' testimony. I fully accept that they noticed a gradual deterioration in the Applicant's condition at some time. However, I have already alluded to the difficulty of relying on witnesses' power of memory as to when that change started to occur.
The doctors' clinical notes and records are a more reliable guide to the Applicant's condition, and the timing of any changes to her condition. The doctors made those notes at the time, and it was their professional responsibility to accurately record what they were being told and what they found.
In all the circumstances, I prefer to rely on what was being reported in the clinical notes and records of her treating doctors than the present recollections of the witnesses. I place the greatest weight on the views of the Applicant's psychiatric specialists, as to any causal relationship between the June 1991 accident and the Applicant's subsequent problems.
It is reasonable to assume that any number of things may have played a role in the development of the Applicant's psychiatric condition -- each being, in the words of Dr. Cohen, "another nail in the coffin" -- with the Applicant becoming less and less able to cope with the demands of life.
The weight of the evidence at this hearing suggests, at best, that the June 1991 accident may have been one factor, among many possible factors, which contributed to the Applicant's psychological condition. However, it does not indicate, on the balance of probabilities, that the June 1991 accident materially aggravated her existing physical or mental condition or precipitated her subsequent psychological problems. As with her admission in 1990, ultimately, the reason why her condition deteriorated and she required further hospitalisation, is unknown.
I find that the Applicant's physical, psychological or mental problems do not result from the June 1991 accident. She is therefore not entitled to weekly statutory accident benefits from December 6, 1991 onwards, as claimed.
b) Rehabilitation Expenses:
The Applicant also claimed payment of outstanding accounts for treatment she has received. This comprised of outstanding accounts for ongoing monthly injections at the Whiplash and Headache Clinic; unpaid accounts for laser and Codetron treatment at the Post Injury Rehab Centre until it closed in October 1992; and invoices for ongoing weekly chiropractic treatment, starting in mid-September 1992. The latter invoices also included invoices for a "back buddy" seat and a TENS unit. The Applicant also claimed transportation expenses for the cost of attending the above treatments.
A treatment brief was submitted as Exhibit 1, containing details of the outstanding amounts. Other invoices were marked Exhibit 7 and 8.
I was advised that the Insurer had stopped paying for treatment at the Whiplash and Headache Clinic and the Post Injury Rehab Centre In October or November 1991. They had not paid for the chiropractic treatment, which had started the following year.
I was advised that, as of the date of the hearing, a total of $1,440.00 was outstanding for injections at the Whiplash and Headache Clinic, $743.17 was owed for treatment at the Post Injury Rehab Centre, which had ended. Chiropractic expenses to the date of the hearing were $1,120.71, including $250.00 for the TENS Unit, and $60.19 for the "back buddy" seat.
I have found that the June 1991 accident did not aggravate the Applicant's physical or mental condition in any material way. That being the case, I find that the expenses requested are not expenses that reasonably result from the June 1991 accident. Therefore, I cannot find that the Applicant is entitled to recover these expenses under section 6 of the Schedule.
Given the above finding, it is unnecessary for me to deal with the other issues raised in respect to the reasonableness of the treatment provided.
5. Expenses:
The Applicant seeks an award of expenses she has incurred in pursuing this arbitration, under section 282(11) of the Insurance Act. Section 282(11) states:
The arbitrator may award to the insured person such expenses incurred in respect to an arbitration proceeding as may be prescribed in the regulations to the maximum set out in the regulations.
Ontario Regulation 664, R.R.O. 1990, reproduced at Schedule 1 to the Dispute Resolution Practice Code, sets out the allowable expenses and the maximum amounts that may be awarded.
In Ralph McCormick and Economical Mutual Insurance Company, October 10, 1991, OIC File No. A-000139, certain criteria were suggested to guide an arbitrator's discretion to award expenses under section 282(11):
...it is appropriate to award an applicant his or her expenses, unless, in the circumstances of the particular case, it is determined that the application for appointment of an arbitrator was manifestly frivolous or vexatious, or that the applicant's conduct unreasonably prolonged the proceedings.
These criteria were approved by the Director of Arbitrations, in Vito Luigi Calogero v. The Co-operators General Insurance Company, February 13, 1992, OIC File No. P-000251.
This application involved a bona fide issue of considerable complexity. The 10 day hearing involved lengthy and complicated evidence and I have no doubt that the Applicant legitimately has incurred considerable expense in pursuing it.
I find that the Applicant is entitled to her reasonable expenses of the arbitration, in accordance with the regulations. At the conclusion of the hearing, the Insurer agreed to pay the Applicant's reasonable disbursements, pending this decision. The Applicant should submit the outstanding expenses to the Insurer.
In the event that the parties cannot agree on the amount, I remain seized of this matter and they may apply for an assessment of the expenses before me.
Order.
The Applicant is not entitled to weekly benefits from December 6, 1991 onwards.
The Applicant is not entitled to recover the specified expenses under section 6 of the Schedule.
The Applicant is entitled to her expenses incurred in respect to the arbitration.
May 4, 1994
Susan Naylor Senior Arbitrator
Date
APPENDIX 1
Witnesses:
The Applicant
The Applicant's son, A.
Dr. Johannes W.K. Tyl
Dr. Abraham Cohen
Ms. Judith Foreman
Ms. Brenda Reid
Dr. Michael H.G. Ford
Dr. F. W. Furlong
Dr. Hans J. Arndt
APPENDIX 2
Exhibits:
Exhibit 1
Medical Brief filed on behalf of the Applicant
Exhibit 2
Hospital Records of Northwestern General Hospital, filed on behalf of the Insurer
Exhibit 3
Brief of clinical notes and records of Dr. Hans Arndt, Dr. Abraham Cohen and Dr. Johannes Tyl, filed on behalf of the Insurer
Exhibit 4
Medical Brief filed on behalf of the Insurer
Exhibit 5
Documents respecting the Applicant's loss of income claim
Exhibit 6
Revised invoice for medical services from the Whiplash & Headache Clinic, dated February 4, 1993
Exhibit 7
Statement of Account from the Central Chiropractic Group, dated February 26, 1992
Exhibit 8
Envelope addressed to Ms. P.S., with handwritten notation
Exhibit 9
Hospital records of Northwestern General Hospital
Exhibit 10
Report of Dr. Michael H.G. Ford, dated November 2, 1992
Exhibit 11
Report of Dr. F.W. Furlong, dated October 29, 1992
Exhibit 12
Report of Dr. F.W. Furlong, dated December 10, 1992
Exhibit 13
Illness Behaviour Questionnaire
Exhibit 14
Excerpt from the Diagnostic and Statistical Manual of Mental Disorders, (DSM-III-R) Pages 336 to 337
Exhibit 15
Report of Dr. Hans J. Arndt, dated May 6, 1993
Exhibit 16
Curriculum vitae of Dr. Hans J. Arndt
Exhibit 17
Further Documents Before the Arbitrator:
Application for Appointment of an Arbitrator
Response by Insurer
Reply by Insurer
Prehearing Discussion Letter
Exhibits from a preliminary motion held on August 4, 1992
A further invoice for medical services from the Whiplash & Headache Clinic, dated April 22, 1993 was filed at the hearing but not marked as an exhibit.
APPENDIX 3
Evidentiary Rulings, With Written Reasons
1. The introduction of surveillance evidence taken after the commencement of the hearing.
Mr. Zigler, counsel for the Insurer sought to call an investigator who had conducted surveillance on the Applicant on a day of the hearing on May 4, 1993. He argued that the notice of the videotape evidence had been provided to Mr. Wilson, so that the Applicant was not prejudiced by an element of surprise. He further submitted that the evidence was contemporaneous and was of probative value, similar to that of lay witnesses called by the Applicant.
Mr. Wilson, counsel for the Applicant, objected to the introduction of the evidence. He questioned the jurisdiction of the arbitrator to consider evidence in relation to a period after the commencement of the hearing, and submitted that his client was prejudiced by the late introduction of the evidence.
Ruling:
Admission of the surveillance evidence is denied. It is the practice of the Ontario Insurance Commission to require that a party intending to introduce surveillance evidence at a hearing must provide seven days' notice of such evidence, unless the arbitrator abridges the time. The purpose of the rule is not only to provide adequate notice to an applicant of such evidence but also to facilitate a straightforward and speedy hearing process. General enforcement of the seven-day notice requirement avoids undue prolongation of hearings and reduces the need for reply evidence. In this case, no reasons were provided why the TTC could not have conducted surveillance of the Applicant in a period prior to the commencement of the hearing, especially given the extensive history of proceedings between the parties. Furthermore, there were no specific circumstances, such as to warrant an abridgement of the notice requirements in the individual case.
2. The introduction of further evidence from Dr. Arndt.
Mr. Wilson sought to adduce reply evidence in the form of a further report from Dr. Arndt, to rebut the evidence of Dr. Furlong. Mr. Zigler objected to the right of the Applicant to introduce such evidence on the basis that the report could have been filed beforehand in accordance with the Dispute Resolution Practice Code.
Ruling:
The evidence is allowed, in part.
The evidence of Dr. Arndt is permitted in reply insofar as it relates to the limited issue of the validity of the illness behaviour questionnaire. Relevant evidence regarding the use of the questionnaire was raised in the course of the Insurer's case, and could not reasonably have been dealt with as part of the Applicant's case-in-chief. However, Dr. Arndt's evidence in relation to the general matters in respect of which Dr. Furlong testified properly forms part of the Applicant's case-in-chief, and should have been dealt with on proper prior notice and as part of the case-in-chief. Admission of such evidence in reply represents an unreasonable splitting of the Applicant's case and will further prolong the proceedings. No extenuating circumstances were shown so as to warrant the exercise of a discretion to allow the evidence at this stage.
3. The right of the Applicant to introduce in reply evidence in relation to her pre-1987 psychological condition.
Mr. Wilson indicated that he intended to recall the Applicant and several witnesses to give evidence in relation to the Applicant's pre-1987 health, to rebut the inferences drawn by Dr. Furlong in his evidence. Mr. Zigler objected to the right of the Applicant to introduce such evidence in reply.
Ruling:
The Applicant is not permitted to introduce such evidence in reply.
The rationale restricting a party's right to call reply evidence in arbitration proceedings is similar to that governing court proceedings, set out in Evidence, by Sopinka, Lederman, Bryant, on page 883:
These principles are designed to ensure that the defendant knows the case to be met and that the plaintiff not be permitted to split his or her case. The rationale for the latter principle is that trials should not be unduly prolonged by creating a need for surrebuttal.
As stated above, the undue prolongation of hearings through unnecessary fragmentation of a party's case should generally be avoided, having regard, in the individual case, to the sophistication of the parties, the relevance of the evidence, the degree of prejudice to a party, and the circumstances of the case.
Mr. Wilson, in this case, specifically chose not to introduce substantial evidence in regards to the Applicant's pre-1987 psychological condition. This evidence manifestly is in the control of the Applicant, and properly forms part of her case-in-chief. Furthermore, Mr. Wilson had prior disclosure of Dr. Furlong's report dated October 25, 1992, whose findings precluded surprise in relation to this issue. In my view, the introduction of such evidence in reply represents an unreasonable splitting of the Applicant's case, and will further extend an already prolonged proceeding.
4. The scope of cross-examination on Reply.
In ruling # 2 above, Dr. Arndt's report was admitted for the limited purpose set out. Mr. Zigler chose to cross-examine Dr. Arndt on his report. Dr. Arndt was the Applicant's treating psychiatrist but neither party had called him in chief, choosing only to file reports. Mr. Zigler argued that he was entitled to cross-examine Dr. Arndt in relation to any matter on cross-examination in reply, notwithstanding that the right of reply in chief was limited.
Ruling:
Cross-examination must conform broadly to the limited areas allowed for reply in chief, subject to evidence relating to the doctor's credibility. The principles governing court proceedings do not necessarily apply to arbitration proceedings. The goals of the arbitration process do not favour, what is in effect, a re-opening of the hearing simply because of a limited right of reply. If counsel wished for a re-opening, he should request it under the Practice Code. Both counsel had waived their right to call the doctor and were not allowed to reassert that right in reply, except for the limited purpose set out. While it was recognised that there were practical difficulties to be faced in defining the limits of cross-examination in such circumstances, these should be dealt with on an ad hoc basis, as objections arose.