Neutral Citation: 1994 ONICDRG 59
File No. A-005908
ONTARIO INSURANCE COMMISSION
BETWEEN:
MARIA RODRIGUES
Applicant
and
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Insurer
DECISION
Issues:
The Applicant, Maria Rodrigues, was injured in a motor vehicle accident on November 25, 1991. She applied for and received statutory accident benefits from the Insurer, payable under Ontario Regulation 6721. Weekly income benefits were terminated by the Insurer on February 17, 1993. The parties were unable to resolve their dispute through mediation and Mrs. Rodrigues applied fo arbitration under the Insurance Act, R.S.O. 1990, c. I.8.
The issue in this hearing is:
Is Mrs. Rodrigues eligible for weekly income benefits after February 17, 1993, because she suffers substantial inability to perform the essential tasks of her occupation as a result of the accident?
The Applicant also claims a special award under section 282(10) of the Insurance Act, interest on any outstanding amounts owing, and her expenses incurred in the hearing.
Result:
Mrs. Rodrigues is not entitled to further income benefits. She has not shown that after February 17, 1993, she suffers substantial inability to perform her essential job tasks, as a result of the accident of November 25, 1991. She is not entitled to a special award under section 282(10) of the Insurance Act.
Mrs. Rodrigues is entitled to her expenses of the arbitration.
Hearing:
The hearing was held in Hamilton on March 28 and 29, 1994, before me, K. Julaine Palmer, arbitrator.
Present at the Hearing:
Applicant:
Maria Rodrigues
Applicant's
Frank Zambosco
Representative:
Barrister and Solicitor
Insurer's
Joseph J. Sullivan
Representative:
Barrister and Solicitor
Insurer's
Peter Robinson
Officer:
Claims Superintendent
Witnesses:
Maria Rodrigues,
Dr. Donald T. McNeely,
Dr. Louise Desrosiers, Carmen Rodrigues,
Dr. John Darracott, Peter Robinson.
Mrs. Rodrigues was assisted by Wilson Teixeira, an interpreter of Portuguese and English. The parties filed two joint volumes of medical documents and six other exhibits at the hearing.
Evidence and Findings:
Background and Dispute
Maria Rodrigues, now aged 45, was injured in an automobile accident on November 25, 1991. Her car was hit from behind on a major, four-lane street in Oakville as she travelled to work. Mrs. Rodrigues saw her doctor that day and did not go to work. The next day, however, she did go to her factory job where she worked at assembling transformers. At the hearing, Mrs. Rodrigues testified that she was in pain that day, but didn't want to stay home and thought the pain would go away. The following day, she did not go to work. Mrs. Rodrigues has never returned to her job and says that she cannot do this work any longer, because of her injuries from the accident. Mrs. Rodrigues received weekly income benefits from the Insurer until February 17, 1993.
The sole issue in this hearing is whether Mrs. Rodrigues has continued to be substantially disabled from the essential tasks of her employment since her weekly income benefits were terminated on February 17, 1993.
Mrs. Rodrigues has been diagnosed by a rheumatologist as suffering from post-traumatic fibromyalgia. Her family doctor first suspected this condition was responsible for Mrs. Rodrigues' continuing complaints and concurs in this diagnosis. As well, an orthopaedic surgeon and a pain specialist who have treated Mrs. Rodrigues appear inclined to support this assessment.
On the other hand, the physical medicine and rehabilitation specialist engaged by the Insurer to examine Mrs. Rodrigues disagrees. He had the opportunity to examine Mrs. Rodrigues on two occasions. He does not believe that she suffers from fibromyalgia. In his opinion, although Mrs. Rodrigues may have suffered a soft tissue injury in the motor vehicle accident, the complaints which she now asserts are rooted in psychogenic rather than physiological causes. After he examined Mrs. Rodrigues the second time, this specialist felt that Mrs. Rodrigues' complaints had a significant hysterical component or she was consciously assuming dysfunction. Shortly thereafter, upon viewing two surveillance video tapes of Mrs. Rodrigues' activities in September 1992 and January 1993, he concluded that she consciously magnified and exaggerated her symptoms. His opinion was that Mrs. Rodrigues could return to her job and all her normal, pre-accident tasks and activities.
The Job
In this case, the Applicant has the burden to establish, on a balance of probabilities, that she continued to suffer a "substantial inability to perform the essential tasks" of her job after February 17, 1993, as a result of injury sustained in the accident. That is the test set out in section 12(1) of the Schedule. Accordingly, it is critical that I have a good understanding of the job Mrs. Rodrigues was required to do.
Mrs. Rodrigues worked in a factory assembling transformers. The following paragraph is an exact transcription of the parties' agreed statement of the essential tasks of Mrs. Rodrigues' employment:
EMPLOYER:
ATC-FROST MAGNETICS INC.
OCCUPATION:
ASSEMBLER
DETAILS:
The assembler sits at her seat for 95% of the day assembling transformers. This requires some light hammering of pieces into a small frame and then attaching terminals to the transformer. The assembler regularly lifts one to fifteen pounds, being the transformers and the assembler lifts approximately twenty times per day. The job requires mostly finger dexterity.
MODIFIED EMPLOYMENT:
The insurer takes the position that the employer can modify the job, by eliminating the lifting, by:
(a) having the assembler pick up only handfuls of the small transformers rather than lifting the box;
(b) having another employee lift the box for her.
LUNCH:
12:30 p.m. - 1:00 p.m.
BREAKS:
10 min. in morning; 10 min. in afternoon
The parties agreed that I was not bound by the agreed description of Mrs. Rodrigues' essential tasks, but could modify that description based on other evidence before me. I heard evidence from Mrs. Rodrigues as to her job duties and also received information about her job from two communications from her employer and a report of a rehabilitation counsellor who visited Mrs. Rodrigues' workplace.
I base my decision on a description of the Applicant's job duties as they existed at the time of the accident. I am not suggesting that if accommodations can be arranged, and if an applicant can thereby perform the job, then the applicant will no longer be eligible for weekly income benefits. Neither do I wish to imply that post-accident job accommodations are irrelevant. Because of my conclusion in this matter it is simply not a question I have considered.
Mrs. Rodrigues was not very helpful in providing a fuller understanding of her job duties. She did state, however, that she never attached wires to the small transformers, just tapped in rivets with a little hammer. The employer's letter of January 25, 1994, described Mrs. Rodrigues' job as "light duty". She agreed. Mrs. Rodrigues also stated that she used to lift complete boxes of transformers, but that she could do the job by lifting a handful of transformers at one time. I conclude that Mrs. Rodrigues performed a largely sedentary job, which required manual dexterity, and the ability to sit for lengthy periods. However, she could move around on the job occasionally and she could stand up when she wanted to.
I note that Mrs. Rodrigues was paid by the hour, not on the basis of piecework. She last earned $7.64 per hour and normally worked 40 hours each week -- usually eight and a half hours each day from Monday to Thursday and six hours on Friday. Her employer reported that over the 52 weeks preceding the accident, Mrs. Rodrigues earned $14,774.33 in 51 weeks worked. The Insurer concluded her average gross weekly income was $284.12 and paid her 80 percent of that figure, or $227.30 per week, in income benefits. There is no dispute about the amount of weekly benefits in this case.
Mrs. Rodrigues testified that she would return to work if she could. She testified that she has too much pain in her back to do the work. She testified that she could not sit for the whole day. She believed she would get a severe headache if she attempted it. In answer to those who suggested that she should work through the pain, she responded emphatically that "those people don't know what I feel in myself."
Mrs. Rodrigues stated that she now has headaches about three times each week, for which she takes non-prescription acetaminophen. She testified that at home she does no cooking, vacuuming, ironing or making beds. Her mother and daughter do these tasks. She is able to dust the furniture with a feather duster, wash a few dishes, sweep the floor, fold clean laundry, and peel vegetables. When she is in a great deal of pain, Mrs. Rodrigues testified she takes four non-prescription acetaminophen per day. For exercise, she walks, does neck exercises and tries to lift her arms. She stated that she cannot bend. She was not able to say how often nor how far she walks.
The Fibromyalgia Diagnosis by the Applicant's Specialist
In diagnosing the condition of fibromyalgia, rheumatologists rely greatly on their patients' reports of the degree of pain experienced when so-called trigger points are probed by the examiner. They also rely upon patients' reports of characteristic symptoms, such as a history of pain lasting longer than three months, chronic fatigue, non-restorative sleep, stiffness, memory loss, irritable bowel symptoms, muscle contraction headaches and the aggravation of symptoms by changes in barometric pressure. Fibromyalgia sufferers function better in dry, warm climates and often have received only short-term benefit from prolonged courses of chiropractic or traditional physiotherapy.
Fibromyalgia is a condition which can occur spontaneously or after an accident. The condition is not proven through structural abnormality and no blood test or x-ray can discover it. According to Dr. Donald T. McNeely, the rheumatologist who testified at the hearing, fibromyalgia tends to be a long lasting problem, and cases vary from mild to severe. Some patients return to work, but they are prone to relapses, and no one is ever totally clear of this condition.
The treatment of fibromyalgia ideally involves the patient understanding the condition and taking control of its management through incrementally increasing low impact aerobic exercise. Patients who are illiterate and who have difficulty communicating in English find these barriers have impeded their achieving success in treatment programs, which are geared more toward literate English-speakers.
It is not my role as an arbitrator here to make a medical diagnosis of Mrs. Rodrigues' condition. The issue before me, of whether Mrs. Rodrigues suffers substantial inability to perform the essential tasks of her occupation, is more a test of function. As many arbitrators have said before, the experience of pain is not something which can be compensated by weekly income benefits. An applicant is only entitled to weekly income benefits where the experience of pain impairs her abilities to such an extent that she is unable to perform the essential tasks of her employment.
Decision
The work which Mrs. Rodrigues carried out prior to the accident as an assembler has been described by herself and others as being "light work". The job requires that she remain seated for the greatest part of the day and lightly hammer rivets into small transformers. The heaviest lifting would be to pick up a box of transformers, of a maximum weight of 15 pounds. Mrs. Rodrigues testified she could do the job by picking up handfuls of transformers.
When Mrs. Rodrigues was asked at the hearing whether she could do this work, she replied that she could not, because she feels a lot of pain in her back. She stated that she could not sit in a chair for more than an hour, so questioned how she could remain at work for eight hours. However, upon reflection, I observed that during the hearing of this matter in late March 1994, Mrs. Rodrigues was able to remain seated from 10:00 a.m. until close to 6:00 p.m. on the first day, then again from 10:00 a.m. until 3:00 p.m. the following day, with occasional breaks and a pause for lunch. From time to time Mrs. Rodrigues would stand momentarily, but it could not be said that she spent any great period of time throughout the hearing on her feet. She testified that she had taken one of her prescription analgesics (Surgam), for her back, prior to attending at the hearing.
It was apparent from Dr. McNeely's and Dr. Desrosiers' testimony that they considered whether Mrs. Rodrigues could sustain regular, daily employment when evaluating their patient's ability to return to her job. They both testified that due to the nature of her condition, it was impossible to say that she could do even light duty on a regular basis. Dr. McNeely testified he doubted Mrs. Rodrigues had the stamina to return to work day after day "based on her complaints of pain and muscle tenderness and extrapolating those findings to other cases." I agree that the ability to attend work regularly is an important consideration in determining whether an applicant has sustained a "substantial inability" to perform her essential job tasks.
With respect to the issue of the origin of Mrs. Rodrigues' condition, both Dr. Desrosiers and Dr. McNeely testified that the gradual onset and development of symptoms fit the pattern of a post-traumatic fibrositis directly related to the trauma of the November 1991 accident.
Despite this body of expert opinion in favour of the Applicant, I have concluded, after weighing all the evidence, that, on balance Mrs. Rodrigues has not discharged the onus of proof which she bears. The following paragraphs outline the most salient aspects of the evidence which persuaded me that Mrs. Rodrigues is not entitled to further weekly income benefits after February 17, 1993.
Firstly, the evidence of Dr. Desrosiers and Dr. McNeely, indicates that they have a sincere and profound professional sympathy for Mrs. Rodrigues' plight. I found that when considering questions of credibility put to them by the Insurer's counsel, in every case, they were prepared to give the benefit of the doubt to their patient. Dr. Desrosiers does not believe Mrs. Rodrigues is consciously exaggerating her pain. She expressed the view that some patients have a lower pain threshold and there is an aspect of a "cultural way of expressing the pain that is very hard to quantify, but it's there."
However, my role as an arbitrator is a different one than the doctors'. My task is to consider all the evidence provided at the hearing, to determine its relevant weight, and to make a dispassionate decision, bearing in mind the rather stringent test of the Schedule to determine eligibility for weekly benefits.
Videotaped evidence arising out of surveillance conducted September 24, 1992, January 6, 1993, and September 8 and 9, 1993 was filed as an exhibit by the Insurer at the hearing. The videotaped evidence, for the greatest part, did not convey an impression of Mrs. Rodrigues as a rather helpless invalid, as did most of her responses to direct examination by her counsel and much of her cross-examination. She did admit, however, the ability to open and close her garage door, walk up and down steps, push a shopping cart, open and close her car trunk, get in and out of a car, drive, pick up her keys by squatting (not bending) if she dropped them and other "light things".
The surveillance in September 1992 and again in September 1993, shows Mrs. Rodrigues carrying out errands, grocery shopping, and doing other activities, apparently unimpeded. The surveillance of January 6, 1993, follows Mrs. Rodrigues through an extended walk with her husband and two friends, over 54 minutes. Throughout that video, although often trailing behind the others, Mrs. Rodrigues largely was able to keep up a steady, normal pace. At one point, she stops and arches her back twice, but then continues walking for a further 35 minutes. Mrs. Rodrigues is of short stature and heavy set; it is not surprising that her steps were necessarily shorter than those of her taller, slimmer companions.
In the afternoon of the same day, however, Mrs. Rodrigues was observed walking at a markedly slower pace with her rehabilitation worker. She walked for 12 minutes outdoors, then travelled by car to walk a further 22 minutes at a mall. She stopped frequently to rest and once sat down on a bench for a minute. Mrs. Rodrigues explained that she was tired in the afternoon and her back was hurting. However, in my view, the tempo of the afternoon activity is so dramatically different from that of the morning as to cause me to conclude that the reason for the striking contrast lay more in the fact that she was accompanied by a rehabilitation worker on the second occasion. Dr. John Darracott, a specialist in physical medicine and rehabilitation, testified at the hearing that, in his expert view, after a period of rest over the lunch hour, he would have expected Mrs. Rodrigues to be able to maintain the same pace on a walk in the afternoon as she had exhibited that morning. I note, further, that after returning home with the rehabilitation worker, Mrs. Rodrigues set out 15 minutes later with her husband in their automobile.
In any event, the requirements of the assembler's job calls for very little walking. Accordingly, it is of little consequence whether Mrs. Rodrigues is able to carry out extensive walks such as she was observed upon during the surveillance of January 6, 1993. The troubling aspect of that day's surveillance, however, is the almost irresistible inference that Mrs. Rodrigues can perform at different levels of activity, depending upon the audience. In a case where the medical opinion is based largely on subjective complaints and the report of the patient about what she is able to do, this evidence puts into question the reliability of the Applicant's testimony and her prior responses to physician questioning.
The injury which Mrs. Rodrigues suffered in the motor vehicle accident of November 25, 1991, appears to be a soft tissue injury to her cervical spine and sprain and contusion to her ankles. She did not complain of back pain until many weeks after the accident.
Throughout the documents which record Mrs. Rodrigues' progress during her several courses of physiotherapy, the theme of low tolerance for and resistance to exercise recurs. For example, over a course of conditioning in the summer of 1992, her level of fitness and range of movement remained unchanged nor was her medication reduced. Mrs. Rodrigues showed marked reluctance to becoming involved in a proposal to increase her activities of daily living with the assistance of a rehabilitation counsellor in November 1992.
When she testified at the hearing, Mrs. Rodrigues stated that her pain had stayed the same throughout the summer of 1992. She testified that her pain had become worse since her attendance at a pain management clinic from October to December 1993. Under cross-examination at the hearing, however, she admitted improvement to her original neck and ankle complaints.
She testified that she had immediate back pain after the accident, and told her doctor about it, although her physician's first record of that complaint is on January 7, 1992, six weeks after the accident. Mrs. Rodrigues could not recall telling Dr. Deakon, her orthopaedic specialist, about "new trouble that being her left knee and with her lower back" when she saw him a second time in September 1992. Although she later admitted that the left knee problem probably started in March 1992, she insisted it was connected with the accident. Although her orthopaedic specialist recommended on more than one occasion that she obtain orthotics to help compensate for her flat footedness, she has not filled the prescription.
Mrs. Rodrigues testified she could not recall going to the hospital in March 1990 with back pain, or visiting her doctor in her office after that episode. I am troubled by that failure in her memory. Mrs. Rodrigues denied having any problem with her back before the accident; she reiterated that she had not been in any other accidents and had never stayed home from work because of pain.
Mrs. Rodrigues had travelled to Portugal several times prior to the accident. She travelled there again in 1992 and spent some time in the warm waters of a spa. She was able to tolerate the plane trip of six hours. Mrs. Rodrigues has undergone investigation by a cardiologist after complaining of chest pain. The cardiologist reported an abnormal electrocardiogram and provisionally determined that she had suffered an inferior myocardial infarction. Investigations continue into this complaint. Dr. Desrosiers, Mrs. Rodrigues' family doctor, testified that this problem would not affect her patient's ability to work, unless evidence of angina appeared. Mr. Rodrigues is recorded as being concerned his wife would have a heart attack if she increased her level of activity. Mrs. Rodrigues' view on that point is not in the evidence before me.
In my view, considering all the evidence in this case, Mrs. Rodrigues has adopted a dysfunctional stance and has attributed any persisting physical complaints to the motor vehicle accident of November 25, 1991, an event for which compensation is available. The continuation of weekly income benefits is dependant on maintaining a demonstrable level of persistent dysfunction. A vicious circle has been created.
I have reached no conclusion as to whether Mrs. Rodrigues does indeed suffer from fibromyalgia. Dr. McNeely testified about the criteria for the diagnosis of this condition; however, it was apparent from his testimony that Dr. McNeely does not subscribe strictly to the diagnostic criteria established by the American Rheumatology Association. Similarly, Dr. Michael W.A. Moore in his examination of Mrs. Rodrigues in October 1993 found she hurt everywhere he touched, although she was "most tender at fibromyalgia points in the neck, shoulder girdle, anterior chest and knees."
If Mrs. Rodrigues does suffer from fibromyalgia, then I am not convinced by the evidence before me, that this condition was caused by the motor vehicle accident of November 25, 1991. Both Dr. McNeely's and Dr. Moore's diagnoses were based on a history of good health and no previous back pain complaints by Mrs. Rodrigues. However, Mrs. Rodrigues did experience back pain of such intensity that on March 26, 1990, she attended at the emergency department of her local hospital and her lumbar spine was x-rayed. In November 1989, she had reported fatigue and difficulty sleeping to her family doctor. The report of fatigue was repeated in September 1990, combined with feeling vaguely unwell for one and a half years. Dr. McNeely was more interested in these reports he had never previously seen than the report of the incident on March 26, 1990, which he dismissed as a mechanical, not muscular, incident.
The pattern of non-restorative sleep which Mrs. Rodrigues reported after the accident was ultimately diagnosed in 1993 as sleep apnoea which none of the doctors who testified related to the motor vehicle accident. If indeed Mrs. Rodrigues does suffer from pre-existing fibromyalgia, her condition may have been aggravated for a time by the accident of November 25, 1991. However, the time at issue here is the period after February 17, 1993, approximately one year and three months after the accident.
Overall, I am not persuaded that the symptoms that Mrs. Rodrigues describes at this time are of such a substantially disabling nature as to prevent her from performing her essential job tasks. Her job is light work which is performed seated. She can stand or move about as required. Although I believe Mrs. Rodrigues experiences some pain in her lower thoracic and lumbar-sacral spine, which appears to be aggravated by damp weather and by exercise, I am not convinced that these continuing symptoms were caused by the motor vehicle accident of November 25, 1991. Nor am I able to conclude that after February 17, 1993, any injury which she received in the accident continues to have any significant effect on her ability to return to work. Accordingly, Mrs. Rodrigues is not entitled to any further weekly income benefits.
In the result, there is no basis upon which I might find the Applicant entitled to a special award under the provisions of section 282(10) of the Insurance Act.
Expenses:
The Applicant seeks an award of the expenses she has incurred in this arbitration. An award for expenses may be made under section 282(11) of the Insurance Act, which provides as follows:
The arbitrator may award to the insured person such expenses incurred in respect of an arbitration proceeding as may be prescribed in the regulations to the maximum set out in the regulations.
The prescribed expenses and amounts are set out in Schedule 1 of the Dispute Resolution Practice Code and in Ontario Regulation 664, R.R.O. 1990, Dispute Resolution Expenses.
In Ralph McCormick and Economical Mutual Insurance Company October 2, 1991, OIC File No. A-000139, Arbitrator Susan Naylor made the following comments about expenses, with which I agree:
The discretion to award expenses should be exercised, having regard to the intent and purpose of the legislative scheme. The arbitration process has been established under the Insurance Act, as amended, in order to facilitate applicants' access to relatively inexpensive, speedy and informal adjudication of disputes regarding no-fault benefits. The discretion to award expenses should be exercised in accordance with this objective, having regard to the individual circumstances of each case.
Accordingly, 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.
The Director of Arbitrations approved this statement of the principles guiding an award of expenses in the appeal decision in Vito Luigi Calogero and The Co-Operators General Insurance Company, February 13, 1992, OIC File No. P-000251.
The Applicant is entitled to her expenses as set out in Schedule 1 of the Dispute Resolution Practice Code. In the event that the parties cannot agree as to the total amount of expenses, I remain seized of this matter and a party may apply for assessment of the expenses before me.
Order:
Mrs. Rodrigues is not entitled to further income benefits. She has not shown that after February 17, 1993, she suffers substantial inability to perform her essential job tasks, as a result of the accident of November 25, 1991. She is not entitled to a special award under the provisions of section 282(10) of the Insurance Act.
Mrs. Rodrigues is entitled to her expenses of the arbitration.
June 30, 1994
K. Julaine Palmer Arbitrator
Date