Neutral Citation: 1995 ONICDRG 120
File No. A-010959
ONTARIO INSURANCE COMMISSION
BETWEEN:
SHIRLEY M. STREET
Applicant
and
ZURICH INSURANCE COMPANY
Insurer
DECISION
Issues:
The Applicant, Shirley M. Street, was injured in a motor vehicle accident on November 2, 1992. She received statutory accident benefits from the Insurer, Zurich Insurance Company ("Zurich"), payable under Ontario Regulation 6721. Weekly income benefits were paid until April 24, 1994. Supplementary medical and rehabilitation benefits were paid until the end of April or beginning of May 1994. Mrs. Street claims to be entitled to further weekly income benefits, as well as supplementary medical and rehabilitation benefits. The parties were unable to resolve their dispute through mediation and the Applicant applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The issues in this hearing are:
Is Mrs. Street entitled to continue receiving weekly income benefits under section 12(1) of the Schedule after April 24, 1994?
Is Mrs. Street entitled to continue receiving supplementary medical and rehabilitation benefits under section 6(1) of the Schedule?
Mrs. Street claims interest on any outstanding amounts owing and her expenses incurred in the hearing.
Results:
Mrs. Street is not entitled to weekly income benefits after April 24, 1995, pursuant to section 12(1) of the Schedule and is not entitled to interest on outstanding amounts owing.
Mrs. Street is not entitled to further supplementary medical and rehabilitation benefits under section 6(1) of the Schedule.
Mrs. Street is entitled to her expenses incurred in the arbitration hearing.
Hearing:
The hearing was held at Chatham, Ontario, on May 24 and 25, and June 15 and 16, 1995, before me, Roger F. X. Marentette, arbitrator.
Present at the Hearing:
Applicant:
Shirley M. Street
Applicant's Representative:
James E. S. Allin Barrister and Solicitor
Insurer's Representative:
Ian Boundy Barrister and Solicitor
Witnesses:
Shirley M. Street Larry Street Dr. Sussex Dr. Allen Dr. Goldenberg
The hearing was recorded by Maxim Report Services.
Twelve exhibits were filed and are listed in Appendix "A". Other documents before me are listed in Appendix "B".
The Facts and Evidence:
Mrs. Street is a resident of the city of Chatham, Ontario. She is 49 years of age, with a grade 12 commercial certificate, and has three grown children from a previous marriage. She married Larry Street on April 24, 1992.
Mrs. Street was an employee of Burns International Security Services Ltd., where she worked as a security guard at the Union Gas Limited head office, located in the city of Chatham, Ontario. The head office is a large, five-storied office facility, housing about 800 to 900 employees. The complex contains other buildings and a tennis court.
Mrs. Street described her job security functions and duties at the Union Gas head office building as follows:
A two-hour walking patrol, twice per eight-hour shift during the week and three times during the 12-hour shift on weekends.
Required to greet customers between 4 and 5 p.m., receive messages, parcels, answer the telephone, watch security cameras and computer printouts from a security post in the building.
She worked with another security guard and they would alternate patrols, with each security guard having two patrols during the week and three patrols on the weekend.
Required to carry a Detex time clock, weighing 2 to 3 lbs., a flashlight and 54 keys to be placed in station clocks.
Required to climb about 20 steps to exit the building onto the roof to check the roof.
Required to squat to check sensor and chiller system and read temperature gauges.
Required to check a furnace on each floor.
Required to check company cafeteria.
Required to lift computer paper to be placed in printers.
Driving company truck in company yard.
Mrs. Street testified that she was involved in an automobile accident on November 2, 1992. The accident happened at about 7:30 a.m., while she was on her way to work at the Union Gas office facility. Her husband Larry was driving their 1992 Honda automobile and had stopped to make a left-hand turn off of Grand Avenue when he was struck from behind by another automobile.
Mrs. Street testified that as a result of the impact, their automobile was pushed ahead about 100 feet from a stopped position. She had been wearing her seat belt and remained in the automobile until the police and ambulance arrived. She was able to get out of the Honda with help and was assisted into an ambulance. The ambulance took her to the Chatham Public General Hospital. As a result of the accident, she suffered from head and back pain.
The physical damage to both automobiles amounted to about 11,000 dollars which is evidenced by two repair appraisal reports.
The following day, Mrs. Street saw Dr. R. J. Sussex, who had been her family doctor since late 1985.
Dr. Sussex testified that Mrs. Street had been x-rayed at the Chatham Public General Hospital after the accident on November 2, 1992. The x-rays showed no significant bone abnormalities, but did show soft tissue injuries in the neck muscles, left shoulder and lumbar region, with limitation of movement.
Dr. Sussex testified that Mrs. Street suffered from ongoing problems of pain since the accident and he prescribed a rehabilitation program for her.
Dr. Sussex referred Mrs. Street to Philip Rance, a physiotherapist at Chatham, Ontario, on November 4, 1992, for ongoing physiotherapy treatment. Mrs. Street testified that the physiotherapy treatment was beneficial on a temporary basis, because the pain would return when she would return home.
Mrs. Street testified that she suffered from migraine headaches before and after the November 2, 1992 automobile accident. However, she testified that the headaches increased in severity and frequency after the accident. She testified that she experienced auras (blinding light) before and after the accident of November 2, 1992, but before the accident was able to control the auras with medication. Since the accident, she has found that she must lie down until the aura passes.
On January 4, 1993, Dr. Sussex referred Mrs. Street for treatment to Dr. E. S. Russell, a medical doctor with a special interest in pain management. Mrs. Street testified that she saw Dr. Russell on three occasions, at Four Counties General Hospital in Newberry, Ontario. She complained of pain in her lower back and left leg, which tingled and went down to her toes. She testified that Dr. Russell used epidural injections to treat her low back pain, without success.
Mrs. Street testified that Dr. Sussex referred her to Dr. James Allen, an orthopaedic surgeon, on January 22, 1993. Dr. Allen testified that Mrs. Street suffered from pain in the low lumbar area, which seemed to radiate down the leg on both sides, but more on the right than on the left leg. Dr. Allen found scoliosis in Mrs. Street's back. He had Mrs. Street undergo a CAT scan, at Sarnia General Hospital, on March 2, 1993. He testified that the CAT scan revealed that L-5, S-1 disc degenerative disease, but no disc herniation. Dr. Allen found that Mrs. Street suffered from pain, due to soft tissue strain. He encouraged Mrs. Street to return to work and accept a two-hour per day security position, offered to her by her employer. However, Mrs. Street was subsequently given facet injections by Dr. Haddad, which resulted in acute exacerbation of her pain and admission to a hospital for pain management. Mrs. Street testified that her pain and hospital stay prevented her from taking on the part-time position, which is no longer available to her.
Under cross-examination, Dr. Allen testified that he was unaware that Mrs. Street was involved in similar automobile accidents in 1977 and 1986, which may have caused her scoliosis in the lumbar area. He testified that he found no other signs to suggest that her pain results from anything other than the muscle strain that she suffered from the November 2, 1992 accident. Dr. Allen testified that he did not test Mrs. Street's ability to walk, work, stand, sit, or lift, using objective means, but accepted the information given to him from Mrs. Street. He testified that he was not aware of Mrs. Street's job description and duties. Dr. Allen testified that Mrs. Street was prone to magnify her symptoms. He felt that he should have been informed of the similar automobile accidents in 1977 and 1986, where she sustained whiplash injuries.
Dr. Allen testified that things have not changed for Mrs. Street. He testified that at the present time, "there isn't anything further that we can offer her, unfortunately. I think that she will be left with a permanent partial disability and she probably is only fit for a very sedentary type work, which I doubt exists for her."
Dr. Sussex subsequently referred Mrs. Street to Dr. William P. McInnis, a neurologist, in London, Ontario. His findings were made known to Dr. Sussex, in a letter dated April 5, 1993. He discussed, in his letter, the two similar automobile accidents of 1977 and 1986, where Mrs. Street suffered injuries to the neck, but fully recovered from those injuries. Dr. McInnis found no need for further neurological investigation. He assured Mrs. Street that she would do well. He suggested that she discontinue the majority of drugs she was taking, in favour of anti-depressant and mild analgesia.
Mrs. Street was admitted to the Public General Hospital, at Chatham, Ontario, on numerous occasions, for pain control of low back strain and migraine headaches, which she experienced almost daily.
On the directions of Dr. Sussex, Mrs. Street began receiving home care assistance in May 1993, to help with the laundry. This continued to early 1994.
Mrs. Street testified that Dr. Sussex changed her medication in June 1993, to include morphine, which she took twice daily because of constant pain. She testified that the drug changed her personality, in that she became abrupt and rude, but helped to suppress her pain. She stopped taking the drug in February 1994.
Dr. Sussex next referred Mrs. Street to Dr. Janet L. Wilson, a specialist in general internal medicine, in London, Ontario. In a letter to Dr. Sussex dated July 7, 1993, Dr. Wilson reported that Mrs. Street's pain was twofold, consisting of low back pain with radiation of pain down the left leg into the foot, and her chronic migraine headaches, since the November 2, 1992 automobile accident. This condition significantly interfered with her lifestyle. Dr. Wilson outlined in her letter that she accelerated the morphine taken by Mrs. Street to help her gain a handle on the pain.
Dr. Sussex also referred Mrs. Street to Dr. David Boyd, another internist, to consult with Dr. Wilson in optimizing Mrs. Street's pain management. In addition to increasing the morphine content, they recommended acupuncture and massage therapy for pain management.
On November 1, 1993, Dr. Sussex referred Mrs. Street to Mark Woodall, a physiotherapist, for ongoing therapy treatment for the reduction of pain.
Mrs. Street testified that she received treatment for her headache and low back pain on December 15, 1993, from Dr. J. Clifford, a specialist in pain rehabilitation at the Public General Hospital.
Dr. Allen placed restrictions on her motions: no lifting, no bending and no twisting. She retained a cleaning service to do the laundry on a twice-weekly basis and to clean the house.
Counsel for the Applicant entered into evidence a report made by the Westminister Orthopaedic Rehabilitation Centre, dated July 19, 1994. The report consisted of an independent physiotherapy evaluation. Its conclusion on page three stated that "[Mrs. Street] is experiencing a chronic pain from the soft tissue injuries sustained in a motor vehicle accident in November 1992. . . . She is certainly passed the time where healing for soft tissue injury has taken place." The report was signed by Judith Lo, physiotherapist.
Counsel for the Applicant also referred to a report made by Moira Sonnenberg, an occupational therapist with the Westminister Orthopaedic Rehabilitation Centre, made in July 1994. The report recommended that Mrs. Street be offered a group cognitive-based, chronic pain education program. It also suggested that she be offered work over a three to four month period, on a part-time graduated basis, with the expectation that she would resume full-time employment. Success at a return to work would depend entirely on the client's willingness to attend a chronic pain education program and her motivation to return to work.
Mrs. Street testified that no one at the Insurer contacted her to participate in the program outlined by Moira Sonnenberg. However, she testified that she would have been unable to give her full participation in such a program because of her back and headache pain.
Mrs. Street testified that she was unable to resume her security guard duties at the Union Gas office facility because she was unable to walk her two-hour patrol — a required duty of her work schedule. She claimed she was unable to climb 20 steps to exit the building onto the roof, or squat or bend to check the chillers.
In cross-examination, Mrs. Street was requested by counsel for the Insurer at the arbitration hearing, to repeat the motion required to check the chiller. Mrs. Street stood up and walked to an open space in the room, where she performed a squat without moan or groan.
Mrs. Street testified that the pain and medication blurred her vision. This would prevent her from reading gauges. However, in cross-examination, Mrs. Street was requested by counsel for the Insurer to read a letter which she did without error. She testified that the level of pain with medication at the arbitration hearing was on a 10/10 or maximum level. Mrs. Street testified in cross-examination that the two-hour walking patrol could be made in 80 to 90 minutes, permitting her time to rest, if it was required.
Mrs. Street testified that she could not sit for a period of more than 40 minutes, however, in cross-examination, she admitted to sitting for 12 hours during the arbitration hearing, with full head movement and of crossing her legs - a difficult thing to do with shooting pain. Mrs. Street testified that she was suffering pain during the arbitration hearing, but did not show it.
Mrs. Street testified that she could not raise her arms above her shoulders because of pain. She would be unable to carry the time clock and keys, which weighed about five pounds. However, the Westminister Rehabilitation report made on March 24, 1994 by B. Morden, a rehabilitation counsellor, described Mrs. Street at page one of the report to "...have improved her strength and is learning to be active within her pain tolerance. It is hoped that by the week of March 14, 1994, Mrs. Street will be able to lift 40 lbs., with a pulley assist."
In a report dated April 8, 1994, Mr. Morden states on page one of the report, that Mrs. Street reports that she is able to walk and climb stairs with less discomfort and is experiencing less pain in her lower back.
In cross-examination, Mrs. Street testified that she doubts that she could lift 40 lbs., but could lift 10 lbs. She agreed that her strength had improved at the time of the Morden March 1994 report and requested that the rehabilitation treatment be continued. She requested that the massage treatment be continued and that housekeeping and laundry services be continued. She requested the purchase of a TENS machine and the payment for a functional capacities assessment. Mrs. Street testified that she did not feel well enough to do her own laundry, but could climb stairs. However, in cross-examination, she testified that she was doing her laundry in early 1994 and that her sitting tolerance had increased from 10 to 20 minutes in March 1994. She was performing all domestic activities, including shopping at stores, pushing grocery store carts inside and outside the stores to her husband's automobile.
Mrs. Street testified that the amount of weekly income benefit received by her from the Insurer was equivalent to the amount of payment received from her security job.
Mrs. Street testified that she suffered from low back pain before the accident of November 2, 1992 and that she did not inform Dr. Sussex of this pain problem. She sought treatment for the low back pain from Dr. James Lemak, a chiropractor at Chatham, Ontario.
Mrs. Street could not explain why she did not inform Drs. Sussex, Allen and Clifford about the low back pain suffered before the November 2, 1992 automobile accident. She could not explain why she did not inform Drs. Clifford and Goldenberg of her history of migraine headaches prior to the November 2, 1992 accident.
Mrs. Street testified in cross-examination that her migraine headaches, prior to the November 2, 1992 accident, caused her to miss work at her security job. However, she testified that she was never disciplined for taking time off due to sickness. Mrs. Street testified that she did not recall Dr. Allen recommending that she return to work on a two hour per day progressive basis. She testified that she did not make an effort to return to work because of the severe pain that she was suffering.
Dr. Sussex testified that the treatment program established for Mrs. Street was unsuccessful in reducing the severity and frequency of pain. She was experiencing chronic pain syndrome — a collection of symptoms and signs indicating pain 24 hours a day. He testified that her pain regressed in the past year into a state of increased headache pain in frequency and amount. Dr. Sussex testified the security job was a five-day per week situation which Mrs. Street could do before the accident of November 2, 1992, but was unable to do after that date. He testified that, at one point during her treatment, he felt that she might return to work, but not now. He testified that she was unable to do household work, except for cooking. He suggested the use of TENS machine and massage therapy as helpful to Mrs. Street. He testified that Mrs. Street had suggested to him that she quit her job after the November 2, 1992 accident because she was bed ridden and confined to the house. Dr. Sussex testified that he was unaware of the treatment provided by Dr. Lemack. He testified that he did not relate the chronic pain problem to the two previous automobile accidents. He was unaware of her security job duties until recently, and was unaware that she had previously missed work because of pain.
Mr. Larry Street testified that he had lived with his wife for about five years before the marriage on April 24, 1992. He testified that prior to the November 2, 1992 accident his wife cleaned the house and did the laundry. She helped him clean the snow from the driveway. She cooked meals and did the grocery shopping. She walked about the neighbourhood and looked after the pets. She helped him do the yard work.
Mr. Street testified that after the November 2, 1992 accident, his wife was unable to perform the same activities in and outside of the house that she performed prior to the accident. He testified that in tears she complained of pain after the accident.
Mr. Street testified that his wife never complained of back pain before the accident of November 1992. His wife is unable to take long walks as she used to do before the accident. Their intimate relationship, enjoyed before the accident of November 2, 1992, had disappeared and is virtually nil.
Mr. Street testified that his wife suffered from headaches prior to the 1992 accident, but could control the pain with medication. He finds that she is not now able to control the pain with medication and the headaches are more frequent.
Dr. Sol Goldenberg, a trauma consultant and independent medical examiner for the Workers' Compensation Board, testified that he examined Mrs. Street on behalf of the Insurer on April 19, 1994. Dr. Goldenberg testified that he asked Mrs. Street, about her medical history. His report confirmed the complaints of low back pain and migraine headaches suffered by Mrs. Street. However, his report failed to include comments on Mrs. Street's prior November 2, 1992 health problems with her low back or headache pain. In cross-examination, Dr. Goldenberg confirmed that Mrs. Street did not tell him about her previous low back pain or headaches prior to the November 1992 automobile accident.
Dr. Goldenberg testified that he had the medical reports of Dr. John Clifford, which indicated that Mrs. Street suffered from migraine headaches before the November 2, 1992 accident, but made no further inquiry into this problem.
Dr. Goldenberg testified that he was not specifically aware of Mrs. Street's duties as a security guard. He testified that he was generally aware of the job description of a security guard and used that information in arriving at his conclusion that Mrs. Street was presently capable of working as a security guard. Dr. Goldenberg testified that he only saw Mrs. Street on one occasion.
Dr. Goldenberg testified in cross-examination that Mrs. Street began taking morphine on June 7, 1993 and continued taking morphine to late January or early February 1994. He testified that she could have been taking morphine when the surveillance videotapes were made of Mrs. Street by the Insurer.
Dr. Goldenberg described morphine as a powerful drug that suppresses pain and should not be used in chronic pain situations. He testified that he reviewed the surveillance videotapes made by the Insurer of Mrs. Street's conduct and movements over several days and, as a result, found Mrs. Street capable of returning to her security job on a full-time basis because it is not a physically demanding occupation.
An extensive medical report made by Dr. John C. Clifford formed part of the medical brief filed in evidence and, in particular, a report dated January 25, 1994, addressed to Mr. Blake Morden, a rehabilitation counsellor for the Insurer. Dr. Clifford describes himself, in the report, as a medical practitioner, specializing in physical medicine and rehabilitation.
Dr. Clifford reviewed Mrs. Street's pre-November 1992 medical history, where she denied having previous pain or injury to the low back. However, his report did contain information about a history of migraine headaches and of the two previous similar automobile accidents in 1977 and 1986, during which she sustained whiplash, involving her neck and upper back.
Dr. Clifford diagnosed Mrs. Street's 1992 automobile injuries as soft tissue injuries involving the neck and/or low back region.
His report reviewed the rehabilitation pain program established by Dr. Sussex, which he described as an appropriate course of conservative treatment. Dr. Clifford, on page six of his report, states that there is as yet, no objective assessment of Mrs. Street's true residual physical capabilities.
Dr. Clifford provides an opinion that, at a point 10-12 weeks following initiation of the therapeutic exercise program, Mrs. Street can safely be expected to return to work within restrictions - initially on a part-time basis (two hours per day), increasing to full-time work over the ensuing four to six weeks. Modest variations in this time-line should be considered, if they would serve to significantly enhance Mrs. Street's compliance.
Dr. Clifford stressed that successful rehabilitation can only occur when responsibility for increasing function shifts away from the clinicians and onto the patient herself. The patient must remain free to choose not to accept this responsibility and such a choice should not be confused with disability or handicap.
Counsel for the Insurer introduced into evidence a surveillance video, made by the Insurer, recording the movements of Mrs. Street on January 5 and 7, 1994. She was seen sitting in a restaurant with her husband and later, shopping at a grocery store. The surveillance video on February 8 and 9, 1994 recorded Mrs. Street getting in and out of her husband's automobile, bending to pick up groceries, squatting and pushing a grocery cart through the snow to her husband's automobile. The video depicted Mrs. Street apparently going for a walk. She appeared to be helping her husband in snow removal with the use of a broom. Other recordings showed Mrs. Street's unloading groceries into the trunk of her husband's automobile and returning home in the late afternoon.
Dr. Clifford reviewed the surveillance videotapes and made the following observations in a report dated March 25, 1994, addressed to the Insurer:
– walking briskly, fluidly and without listing;
– getting into the car repeatedly with no obvious limitations;
– shopping, on several occasions, and noted to push a shopping cart (indoor and outdoor), bag the groceries, carry bags of groceries, load and unload the trunk;
– sweeping the front steps;
– bending, stooping and lifting.
Based on the video surveillance, Dr. Clifford concluded that:
The patient should be considered fully independent in all regular self-care and domestic activities. There is no medical indication for domestic assistance and no medical indication why she should have to take taxis. Based on her physical capability, on video surveillance, it is safe and appropriate that this patient be expected to return to work immediately. It is recommended that the patient's therapy progress quickly to full exercise, without any specific treatment directed toward subjective complaints of pain. Finally, in the context of video surveillance, Mrs. Street is likely at a level of function which does not differ appreciably from her status pre-November 2, 1992 motor vehicle accident. Accordingly, ongoing insurance funding is not only not medically indicated, but is actually detrimental, as it will only serve to prolong dysfunction and dependency.
Arguments:
Mr. Allin, counsel for the Applicant, argued that Mrs. Street saw 16 doctors and had undergone 152 physiotherapy sessions. These were not the actions of a person seeking to make easy money through deceptive tactics. Rather, it was the actions of a desperate woman seeking relief from severe, continuous pain, the result of injuries sustained from a serious automobile accident on November 2, 1992. Mr. Allin argued that the medical evidence was twofold: the oral evidence of Drs. Sussex and Allen, who testified that Mrs. Street suffered from chronic pain as a result of the November 2, 1992 automobile accident. They testified that Mrs. Street suffers a substantial inability to perform the essential tasks of the security job that she performed before the November 2, 1992 accident.
On the other hand, Mr. Allin argued that the Insurer produced medical reports from Dr. John Clifford, who gave no oral evidence. Dr. Goldenberg gave oral evidence, but only saw Mrs. Street on one occasion. Dr. Goldenberg's findings were that Mrs. Street should be capable of returning to work as a security guard, since this was not a physically demanding occupation. Mr. Allin argued that this observation was shallow and made without thorough investigation.
Mr. Allin argued that the surveillance videotapes did not show Mrs. Street walking or sitting for one or two hours. The videotapes did not establish the capability of Mrs. Street to perform the essential tasks of her work prior to the November 2, 1992 automobile accident. She may have been able to work a few hours, but not a full week, as she was required to do prior to the accident.
Mr. Allin referred to the arbitration decision, Donna Flemming and Wawanesa Mutual Insurance Company, April 28, 1992, OIC File No. A-000406, where senior arbitrator Susan Naylor held that there must be "an individualized inquiry" into an insured person's employment circumstances.
He also referred to the arbitration decision Maria Rodrigues and State Farm Mutual Automobile Insurance Company, June 30, 1994, OIC File No. A-005908, where arbitrator Julaine Palmer observed that it is not the role of the arbitrator to make a medical diagnosis. The issue before the arbitrator is to determine whether the applicant suffers substantial inability to perform the essential tasks of her occupation. The ability to attend work regularly is an important consideration in determining whether the applicant has sustained a "substantial inability" to perform her essential tasks. Mr. Allin argued that work of one hour per day is not remunerative to his client.
Mr. Boundy, counsel for the Insurer, argued that Mrs. Street's entitlement to supplementary medical and rehabilitation benefits under section 6(1) of the Schedule, must be supported by a signed statement from a qualified medical practitioner stating that the expense is necessary and reasonable.
Mr. Boundy argued that 16 doctors had examined Mrs. Street, but found no objective findings to support the Applicant's complaint of chronic pain. He argued that the only way such a condition may be measured is to observe the person's actions. He argued that this was done at the arbitration hearing, where he observed Mrs. Street's posture and pain behaviour. He argued that, if Mrs. Street can undergo a four-day arbitration hearing, she is capable of performing the essential tasks of her pre-accident work.
Mr. Boundy submitted that Mrs. Street was not motivated to return to work because she received weekly compensation from the Insurer at almost the same level as from her employment and these benefits were not taxable.
Mr. Boundy agreed that Mrs. Street suffers from pain, but argued that she does not suffer substantial inability to perform the essential tasks of her pre-accident security occupation. Her pre-accident security occupation required some walking and sitting. It was clear from the evidence that she had the opportunity to adjust her position under such circumstances to reduce pain.
Mr. Boundy submitted that the pre-accident security occupation was the right fit for a person with physical restrictions. Mrs. Street's conduct at the arbitration hearing clearly demonstrated her ability to perform the essential tasks of her pre-accident job security duties. Mr. Boundy argued that Mrs. Street suffered from ill health and pain prior to the November 2, 1992 accident and suffered from sciatic symptoms in early June 1992. She also suffered from migraine headaches and missed work because of this. He argued that she suffered from the same condition after the accidents, but worsened.
Mr. Boundy submitted that the surveillance videotapes demonstrated Mrs. Street's ability to resume the duties required of her pre-accident security occupation.
Mr. Boundy argued that Mrs. Street was not truthful with the doctors treating her, in that she did not reveal to them the pre-accident pain suffered prior to November 2, 1992.
Mr. Boundy concluded that Dr. Clifford was better able to determine the ability of Mrs. Street to resume her pre-accident security job duties than the other medical doctors who had treated her because he was a specialist in physical medicine and rehabilitation.
Conclusion:
In dealing with the dispute before me, I must first examine the section of the Schedule from which the Applicant seeks continued weekly income benefits. The Applicant states that she is entitled to continued weekly income benefits under section 12 of the Schedule.
Section 12 of the Schedule provides that an insured person is entitled to weekly income benefits if he or she is substantially unable to perform the essential tasks of his or her pre-accident job as a result of the accident.
I found Mrs. Street a credible witness. She has undergone extensive medical and rehabilitation treatment for her chronic pain symptoms since the November 2, 1992 automobile accident. The accident was a serious rear-end accident, propelling the Street family vehicle about 100 feet from a stopped position. Mrs. Street has shown recent signs of improvement in the reduction of her chronic pain through her movements witnessed at the arbitration hearing, the surveillance videotapes, the rehabilitation reports and her evidence. I concluded from that evidence, as well as from the other evidence submitted to me, that Mrs. Street is substantially able to perform the essential tasks of her pre-accident security job.
There was much medical evidence submitted to me, which related to soft tissue injuries that Mrs. Street sustained in the November 2, 1992 automobile accident. I received no objective evidence of Mrs. Street's true physical ability to return to her pre-accident job as a security guard, other than the evidence of her physical capabilities that I observed at the arbitration hearing, and from a review of the videotapes.
The medical evidence and reports relating to Mrs. Street's physical capabilities were substantially based on what Mrs. Street told the medical examiners — they made no further investigations.
Dr. Allen testified that he did not test the ability of Mrs. Street to walk, work, stand, lift, through objective signs. He accepted the information she gave him. His opinion that Mrs. Street is only fit for very sedentary type of work, which he doubts exists for her, is Mrs. Street's own evidence. Dr. Allen testified that Mrs. Street was prone to magnify her symptoms. I have therefore not placed significant weight on the evidence of Dr. Allen in determining Mrs. Street's ability to return to her pre-accident job.
Dr. Sussex testified that he was unaware of Mrs. Street's security guard duties until recently. He was unaware of her having missed work prior to the November 2, 1992 automobile accident because of pain. He was unaware of Mrs. Street's low back pain before the November 2, 1992 automobile accident, and that she was being treated by Dr. Lemack. These factors indicate that Dr. Sussex relied upon the information Mrs. Street gave him about her ability to return to her former job. I have therefore not placed significant weight on Dr. Sussex's evidence with respect to Mrs. Street's ability to return to her pre-accident work.
In a January 25, 1994 report, Dr. Clifford found no objective assessment of Mrs. Street's residual physical abilities. However, after reviewing the videotapes, Dr. Clifford found that Mrs. Street was capable of returning to her pre-accident security guard job immediately. He found that Mrs. Street was likely at a level of function which does not differ appreciably from her November 2, 1992 pre-accident status. He recommended that ongoing insurance funding is not only medically wrong, but actually detrimental, as it will only serve to prolong dysfunction and dependency.
Mrs. Street testified in cross-examination that she was performing all her former domestic activities, including shopping. The videotapes show Mrs. Street shopping and helping her husband sweep snow as she did prior to the November 2, 1992 automobile accident. She was shown in the videotapes taking a walk, as she was accustomed to prior to the accident. This evidence shows that she resumed the independent acts and functions she preformed prior to the November 2, 1992 accident.
I found the evidence of the videotapes not optimistic but realistic and credible depictions of Mrs. Street's capabilities. Mrs. Street testified that she suffered from pain before the accident as well as after the November 2, 1992 automobile accident, which increased in frequency and severity. I believe Mrs. Street when she states that she suffers from pain from her movements and headaches, However, I do not accept that the chronic pain suffered by Mrs. Street immediately after the November 2, 1992 accident, remains the same today in frequency and severity. I find rather, that the chronic pain has been reduced through treatment, to a level similar to that experienced by Mrs. Street prior to the November 2, 1992 automobile accident. She is now independently able to carry out the activities she performed prior to the 1992 accident. I conclude she does not continue to suffer a substantial inability to perform the essential tasks of her pre-accident security guard job. Mrs. Street missed work because of pain prior to the November 2, 1992 accident. No doubt, the pain substantially increased in frequency and severity after the November 2, 1992 accident, but I now find from the evidence before me that the chronic pain has been substantially reduced to the state of pain suffered prior to the November 2, 1992 accident.
I preferred the medical evidence of Dr. John Clifford over the medical evidence of Drs. Sussex and Allen in determining the ability of Mrs. Street to return to her pre-accident security guard job, because Dr. Clifford is a recognized specialist in physical and rehabilitation medicine.
I do place no significant weight on the evidence of Dr. Goldenberg. He did not make good use of the medical reports in his possession. He did not investigate the cause of Mrs. Street's chronic pain and its effect on her. He provided a textbook form of diagnosis and prognosis, which did not fairly reflect Mrs. Street's chronic pain level nor her capabilities.
I have, therefore, concluded from all the evidence before me that Mrs. Street no longer suffers a substantial inability to perform the essential tasks of her occupation prior to the November 2, 1992 accident. Therefore, she is not entitled to continue receiving weekly income benefits under section 12(1) of the Schedule.
I conclude from all the evidence before me that Mrs. Street is not entitled to receive supplementary medical and rehabilitation benefits under section 6(1) of the Schedule. The objective evidence before me showed the Applicant to be independent in all regular domestic activities.
Expenses:
The Applicant has requested her expenses of the hearing. An insured person may be provided expenses incurred as a result of an arbitration proceeding under section 282(11) of the Insurance Act.
Arbitrators have consistently awarded expenses to insured persons unless their claims were manifestly frivolous or vexation, or their conduct unreasonably prolonged the arbitration proceeding. In this case, I am satisfied that Mrs. Street is entitled to her expenses as set out in Ontario Regulation 664. The parties may apply to me for an assessment of the expenses in the event that they are unable to agree about the amount payable.
Order:
Mrs. Street is not entitled to receive weekly income benefits under section 12(1) of the Schedule after April 24, 1994.
Mrs. Street is not entitled to receive supplementary medical and rehabilitation benefits under section 6(1) of Schedule.
Mrs. Street is entitled to her expenses incurred in respect to the arbitration.
August 30, 1995
Roger F. X. Marentette Arbitrator
Date
Appendix "A"
Medical Chronology of Shirley Street.
Medical brief of Shirley Street.
Evidence brief.
May 1, 1995, Marianne Brown Report.
Westminister Orthopaedic Rehabilitation Centre Reports.
Burns International Security Damages Brief.
Case Brief.
Résumé of Dr. Sussex.
Résumé of Dr. Clifford.
Résumé of Dr. Allen.
Shirley Street's pay stubs.
Videotape.
Appendix "B"
Application for Appointment of an Arbitrator dated September 2, 1994.
Report of Mediation dated August 25, 1994.
Response of Insurer dated November 4, 1994.
Report of Mediator dated March 16, 1995.
Pre-hearing Report dated February 22, 1995.