Neutral Citation: 1995 ONICDRG 135
File No. A-008892
ONTARIO INSURANCE COMMISSION
BETWEEN:
NIDIA G. FRICKE
Applicant
and
ALLSTATE INSURANCE COMPANY OF CANADA
Insurer
DECISION
Issues:
The Applicant, Nidia Fricke, was injured in a motor vehicle accident on September 13, 1991. She received statutory accident benefits from Allstate Insurance Company of Canada (Allstate) payable under Ontario Regulation 672.1 Weekly income benefits were terminated on September 1, 1993.
The issues in this hearing are:
Is Ms. Fricke entitled to weekly income benefits from the date benefits were terminated until September 20, 1994 (being 156 weeks from the date the weekly income benefits began) under section 12(1) of the Schedule?
Is Ms. Fricke entitled to weekly income benefits after September 20, 1994 under section 12(5)(b) of the Schedule?
Is Ms. Fricke entitled to a special award under section 282(10) of the Insurance Act, R.S.O. 1990, c.I.8, as amended?
Is Ms Fricke entitled to interest under section 24 of the Schedule?
Is Ms. Fricke entitled to payment for expenses related to the arbitration under section 282(11) of the Insurance Act, and Ontario Regulation 664?
Result:
Ms. Fricke is entitled to weekly income benefits from the date benefits were terminated until September 20, 1994 under section 12(1) of the Schedule.
Ms. Fricke is entitled to weekly income benefits from September 20, 1994 to September 30, 1995 under section 12(5)(b) of the Schedule.
Ms. Fricke is not entitled to a special award under section 282(10) of the Insurance Act.
Ms. Fricke is entitled to interest under section 24 of the Schedule.
Ms. Fricke is entitled to expenses related to the arbitration under section 282(11) of the Insurance Act and Regulation 664.
Hearing:
The hearing was held in London, Ontario on June 19, 20, 21, 22, 29, and July 7, 8, 1995 before me, Craig Brown, arbitrator.
Present at the hearing:
Applicant:
Nidia G. Fricke
Applicant's Representative:
Matthew Duffy Barrister and Solicitor
Insurer's Representative:
Brian Foster Barrister and Solicitor
Insurer's Officers:
Yvonne Madore
Liviana Belluz,
Peggy Dittmar
Interpreter (Spanish):
Jorge Hernandez
Witnesses:
The Applicant, Ms Fricke; Klaus Fricke,Yolanda Echeverria, Derek Van Houwelingen, Michelle Williams, Renate Gross, Dr. B. Bhayana, Dr. R. Teasell, Dr. J.F. Diaz, Dr. J.C. Clifford, Dr. M. Heitzner, Gloryann Plateeuw, Joan Galbraith, Jack Miller, Cathy Axworthy,Yvonne Madore (Allstate),Yolanta Dobkowski
Exhibits:
20 exhibits were filed. They are listed in appendix A.
Evidence:
Background:
The Applicant was age 34 at the date of the hearing. Together with her husband and her two eldest children, she came to Canada from Nicaragua in 1988. She completed the equivalent of high school in Nicaragua, although the process took longer than usual because the school was closed periodically due to political unrest. She was 22 when she finished high school. At that time she was already married and her first child was born shortly afterwards. The Applicant did not work full-time outside the home before she came to Canada. In Nicaragua and Guatemala, where they lived for a time en route to Canada, the family employed a maid to assist with housework and laundry, although the Applicant performed some of the housework and all of the child care herself.
When they arrived in Canada, it was necessary for both Mr. and Ms. Fricke to work outside the home. Their first job was bundling newspapers for the London Free Press, being hired for this on a nightly basis if chosen from those who showed up. Eventually, the Applicant found employment in factories doing light assembly work. In March 1990 she was hired by the company now known as Siemens. She was employed there until the date of the motor vehicle accident, September 13, 1991. The period of her employment was interrupted by a six month pregnancy leave and one month sick leave for her pregnancy-related problems. The Applicant returned to work from pregnancy leave on July 26, 1991.
The Applicant described herself as a happy and active person before the motor vehicle accident. This was consistent with evidence given by her husband and a family friend, Mrs. Echeverria. The Applicant was a meticulous housekeeper and enjoyed social activities such as dancing, bowling, movies, visits to the park and tennis.
The Job at Siemens
The Applicant's job at Siemens (called "Power Motion" when she started there) involved four different operations of subassembly of electrical parts for automobiles. That is, she put together four small devices by connecting two or smaller components. After two hours on one operation she moved to the next, and so on. In addition to the lunch break (20 to 30 minutes), she had a 15 minute break between each rotation. One of these operations was soldering a fuser. This involved picking up a part from the line, working on it at a machine and replacing it on the line. Another was assembling a crimper which involved sealing wires and a plate together in a machine, putting the resulting product in a box, counting the number of products in the box and lifting the box which, when full, weighed up to 15 lbs. Another operation was punching holes, requiring the worker to press two buttons with her thumbs. The fourth rotation was work on a brush car, picking up wire and putting the brush car on it.
Each of these operations involved highly repetitive work. Tasks had to be performed 200 times an hour. Between each repetition a worker could look up, but only for a few seconds. Without a replacement worker there could be no break before the end of the two hour period because the line had to keep going. The fuser operation necessitated sitting; otherwise the Applicant could stand or sit as she chose, although most workers generally sat. The chairs were metal with no height adjustment possible. All operations required twisting, turning, lifting and bending at the neck to look down.
Since the Applicant last worked at Siemens, the company has redesigned the subassembly operations. The work-stations are now more ergonomic and more automation has been introduced. Now the work involves over 300 repetitions per hour but using the same motions.
During her time at Siemens, the Applicant's performance was considered by the employer to be good. Any absences or lateness seems to have been accepted by the employer as relating to problems with her pregnancy. She worked what her supervisor considered to be a great deal of overtime.
With the Applicant and her husband both working, they coped with the demands of child care by alternating shifts. The husband worked morning shifts, coming home before the Applicant started work in the afternoons. After her third child was born, the Applicant's mother came to help with the children, to allow the Applicant to return to work.
The Accident
The motor vehicle accident occurred on September 13, 1991, at about 3:20 p.m. The Applicant was a passenger in the right front seat. Her husband was driving. They were stopped at a stop sign when their car was hit from behind. The Applicant was turned toward her husband when the impact occurred. She described the impact as "hard" and that she felt a pain in her chest.
The damage to the car was minimal, the rear bumper was slightly bent. Photographs taken just prior to the hearing show the Applicant's husband had not considered the damage serious enough to warrant repair. The police report of the accident notes that there was "no apparent defect."
The Applicant and her husband went on about their intended business. They picked up their children and went to the Western Fair. After about half an hour of walking around the fair, the Applicant felt pain in her neck and shoulder. She also noticed her hand was swollen. The family went home at that point. Later (at about 11:00 p.m.) the Applicant went to the emergency room at St. Joseph's Health Centre. The nurse's notes indicate that the Applicant complained of pain in the right shoulder and upper back, that she had reduced range of motion in her right shoulder and reduced grip strength. An x-ray showed no fractures or other abnormalities. The physician who saw her prescribed an analgesic for the pain, as well as ice and rest, and directed three days off work.
Subsequent Treatment History
The Applicant saw her family physician, Dr. Heitzner, three days after the accident.
Dr. Heitzner prescribed an analgesic for the neck and lower back pain of which the Applicant still complained, and wrote a note for the Applicant to be off work for three weeks. Subsequently further notes were provided.
Dr. Heitzner also referred the Applicant to physiotherapy at St. George Rehabilitation. There is some confusion in the evidence as to the frequency and duration of this physiotherapy treatment. The Applicant testified it was three times a week for one hour over a period of three months. Dr. Heitzner's notes suggest daily visits lasting 15 to 30 minutes. In any event it is clear that treatment at this clinic was unsuccessful in alleviating the Applicant's symptoms more than temporarily, or increasing her functions. Treatment was discontinued on December 18, 1991. The treatment seems to have been inhibited by the fact that the Applicant was very tense.
The following month the Applicant was referred to a physiatrist, Dr. Maryniak, by Dr. Heitzner's colleague, Dr. Petrella. Dr. Maryniak saw the Applicant in early February 1992 and assessed her condition as follows:
[She] has chronic pain syndrome which is complicated by fairly high levels of muscular and nervous tension. The accident also affected her psychologically and she is suffering from the so called post traumatic syndrome which includes headaches, insomnia, tiredness, irritability, poor concentration and so on. Both these syndromes are benign, but may last for a long time . . . She can help speed up her improvement by believing that her pain is not dangerous and accepting the fact that she is going to have pain for a year or two and by staying as active as possible.
He recommended that an antidepressant be prescribed.
At this point Allstate retained the services of Rehabilitation Services of Canada to assist the Applicant. A rehabilitation specialist, Joan Galbraith, was assigned as caseworker. Following that, the Applicant was referred to Medex Rehabilitation which offered a program featuring education designed to reduce pain focus, and bicycle exercises to increase range of motion. The Applicant went to Medex three times a week for about three months. The program was discontinued because the Applicant was unhappy with it. In any case, it was producing no apparent benefit. Although the bicycle was adjusted to low tension, the Applicant found the exercises too painful. It was explained to her, by videotape and other means, that the pain was not harmful. However, she did not understand that exercises might increase the pain while she was doing them.
The next step was to try the Physiotherapy Centre of Southwestern Ontario. The Applicant attended there for about one month. She complained to Dr. Heitzner that she was being pushed too hard by the therapist. Although the therapist explained to the Applicant that the exercises, involving weights, were intended to improve level of function and not to treat the pain, the Applicant would not or could not do the exercises. After a month the therapist concluded "I have nothing further to offer this patient."
After consultation between Dr. Heitzner and Mrs. Galbraith, the Applicant was referred to another physiatrist, Dr. Clifford. He found the Applicant's complaints of pain to be "most likely benign - with no evidence to suggest neurological or musculoskeletal pathology. Indeed the natural healing time for soft tissue injuries is in the range of three to six months." (Dr. Clifford examined her more than 15 months after the accident.) He described the Applicant's presentation as "histrionic" based probably on "fear/anxiety, pain (perceived or anticipated) and somatization, rather than a volitional attempt to mislead."
His view was that the Applicant had progressed into a chronic pain syndrome characterized by ongoing pain perception, loss of function and reactive depression.
In his initial consultation report, Dr. Clifford stated that temporary vocational restrictions were indicated: no prolonged positioning of the head and neck, no repetitive heavy lifting with the arms above the shoulders, no prolonged working with the arms held out in front unsupported, no prolonged stooping or squatting, no repetitive bending or twisting, no repetitive/heavy lifting at the waist. He emphasised that "these restrictions are to minimize complaints of pain, not because significant tissue damage is anticipated." At the hearing, he said that in retrospect he might not have imposed even those restrictions. In short, his evidence was that it was "safe" for the Applicant to engage in activity including the essential tasks of her job. On the other hand, he thought her pain was real and nothing suggested that the Applicant was malingering.
The thrust of Dr. Clifford's recommendations was to switch attention from the impairment (chronic pain) to the disability (loss of function). Essentially this meant ensuring that the Applicant be kept active, with defined deadlines for progress in terms of increased function. It was also important that the Applicant understand the emphasis on function. In view of the "reactive depression" component of the Applicant's condition, he also recommended that she be seen by a Spanish-speaking psychiatrist, Dr. Diaz.
Soon after that, the Applicant had a few sessions with another physiotherapist, Cecile James, at Elite Physiotherapy. The results there were more or less the same as before. Ms. James thought there was some slow progress but summed up the Applicant's treatment as follows:
...she really was not into becoming well. She was not a malingerer, in my estimation. BUT, she was still awaiting the magic button which would lead to a return to previous health. When I saw her she had absolutely no sense of responsibility for initiating her own wellness strategy . . . she was not going to settle for second best health; it was all or nothing!
She had a perception of being disabled, which I was not able to affect in any way as I saw her only a few times. Most of my time was spent persuading her to do basic, gentle exercises. To no avail.
At about the same time the Applicant began seeing Dr. Diaz, the psychiatrist. After his first examination of the Applicant, he concluded that she was suffering from two related conditions; pain disorder and depression. He reported to Dr. Heitzner that the Applicant had an obsessive personality, that she felt isolated and that people were imposing on her. However, at the hearing, Dr. Diaz stated that, while he had not had time to pursue an in-depth exploration of her personality at their first meeting, his impression was that there was no pre-accident personality disorder. In other words, her depression was "caused' by the accident in the sense that had the accident not happened, she would not have developed the two conditions he observed.
The Applicant's depression was manifested by feelings of helplessness and despondency, crying, irritability, sleep disturbances, decreased self-esteem and a low tolerance for pursuing activities. Dr. Diaz treated the Applicant with antidepressant medication and psychotherapy designed to promote functioning rather than symptom control. For the first two years this treatment was "going nowhere." The Applicant often failed to pursue treatment recommendations. However, Dr. Diaz was of the view that the Applicant did not consciously resist treatment. Rather she was simply overwhelmed by her situation and, at that time, no appropriate "treatment alliance" had been established with her, to gain her trust. Over the past eight to 12 months this has changed. An improved "treatment alliance" and medication have produced, in Dr. Diaz' words, "partial benefits."
Despite this recent improvement, Dr. Diaz said that the Applicant, even at the date of the hearing, could not work at any job for more than a half hour without being overwhelmed by her "magnified pain perception and coping with that pain."
In March 1993 the Insurer's claims examiner, concerned about the lack of progress to that time, convened a meeting with Drs. Clifford, Heitzner and Diaz, the rehabilitation caseworker, the Applicant and her husband, and an interpreter to plan a new course of treatment. What emerged from that meeting was a functional restoration plan largely designed by Dr. Clifford but agreed to by the others present. The plan was explained to the Applicant who appears to have accepted it, although, on the advice of her lawyer, she declined to sign a letter to that effect.
This plan was designed to increase function, not control the Applicant's pain. It called for exercise and a work-hardening program. It sought to emphasise that the Applicant had choices. For example, she was to choose her exercise facility and she was to understand that she could choose to take on more activity because, even though it might be painful, it would not harm her. An important feature of the functional restoration plan was that it would proceed according to deadlines. To this end the plan was to run for six months after which the Applicant would be cleared to return to work for four hours a day. If the Applicant failed to follow through with this plan, weekly benefits would be terminated when those six months expired in September 1993.
Pursuant to the plan, the Applicant attended the Fitness Forum primarily for its water exercise program. The Applicant said she enjoyed this program, especially the whirlpool. However, her participation in the exercises in the swimming pool was minimal. She tended to stand at the side of the pool without moving.
In July the Applicant stopped attending the Fitness Forum and began a work-hardening program under the auspices of the March of Dimes. This involved work in a computer workshop sorting screws and cleaning keyboards. It was designed to last six to eight weeks and to increase the Applicant's ability to cope with work from one and a half hours a day at the start, to four hours a day by the end. The program was not a success. The Applicant's performance was characterised by low productivity, frequent stops, crying and other manifestations of distress, complaints of pain, several days absenteeism and an inability to last even the minimum allotted time. After less than three weeks the program was cancelled for lack of progress. After an intervention by the Insurer's rehabilitation caseworker, it was reinstated but, when after two more days there was no noticeable improvement, it was cancelled again.
In September 1993 the Insurer terminated weekly income benefits on the basis of Dr. Clifford's opinion that the Applicant could safely return to work, even though she had not completed the work-hardening program. The Insurer's view was that the Applicant had failed to cooperate in her own rehabilitation and that it was her lack of motivation, rather than any disability, which was preventing her from being more active.
Shortly thereafter, the Applicant changed family doctors. She seems to have considered Dr. Heitzner insufficiently supportive in terms of the return to work issue and her rehabilitation, generally. The Applicant became a patient of Dr. Bhayana. Dr. Bhayana's evidence was that the Applicant was unable to return to work at the end of 1993, that she had since improved somewhat and would be fit now to attempt part-time work with restrictions. Dr. Bhayana thought the Applicant was motivated to get better. The Applicant had asked to be referred back to physiotherapy.
On Dr. Bhayana's referral, the Applicant returned to the St. George clinic. She made no substantial progress there and in October of 1994, the Applicant was referred to another clinic, the Acute and Chronic Injury Rehabilitation Centre.
This clinic is run by Ms. Yolanta Dobkowski, whom Dr. Bhayana described as "culturally sensitive." Dr. Bhayana thought that cultural factors might be impeding the Applicant's recovery and that a therapist known to be sensitive to these factors might help. Ms. Dobkowski, Dr. Bhayana and the Applicant all believe that this referral was beneficial to the Applicant. There is no suggestion of non-cooperation or lack of motivation, although it is also true that the Applicant was not put under pressure. If she wanted to stop she could do so without criticism.
Ms. Dobkowski said that her progress was slow, but that the Applicant was ready now to attempt a return to part-time work with limits.
Dr. Bhayana also referred the Applicant to a physiatrist, Dr. Teasell. He first examined her in November 1994 and concluded that although work and other activity would cause no further tissue damage, her pain made her, at that time, "likely non-employable." Dr. Teasell felt that she could do nothing that required the lifting of arms above shoulder height, extending arms, lifting, sitting or standing in one spot looking down for long periods, or repetitive bending.
Dr. Teasell disagreed with Dr. Clifford's view that cases such as the present one involve "inorganic" pain. In Dr. Teasell's opinion, the weight of consistent clinical evidence suggests an organic basis for chronic pain. Nevertheless, he agreed with the view expressed by Dr. Diaz that the Applicant was incapacitated by psychological factors related to her injury. In his words, "what we are seeing is a soft tissue injury causing pain which unleashes a variety of stresses and emotional factors." He said that this made it impossible for the Applicant to return to her old job in 1994 and, when combined with her language difficulties and lack of marketable skills, would continue to make it difficult for her to return to work at all.
On the question of motivation and cooperation with health care givers, Dr. Teasell said that the Applicant cooperated with him but she was frustrated that medicine had not found a cure to make her completely and instantly well. He believed she sincerely wanted to get back to an active life including working outside the home.
The other medical evidence was given by Mr. Miller, a therapist with the Canadian Back Institute. In June 1994 he conducted a two-day functional capacity evaluation of the Applicant. He concluded that "the primary barrier to returning this individual to the working environment is chronic pain perception . . . It is not felt that those values measured in this evaluation are a valid representation of Nidia's true capabilities." He felt that there was no consistency to the Applicant's incapacities; a type of movement seemingly restricted in a set test would be freer when spontaneous, say, in removing clothing, or in gesturing during conversation.
Findings:
From this extensive medical history two facts are undisputed. Even those witnesses appearing for the Applicant agree that physical activity, to the extent of returning to her job at Siemens, would not cause the Applicant any further physical injury. In this sense it is "safe" for her to return to work and has been since the time benefits were terminated in September 1993. On the other hand, no one denies that her pain is genuine; that when she tries to perform a physical task asked of her, she feels real pain sufficient to cause her to abandon the task. The medical experts agree that the Applicant is not malingering.
It is also clear that, until recently, the Applicant consistently failed to perform tasks asked of her at physiotherapy, exercise and assessment facilities and that, as a result, she made little progress toward her rehabilitation.
In essence the dispute is about the inferences to be drawn from these undisputed facts. The Applicant argues that her pain is itself a disability. Her counsel, Mr. Duffy, points to her repeated lack of success in physical therapy as evidence of consistent behaviour indicating that her pain is too severe to allow her to function at a level sufficient to hold down a job.
The Insurer contends that the failure of treatment demonstrates the Applicant's consistent failure to cooperate with, and even her resistance to, those charged with helping in her rehabilitation. The Insurer argues that, had she done those things which were, in its view, reasonably asked of her, particularly in the functional restoration program, she would have reentered the workforce long ago.
The central question of fact for me to decide is whether the Applicant would not perform the tasks asked of her, or whether she could not. The core of the Insurer's case in this regard rests on the expert view expressed by Dr. Clifford that chronic pain patients have a choice. They can allow the pain to disable them or they can endure the pain secure in the knowledge that it will do them no physical harm. Applied to the Applicant, this view asserts that her failure to cooperate in therapy means she would not cooperate. In contrast, the case for the Applicant is that the pain combined with psychological and possibly cultural factors actually prevent her from performing certain tasks. She cannot do them even if she wants to. This was Dr. Teasell's assessment of the Applicant.
On the balance of the evidence before me, I find that the Applicant, at least at the time her benefits were terminated, could not, rather than would not, participate fully in the therapy and assessment programs to which she was exposed.
I do not think the Applicant was physically incapable of doing the prescribed exercises. In brief episodes the Applicant is and has been physically capable of performing movements which would, in the beginning at least, have satisfied the instructions of the physiotherapists. In this regard, the observations by more than one therapist of the Applicant's spontaneous movement which contradicted her expressed limitations during treatment are significant. Accordingly, I find that the Applicant was and is physically capable of movement which, in the absence of other factors, could form the basis of substantial rehabilitation.
But it is other, psychological, factors which effectively disabled the Applicant. It is not clear from the evidence whether she had any pre-existing vulnerability. Neither was there sufficient evidence presented to show how or whether the Applicant's cultural background or marital circumstances contributed, although there were suggestions that both did. But, whatever other factors were at play, I am satisfied that the motor vehicle accident triggered a chain reaction leading through pain to depression which in turn exacerbated the pain and impeded its treatment.
In reaching this conclusion I take into account the following evidence. The report of Dr. Maryniak, the first physiatrist to examine the Applicant, mentioned the fact that the accident had affected the Applicant psychologically. Dr. Diaz, the only psychiatrist to give evidence, described the Applicant as having succumbed to feelings of despondency and helplessness. Dr. Teasell observed "a variety of stresses and emotional factors" unleashed by the pain. The medical evidence was unanimous that the Applicant was not malingering, that her perception of pain was real. The Applicant's very poor performance in the work-hardening program was characterised not merely by pain behaviour but also by manifestations of emotional stress. I consider it relevant, too, that recent progress has occurred less because of new treatment modalities than improved "treatment alliances" between the Applicant and her family physician, psychiatrist and physiotherapist, respectively. This suggests that the key to progress or lack of it is the Applicant's state of mind.
Also consistent with this finding are the facts relating to the Applicant's family and social life after the accident. A person described as "cheerful, happy and active" who enjoyed picnics, dancing and bowling became withdrawn, short-tempered and almost totally inactive.
But, while the Applicant has a way to go to fully regain the state of mental and physical health she enjoyed prior to the accident, in recent months her condition and her state of mind have improved. Dr. Bhayana believes the Applicant to be motivated to work and ready for part-time work with restrictions. Dr. Teasell also said she could attempt part-time work if the appropriate job could be found. The Applicant herself said she had started looking for part-time work recently.
Dr. Diaz reported that the Applicant had benefitted from Prozac and that his treatment was starting to produce results. Yolanta Dobkowski also reported recent, if slow, improvement, resulting from physiotherapy treatment and, more importantly for present purposes, good cooperation. The Applicant's English teacher gave evidence suggesting that the Applicant is improving in her language studies in terms of both work and attitude. Evidence given by Cathy Axworthy of Fitness Forum about a recent conversation she had with the Applicant suggests the Applicant's English has improved significantly. The Applicant's domestic life is happier and more active. She said there are now fewer arguments and that she is able to cook, do dishes, mend clothes, do the shopping and participate in child care. Although she said she still requires help with cleaning the house, it is significant that one of the jobs she has applied for is with Ontario Home Help doing housework for the elderly.
When these domestic chores are combined with her English classes, regular physiotherapy, and looking for part-time work, they add up to a relatively active life.
If this improvement is significant enough to affect the Applicant's entitlement to benefits (more on that below), it is important to determine when it came about. All the evidence about improvement is that it occurred recently. For example, as late as November 1994, Dr. Teasell considered the Applicant "likely nonemployable." His more optimistic view and similar views expressed by others were offered at the hearing and related to the recent past. In the result, I find that if there was any reduction in the Applicant's disability that might affect her entitlement to weekly benefits, it occurred after the end of 1994.
The question then is whether there has been enough improvement in the Applicant's condition by some date in the first half of 1995 such that she has ceased to be entitled to benefits.
A vocational assessment commissioned by the Applicant's counsel and dated June 1995 concluded that the Applicant's "competitiveness for obtaining and/or maintaining remunerative employment has been virtually eliminated." However, this was based in part on the assumption that the Applicant could not speak English, and in part on the basis of her poor record in activities like the work-hardening program. If she could speak English and if the central reason for the poor performance in the work-hardening program, which I have found to be depression, was reduced, that conclusion would be less compelling.
Similarly, the cautions expressed by Dr. Teasell in reference to the Applicant's chances of returning to work were based partly on his concerns about her ability to speak English. The evidence of Cathy Axworthy, mentioned above, and that of Renate Gross, the English teacher, suggests this is less of a problem now.
The strongest evidence against the conclusion that the Applicant could return to work is that of Dr. Diaz who was unequivocal that, despite recent progress, the Applicant would still be too overwhelmed psychologically to cope with the demands of any job. This conclusion seems at odds with the other evidence of the Applicant's apparent new lease on life. But, even without any evidence to the contrary, Dr. Diaz' conclusion does not dispose of the issue of the Applicant's entitlement. This is because the Insurer has cast the issue not in terms of whether the Applicant can cope with work, but rather whether she would have been able to work had she cooperated in her treatment.
Given my finding that the Applicant was previously incapable of cooperating fully in her treatment, the issue now is, has the Applicant improved to the extent that psychological barriers can no longer excuse her lack of progress in physical rehabilitation? Without that excuse, the Applicant would be able to confront the pain involved in physical therapy and work-hardening, she would be able to successfully complete the kind of functional restoration program which was planned for her, and ongoing disability after that would be attributable to her own inaction rather than the motor vehicle accident.
In answer to this question, I find that the balance of the medical evidence shows that the Applicant has improved to this extent. Even if one accepts that there continue to be barriers to her coping with a job, it does not follow that she could not handle therapy. The Applicant herself feels ready to try part-time work. It is reasonable to assume she is ready for meaningful participation in therapy as well.
Disposition of the Issues:
Both Mr. Duffy and Mr. Foster agreed that this case, like most involving chronic pain, turned on its own facts and did not raise any controversial issue of law. Nonetheless, I must address the specific legal questions posed by this application.
1. Is the Applicant entitled to weekly income benefits from September 1, 1993 until September 20, 1994?
September 20, 1994 is the end of the 156-week period which commenced when the benefits were first payable to the Applicant following the motor vehicle accident. Entitlement during this period is governed by section 12(1) of the Schedule, the relevant part of which provides: -
The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident a weekly income benefit during the period in which the insured person suffers substantial inability to perform the essential tasks of or his or her occupation or employment . . .
As stated I find that the Applicant suffered, in addition to any physical injury that she sustained, psychological injury and that this arose because of the motor vehicle accident. This psychological injury persisted beyond September 1993 when weekly income benefits were terminated and lasted at least until September 20, 1994. However, it was in effect argued for the Insurer that this continuing injury was caused not so much by the accident as the Applicant's failure to cooperate in her own treatment. My finding is that the failure to cooperate was not wilful but a symptom of depression, brought on by the pain which was caused by the accident.
In this regard this case is similar to Mariam Audisho and State Farm Mutual Automobile Insurance Company, November 7, 1994, OIC File No. A-004981, in which Arbitrator Makepeace wrote:
An insured person claiming statutory accident benefits has an obligation to actively pursue her own rehabilitation. However, chronic pain is so commonly associated with depression, a focus on pain and disability, and a sense of helplessness, that the presence of these psychological factors cannot by itself preclude entitlement to statutory accident benefits. In this case, I am not persuaded that Mrs. Audisho's failure to embark on a rigorous rehabilitation program is so significant a factor in her ongoing disability as to amount to an intervening cause which would preclude her from receiving benefits.
The remaining question on this issue is whether the injury prevented the Applicant from performing the essential tasks of her occupation or employment. The relevant employment here is the assembly line job at Siemens. I find that the Applicant's injury did prevent her from returning to that job during the relevant period. That conclusion follows from my finding that the Applicant could not rather than would not carry out even the minimal tasks assigned her in therapy and in the work-hardening program. She could not because of the psychological injury she had sustained, even if she was physically capable of doing so without injury. As Arbitrator Draper wrote in Jodi E. Wiseman and Coachman Insurance Company, June 10, 1994, OIC File No. A-005706:
...the test under section 12 . . . is not limited to a consideration of whether the person can perform his or her pre-accident job tasks without risking further injury. It requires an assessment of whether the person is reasonably able to return to his or her pre-accident work.
In the result the Applicant is entitled to weekly income benefits from the date benefits were terminated until September 20, 1994.
2. Is the Applicant entitled to weekly income benefits after September 20, 1994?
Section 12(5) of the Schedule reads:
(5) The insurer is not required to pay a weekly benefit under subsection (1),
(b) for any period in excess of 156 weeks unless it has been established that the injury continuously prevents the insured from engaging in any occupation or employment for which he or she is reasonably suited by education, training or experience.
The medical evidence is that the Applicant's capacity for activity remained severely limited by her perception of pain and related depression until late 1994. Since that time her outlook has improved and she has begun to respond positively to both physical and psychological treatment. This improvement is such that the explanation for the Applicant's resistance to most treatment modalities which I accept as valid for the period before then, no longer applies. This means that further failure to cooperate in treatment, and consequent continuing disability can no longer be attributed to the accident.
On the basis of Dr. Clifford's evidence about treating patients unencumbered by psychological barriers it is reasonable to expect that, from the time the Applicant became capable of cooperating in her own rehabilitation, which the evidence indicates was some time in the first half of 1995, she would be able to complete a functional restoration program within six months. She would then be restored to the point where she could possibly engage in her old job but certainly in an occupation for which she is reasonably suited.
It is impossible to mark with precision when that six month period commenced. However, given the Applicant's evidence that she applied for a part-time job at Ontario Home Help three months before the hearing, it is reasonable to assume it had occurred by then, ie. around the end of March. This puts the date when it may be assumed that the Applicant will be restored, in functional terms, at September 30, 1995.
Accordingly, I find that the Applicant has established that, up to, but not beyond, September 30, 1995, her injury continuously prevented her from engaging in any occupation for which she is reasonably suited. After that time, for the reasons outlined, any continuing disability can no longer be attributed to the motor vehicle injury.
3. Is the Applicant entitled to a special award?
Section 282(10) of the Insurance Act provides:
If the arbitrator finds that an insurer has unreasonably withheld or delayed payments, the arbitrator, in addition to awarding the benefits and interest to which an insured person is entitled under the Statutory Accident Benefits Schedule, shall award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent a month, compounded monthly, from the time the benefits first became payable under the Schedule.
The question here is whether the Insurer acted unreasonably in terminating benefits in September of 1993. It does not follow automatically from the fact that I have concluded that the Applicant was entitled to benefits beyond that date that the Insurer acted unreasonably in taking a different view. As Arbitrator Draper wrote in Wiseman (cited above): -
A special award is not appropriate in every case in which the Insurer is unsuccessful in the arbitration. Its conduct must be unreasonable.
Here the Insurer made its decision after taking advice from Dr. Clifford who confirmed that it was physically safe for a return to work. Mr. Duffy argued that this was a foregone conclusion since it was part of the functional restoration plan, instituted six months earlier that there be a deadline for return to work regardless of actual performance of the components of the plan. He further argues that, since the plan itself was designed to condition the Applicant to work a mere four hours a day, it was unreasonable then to treat her as if she could return to work on a full-time basis, ie. by terminating the weekly benefits.
While this argument has a logic to it, it does not deal with the Insurer's actual reasons for terminating the benefits which, as I understand them, were twofold. First, based on Dr. Clifford's assessment, the Insurer formed the view that it was "safe" for the Applicant to return to her previous employment. Not only was it safe in September 1993, when benefits were terminated, it had been six months before. The functional restoration program was designed, as much as anything else, to convince the Applicant it was safe.
The second reason for terminating benefits was the Insurer's opinion that the true cause of the Applicant's ongoing problems was no longer the accident but her own refusal to cooperate. This opinion was based on reports from various therapists and the rehabilitation caseworker, Mrs. Galbraith. On balance it is my view that, given Dr. Clifford's firm conviction about the Applicant and the consistent reports coming from the therapists, it was not unreasonable for the Insurer to take the position it did. I take into account the fact that the Insurer was prepared to try several clinics and modalities and to provide ongoing support in terms of transport, interpretation and training before coming to the conclusion it did. Accordingly I find no basis for a special award.
Interest:
The Applicant is entitled to interest under section 24 of the Schedule.
Expenses:
Under section 282(11) of the Insurance Act, the Applicant is entitled to her expenses calculated in accordance with Part 6 of the Dispute Resolution Practice Code and Regulation 664. In case the parties are unable to agree on the amount of expenses I remain seized of this matter and either party may apply for an assessment of expenses.
Order:
The Applicant is entitled to weekly income benefits from the date benefits were terminated until September 20, 1994 under section 12(1) of the Schedule.
The Applicant is entitled to weekly income benefits from September 20, 1994 to September 30, 1995 under section 12(5)(b) of the Schedule.
The Applicant is not entitled to a special award under section 282(10) of the Insurance Act.
The Applicant is entitled to interest on outstanding amounts under section 24 of the Schedule.
The Applicant is entitled to her expenses incurred in respect of this arbitration.
September 28, 1995
Craig Brown Arbitrator
Date
Appendix
Exhibit 1
Applicant's Medical Brief for Nidia Fricke.
Exhibit 2
Vocational Assessment by Associative Rehabilitation Inc. dated June 8, 1995.
Exhibit 3
Applicant's Document Brief.
Exhibit 4
CurriculumVitae of Dr. Bhayana
Exhibit 5
CurriculumVitae of Dr. Diaz.
Exhibit 6
CurriculumVitae of Dr. Teasell
Exhibit 7
CurriculumVitae of Dr. Clifford.
Exhibit 8
Notes and reports of Dr. Clifford.
Exhibit 9
Article, "Whiplash Injury and Chronic Neck Pain."
Exhibit 10
Letters dated May 3, 1995 from Glen Cairn Community Centre.
Exhibit 11
CurriculumVitae of Michelle Williams.
Exhibit 12
Siemens Job Analysis.
Exhibit 13
Five photographs of the damaged vehicle, taken June 1995.
Exhibit 14
CurriculumVitae of Carolyn Dalgity.
Exhibit 15
Medical Report for Health and Welfare Canada, dated September 20, 1993.
Exhibit 16
Insurer's Medical Brief.
Exhibit 17
Insurer's Medical Productions Brief.
Exhibit 18
Insurer's Rehabilitation Brief.
Exhibit 19
Clinical Notes, Acute and Chronic Injury Rehabilitation Centre.
Exhibit 20
Allstate File Notes.