Neutral Citation: 1995 ONICDRG 152

File No.: A-008335

BETWEEN:

KIMBERLY I. MCKINNEY

Applicant

and

OTTAWA-CARLETON REGIONAL TRANSIT COMMISSION (GERLING GLOBAL GENERAL INSURANCE COMPANY)

Insurer

DECISION

The Applicant, Kimberly I. McKinney, was injured in a motor vehicle accident on February 11, 1992. Ms. McKinney was working with the City of Ottawa as a data entry clerk at the time of the accident. The accident occurred on a Tuesday. Ms. McKinney was absent from work for the rest of the week. She returned to work on the following Monday (February 17, 1992). She worked until February 28, 1992 when her contract with the City ended.

Ms. McKinney applied for and received statutory accident benefits from the Ottawa-Carleton Regional Transit Commission ("O.C. Transpo") payable under Ontario Regulation 672.¹ Ms. McKinney received weekly income benefits, under section 12 of the Schedule, from March 8, 1992 to July 11, 1992, when her weekly income benefits were terminated.

After weekly income benefits were terminated, Ms. McKinney looked for work. In November 1992, she obtained temporary, full-time employment through ISM Information Systems Management Corp. ("ISM"), an employment agency, as a data entry clerk. Ms. McKinney worked with ISM for approximately three weeks. Ms. McKinney claims that she left her employment with ISM because she continued to suffer a substantial inability to perform the essential tasks of her pre-accident employment.

From July 12, 1993 to December 23, 1993, Ms. McKinney took a course entitled "Office Automation Secretarial", at Herzing Career College ("Herzing"). Ms. McKinney sought payment for the cost of tuition for this course, under section 6(1)(c) of the Schedule. O.C. Transpo refused to pay for the course.

Ms. McKinney disputes the termination by O.C. Transpo of her weekly income benefits on July 11, 1992 and the refusal by O.C. Transpo to pay for the course at Herzing.

The parties were unable to resolve their disputes through mediation and Ms. McKinney applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

Is Ms. McKinney entitled to weekly income benefits for any period after July 11, 1992?
Is Ms. McKinney entitled to be paid the cost of tuition for the course she took at Herzing?

Ms. McKinney also claims interest on any amounts owing, and her expenses incurred in respect of the arbitration.

Ms. McKinney is not entitled to weekly income benefits from July 12, 1992 to the date when she terminated her employment with ISM.
Ms. McKinney is entitled to weekly income benefits after the date when she terminated her employment with ISM.
Ms. McKinney is not entitled to be paid for the course at Herzing.
Ms. McKinney is entitled to interest on the amounts owing.
Ms. McKinney is entitled to her reasonable expenses incurred in respect to the arbitration.

The hearing was held in Ottawa, Ontario, on November 23 and 24, 1994, before me, Shemin Manji, Arbitrator.

Present at the Hearing:

Applicant:

Kimberly McKinney

Applicant's Representative:

Stephen Appotive

Barrister and Solicitor

Insurer's Representative:

Peter Beaman

Barrister and Solicitor

Insurer's Officer:

Paul Ouellette

Witnesses:

Kimberly McKinney

Daniel Larabie

Dr. Martin Gillen

Dr. Maureen Baxter

Paul Ouellette

Dr. Wayne Quan

The proceedings were recorded by Ms. Pauline Munro of Gillespie Reporting Services.

A list of exhibits and other documents on the record is attached as Schedule A. A list of authorities filed by O.C. Transpo is attached as Schedule B.

Reasons for Decision:

(1) Background and Issues:

Ms. McKinney is 30 years old. She left high school when she was 17, after completing grade 11. After leaving high school, Ms. McKinney worked for a print shop for a year and a half (1985-1986). In November 1986, she sustained an injury to her left foot while at work. Ms. McKinney was off work because of the injury. She tried to return to her job after some time, but was unable to perform the job because of the injury. In 1987, Ms. McKinney applied for and was accepted in the Ontario Government Futures Program. In July 1988, Ms. McKinney obtained grade 12 equivalency through this program.

After completing the Futures Program, Ms. McKinney worked, through employment agencies, on temporary assignments doing various kinds of office work, including typing, data entry and filing². In December 1989, she took a course in Word Processing Secretarial at the Toronto School of Business. She graduated from this course in June 1990³.

After graduating in June 1990, Ms. McKinney worked, from July 1990 to March 1991, on temporary assignments, doing word processing and clerical work⁴. In November 1991, she was hired, on contract, full-time, by the City of Ottawa as a data entry clerk.

On the morning of February 11, 1992, Ms. McKinney was a passenger on a bus owned by O.C. Transpo, on her way to work. The bus was stopped at a pick up station when it was struck in the rear by another bus. Ms. McKinney was seated in the front of the bus behind the driver, at the time of the collision. When the collision occurred, Ms. McKinney was jolted forwards, backwards and forwards again. At the time of the collision, Ms. McKinney did not feel anything and she continued on her way to work on another bus. However, Ms. McKinney testified that, by the time she arrived at work, her neck was stiff and painful and she had a headache and earaches. She reported the pain and the stiffness to her employer, and an ambulance was called. She was taken to the Ottawa General Hospital. X-rays taken at the hospital were normal. Ms. McKinney was released from the hospital and instructed to see her family doctor.

Ms. McKinney did not return to work on the day of the accident and was absent from work for the rest of the week. The accident occurred on a Tuesday. Ms. McKinney returned to work on the following Monday (February 17, 1992). She continued to work until February 28, 1992, when her contract ended.

Ms. McKinney applied for and received weekly income benefits from O.C. Transpo. She received weekly income benefits, in the amount of $400.68 per week, from March 8, 1992 to July 11, 1992, when the benefits were terminated.

After weekly income benefits were terminated, Ms. McKinney registered with employment agencies seeking work similar to the work she had been doing before the accident. At the same time, from September to November 1992, Ms. McKinney took a beginner's course in French at Algonquin College, two evenings a week.

In the third or fourth week of November 1992, Ms. McKinney obtained temporary, full-time work through ISM as a data entry clerk. Ms. McKinney worked with ISM for approximately three weeks.

In 1993, Ms. McKinney continued to look for work similar to the work she had been doing before the accident. In March 1993, Ms. McKinney found part-time work with a tele-marketing firm, Rainbow Systems. She worked Monday to Friday between 5 to 9 p.m. and Saturdays 10 a.m. to 2 p.m. The job involved only telephone canvassing work. Ms. McKinney worked with Rainbow Systems from March to May 1993.

Some time in April 1993, Ms. McKinney learned about a course being offered by Herzing entitled "Office Automation Secretarial." The cost of tuition for the course was $4,895.00⁵. Ms. McKinney applied for and was accepted in this course. She attended, at Herzing, full time, from July 12, 1993 to December 23, 1993⁶. Ms. McKinney paid for the cost of the course from loans she obtained through the Ontario Student Assistance Program ("OSAP") and under the Canada Student Loans Act⁷. Ms. McKinney completed the course but did not graduate because she did not meet the minimum keyboarding speed of 50 words per minute on a five minute test⁸.

After she embarked on the course at Herzing, Ms. McKinney applied to O.C. Transpo for payment for the cost of tuition, under section 6(1)(c) of the Schedule. O.C. Transpo refused payment for the course.

In 1994, Ms. McKinney began, once again, to look for work. She registered, once again, with employment agencies. Ms. McKinney testified that she could not find work similar to the work she had performed before the accident, as a data entry clerk, because she could not type. On September 28, 1994, she started working one day a week at a car auction business in Embrun, Ontario. As of the date of the hearing, Ms. McKinney was still working at this car auction business. The job involves very little data entry work. Ms. McKinney is required to work in the office, performing data entry work, only once a month, for between 30 to 45 minutes. The rest of the time, she is outside helping in the yard, i.e., collecting information about the cars and delivering it to the front office, rubbing marks off the cars, and occasionally driving them around the block.

In 1994, Ms. McKinney referred the issues of her entitlement to weekly income benefits after July 11, 1992 and her entitlement to payment for the cost of tuition for the course at Herzing to mediation. Mediation failed. Ms. McKinney referred the issues to arbitration.

Ms. McKinney contends that she is entitled to weekly income benefits after July 11, 1992, under section 12 of the Schedule, because she continued to suffer a substantial inability to perform the essential tasks of her employment, as a data entry clerk/typist, after that date. Ms. McKinney acknowledges that O.C. Transpo is entitled, under section 15 of the Schedule, to deduct from her weekly income benefits, after July 11, 1992, 80 per cent of the income she received from ISM, Rainbow Systems and the car auction business.

Ms. McKinney also contends that she is entitled to be paid the cost of tuition for the course she took at Herzing, under subsection 6(1)(c) of the Schedule, because it is a reasonable expense resulting from the accident.

(2) Entitlement to weekly income benefits after July 11, 1992:

Section 12(1) of the Schedule provides for a weekly income benefit to be paid to an insured person who has been injured in an accident and "suffers substantial inability to perform the essential tasks of his or her occupation or employment." The insured person bears the onus of proving that he or she meets the requirements of section 12(1) of the Schedule. In this case, Ms. McKinney bears the onus of proving, on a balance of probabilities, that, after July 11, 1992, as a result of the accident, she continues to suffer a substantial inability to perform the essential tasks of her pre-accident employment, as she claims.

(a) The essential tasks of Ms. McKinney's employment:

The essential tasks of Ms. McKinney's pre-accident employment are not in dispute. Ms. McKinney was hired by the City of Ottawa as a data entry clerk, on contract, to work on a special project. Specifically, Ms. McKinney testified that she was hired to enter all information contained in two thick books into the computer.

Ms. McKinney worked 5 days a week, from 8.30 a.m. to 4.30 p.m. 95 per cent of her time was spent in front of a computer terminal entering information. She also did some filing.

(b) Ms. McKinney's ability to perform her essential tasks:

I am not satisfied that Ms. McKinney suffered a substantial inability to perform the essential tasks of her pre-accident employment from July 12, 1992 to the date when she terminated her employment with ISM⁹. However, I find that Ms. McKinney's employment with ISM exacerbated her condition to the extent that she suffered a substantial inability to perform the essential tasks of employment after she terminated her employment with ISM.

(i) Condition before the termination of weekly income benefits: Period from February 11, 1992 to July 11, 1992

The evidence, including Ms. McKinney's own testimony, indicates that Ms. McKinney was in a lot of pain following the accident but that by July 11, 1992, when weekly income benefits were terminated, her condition had improved significantly.

Ms. McKinney testified that on the day following the accident, she saw her family physician, Dr. Trevor DeSouza. Dr. DeSouza asked her to wear a neck brace and also prescribed pain-relieving and anti-inflammatory medications.

Ms. McKinney testified that although she returned to her job with the City of Ottawa on the Monday following the accident, she went to work wearing a neck brace and she was in a lot of pain. She had neck and back pain and constant headaches and earaches. She testified that at work she tried to type, enter data into the computer, and file documents, but it was difficult. She said that by the end of the week, she had no movement in her shoulders. She could not lift her arms. She was off the computer because she was not able to input anything into it. Ms. McKinney testified that during her last weeks at work she hardly did any work.

Ms. McKinney testified that she was in a lot of pain until Dr. DeSouza "got her into" physiotherapy at the Ottawa and District Physiotherapy Clinic on March 3, 1992. She testified that she attended at the clinic between two to three times a week, from March 1992 to July 1992. Throughout this time she was not working.

Ms. McKinney testified that while she was undergoing physiotherapy, she was referred by Dr. DeSouza to Dr. Edward Austin Day, a specialist in physical medicine and rehabilitation. Ms. McKinney saw Dr. Day on April 2, 1992 and May 4, 1992.

In his report of April 3, 1992¹⁰, Dr. Day concluded that, on April 2, 1992, Ms. McKinney was still recovering from soft tissue injuries. He stated that he was quite sure that she had a traumatic facet syndrome at the level of the 7th cervical vertebra at the base of her neck, a mechanical condition which could cause considerable pain. He stated that he could not come to a firm conclusion because this condition is diagnosed entirely by palpation; he had difficulty diagnosing the condition in Ms. McKinney's case because she was acutely hypersensitive at the base of her neck and throughout the upper dorsal area of her body. Dr. Day advised Ms. McKinney to continue with physiotherapy.

When Ms. McKinney saw Dr. Day again on May 4, 1992, in his report of June 1, 1992¹¹, he confirmed his preliminary diagnosis and said that the diagnosis was in keeping with the history of the accident. Dr. Day also said that a facet syndrome such as the one that Ms. McKinney had was treatable, provided restoration of normal joint movement could be achieved. In his report, Dr. Day did not describe the treatment required but stated that the treatment was physical and not always well received, because of its character, and because it could be responsible for a transient exacerbation of pain. Dr. Day's opined that Ms. McKinney would not receive the treatment well and he considered it best not to treat her.

Ms. McKinney testified that because Dr. Day could not help her, Dr. DeSouza referred her to see Dr. Francois Racine, a physiatrist.

Ms. McKinney first saw Dr. Racine on June 1, 1992. At that time she was still undergoing physiotherapy. In his report of June 4, 1992¹², Dr. Racine stated that she told him that she had been experiencing headaches, earaches and pain in her neck and shoulders, on the right side more than the left, since the accident. She told him that within a day or two after the accident the pain became associated with paraesthesia down her right arm, involving the 4th and 5th fingers. She complained of limited neck movement, particularly forward flexion and extension. She was still very stiff in the mornings, sometimes for one to two hours. Ms. McKinney informed Dr. Racine that she had regained some range of movement but the headaches (at the back of the head and neck) and earaches, as well as the tingling sensation in her right arm or right arm and 4th and 5th fingers, were still present intermittently. Ms. McKinney also complained that she could not use her right arm forcefully because of the pain generated in the neck and shoulder region.

After conducting a physical examination of Ms. McKinney, Dr. Racine concluded that she had a moderate soft tissue injury of the neck which should not leave her dysfunctional indefinitely. He stated that Ms. McKinney should avoid asymmetrical neck postures, abrupt neck movements and fixed neck postures in front of a screen for more than an hour at a time when she resumed working. He suggested that when Ms. McKinney resumed working she should make a point to stretch neck muscles every 40-45 minutes for five minutes to prevent stiffening from immobility. Dr. Racine showed Ms. McKinney how to do stretching exercises of her neck and shoulder.

Physiotherapy ended on July 8, 1992. Ms. McKinney testified that at that time, the symptoms on the left side of her body had diminished. She also had fewer earaches and headaches on the left side. She no longer had any pain in the left shoulder blade. The headaches and earaches on the right side were not as severe as before. The neck pain had eased. She still experienced neck pain but it was not always present. However, Ms. McKinney testified that the pain in her right shoulder blade persisted and she continued to experience numbness and tingling in her right arm down to the 4th and 5th fingers.

Ms. McKinney testified that when physiotherapy ended, she discussed the question of her return to work with her physiotherapist, Patricia Von Dupont. Ms. McKinney testified that Ms. Dupont asked her to try to return to work, even though she was still experiencing problems with numbness and tingling in her right arm and she is right-handed.

Ms. McKinney testified that shortly after physiotherapy ended, she met with Mr. Paul Ouellette, the adjuster who handled her claim for O.C. Transpo, and advised him that physiotherapy had ended and her physiotherapist had suggested that she try to return to work and to the sports activities she had been involved in before the accident. Ms. McKinney testified that her weekly income benefits were terminated following her meeting with Mr. Ouellette.

(ii) Condition after the termination of weekly income benefits: Period from July 12, 1992 to December 1992

I heard little evidence regarding Ms. McKinney's condition from July 12, 1992 to November 1992. The only medical evidence that was tendered was a short report from Dr. Racine dated August 5, 1992¹³. I also heard from Ms. McKinney about her activities during this period.

In his report of August 5, 1992, Dr. Racine indicates that when he examined Ms. McKinney on July 30, 1992, he found that her condition had improved significantly since June 1, 1992. She was relatively free of neck pain and she was able to move her neck normally. In his report, Dr. Racine noted that Ms. McKinney told him that she still had intermittent tingling in the right 4th and 5th fingers, but this was very minimal. Ms. McKinney also told him that she had resumed using her bicycle and had recently started driving. She also told him that she was thinking in terms of returning to work.

Ms. McKinney testified that after her weekly income benefits were terminated (July 11, 1992) she tried to find work through employment agencies. She sought the same kind of work she had done before the accident, i.e., data entry/data processing/typing. At the same time, Ms. McKinney testified that between September and November 1992, she took a beginner's course in French at Algonquin College, two evenings a week. She testified that the reason she took the French course was because Ottawa is a bilingual city and she wanted to improve her chances of finding a job.

Ms. McKinney testified that some time in the third or fourth week of November 1992, she found temporary full-time work, through ISM, as a data entry clerk. Ms. McKinney said that ISM did not specify how long the job would last. The data entry work related to GST cheques and she worked an eight hour shift. Ms. McKinney testified that she was working at a government office but did not remember the name of the office. She testified that before she was sent for the assignment, she took a number of tests at ISM, including a typing test. Ms. McKinney testified that although she did not do "too well" in the typing test, ISM still gave her a chance to do the work. She testified that she quit, sometime in the beginning of December, after three weeks, because she was experiencing problems with her right arm and could not do the work anymore.

Conclusion:

Based on Dr. Racine's report of August 5, 1992 and Ms. McKinney's testimony, I am not satisfied that Ms. McKinney is entitled to weekly income benefits, under section 12 of the Schedule, from July 12, 1992 to the date when she terminated her employment with ISM. I accept that Ms. McKinney had not fully recovered from the injury she sustained in the accident and continued to suffer from pain and discomfort after July 11, 1992. However, the pain which is compensable under section 12 of the Schedule is pain which substantially interferes with an insured person's ability to perform the essential tasks of his or her employment or occupation. Pain which is not disabling in that sense is not compensable (Sharon Lee and Unifund Assurance Company, September 14, 1993, OIC File No. P-000078 (Elisabeth Sachs, Director of Arbitrations)). In this case, I am not satisfied that the pain was so great that she was substantially unable to perform the essential tasks of her job as a data entry clerk during this period.

Ms. McKinney submitted that, after physiotherapy ended (July 8, 1992), she was advised to try her pre-accident work. She submitted that because she did not have a job to return to after July 11, 1992, she was entitled to weekly income benefits, under subsection 16(1) of the Schedule, while she looked for work.

I am unable to interpret subsection 16(1) of the Schedule as suggested by Ms. McKinney. Subsection 16(1) provides as follows:

Subject to section 15 and subsection (3), a person receiving a benefit under this Part may attend school or accept, or return to, work at any time during the first two years following the accident for any period of time without affecting his or her benefits under this Part if, as a result of the accident, her or she is unable to continue at school or in the occupation or employment.

I agree with Ms. McKinney that the purpose of subsection 16(1) of the Schedule is to encourage an insured person who is receiving weekly income benefits to return to work. However, where an insured person has been found not to suffer a substantial inability to perform his or her pre-accident employment or occupation, I do not read section 16(1) of the Schedule as requiring an insurer to pay weekly income benefits to the insured person until he or she secures employment. In this case, I have concluded that Ms. McKinney did not suffer a substantial inability to perform the essential tasks of her pre-accident employment from July 12, 1992 to the beginning of December 1992. She is, therefore, not entitled to any weekly income benefits during this period.

(iii) Condition after the termination of weekly income benefits: Period from November 1992 onwards

I received quite a lot of medical evidence regarding Ms. McKinney's condition from November 1992 onwards.

Ms. McKinney saw Dr. Racine again on November 5, 1992, December 3, 1992, January 21, 1993 and September 7, 1993. In his report dated November 17, 1992¹⁴, Dr. Racine indicated that, on November 5, 1992, Ms. McKinney's symptoms had increased in intensity. Dr. Racine did not give a reason for this. He noted that on that day, Ms. McKinney complained of aches at the back of her head and pains associated with neck stiffness. On examination, Dr. Racine noted that she seemed sensitive to local pressure on all spinous processes from C2 down to T1. Dr. Racine prescribed some medication (Toradol).

In his report dated December 15, 1992¹⁵, Dr. Racine noted that on December 3, 1992, Ms. McKinney was still complaining of pain at the cervical region (from C3 down to C5) which was associated with neck stiffness in the morning. Ms. McKinney told Dr. Racine that the Toradol he had prescribed on November 5, 1992 had helped partially. Ms. McKinney's new family physician, Dr. Ben-Tchavtchavadze (also known as Dr. Ben-T), who she had seen recently, had also prescribed medication (Prozac and Elavil). On examination, Dr. Racine observed that Ms. McKinney was sensitive when he mobilized the cervical region at C5, C4 and C3 by pressure on spinous processes. She also had difficulties with extremes of rotations and of side flexions. Dr. Racine prescribed more medication (Mobiflex) because of the neck stiffness.

In his report dated January 26, 1993, Dr. Racine noted that on January 21, 1993, Ms. McKinney was still complaining that her neck was sore at the back and on the right side and she had pain in shoulder regions. Dr. Racine noted that she was still taking the medications prescribed by Dr. Ben-T but had stopped using Mobiflex. Dr. Racine advised Ms. McKinney to continue using Prozac and Elavil (the medications prescribed by Dr. Ben-T) for their relaxing and analgesic properties and he prescribed Mobiflex again for its anti-inflammatory effect, since she was still experiencing stiffness in the mornings. He also prescribed a cervical pillow to help her sleep better at night.

Dr. Racine noted that, on January 21, 1993, Ms. McKinney also informed him that she was trying to find a job as a word processor. Dr. Racine noted the inconsistency between Ms. McKinney's actions and her complaints. He noted that Ms. McKinney was trying to find a job as a word processor despite the fact that she was complaining that immobility in front of a screen seemed to generate more pain.

In his report of January 26, 1993, Dr. Racine also responded to a letter from Mr. Ouellette of OC Transpo of December 17, 1992. In that letter, Mr. Ouellette asked Dr. Racine if the pain that Ms. McKinney was experiencing as of December 1992 was a result of the accident of February 11, 1992. Mr. Ouellette also inquired whether Ms. McKinney was substantially disabled as a result of the accident, and requested Dr. Racine's estimate of the duration of her disability, if any.

Dr. Racine opined that the pain Ms. McKinney was experiencing was a result of the accident of February 11, 1992, as he had no evidence that she had re-injured her neck since the accident. Dr. Racine stated that it was possible that Ms. McKinney was experiencing recurrent pains of a regional myofascial origin even a year after the accident and this might act up episodically.

In regard to the degree of Ms. McKinney's disability, Dr. Racine stated that he considered Ms. McKinney substantially disabled to do vigourous activities using her arms at lifting, carrying, pushing or pulling loads of more than 15 lbs. He stated that he also considered her substantially disabled for activities where there is maintenance or frequent positioning of the neck in extremes of extension, forward flexion and side flexion.

In my view, the essential tasks of Ms. McKinney's pre-accident employment as a data entry clerk required her to maintain a fixed immobile posture for prolonged periods of time. Further, they also required a frequent positioning of the neck in extremes of side flexion, because she was required to enter information into the computer from two thick books.

Dr. Racine was not able give a specific estimate on the duration of Ms. McKinney's disability. He stated that the condition of 50 per cent of patients who have such a moderate soft tissue injury will improve quite significantly within six months, 75 per cent within a year, and about 85 per cent within 18 months. Dr. Racine opined that patients may still have intense pain episodically even after 18 months particularly when maintaining a fixed immobile posture for long periods like when working facing a screen or repetitively rotating and side flexing the neck to extremes of movement. They may also be vulnerable to fatigue, tension, drafts and efforts using their arms which aggravates the region of the shoulder blades. Dr. Racine stated that he expected Ms. McKinney to have fewer complaints by June 1993.

Ms. McKinney testified that, in February 1993, her family doctor, Dr. Ben-T, referred her to Mr. Daniel Larabie, an orthotherapist, for a new treatment. Ms. McKinney attended for orthotherapy treatments twice a week. Ms. McKinney testified that these treatments helped to some extent. However, the problems in her right arm still persisted.

Mr. Larabie was called as a witness at the hearing, and confirmed Ms. McKinney's testimony. Mr. Larabie testified that the treatments that he provided to Ms. McKinney included massage to the neck and back, kinesitherapy of the shoulders and neck and neck traction. He testified that the first course of orthotherapy treatments lasted from March 1 to May 4, 1993. Mr. Larabie stated that the treatments started again after Ms. McKinney commenced her course at Herzing, on July 27, 1993. Mr. Larabie testified that Ms. McKinney told him and he observed that she had increased problems after she started her course at Herzing. Mr. Larabie testified that the second course of orthotherapy treatments were completed in early September 1993. Ms. McKinney also received orthotherapy treatments from December 1993 to early January 1994 and intermittently after January 1994. Treatments stopped altogether on July 28, 1994.

Mr. Larabie testified that these treatments sometimes helped Ms. McKinney. However, the relief was temporary. Mr. Larabie testified that O.C. Transpo paid for these treatments.

Ms. McKinney saw Dr. Racine for the last time on September 7, 1993. In his report dated September 13, 1993¹⁶ to Dr. Ben-T, Dr. Racine noted that she was continuing to complain of right-sided upper shoulder pain which was made worse by left sided neck flexion and left sided neck rotation with forward flexion. This was often associated with pain radiating down her right arm and paresthesias down her right 5th and 4th fingers. Ms. McKinney reported that she had started taking a course in office administration which involved typing and she had difficulty 22 doing the typing because it caused her more discomfort or pain. Ms. McKinney reported that she had an increase in discomfort when typing because this activity involved the maintenance of some right arm abduction when working on a keyboard.

Dr. Racine noted that on examination Ms. McKinney's neck movements were now full range but, as before, left side flexion and left rotation with forward flexion increased the right upper shoulder pain. He observed that the right upper shoulder region appeared sensitive to local palpation.

Dr. Racine informed Dr. Ben-T that it appeared that neither the orthotherapy nor the stretching exercises that he (Dr. Racine) had shown Ms. McKinney were relieving her discomfort. Dr. Racine suggested that because of Ms. McKinney's persistent complaints, Dr. Ben-T obtain another opinion since he (Dr. Racine) was not able to help her. He suggested referring Ms. McKinney to The Rehabilitation Centre.

Ms. McKinney was seen by Dr. Maureen Baxter, an orthopaedic surgeon, at the request of O.C. Transpo on November 10, 1993. Dr. Baxter's reports to O.C. Transpo dated November 30, 1993, February 1994 and September 30, 1994 were filed as exhibits at the hearing¹⁷. In addition, Dr. Baxter was called as a witness at the hearing.

Dr. Baxter testified that when she saw Ms. McKinney on November 10, 1993, Ms. McKinney complained of persistent local pain in the lower right cervical region, radiating down the back of her right shoulder into her arm. She also had right earaches and headaches and numbness in the 4th and 5th finger that appeared to be tingling and was transient. Ms. McKinney reported that she was a student in office administration but would not be able to graduate because she was unable to type and do word processing. The keyboarding or typing was exacerbating her right arm problem and the tingling in her fingers.

On examination, Dr. Baxter noted some restriction in range of movement of Ms. McKinney's neck in left lateral flexion and left lateral rotation. These motions also caused some discomfort in her right trapezius region. Dr. Baxter also noted a trigger point in the right trapezius muscle. Palpation of this trigger point produced some pain radiating down into her arm. Dr. Baxter also observed that Ms. McKinney had an abnormal range of motion of both shoulders.

Dr. Baxter arranged for x-rays to be taken of Ms. McKinney's cervical spine. Dr. Baxter testified that she reviewed these x-rays and observed that they showed evidence of involuntary spasm of the muscles of the cervical spine.

Dr. Baxter recommended that an EMG and nerve conduction studies be performed to rule out any neuro-physiologic problem. She arranged for Ms. McKinney to be seen by a Dr. Tardif, who would arrange to have the EMG and nerve conduction studies done.

In her report of November 30, 1993, Dr. Baxter suggested that if Dr. Tardif's results showed no anatomical cause and that her complaints were due to chronic muscle spasm, Ms. McKinney could try a course of massage therapy or acupuncture to the local trigger points. If this did not resolve her complaints, Dr. Baxter stated that Ms. McKinney might have to accept her chronic complaints or consider a change in her chosen area of studies (referring to the program that Ms. McKinney was taking at Herzing).

Ms. McKinney was seen by Dr. Tardif on January 1, 1994. In his report of January 7, 1994¹⁸, he noted that on examination he found that she had predominance of pain in myofascial trigger point areas such as the trapezius. She also had tenderness in the neck and arm. He noted that the neurological examination was within normal limits except for sudden give weakness. Dr. Tardif arranged for full electro-diagnostic studies of Ms. McKinney's right upper arm to be conducted, to clarify the diagnosis. Dr. Tardif was not able to find an objective neurological disorder. He concluded that Ms. McKinney might be suffering from a myofascial type disorder which appeared to be amplified by functional factors.

After receiving Dr. Tardif's results, in a report dated February 1994, Dr. Baxter concurred with his diagnosis that Ms. McKinney had a myofascial type of disorder. She noted that chronic myofascial pain is resistant to treatment, particularly when amplified by functional factors and she could do little to offer Ms. McKinney any treatment.

Ms. McKinney was seen by Dr. Francis Wayne Quan, a psychiatrist, at the request of O.C. Transpo on May 10, 1994. Dr. Quan's reports to O.C. Transpo dated May 29, 1994 and July 6, 1994 were filed as exhibits at the hearing¹⁹. In addition, Dr. Quan was called as a witness at the hearing.

Dr. Quan testified that he found Ms. McKinney to be a pleasant and co-operative woman. He felt that she was open and forthright. She expressed things as she perceived them to be. She did not show any obvious signs of malingering.

Following his assessment of Ms. McKinney, Dr. Quan concluded that she had no obvious signs of serious psychopathology and, from a psychiatric point of view, there was nothing preventing her from returning to work. However, Dr. Quan also concluded that Ms. McKinney manifested signs and symptoms suggestive of a chronic pain syndrome. Dr. Quan testified that chronic pain syndrome is not a recognized disease of the mind but can be just as real and debilitating. He also testified that the neck pain that Ms. McKinney was experiencing may be just as real and debilitating to her as the pain from a broken bone.

In his report of May 29, 1994, Dr. Quan noted that Ms. McKinney had been very slow to recuperate from a very minor accident at work in 1986. Her recovery took at least four years. He suspected that she would recuperate from the accident of February 1992 as well but would also take some considerable time. He stated that Ms. McKinney would require some vocational rehabilitation in order to determine what work she will do in the future. He also suggested that she enter a program at a pain clinic, in view of the chronic pain she was experiencing.

Both Drs. Quan and Baxter qualified the opinions that they expressed in their reports after O.C. Transpo advised them, first, that Ms. McKinney had completed a term of employment, as a data entry clerk, lasting three to four weeks in November and December 1992; and, second, that following Ms. McKinney's last physiotherapy treatment at the Ottawa & District Physiotherapy Clinic on July 8, 1992, her physiotherapist told her that she could return to work²⁰.

In his report of July 6, 1994, Dr. Quan stated that based on the information provided to him by O.C. Transpo, which he did not have when he wrote his report of May 29, 1994, he was of the opinion that Ms. McKinney had returned to her pre-accident level of work functioning by the end of July 1992. He suggested that because Ms. McKinney had generally only worked for relatively brief periods of time before the accident, she may be attributing her brief periods of employment after the accident to the injuries she sustained in the accident. He indicated that he had suggested vocational rehabilitation "...essentially and solely for Miss McKinney's own sake" and not because he felt it was necessary because of the injury she sustained in the accident. Dr. Quan stated that when he made the suggestion, he was mindful of the fact that she had not been involved in full-time employment since 1986 and had relied on term assignments only. With re-training and the acquisition of marketable skills, he thought she would be able to engage in full-time employment in the future if she so desired.

In her report of September 30, 1994, Dr. Baxter stated that based on the information provided to her by O.C. Transpo, information which she did not have before she wrote her reports of November 30, 1993 and February 1994, she was of the opinion that Ms. McKinney had returned to her pre-accident level of functioning as of November and December 1992. Dr. Baxter indicated that she was unable to say whether Ms. McKinney could have returned to work earlier, i.e., as of July 8, 1992 (when physiotherapy ended) because she had not seen the physiotherapy report from the Ottawa and District Physiotherapy Clinic. She stated that there were no anatomical or physiological reasons outside of Ms. McKinney's complaints of pain that prevented her from being employed full-time.

At the hearing, both Dr. Quan and Dr. Baxter acknowledged that in arriving at their opinions that Ms. McKinney had returned to her pre-accident level of work functioning by the end of July 1992 (in the case of Dr. Quan) and as of November and December 1992 (in the case of Dr. Baxter), they were assuming that when Ms. McKinney returned to work in November 1992, she was able to do the work and her return to work did not exacerbate her symptoms.

Dr. Baxter also acknowledged that when she examined Ms. McKinney, on November 30, 1993, she made a number of positive findings which give credence to Ms. McKinney's complaints and that Ms. McKinney's underlying problem with muscle spasm could be restricting her ability to do her pre-accident job as a data entry clerk. However, Dr. Baxter testified that this would not necessarily require a change in occupation if Ms. McKinney's existing occupation could be modified.

Dr. Quan said that if he had learned that Ms. McKinney's attempt to return to work in November 1992 had exacerbated her condition, he would have suggested that she look for alternate employment.

In August 1994, Ms. McKinney underwent a five hour assessment by the Multidisciplinary Chronic Pain Clinic at The Rehabilitation Clinic, at Dr. Baxter's request. Dr. Martin Gillen, Director of the Chronic Pain Program and a specialist in physical medicine and rehabilitation, was a member of the multidisciplinary group that assessed Ms. McKinney. Dr. Gillen's report dated August 3, 1994 was filed as an exhibit at the hearing²¹. Dr. Gillen was also called as a witness.

Dr. Gillen examined Ms. McKinney on August 2, 1994. In his report of August 3, 1994, Dr. Gillen noted that Ms. McKinney informed him that she had a persistent right earache as well as pain at the back of her head and neck. She also informed him that she had pain in the right shoulder blade region and down her right arm. Ms. McKinney also reported persistent numbness and tingling which appeared to start in her armpit and radiated down her right arm to the 4th and 5th fingers. This was associated with subjective weakness in her right arm which came on with increased use of the right arm. Ms. McKinney told Dr. Gillen that when she typed she had increased problems with numbness and tingling as well as increased pain levels.

Dr. Gillen testified that, in his opinion, Ms. McKinney's complaints were consistent with a whiplash type injury.

On examination, Dr. Gillen noted that the static strength examination revealed sudden give phenomenon on the right but no definite neurologic weakness. The soft tissue examination revealed diffuse muscle irritability on the right side of the cervical chain as well as around the shoulder girdle and epicondylar regions on the right. He observed that Ms. McKinney also had a moderately reduced cervical range of motion (50%). Dr. Gillen testified that these were abnormal findings and consistent with Ms. McKinney's complaint of right sided pain.

Dr. Gillen testified that the psychological assessment of Ms. McKinney, conducted by another member of the multidisciplinary group, indicated that she had a number of signs of depression: loss of appetite, altered sleep pattern, reduced sexual drive and low sense of esteem.

Dr. Gillen testified that the Multidisciplinary group concluded that Ms. McKinney had chronic pain syndrome secondary to cervical and right shoulder myofascial pain syndrome (whiplash type injury). Dr. Gillen testified that the group felt that Ms. McKinney would be left with a residual level of pain and that it was important for her to begin to focus on functional reactivation. To that end, the group recommended that she participate in the Lifestyle Management and Back Basics Course followed by a pre-admission assessment for possible inclusion in The Rehabilitation Centre's Inpatient Chronic Pain Program - a six week program which is an intensive structured program focusing on pain management strategies using a self problem solving technique.

Ms. McKinney participated in the Lifestyle Management and Back Basics Course in November 1994.

Dr. Gillen testified that Ms. McKinney had been selected and was scheduled to go into the Inpatient Chronic Pain Program at The Rehabilitation Centre in early 1995.

Dr. Gillen also testified that, in his opinion, it would not be appropriate for Ms. McKinney to engage in repetitive activity requiring the use of the right arm and he would discourage her from returning to a data entry job at this time.

Summary and Conclusion:

All of the physicians who have examined Ms. McKinney agree that her complaints of pain and discomfort after the accident are consistent with the injuries she sustained in the accident. The evidence of Drs. Baxter, Tardif and Gillen shows that Ms. McKinney's consistent and persistent complaints of pain are substantiated by objective physical findings.

Dr. Racine's reports confirm that Ms. McKinney's symptoms increased in intensity around the time of her employment with ISM. Dr. Racine was of the opinion that as of January 21, 1993, Ms. McKinney was substantially disabled from performing the essential tasks of her pre-accident employment. Mr. Larabie, in his testimony, confirmed that Ms. McKinney remained symptomatic after January 21, 1993 and her symptoms increased after she started her course at Herzing in July 1993. The course at Herzing involved and relied on typing skills. Dr. Baxter acknowledged that Ms. McKinney's underlying problem with muscle spasm could be restricting her ability to do her job as a data entry clerk on November 30, 1993. Dr. Quan said that if he had learned that Ms. McKinney's attempt to return to work in November 1992 had exacerbated her condition, he would have suggested that she look for alternate employment. Last but not least, Dr. Gillen testified that, in his opinion, it would not be appropriate for Ms. McKinney to engage in repetitive activity requiring the use of the right arm and he would discourage her from returning to a data entry job on November 24, 1994.

Ms. McKinney's continued efforts to find work as a data entry clerk or word processor in 1993 and her enrollment in the Office Automation Secretarial course at Herzing appear to cast doubt on her claim that she suffered a substantial inability to perform the essential tasks of her pre-accident employment during this period. However, I accept her testimony that she continued to look for data entry work because there did not appear to be enough evidence that there was anything wrong with her. Further, the evidence of Mr. Larabie and Drs. Racine, Baxter, Quan and Gillen verified Ms. McKinney's complaints that the course she took at Herzing exacerbated her symptoms.

In my view, the preponderance of the evidence indicates that, as a result of the accident, Ms. McKinney suffered a substantial inability to perform the essential tasks of her pre-accident employment after she terminated her employment with ISM. Therefore, I find that Ms. McKinney is entitled to weekly income benefits after she terminated her employment with ISM, under sections 12 and 16 of the Schedule. O.C. Transpo is entitled, under section 15 of the Schedule, to deduct from the weekly income benefits payable to Ms. McKinney after July 11, 1992, 80 per cent of any income she has earned after the accident.

I make no determination in regard to Ms. McKinney's entitlement to weekly income benefits after November 24, 1994.

(3) Is Ms. McKinney entitled to be paid the cost of tuition for the course that she took at Herzing?

Eligibility for occupational training is determined pursuant to subsections 6(1)(c) and 6(4) of the Schedule. They provide as follows:

6.-(1) The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident all reasonable expenses resulting from the accident within the benefit period set out in subsection (3) for,

(4) Subject to subsections (5) and (6), the insurer, before making a payment for an expense under subsection (1), may require the insured person to submit a statement signed by the insured person's qualified medical practitioner or psychological advisor stating that the expense is necessary for the insured person's treatment or rehabilitation.

Ms. McKinney is claiming the cost of tuition for the course she took in Office Automation Secretarial at Herzing from July 12, 1993 to December 23, 1993. The cost of tuition was $4,895.00. In order to succeed, Ms. McKinney must:

(i) establish that the occupational program was a reasonable expense resulting from the accident; and

(ii) if O.C. Transpo so requires, provide a signed statement from her medical practitioner that the expense was necessary for her treatment or rehabilitation.

In this case there is no evidence that O.C. Transpo requested a statement from Ms. McKinney's medical practitioners regarding the course. Accordingly, the absence of such a statement is not determinative of this issue.

Ms. McKinney submitted that the course was a reasonable expense resulting from the accident in the circumstances of this case because O.C. Transpo was not offering an alternative retraining plan.

It is difficult to criticize O.C. Transpo for not putting forward an alternative plan when it only found out about Ms. McKinney's plan after she had embarked on it. Ms. McKinney acknowledged in her testimony and submissions that she did not inform O.C. Transpo of her intent to embark on this course before starting it.

In the circumstances of this case, I am unable to conclude that Ms. McKinney has established that the course was a reasonable expense resulting from the accident.

First and most importantly, Ms. McKinney has not shown that the course was reasonable in the sense that it was suitable for her. The goal of rehabilitation or occupational training, under subsection 6(1)(c) of the Schedule, in my view, is to restore an insured person as closely as possible to his or her pre-accident position. Ms. McKinney has not shown how the course has assisted her in achieving this goal. She has not shown how the course has restored her ability to do her pre-accident job or retrained her for a more suitable occupation, i.e., an occupation within her physical limitations.

At the hearing, Ms. McKinney explained that she found out about the course on her own initiative, during the first or second week in April 1993. She decided to enroll in the course to upgrade herself and obtain more knowledge of computers so that she could get a better job.

Ms. McKinney acknowledged that before she enrolled in the course, she was aware that it involved and relied on typing skills. She was also aware that when she typed, she had increased problems with numbness and tingling as well as pain in her right hand. Ms. McKinney testified that before she enrolled in the course, she talked to Mr. Larabie and Dr. Racine about her interest in the course. Ms. McKinney testified that both Mr. Larabie and Dr. Racine advised her to try the course.

The evidence tendered at the hearing, from Mr. Larabie and Dr. Racine, does not suggest that the course would further Ms. McKinney's rehabilitation. The evidence, including Ms. McKinney's own evidence, indicates that the course was not reasonable or suitable for her. Ms. McKinney testified that she started the course on July 12, 1993, and was fine at first. However, by the fifth week she was experiencing problems and her typing scores began to drop. Ms. McKinney testified that she experienced difficulty typing because of the numbness in her right fingers and pain in her neck. The earaches started again. Ms. McKinney testified that she contacted Mr. Larabie and recommenced treatments. She also obtained a note from Mr. Larabie excusing her from attending keyboarding classes²².

Ms. McKinney failed to graduate from the course because she did not meet the minimum keyboarding speed of 50 words per minute on a five minute test²³.

The course may have been appropriate to Ms. McKinney's interests and educational level. However, I find that it was not appropriate to her physical tolerance.

In addition to Ms. McKinney's failure to show that the course was suitable for her, she has not shown that the cost of the course ($4,895.00 for five months) was reasonable, i.e., the course was not extravagant or excessive from a monetary point of view.

Last but not least, Ms. McKinney has not shown that even though she failed to graduate from the course, her completion of the course will lead to employment.

In conclusion, I find that Ms. McKinney has not established that she is entitled to be paid the cost of tuition for the course she took at Herzing, under section 6(1)(c) of the Schedule.

(4) Expenses:

Ms. McKinney is entitled to her expenses incurred in the arbitration. I remain seized of the issue of expenses. If the parties are unable to agree on the amount owing, either of them may bring the matter for determination.

Order:

Ms. McKinney is not entitled to weekly income benefits from July 12, 1992 to the date when she terminated her employment with ISM Information Systems Management Corp. ("ISM").
Ms. McKinney is entitled to weekly income benefits after the date when she terminated her employment with ISM.
Ms. McKinney is not entitled to be paid for the course at Herzing.
Ms. McKinney is entitled to interest on the amounts owing.
Ms. McKinney is entitled to her reasonable expenses incurred in respect to the arbitration.

October 26, 1995

Shemin Manji

Arbitrator

Date

SCHEDULE A

Exhibits:

Exhibit 1

Report of Dr. Edward Day dated April 3, 1992

Report of Dr. Edward Day dated June 1, 1992

Report of Dr. Edward Day dated June 23, 1994

Exhibit 2

Report of Dr. Francois Racine dated June 4, 1992

Report of Dr. Francois Racine dated August 5, 1992

Report of Dr. Francois Racine dated November 17, 1992

Report of Dr. Francois Racine dated December 15, 1992

Report of Dr. Francois Racine dated January 26, 1993

Report of Dr. Francois Racine dated September 13, 1993

Exhibit 3

Note of Dr. J.P. Morrissey dated July 27, 1993

Report of Dr. J.P. Morrissey dated February 23, 1994

Report of Dr. J.P. Morrissey dated March 21, 1994

Report of Dr. J.P. Morrissey dated November 21, 1994

Invoice of Dr. J.P. Morrissey dated November 22, 1994

Exhibit 4

Curriculum Vitae of Dr. Maureen (Peggy) Baxter

Report of Dr. Maureen Baxter dated November 30, 1993

Report of Dr. G.S. Tardif dated January 10, 1994

Summary of Test Results - EMG and mixed nerve conduction studies dated January 7, 1994 (Dr. G.S. Tardif)

Report of Dr. Maureen Baxter (undated), received by O.C. Transpo on February 14, 1994

Report of Dr. Maureen Baxter dated September 30, 1994

Exhibit 5

Curriculum Vitae of Dr. Wayne Quan

Report of Dr. Wayne Quan dated May 29, 1994

Report of Dr. Wayne Quan dated July 6, 1994

Exhibit 6

Letter from The Rehabilitation Centre to Ms. McKinney, dated July 11, 1994

Report of Dr. M. Gillen dated August 2, 1994

Letter from The Rehabilitation Centre to Ms. McKinney dated October 9, 1994

The Rehabilitation Centre, Back and Neck Education Classes, Patient Information Form

The Rehabilitation Centre, Back and Neck Class Questionnaire

The Rehabilitation Centre, Lifestyle Management and Back Basics, Agenda

The Rehabilitation Centre, Chronic Pain Management Group, Educational material

Curriculum Vitae of Dr. Martin Gillen

Exhibit 7

The Toronto School of Business, Diploma awarded to Ms. McKinney on June 8, 1990 in Word Processing Secretarial

The Toronto School of Business, Official Transcript of Ms. McKinney, Word Processing, Final Marks

Exhibit 8

Herzing Institute, Office Administration Program, Keyboarding 1 Course, test results weeks 1 to 6.

Herzing Career College, Student Academic Record, Office Administration, Ms. McKinney (2 pages)

Herzing Career College, Certificate of Excellence given to Ms. McKinney for Quarter ending November 11, 1993

Herzing Institute, Certificate of Attendance given to Ms. McKinney for Quarter of October - November 1993

Herzing Career College, June 25, 1993, Completion Letter to Ms. McKinney

Letter from Herzing Career College dated February 8, 1993

Exhibit 9

Memo to Ms. McKinney dated September 20, 1993 re: Canada Student Loan and Ontario Student Loan eligibility

Ontario Ministry of Education and Training, Confirmation of Enrollment, Herzing Institute - Program Office Administration, signed September 20, 1993

Ontario Ministry of Education and Training, Student Information Document, dated August 25, 1993, Herzing Institute, Program Office Administration, Study period July 12, 1993 to December 24, 1993

Ontario Ministry of Education and Training - Ontario Student Loans Plan - Form A - Loan Authorization, Herzing Institute, dated August 25, 1993

Ontario Ministry of Education and Training - Ontario Student Loans Plan - Form A - Loan Authorization, Herzing Institute, dated November 17, 1993

Department of the Secretary of State of Canada, Canada Student Loans Act, Loan Authorization, Herzing Institute, dated August 25, 1993

Canadian Imperial Bank of Commerce, deposit slip - re: Canada Student Loan Proceeds, October 4, 1993

Canadian Imperial Bank of Commerce, deposit slip - re: Ontario Student Loan Proceeds, October 4, 1993

Canadian Imperial Bank of Commerce, deposit slip - re: Ontario Student Loan Proceeds, December 8, 1993

Exhibit 10

Resume of Kimberly McKinney

Exhibit 11

Computer generated Income Tax Returns, certified by Revenue Canada, for 1989, 1990, 1991, 1992 and 1993 and T4s for 1989, 1991, and 1992

Exhibit 12

Note of Daniel Larabie (undated)

Exhibit 13

Letter dated September 23, 1994 from Mr. Peter K. Beaman to Dr. Maureen Baxter

Exhibit 14

Letter dated July 6, 1994 from Mr. Peter K. Beaman to Dr. Wayne Quan

SCHEDULE B

Authorities submitted by O.C. Transpo:

Diane Power and Allstate Insurance Company of Canada, March 12, 1992, OIC File No. A-000322

Pedro Correal and Jevco Insurance Company, May 6, 1993, OIC File No. A-001994

Footnotes

Prior to January 1, 1994, Ontario Regulation 672 was called the No-Fault Benefits Schedule. After that date it became the Statutory Accident Benefits Schedule —Accidents Before January 1, 1994. In this decision, the term "Schedule" will be used to refer to Regulation 672.
Exhibits 10 and 11
Exhibit 7
Exhibit 10
Exhibit 9
Exhibit 8
Exhibit 9
Exhibit 8
I was not given a precise date of when Ms. McKinney commenced and terminated her employment with ISM.
Exhibit 1
Ibid.
Exhibit 2
Exhibit 2
Exhibit 2
Ibid.
Ibid
Exhibit 4
Ibid
Exhibit 5
Exhibits 13 and 14
Exhibit 6
Exhibit 12
Exhibit 8

Kimberly I. McKinney v. Ottawa-Carleton Regional Transit Commission, 1995 ONICDRG 152

Case Summary