Ontario Insurance Commission
Neutral Citation: 1995 ONICDRG 20
Between:
Kathleen Lyons, Applicant
and
Metropolitan Insurance, Insurer
Decision
Issues:
The Applicant, Kathleen Lyons, was injured in a motor vehicle accident on March 23, 1991. She applied for and received statutory accident benefits from Metropolitan Insurance ("Metropolitan"), payable under Ontario Regulation 6721. Ms. Lyons received weekly income benefits for three years, after which her benefits were terminated.
The issue in this hearing is:
- Is Ms. Lyons entitled to weekly income benefits after May 6, 1994, under section 12(5)(b) of the Schedule?
Ms. Lyons also claims interest on any amounts owing, and her expenses incurred in respect of the arbitration.
Result:
Ms. Lyons is not entitled to weekly benefits after May 6, 1994.
Ms. Lyons is entitled to her expenses of the arbitration.
Hearing:
The hearing was held in Windsor, Ontario, on January 17 and 30, 1995, before me, Fred Sampliner, arbitrator.
The proceedings were recorded by Suzanne Mills of E. Beryl MacMillan, Court Reporters. Present at the Hearing:
Applicant: Kathleen Lyons Applicant's Representative: Samuel A. Mossman, Barrister and Solicitor Insurer's Representative: Claude Blouin, Barrister and Solicitor Insurer's Officer: Ken Enstone, Claims Consultant
The parties filed five exhibits and six witnesses testified.
Evidence and Findings:
Under section 12(5)(b) of the Schedule, an insured person is eligible for weekly income benefits after 156 weeks of disability if:
...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.
This test is significantly stricter than the test applied for the first 156 weeks of disability. During the first three years of a claim for weekly benefits, eligibility is based upon the insured person's ability to perform the job held at the time of the accident. After three years of disability, the scope of the test widens to other jobs that may be suitable for the person.
In my opinion, the stricter eligibility test implies that those individuals who receive weekly benefits for lengthy periods should, where reasonable, review their employment options, and seek professional assistance. Insurers are bound, under the standard automobile policy, to pay the insured person's reasonable rehabilitation and training expenses for a period of ten years after the accident. Consequently, insured people are afforded the means to reintegrate themselves into the workforce after an injury.
Kathleen Lyons is 42 years old. At the time of the accident, she was a medical transcriptionist at the office of Dr. Fung, having held this job since June 1984. Prior to her job at Dr. Fung's office, Ms. Lyons worked as a receptionist, secretary and clerk/typist at several other offices. Ms. Lyons has experience in wordprocessing and typing, and is familiar with dictation machines and other office equipment.
Ms. Lyons has a grade 12 education. Since graduating from commercial high school in June 1972, she has not undertaken further training or education.
On March 23, 1991 Ms. Lyons was a passenger in an automobile which was rear-ended at a red light. The physical damage to the car was minor. However, within 30 minutes of the accident, Ms. Lyons developed pain in the low back and down her left leg. As the day wore on, her back pain became more severe, and in addition she began to experience pain running down through her left leg.
For six or seven weeks after the accident Ms. Lyons continued her dicta-typing work for Dr. Fung. During this time Ms. Lyons worked at the office and also from her home. However, she was not able to keep up, and Ms. Lyons decided to leave Dr. Fung's employ. She has not worked since.
Ms. Lyons first sought medical help at the Urgent Care Centre a week after the accident. Subsequently, she was examined by Dr. Fung, who referred Ms. Lyons to physiotherapy, and later to a neurologist and a rheumatologist. By May 1991, the consulting specialists had conducted tests, and diagnosed a herniated disc at the L5-S1 level of the spine and nerve damage in the left leg.
Initially, Ms. Lyons' condition was treated conservatively. Prescription drugs proved of little effect. Physiotherapy, aquafitness classes and epidural injections provided some modest relief. Her treating health practitioners recommended surgery to correct the herniated disc.
In September 1992, Ms. Lyons underwent surgery. The discectomy procedure successfully removed the herniated disc and fragments at the L5-S1 level. The surgeon also decompressed an irritated nerve root.
The surgery ostensibly corrected the problem. Imaging of the site shows residual scar tissue around the nerve root, but there is no evidence of recurrent disc herniation.
After the surgery, Ms. Lyons continued to complain of left low back, hip and leg pain, clinically referred to as chronic left sciatica. Generally, the specialists agree that additional surgery is not warranted.
Since her back surgery in the fall of 1992, Ms. Lyons has received acupuncture, laser treatments and physiotherapy, has attended a pain clinic, and has been seen by many specialists. Ms. Lyons testified that these treatments did not provide her with much relief. Ms. Lyons states that she continues to experience low back and left hip pain, which radiates down the leg to her toes, sometimes causing numbness. Ms. Lyons claims that she has trouble sleeping, and is unable to sit, stand, or walk for longer than 20 minutes at a time due to her injuries from the accident.
I find that Ms. Lyons' evidence about her condition does not square with the facts. She sat through two full days of hearing without apparent discomfort. The Insurer's surveillance videotape viewed at the hearing shows that Ms. Lyons is able to walk for a considerable period and can operate an automobile. Ms. Lyons admits that she lives alone, and takes care of all of her personal needs. From the reports of the various health practitioners it is evident that Ms. Lyons sat for over an hour at a time during some of the interviews she attended. Furthermore, Ms. Lyons performed well during physical examinations and functional testing, thus demonstrating that she is less inhibited by pain than she describes. In my view, this evidence refutes the opinions of her doctors that she is completely unfit to work.
This does not mean that the left sciatica condition does not exist. On the contrary, I believe that Ms. Lyons' symptoms are consistent with the medical diagnosis. Quite simply, I find that Ms. Lyons is exaggerating the pain, and that she is physically capable of resuming office work.
Psychological and social factors could explain Ms. Lyons' exaggeration of her pain. A psychologist, Dr. William Ross, interviewed and tested Ms. Lyons in November 1994. He found no evidence of any pre-accident psychological condition. Dr. Ross notes that Ms. Lyons displayed no physical manifestations of the pain that she described during the five and a half hours of interview and testing that he conducted. Ms. Lyons appeared more physically capable than she portrayed herself.
Ms. Lyons reported to Dr. Ross that since the accident she has periodically suffered mild depression. Dr. Ross describes Ms. Lyons as an excessive worrier. She is pessimistic about her future and has a poor self-image. Dr. Ross views these personality traits as contributing factors to Ms. Lyons' perception of pain and inability to work.
Metropolitan engaged a psychologist, who interviewed and tested Ms. Lyons in January 1994. I agree with this statement in Dr. S. Bacal's report:
While there is no evidence of serious emotional disturbance, the findings of this assessment strongly suggest a psychogenic contribution to her persistent physical complaints, characterized by somatization of tension and anxiety into physical complaints. The fact that Ms. Lyons spontaneously reports increased pain perception when she feels under stress attests to this observation.
Dr. Bacal wisely suggested that Ms. Lyons attempt to gradually return to work, which would allow her to strengthen her tolerance and release her focus on the pain.
To her credit, Ms. Lyons has attempted to find work. She has applied for general office jobs during the last year, and has been to four or five interviews. However, no job was offered. Ms. Lyons' statement at the hearing that she was willing to work as a receptionist, and that if a job had been offered she would have taken it, is significant, and supports my conclusion that she is able to work.
Based upon this evidence, I find that Ms. Lyons is both physically and psychologically able to work at an office/clerical job. I find that she does not suffer a substantial inability to perform the essential tasks of a clerical office position.
While Ms. Lyons is not entitled to weekly income benefits, I believe that Metropolitan should assist Ms. Lyons in her work return. This was not an issue at this hearing, but I heard evidence about Ms. Lyons' need for skills upgrade. She is in a difficult financial situation at present, and I hope that Metropolitan will endeavour to assist Ms. Lyons in her search for employment in this difficult job market.
Expenses
The parties conducted this two day hearing in a very efficient manner. Almost all the expert evidence came in by document. Neither party unduly prolonged the oral testimony. Submissions were succinct and pointed me directly to the appropriate evidence. In my view, this is the modus operandi intended for statutory accident benefits hearings. I commend both counsel for their adherence to that ethic.
I exercise my discretion to award Ms. Lyons her expenses of the arbitration.
Order:
Ms. Lyons is not entitled to ongoing weekly income benefits.
Metropolitan shall pay Ms. Lyons her expenses of the arbitration.
March 7, 1995
Fred Sampliner Arbitrator