Neutral Citation: 1995 ONICDRG 40
File No. A-007209
ONTARIO INSURANCE COMMISSION
BETWEEN:
CARLOTA GUZMAN
Applicant
and
DOMINION OF CANADA GENERAL INSURANCE COMPANY
Insurer
DECISION
Issues:
The Applicant, Carlota Guzman, was injured in a motor vehicle accident on August 31, 1990. On September 24, 1990 she applied for statutory accident benefits from the Insurer under Ontario Regulation 6721 ("the Schedule"). The Insurer paid certain benefits but refused to pay weekly income benefits after March 24, 1993. The parties were unable to resolve their disputes through mediation and the Applicant applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The issues in this hearing are:
Is the Applicant entitled to weekly income benefits under section 12(1) of the Schedule after March 24, 1993?
Is the Applicant entitled to benefits under section 12(5)(b) of the Schedule for any period in excess of 156 weeks?
The Applicant also claims interest on any amounts owing, and her expenses incurred in the hearing.
Result:
The Applicant is not entitled to benefits pursuant to section 12 of the Schedule after March 24, 1993.
The Applicant is not entitled to benefits under section 12(5)(b) of the Schedule for any period in excess of 156 weeks.
The Applicant is entitled to her expenses of the hearing.
Hearing:
The hearing was held at North York, Ontario, on April 3 and 4, 1995 before me, William Renahan, arbitrator.
Present at the hearing were:
Applicant:
Carlota Guzman
Applicant's Representative:
Gary Spector
Insurer's Representative:
William McClelland Barrister and Solicitor
The following testified under solemn affirmation:
Carlotta Guzman
Timothy Owen
Susan Wastell
William Comeau
The proceedings were recorded by Maria Rossi on April 3, 1995, and by Janet Burgess on April 4, 1995, both of Professional Court Reporters.
Exhibits:
The parties filed 37 exhibits.
Background
The Applicant, a 35-year-old financial analyst, suffered injuries when the vehicle she was driving was struck from behind. The collision occurred as the Applicant was stopped and attempting to pull into a parking spot. This was the first time the Applicant had been involved in a motor vehicle accident. She was shaking all over, and, at the urging of the other driver, decided not to call the police. The drivers exchanged insurance particulars and parted. The Applicant drove her vehicle to work.
The accident occurred on August 31, 1990. The Applicant continued to work until the first week of October 1990 and then stopped on account of her injuries. She returned to work part-time in November 1990 and full-time in January 1991. The Applicant was absent from work for about 40 days in 1991. From the beginning of 1992 she was off work for much of the time between January and May. The parties did not agree about how much time Mrs. Guzman missed from work between May 1992 and March 1993.
On March 25, 1993, Mrs. Guzman's employer advised her that her employment was terminated and that her current salary and benefits would be maintained until September 16, 1993. The employer said that the termination was the result of downsizing. Mrs. Guzman says the termination was the result of her employer's dissatisfaction with her absences and a deterioration in the quality of her work, both of which were caused by the injuries she suffered in the accident of August 31, 1990.
Mrs. Guzman claims section 12 weekly income benefits after March 24, 1993. Her condition has been diagnosed as fibromyalgia and chronic pain syndrome.
Law
The relevant portion of section 12 of the Schedule is as follows:
12.-(1) 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 his or her occupation or employment if the insured person meets the qualifications set out in subsection (2) or (3).
Essential Tasks
At the time of the accident, the Applicant worked at American Express in the Marketing Information Systems department, as a financial analyst. She had started there in March 1984. Her employment was terminated on March 25, 1993. Most of her work involved using a computer terminal and keyboard at her desk to satisfy internal company requests for information to be used in marketing projects. She had to access the data, verify that it could be relied upon and interpret it. Part of her time was taken up with meetings. Once a week, a member of her department would go to another building with a push cart to retrieve computer printouts and then distribute the printouts to other members of the department. The Applicant participated in this activity.
Medical Evidence
Shortly after the accident of August 31, 1990, Mrs. Guzman saw her family doctor, Dr. Flores. Although she thought she saw him the next day, or the day after, the clinical notes of Dr. Flores indicate that he saw the Applicant on September 7, 1990.
The Applicant complained to Dr. Flores about neck and low back pain, tenderness and difficulty sleeping. She claims that she has suffered from occipital headaches every day since the accident and that the neck pain continues to the point where her neck will not support her head. The pain has affected her ability to concentrate and carry on happy relations with her husband and two children. Achievement at work had been very important to her sense of identity and the inability to work has lead to depression, frustration, anger and a sense of hopelessness.
Mrs. Guzman has seen a number of doctors for help with her pain. As well, she has seen doctors to prepare for her claim at this hearing and her claim against Aetna Insurance, the short- term disability insurer of her former employer. She has undergone a number of treatments including nerve blocks, laser therapy, massage, physiotherapy, chiropractic, TENS and acupuncture. She has been prescribed muscle relaxants, hypnotics and antidepressants. The Insurer has paid for some housekeeping services.
Except for the period from November 1992 to August 1993, Mrs. Guzman has seen her family doctor, Dr. Flores, nearly every month, often four or five times a month. On his first examination of her, one week after the motor vehicle accident, Dr. Flores found that Mrs. Guzman had full range of motion in her neck and 90 per cent of normal range of motion in her back. In subsequent examinations he usually found that her range of motion in her neck and back were 90 per cent of normal. In a letter to Aetna on June 10, 1992, he indicated that the range of motion in her neck and back was 50 per cent of normal. In October 1993, Dr. Flores advised the Ministry of Transportation that Mrs. Guzman should refrain from driving while she was taking her current medication. The medication was making her drowsy. As well, Mrs. Guzman had told Dr. Flores that at times she felt like ending it all by driving into a tree. On November 16, 1993, Dr. Flores wrote that Mrs. Guzman was totally disabled on the basis of fibromyalgia and clinical depression. It appears that by May 1994 Mrs. Guzman had her driver's licence back.
The clinical notes of Dr. Quan, chiropractor, indicate that he treated Mrs. Guzman on about 175 occasions between September 1991 and October 1994.
Dr. Gollish, an orthopaedic surgeon, in his letter of March 6, 1992 to Aetna, diagnoses whiplash with no neurological involvement. He found that neck and head pain were consistent with development of chronic pain syndrome. At that time he found she was disabled from her normal employment. In his letter of July 30, 1992 to Aetna Insurance, he notes that Mrs. Guzman has returned to work full-time and recommends that she be allowed time off work to attend treatment.
Dr. Rothbart of the Whiplash and Headache Clinic made a diagnosis in his report of July 1, 1992 of damage to the posterior neck structures and to the low back, and post-traumatic affective disorder.
In a letter dated June 23, 1993 from Rehabilitation Services of Canada to Dr. Yanga, the writer confirms that Dr. Yanga recommends that Mrs. Guzman return to Dr. Flores and take part in a pro-active exercise and education program and occupational therapy. He also recommends a psychiatrist or psychologist to deal with coping skills.
Dr. D'Angelo, an orthopaedic surgeon, retained by the Insurer to examine Mrs. Guzman, reports on September 18, 1993, that she complains of constant neck pain. He diagnoses fibromyalgia and depression and states:
It is possible that the marriage breakdown was the stressful event that led to a relapse of her symptoms and the diagnosis of fibromyalgia. The patient may be blaming the accident. I believe that this issue is best resolved by a psychiatrist and possibly a psychologist.
Dr. Baer, a rheumatologist, reported on October 12, 1993 that
She is quite depressed because of ongoing pain, her recent job loss, problems with her marriage and the fact that she is financially destitute, as apparently she is not receiving any disability benefits. . . .Mrs. Guzman clearly has evolved to a chronic pain syndrome with features of depressions as well. She is having a great deal of difficulty coping. ... I tried to reassure her that the problem is more of pain than of any structural damage and that the minor changes seen on x-rays really are of no significance.
Susan Wastell, occupational therapist, testified and prepared a report. She conducted a home functional abilities evaluation on December 10, 1993. She found that Mrs. Guzman had a chronic pain focus and recommended that she become involved in a comprehensive and active rehabilitation program with a strong pain counselling component.
Dr. Rowsell, a psychiatrist, noted in July and September 1994 that:
She is consumed with anger... I gave her my opinion that unless it [the anger] is dealt with, that she will continue to have pain, and there will be no relief.
......she looks extremely uptight and angry, and, of course is getting around to justifying her anger, and from my viewpoint, she is getting more untreatable, and she is now referred to a psychologist instead of me to start October 17th, which will be on a weekly basis apparently, we still have the accident phobia to contend with, I wish him good luck, and trust that he will recognize the tremendous anger that there is present here, which is holding up treatment on the physical level.
On July 22, 1994, he found that Mrs. Guzman was wanting to push herself back to work and it was his feeling that she would probably get worse if she did.
Dr. Weber, a neurologist, reported on October 17, 1994 that Mrs. Guzman suffered a whiplash injury which had developed into post-traumatic headache syndrome.
Dr. Gottfried, a psychologist, reports on February 14, 1995 that Mrs. Guzman complains of severe neck and back pain and headaches and he notes anger, depression and hopelessness. He finds that she is unable to do the type of work she did before the accident and recommends an active exercise program.
Dr. Ko, a physiatrist, diagnosed fibromyalgia. In a letter dated February 21, 1995, he concluded that because of her problems with concentration, neck pain and headaches, she suffered a substantial inability to perform her pre-accident employment from March 1992, onwards.
Other factors
Mrs. Guzman has suffered from other events which have caused distress. She has had marital difficulties. At times she was separated from her husband. They are now living together trying to work things out. Her pain has made her short tempered with her children. She underwent an abortion which has caused her grief, partly because of her religious views. Her father has had cancer of the bladder. In December 1991, a number of shelves in a department store fell on Mrs. Guzman, injuring her lower back. She settled that claim for $8,000. At many times in her evidence and in the medical reports reference is made to her being financially destitute. Besides her unemployment, she mentioned that a tenant in a property she owns was not paying rent and maintaining the property. A computer business she and her husband operated at the time of the accident is no longer active. Finally, her brother was recently murdered.
Ability to Perform Essential Tasks
The Insurer submitted a number of performance appraisals from American Express which for the most part indicated that the Applicant was rated "4. Got the job done; job performance met all job requirements." The only exception was for the period October 1990 to September 1991, the period after the accident, when the Applicant was rated "5. Job performance needs significant improvement to meet all requirements." By the next and final appraisal for the period May 29, 1992 to August 20, 1992, the Applicant had achieved the number 4. rating again.
The Applicant's attendance records at American Express were incomplete. The evidence of attendance was critical as the Applicant claims that she cannot perform the essential tasks of her employment and the Insurer claims that from June 1992 until the time of her termination on March 25, 1993, the Applicant was performing the essential tasks of her employment on a daily basis.
William Comeau, the Applicant's former supervisor, reconstructed a summary of the Applicant's sickness absence record. This indicates that the Applicant took approximately 40 sick days in 1991, which included about nine days off for nerve block surgery. I use the word "approximately" because I have not calculated how many holidays are included in notations such as "10/1/90 - 1/14/91". His records indicate that in the period January 10 to June 5, 1992, the Applicant was mostly absent. From June 5, 1992 to March 25, 1993, Mr. Comeau's records indicate that the only absence was July 3, 1992, when the Applicant left early on account of illness. The Applicant claims that she was away at least ten days during this period. Mr. Comeau admitted that it was possible that he may have missed a day of absence.
During the periods of absences the Applicant claimed sick days or salary continuation through a disability plan with Aetna Insurance. There were some days for which the Applicant was not paid, because she had used up her sick days, or because Aetna would not cover her claim.
The termination letter which American Express gave to Mrs. Guzman on March 25, 1993, provided that her termination was effective September 16, 1993 and that she would remain on full salary and benefits until that time or until such time as she began alternate employment. She was not required to attend work. When asked by Mr. McClelland why she did not tell the Insurer that she had been laid off, Mrs. Guzman answered that she was in denial and that she told the Insurer she was on medical leave.
The Applicant applied for and received unemployment insurance benefits and regularly reported that she was ready, willing and able to return to work.
In December 1994 she enrolled in a program sponsored by the Federal Government for people receiving unemployment insurance benefits. The purpose of the four month program was to provide skills training and employment placement assistance. The program was coordinated by an organization named COSTI. Mrs. Guzman admitted that the main reason she took the computer training course was to extend her UIC benefits. She said that she had difficulty attending the course because of her pains and generally went in at noon instead of 9:00 am. Timothy Owen, the associate executive director of COSTI, testified that his records indicated that except for time off for an ear operation, and to attend the funeral of her brother, Mrs. Guzman attended for the regularly scheduled hours.
Mrs. Guzman took computer and office procedure courses. Although she said she learned something in the "Windows" course, it appears from her supervisor's evidence that she was already highly skilled in computer accounting and presentation programs.
COSTI also placed Mrs. Guzman in two employment positions; at Allstate and Olivetti. The Allstate placement occurred two weeks prior to the hearing. After the first day of the Allstate placement, Mrs. Guzman complained of neck pain. Her supervisor was unable to find alternate work for her and she did not finish the week long placement. The Olivetti placement started in the week prior to the hearing and was to end the week of this hearing. Mrs. Guzman worked two and a half or three and a half days at Olivetti, and intended to go back after the hearing to try to complete the assignment.
Submissions
Applicant's Arguments:
Mrs. Guzman's counsel submitted that the performance appraisal indicating that Mrs. Guzman's work had become unacceptable after the accident shows that she was disabled as a result of the accident. He claims that she continues to be disabled as evidenced by the medical opinions. Her attendance record indicates that she tried many times to return to work, but was unable to because of continuing pain. He submits that Mr. Comeau's evidence that Mrs. Guzman's performance returned to the satisfactory level and her attendance was regular at the time of and for many months prior to the termination in March 1993, is unreliable because the Human Resources attendance records have not been produced.
Insurer's Argument:
The Insurer's counsel submitted that the original injury was not serious and that Mrs. Guzman was able to work part-time two months after the accident and full-time two months later. During 1991 she worked more days than she was off, and her absences in 1991 were attributable to marriage breakdown, financial difficulties and an abortion. These emotional stresses were aggravated by the department store accident at the end of 1991. After May 1992, Mrs. Guzman does not appear to have missed much work. Her performance review indicated that she had returned to her pre-accident level of performance.
Counsel found it significant that although Mrs. Guzman said that she was only able to work one day at the Allstate placement before she was disabled by pain, she did not mention until cross-examination that in the week prior to the hearing she worked two and a half or three and a half days for Olivetti and that she was scheduled to return to that placement after this hearing.
Counsel also submitted that the expert opinions attesting to her disability submitted by Mrs. Guzman were not obtained until after her employment with American Express had been terminated.
Findings
I prefer Mr. Comeau's evidence concerning Mrs. Guzman's attendance record between May 1992 and March 1993 to that of Mrs. Guzman. I find that Mrs. Guzman worked regular hours in the ten month period prior to her termination with no significant absences from work.
Mr. Comeau said that Mrs. Guzman's 1991 and 1992 attendance records should have been with Human Resources and could not be located. He therefore spent four hours recreating the attendance records from source records. Those records included his own notes on Mrs. Guzman's sick leave and vacation and those of his secretaries during that time period, as well as the records of the workplace nurse. He was aware of the various reasons for Mrs. Guzman's absences, and his notes corroborate the evidence presented at this hearing concerning the times of those absences. He was aware of the motor vehicle accident, the nerve block surgery, the ear surgery and the department store accident.
After giving Mrs. Guzman a poor performance review in January 1992, Mr. Comeau advised her by memo in February 1992 that she was being placed on a performance action plan. He set certain goals and stated in the memo that failure to achieve the goals might result in termination.
Mrs. Guzman was then off work from February 10, 1992 to May 19, 1992 on the Aetna Income Protection Plan. Aetna refused to pay disability benefits past May 18, 1992. I am satisfied that Mr. Comeau paid attention to Mrs. Guzman's attendance when she returned to work in May 1992. His notes and testimony show that on July 14, 1992, Mrs. Guzman requested personal time off for July 27 and August 4, 1992. He told her that it was not wise to take off July 27 as she was still on performance review. Mrs. Guzman agreed. The Absence From Work form indicated that the July 27 request had been crossed off and the August 4 request had been approved.
Mr. Comeau admitted that there was a slim possibility that Mrs. Guzman had called in sick and that he was not aware of it.
Mrs. Guzman testified that she was absent at least five days from May 1992 to December 1992 and at least five days from January 1993 to March 1993. When pressed she could not be more specific. The medical records do not indicate that Mrs. Guzman suffered any more difficulties during the May 1992 to March 1993 period than she has suffered at other times. She saw Dr. Flores less frequently during this period and not at all from November 27, 1992 to August 6, 1993. She continued to see Dr. Quan, the chiropractor, at the same rate as she had in the past.
Either Mrs. Guzman is in a state of denial with respect to her ability to work in that ten month period or she is withholding the truth. She admitted that the trauma of termination caused her to deny the reality of her termination and make her think that she was on a medical leave. The same factors may be at work in causing her to think that she was disabled during the ten month period prior to her termination. Alternatively, she is deliberately withholding the truth. For the most part, Mrs. Guzman testified in a spontaneous manner, often giving more information than was asked for. However, she was not as forthcoming in revealing the full particulars of her program with COSTI. She said that the program ended when in fact only the teaching portion had ended and she was still involved in an employment placement at Olivetti. She may not be prepared to admit that she has worked as much as she did. The same factors may explain why she was unable to provide specific particulars about her absences in the ten month period prior to her termination.
Mr. Comeau said that Mrs. Guzman's performance was not impaired by any physical disability. Although she complained of a sore neck, he did not recall her having any difficulties during this period.
I am not satisfied that Mrs. Guzman's employment was terminated because of her inability to work. Mr. Comeau stated that American Express laid off employees in 1990 and 1993 to reduce the size of its workforce. Five other employees were laid off at the time Mrs. Guzman was laid off. Mr. Comeau testified that since 1993 other employees have been terminated as a result of downsizing.
I am not satisfied from the medical evidence that Mrs. Guzman continues to suffer a substantial inability to perform the essential tasks of her employment. Three of the doctors who saw Mrs. Guzman commented on her current ability to work. On July 22, 1994, Dr. Rowsell reported that Mrs. Guzman would probably get worse if she pushed herself back to work at that time. On February 21, 1995, Dr. Ko was of the opinion that Mrs. Guzman suffered "a substantial inability to perform her pre-accident employment from March 1992 to the present time". On February 14, 1995, Dr. Gottfried was of the opinion that Mrs. Guzman was unable to return to her pre-accident level of functioning and was unable to do the kind of work that she did before. However, these doctors do not seem to be aware that Mrs. Guzman was able to work for ten months, from May 1992 to March 1993, on a regular basis. The failure of the doctors to deal with what I consider to be significant evidence that Mrs. Guzman was able to regularly work at her last job until her employment was terminated in March 1993 puts into question their conclusion that she is disabled from working now.
It has often been said in arbitration decisions that the Schedule does not provide compensation for "pain and suffering" by itself. Although Mrs. Guzman may suffer pain, I find that she does not suffer a substantial inability to perform the essential tasks of her employment within the meaning of section 12 of the Schedule.
Expenses:
I was not persuaded that the Application for Appointment of an Arbitrator in this matter was manifestly frivolous or vexatious, or that the Applicant's conduct unreasonably prolonged the proceedings. Pursuant to section 282(11) of the Insurance Act and for the reasons expressed in Ralph McCormick and Economical Mutual Insurance Company, October 2, 1991, OIC File No. A-000139, I award the Applicant the expenses she has incurred in this arbitration as set out in Schedule 1 of the Dispute Resolution Practice Code. If the parties cannot agree as to the amount, either may apply for assessment of the expenses before me.
Order:
- The Applicant is not entitled to section 12 weekly income benefits after March 24, 1993.
- The Applicant is entitled to her expenses incurred in respect to the arbitration.
April 24, 1995
William J. Renahan Arbitrator
Date