Neutral Citation: 1995 ONICDRG 55
File No. A-008488
ONTARIO INSURANCE COMMISSION
BETWEEN:
SHIVA AHMADI-NADOUSHAN
Applicant
and
ALLSTATE INSURANCE COMPANY OF CANADA
Insurer
DECISION
The Applicant, Shiva Ahmadi-Nadoushan, was injured in a motor vehicle accident on February 1, 1992. She received statutory accident benefits from the Insurer, payable under Ontario Regulation 6721, until December 5, 1993, when benefits were terminated. 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 of the Schedule, after December 5, 1993?
If the Applicant is entitled to weekly income benefits after March 3, 1994, is the Insurer entitled, under subsection 12(4)(b) of the Schedule, to make a deduction on account of the severance package she received from her employer on that date?
Is the Applicant entitled to her expenses incurred in the arbitration?
The Applicant also claims interest on any amounts owing.
Result:
The Applicant is not entitled to weekly income benefits after December 5, 1993.
Given my finding on the first issue, it is not necessary for me to decide whether the Insurer is entitled to make a deduction on account of the Applicant's severance pay.
The Applicant is entitled to be reimbursed for her expenses incurred in the proceeding, in accordance with section 282(11) of the Insurance Act.
Hearing:
The hearing was held in North York, Ontario, on October 26 and 27, 1994, before me, Nancy Makepeace, arbitrator.
Present at the hearing:
Applicant:
Shiva Ahmadi-Nadoushan
Applicant's
Harvey Dorsey
Representative:
Barrister and Solicitor
Insurer's
Gail Pearson
Representative:
Ian Kirby
Barrister and Solicitor
Insurer's
Brad Barber
Officer:
Claims Manager
Witnesses:
Shiva Ahmadi-Nadoushan, the Applicant
Dr. Virani, the Applicant's family doctor
Dr. Kachooie, treating physiatrist
W. Pieczula, Registered Massage Therapist
H. Araujo, former co-worker of the Applicant
Carolyn Acres, human resources officer, Royal Trust
Dr. A. Ameis, physiatrist
Viivi Riis, physiotherapist
Robert McKay, private investigator
Wayne McNichol, private investigator
Brad Barber, claims manager, Allstate
Exhibits:
Exhibit 1 Applicant's supplementary document brief (Tabs 1-13)
Exhibit 2 Curriculum vitae of Drs. Virani, Kachooie, Ameis, Viivi Riis, and Wojciech Pieczula
Exhibit 3 Insurer's medical brief (Tabs 1-38)
Exhibit 4 Insurer's document brief (Tabs 1-4)
Exhibit 5 Three photographs
Exhibit 6 Scarborough Grace Hospital emergency record - November 29, 1991
Exhibit 7 Surveillance videotape
Other documents before the arbitrator:
Report of Mediator, dated March 21, 1994
Application for Appointment of an Arbitrator, dated March 14, 1994
Response by Insurer, dated April 21, 1994
Pre-hearing letter, dated May 24, 1994
Entitlement to weekly income benefits:
Section 12 of the Schedule provides that an insured person is entitled to weekly income benefits if he or she is substantially unable to perform the essential tasks of his or her pre-accident job as a result of the accident.
Essential tasks:
The Applicant is in her mid-twenties. At the time of the accident, she shared a condominium with her younger brother and sister, and worked at the Toronto main branch of Royal Trust, a financial institution. She became a Client Service Officer ("CSO") several months before the accident. Previously, she had worked as a teller for about a year and a half.
Evidence about the duties of a CSO came from the testimony of the Applicant; from Helena Araujo, a former co-worker; and from Carolyn Acres, a human resources officer with Royal Trust. Their testimony was generally consistent, and I make the following findings.
As a CSO, the Applicant worked with customers at the counter and on the phone. Her duties included opening and closing accounts, handling customer enquiries, completing data entry and other paperwork, and helping tellers balance.
Ms. Araujo corroborated the Applicant's testimony that a CSO was sometimes required to sit and stand for prolonged periods; Ms. Acres agreed that this was "possible". I find that the CSO job allowed for frequent changes of position between standing and sitting, and occasionally required prolonged standing or sitting.
I accept the Applicant's evidence that the job required concentration. I also accept that it was fast-paced and demanding, because the Applicant was required to respond simultaneously to demands on the phone and at the counter, while completing paperwork to deadline.
The accident:
On Saturday, February 1, 1992, the Applicant was rear-ended while stopped in a line of traffic on the Don Valley Parkway. She remained in her car while the police investigated the accident, then drove home. Later that evening, she attended at an emergency ward, complaining of neck and back pain. X-rays of her cervical and dorsal spine were negative, and she was discharged the same evening.
The Applicant went to work on the following Monday, but was unable to continue because of pain in her neck, shoulders and back. After seeing her family doctor, she stayed off work for three or four weeks. At the end of that time, she tried again to return to work, but she was unable to continue after a day or two. She did not work again until September 1992. By that time, she had been involved in two more accidents. The first happened three or four weeks after the February 1 accident. The Applicant did not report it. The second occurred on April 21, 1992. The Applicant claims that she suffered no further injuries in these accidents. She also travelled to Iran to visit her family during her time off.
In September 1992, the Applicant returned to her pre-accident job as a CSO on a part-time basis, four hours a day. She hoped to be able to increase her hours gradually, but found she could not do so. In February 1993, her employer told her that her part-time position would no longer be open. The Applicant returned to a full-time schedule, but took a leave again at the end of March, when she found she could not continue.
She returned to part-time work again on August 3, 1993. That fall, there were discussions between the employer, the Insurer's rehabilitation caseworker (Viivi Riis), and the Applicant's doctors about gradually increasing the Applicant's hours to full-time. The employer was initially unable to increase the Applicant's hours, because there was insufficient CSO work available at the smaller branches where she was now working. On October 25, 1993, Royal Trust advised Ms. Riis that the employer could now offer increased hours. Ms. Riis created a schedule which would increase the Applicant's hours by one hour per day every week, so that she would be working full-time at the end of a month. By letter of February 21, 1994, the Applicant advised Royal Trust that she was prepared to work a maximum of five hours a day. The Applicant's employment was terminated effective March 3, 1994.
The Applicant has been treated by Dr. M. Virani, her family doctor; Dr. A. Kachooie, a physiatrist; Dr. D. Day and Dr. G. Lau, psychologists; and Dr. J. Rajendra, a psychiatrist. She has been treated with analgesics, non-steroidal anti-inflammatory medication, sleep medication and antidepressants. She has also received physiotherapy and massage therapy. In early 1992, she completed a six-week reactivation program. Subsequently, she periodically made use of a fitness club membership. In April 1993, the Insurer referred the Applicant to Dynamic Rehabilitation, where she was seen by Rehabilitation Coordinator Viivi Riis, a physiotherapist.
The Applicant contends that she remains unable to work as a full-time CSO because of the pace of the job, and the need to stand, sit and concentrate for prolonged periods. She claims that she continues to suffer disabling neck and back pain, headaches, and depression as a result of the accident. The Insurer contends that the Applicant does not want to return to work full-time for reasons unrelated to the accident.
Findings and analysis:
In terminating benefits on December 5, 1993, the Insurer relied on the January 17, 1994 report of Dr. Ameis (examination of November 29, 1993, Exhibit 3, Tab 38). Dr. Ameis found that the Applicant showed no objective signs in the neck or back. He felt that she displayed inappropriate pain behaviours. He did not think she was anxious or depressed. He did not accept that she has fibromyalgia.
In his testimony at the hearing, Dr. Ameis made some observations about the Applicant's movements after she left his office. These comments were not included in his report, but were passed on to the Insurer in a separate letter, which was not copied to the Applicant. In addition, Dr. Ameis' report includes several unfavourable comments about the Applicant's character. I find that Dr. Ameis was not acting as an impartial medical expert in this case, and this has affected the weight I have given his evidence.
The Applicant relies on the evidence of Dr. Virani and Dr. Kachooie, who diagnosed fibromyalgia, and testified that she remains unable to return to full-time work; some reports have suggested that the Applicant suffers from myofascial pain syndrome rather than fibromyalgia. In addition, the reports of psychologists Dr. D. Day, Dr. G.K. Lau, Dr. J.M. LaCroix, and of psychiatrist Dr. Rajendra, attest to the Applicant's ongoing depression.
The Applicant's complaints are well-documented, and I do not doubt their veracity. However, for the following reasons, I do not accept that the Applicant was substantially unable to return to full-time work as a CSO after December 5, 1993 as a result of the accident.
The Applicant told her doctors that her car was struck by a car travelling at about 100 km per hour. However, she testified that damage to the car amounted only to $1,300 or $1,400, and photographs filed in evidence confirm that the accident did little damage to the car (Exhibit 5). The Applicant was in no acute distress immediately following the accident. She remained in her car, and, once the police arrived, drove the car off the DVP so that traffic could resume. After the police investigation, which she described as lasting three or four hours, she drove herself home. Only later in the evening did she go to the hospital, where she described the accident as "minor".
When Dr. Virani saw the Applicant two days after the accident, he found that she had 80 per cent range of movement in her neck in all directions, and her back mobility was normal, although she was tender in the neck and back. Her only other injuries were bruises at the left elbow and right thigh.
All the Applicant's tests have been negative. As well as the cervical and dorsal spine x-rays noted above, the Applicant has undergone EMG testing of the left arm and left leg, a CT scan of the lumbosacral spine, and x-rays of the left knee, chest and thoracic spine.
Accordingly, I find that the accident was a minor one, involving an impact at considerably less than 100 km per hour. This is significant because Dr. Virani and Dr. Kachooie admitted in their testimony that the Applicant's account of the accident was a factor in reaching the diagnosis of fibromyalgia. Drs. Virani and Kachooie were also unaware of the pre-accident history of headaches the Applicant had reported to emergency room staff at Scarborough Grace Hospital on November 29, 1991, when she attended, complaining of a migraine headache and a stomach-ache. Both doctors considered the Applicant's post-accident reports of headaches to be typical of fibromyalgia.
I heard quite a lot of testimony from Drs. Virani and Kachooie, for the Applicant, and Dr. Ameis, for the Insurer, about how fibromyalgia and myofascial pain syndrome are diagnosed, and specifically about the "trigger points" or "tender points" that are characteristic of these conditions. In Dr. Ameis' opinion, the Applicant did not have the 11/18 tender points required for diagnosis. Dr. Kachooie testified that the Applicant showed all 18 tender points.
Dr. Kachooie's clinical notes and consultation notes to Dr. Virani include many references to diffuse muscle tenderness and to myofascial pain syndrome. Later reports refer to fibromyalgia (or fibromyositis) and localized (or focal) trigger points or tender points, most of which are in the same areas formerly identified as diffusely tender. The Applicant's doctors presented no evidence about the specific location of the Applicant's tender areas, or the development of her fibromyalgia after the accident. I have the impression that Dr. Virani and Dr. Kachooie had little reason to distinguish fibromyalgia from other chronic pain conditions. I also have the impression that both doctors had stepped into the role of Applicant's advocate in this case. On balance, and considering the Applicant's account of her symptoms, I am not satisfied that she suffers from fibromyalgia.
I accept that the Applicant experiences variable diffuse muscle tenderness. However, in my view, her doctors' records indicate that her condition had improved significantly by December 1993. Dr. Virani's clinical notes between August 1993 (when the Applicant returned to work part-time) and May 6, 1994 (the last note) indicate only one musculoskeletal complaint (on March 28, 1994). The Applicant also complained of anxiety and sleeplessness on that visit and on February 2. Her other complaints were unrelated to the accident.
Dr. Kachooie testified that he had seen the Applicant only two or three times after November 1993. He stated that she had improved "remarkably" in the two years before the hearing, and that her major problem now was fatigue rather than pain. He estimated her level of function at 7-8/10, rather than her former 1-2/10. Dr. Kachooie also testified that the Applicant's depression had significantly improved by the time of the hearing.
The Applicant has not pursued psychotherapy, as recommended by Dr. Rajendra. Nor has she made use of her fitness club membership to the extent recommended by her doctors. In my view, the Applicant's minimal efforts at treatment and rehabilitation since December 1993 suggest that her symptoms are not so severe as to be disabling. Her own testimony supports this conclusion. In November 1993, shortly before benefits were terminated, the Applicant married, and she and her husband bought and moved into their own house. She testified that since her marriage, she has been responsible for the cleaning, cooking, and laundry, although her husband does the vacuuming. Other activities include swimming, exercise, socializing, and reading.
According to Ms. Riis' return to work schedule (Exhibit 3, Tab 33), the Applicant would work four hours a day for the first week (starting August 3, 1993), four and a half hours a day for the second week, five hours a day for the third week, and an hour would be added for every week after that, until she began working a full-time schedule in early September.
The Applicant submitted that the return-to-work plan was premature. She proposed increasing her hours by one hour per month. She also submitted that Ms. Riis had not obtained proper medical authorization for the program since none of her doctors had cleared her for full-time work.
In her testimony, Ms. Riis agreed that Royal Trust's eagerness to return the Applicant to full-time work was one reason she proposed the "one additional hour per week" plan (report of December 3, 1993, Exhibit 3, Tab 36). As early as April 1993, Ms. Riis had expressed concern that the Applicant's job would no longer be available if she did not return to work soon.
Ms. Acres testified that as a result of downsizing, the CSO position had been upgraded since the Applicant's accident, and now required mutual funds or securities qualifications which the Applicant did not have. When the Applicant returned to work in the fall of 1993, she spent part of her time studying for the appropriate license, but she never obtained it. According to Ms. Acres, the Applicant was terminated because she did not have the skills the institution now needed.
I find that the return to work schedule proposed by Ms. Riis was motivated in part by her concern that the employer would not hold the Applicant's job open indefinitely. I do not accept that Ms. Riis precipitated the Applicant's termination. I find that her concerns were legitimate and her intervention likely delayed the Applicant's termination.
In my view, it would have been preferable for the Insurer to obtain updated reports from the Applicant's treating physicians before concluding that she was capable of resuming full-time work in December 1993. However, Drs. Kachooie and Lau had cleared the Applicant for return to part-time work in July 1993, provided she could be reassigned to a branch closer to her home (Exhibit 3, Tab 33); the employer accommodated this request. The plan proposed by Ms. Riis in the fall of 1993 was almost identical to the plan approved by Dr. Kachooie almost a year earlier, when he said that the Applicant could return to work on a trial basis, four to five hours a day, three to four days a week, to gradually increase to full-time within five to six weeks. I heard no evidence to suggest that the Applicant's condition had deteriorated since the fall of 1992 (apart from the expected flare-ups on returning to work). And I heard no detailed evidence about the Applicant's efforts to increase her hours in the fall of 1993, and why they failed. This is particularly troubling, because in the fall of 1993, the Applicant was working at a less busy suburban branch, for only three or three and a half hours a day, and she was spending much of her time studying.
The Insurer introduced evidence of surveillance conducted in April and May 1994. A videotape was filed (Exhibit 7). The first segment, which lasts about 10 seconds, shows the Applicant sitting in her car, then leaving her car. The second segment, which lasts about 12 minutes, shows her putting a rug out on a balcony, then descending a flight of stairs with a basket of laundry, and returning with a box of detergent. Though this very brief evidence would not be determinative on its own, I take some comfort in the briskness and apparent ease of the Applicant's movements.
The Applicant's leaves from work coincided with the summers of 1992 and 1993. In the summer of 1992, she visited her family in Iran for a month, received massage and physiotherapy treatment, and completed a six-week reactivation program. In cross-examination, she agreed that this was a fairly vigorous program.
When Ms. Riis first saw the Applicant in April 1993, she formed the opinion that, from a physiotherapist's point of view, there was "absolutely no reason" why the Applicant could not return to work full-time (report of April 29, 1993, Exhibit 3, Tab 30). According to the uncontroverted evidence of Ms. Riis, she arranged with the Applicant and Royal Trust that the Applicant would return to work on July 12, on a graduated part-time basis. After the arrangements had been made, the Applicant asked to put off the date until September, because she felt she needed a vacation before starting work. After some discussions through Ms. Riis, the Insurer agreed to continue paying benefits if the Applicant would return to work on August 3.
The reports of the Applicant's treating psychologists and psychiatrists indicate that marital problems and work stressors played a significant role in the Applicant's ongoing depression. The Applicant and Ms. Araujo testified about the Applicant's difficulties before the accident with a co-worker. Ms. Acres testified about the employer's upgrading of the CSO job, and the Applicant's difficulties with the new demands of the job after the accident. I find that the Applicant's reasons for not returning to full-time CSO work include significant personal and vocational factors, as well as her symptoms resulting from the accident.
Considering the minor nature of the accident, the absence of objective signs of injury or disability after December 1993, the Applicant's undisputed ability to work part-time, the surveillance evidence, the Applicant's personal and vocational circumstances, and the time elapsed since the accident, I find that the Applicant was not substantially disabled from working as a full-time CSO after December 5, 1993 as a result of the accident.
Expenses:
The Applicant seeks an award of the expenses she has incurred in this arbitration. An award for expenses may be made under section 282(11) of the Insurance Act, which provides as follows:
The arbitrator may award to the insured person such expenses incurred in respect of an arbitration proceeding as may be prescribed in the regulations to the maximum set out in the regulations.
The prescribed expenses and amounts are set out in Schedule 1 of the Dispute Resolution Practice Code and in Ontario Regulation 664, R.R.O. 1990, Dispute Resolution Expenses.
In Ralph McCormick and Economical Mutual Insurance Company, October 2, 1991, OIC File No. A-000139, Arbitrator Susan Naylor made the following comments about expenses, with which I agree:
The discretion to award expenses should be exercised, having regard to the intent and purpose of the legislative scheme. The arbitration process has been established under the Insurance Act, as amended, in order to facilitate applicants' access to relatively inexpensive, speedy and informal adjudication of disputes regarding no-fault benefits. The discretion to award expenses should be exercised in accordance with this objective, having regard to the individual circumstances of each case.
Accordingly, it is appropriate to award an applicant his or her expenses, unless, in the circumstances of the particular case, it is determined that the application for appointment of an arbitrator was manifestly frivolous or vexatious, or that the applicant's conduct unreasonably prolonged the proceedings.
The Director of Arbitrations approved this statement of the principles guiding an award of expenses in the appeal decision in Vito Luigi Calogero and The Co-Operators General Insurance Company, February 13, 1992, OIC File No. P-000251.
Although the Applicant did not succeed in her application for benefits, I accept that she suffers some residual discomfort as a result of the accident. I do not believe that the claim was frivolous, vexatious or an abuse of process. The Applicant is allowed her expenses. I will remain seized of the issue of expenses in case the parties are unable to agree on the amount owing.
Order:
The Applicant is not entitled to weekly income benefits after December 5, 1993.
Given my finding on the first issue, it is not necessary for me to decide whether the Insurer is entitled to make a deduction on account of severance pay received by the Applicant on March 3, 1994.
The Applicant is entitled to her expenses incurred in the arbitration.
May 23, 1995
Nancy Makepeace
Arbitrator
Date