Neutral Citation: 1995 ONICDRG 56

File No. A-010158

ONTARIO INSURANCE COMMISSION

BETWEEN:

JUDY SPICER

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Judy Spicer, was injured in a motor vehicle accident on April 13, 1991. She received statutory accident benefits, including weekly income benefits, from the State Farm Mutual Automobile Insurance Company ("State Farm"), payable under Ontario Regulation 672¹. Effective April 14, 1994, however, State Farm stopped paying her weekly income benefits on the basis that she did not meet the post-156 week test set out in section 12(5)(b) of the Schedule.

After an unsuccessful attempt to mediate the dispute, Mrs. Spicer applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8. The issues in this hearing are:

1. Is Mrs. Spicer entitled to weekly income benefits under section 12(5)(b) of the Schedule for any period from April 14, 1994, onwards?

2. What is the correct amount of Mrs. Spicer's weekly income benefits and, if she has been overpaid, is State Farm entitled to repayment?

3. Mrs. Spicer also claims interest on any outstanding benefits, and her expenses related to this arbitration.

Result:

1. Mrs. Spicer is entitled to ongoing weekly income benefits under section 12(5)(b) of the Schedule from April 14, 1994.

2. The quantum and overpayment issues were adjourned, pending this decision. If necessary, either party may ask that the hearing be resumed to deal with these issues.

3. Mrs. Spicer is entitled to her expenses related to the arbitration.

Hearing:

The hearing was held in London, Ontario, on December 13, 14, 15 and 16, 1994, before me, David R. Draper, arbitrator.

Present at the Hearing:

Applicant: Judy Spicer

Applicant's Representative: James J. Mays, Barrister and Solicitor

Insurer's Representative: Matthew Duffy, Barrister and Solicitor

Insurer's Officer: Ian O'Quinn, Claims Specialist

Witnesses:

1. Judy Spicer - Applicant
2. Dr. Robert Teasell - specialist in physical medicine and rehabilitation
3. Dr. Leslie R. Damude - family doctor
4. Dr. Larry Schmidt - family doctor
5. Leslie Lumsden - student
6. Richard Spicer - Applicant's son
7. Cliff Hann - Applicant's friend
8. Dr. John C. Clifford - specialist in physical medicine and rehabilitation
9. Ian O'Quinn - claims specialist, State Farm
10. Tracy Arnold - private investigator
11. Jacqueline Kobayashi - vocational services supervisor

Exhibits:

The exhibits in this hearing and the other documents before the arbitrator are listed in Appendix A.

Cases considered:

Each party provided a book of authorities, the contents of which are detailed in Appendix B.

Reasons for Decision:

1. Weekly Income Benefits

(a) The issue

As a result of Mrs. Spicer's motor vehicle accident on April 13, 1991, State Farm paid her weekly income benefits under section 12(1), which provides:

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...

[emphasis added]

According to section 12(5)(b), the eligibility test for weekly income benefits becomes stricter after 156 weeks. State Farm terminated Mrs. Spicer's weekly income benefits, effective April 14, 1994, on the basis that she did not meet this stricter test. Section 12(5)(b) provides:

12.--(5) The insurer is not required to pay a weekly benefit under subsection (1),

(b) for any period in excess of 156 weeks unless it has been established that the injury continuously prevents the insured from engaging in any occupation or employment for which he or she is reasonably suited by education, training or experience. [emphasis added]

The issue, therefore, is whether Mrs. Spicer's injuries from the accident continuously prevent her from engaging in any occupation or employment for which she is reasonably suited by education, training or experience.

Prior to the accident, Mrs. Spicer worked as a nurse for over six years. Her position is that as a result of the accident, she suffers from a chronic pain syndrome that has prevented her from returning to work. Her doctors have told her that it is unlikely that she will be able to return to her pre-accident work and, therefore, she has looked for an alternative. In order to maximize her chances of returning to comparable employment, she is studying for a Master's degree in counselling at the University of Western Ontario. Her plan is to start a private counselling practice that will allow her to control her hours. She claims that this is a reasonable plan, supported by her doctors.

State Farm takes the position that retraining is unnecessary because Mrs. Spicer is able to return to work. It was submitted that none of the doctors conclude that she is totally unable to work, but only that she has some limitations. Further, there are jobs available within her restrictions. Her doctors have simply accepted her self-reported limitations, and have supported her desire to retrain as a counsellor. State Farm further submits that if she wants to work as a counsellor, she can do so without a Master's degree.

This is a relatively complex case, involving a great deal of evidence. In order to determine Mrs. Spicer's entitlement to weekly income benefits, I have considered her background and the course of her rehabilitation, particularly her decision to return to school.

b) Mrs. Spicer's background

Mrs. Spicer is 45 years old and has two sons, Richard (20), and Christopher (17). She was educated in Ontario. After completing grade 13, she attended the University of Western Ontario, receiving her B.A. in sociology in 1971. She then worked briefly as a receptionist and a child care worker. In November 1972, she became a homemaker. Tragically, her husband died in January 1980, leaving her a single parent with two young sons.

Mrs. Spicer decided that in order to support herself and her sons, she would become a nurse. She entered the nursing program at the University of Western Ontario in September 1980, just eight months after the death of her husband, and obtained her nursing degree in June 1984.

In November 1984, Mrs. Spicer started working as a full-time public health nurse at the Middlesex-London Health Unit. By the time of the accident, her annual income was approximately $35,000. According to the business administrator, her normal work week was Monday to Friday, 35 hours per week with no overtime. Mrs. Spicer testified, and I accept, that her hours were flexible, but she usually worked somewhat more than 35 hours per week.

Mrs. Spicer worked in various areas of public nursing, including communicable diseases, family planning, prenatal care, and parenting. Much of her work was done outside of the office, and involved driving and carrying teaching materials to various sites.

On June 16, 1990, Mrs. Spicer started a second job, working on weekends at Comcare as a "part-time casual visiting nurse". She explained that she needed to earn extra money for a new car which she needed, in part, for her work at the Middlesex-London Health Unit. At Comcare, she visited clients in their homes to carry out treatments ordered by their doctors, including changing dressings, monitoring medication and vital signs, personal care, and health instruction. She started at Comcare at $15.00 per hour, but this was increased to $16.00 per hour by the time of the accident. She worked 362 hours for Comcare in 1990, and 302 hours in 1991.

I find that prior to her accident, Mrs. Spicer was extremely busy. She was a single parent with two teenaged boys, a full-time job as a public health nurse, and a part-time job as a homecare nurse. She conceded that she was finding this a heavy load and was not sure how long she would have continued to work at Comcare. She suggested that she might have continued to work there, but fewer hours.

Mrs. Spicer's pre-accident health is an important issue in this case. It is clear that she had significant pre-existing health problems. She has longstanding, serious knee problems. When she was 17 years old, cartilage was removed from her knees. She had a second operation when she was 25, that she described as a "tendon transfer". During her third year of nursing (1982-1983), she was told that she needed an operation, but decided to wait until the end of the academic year. Three days after her graduation in June 1984, she had the operation. Despite the operation, however, her knees have continued to cause her problems.

Prior to the accident, Mrs. Spicer was also involved in psychotherapy. In June 1988, while she was working at the Middlesex-London Health unit, she started seeing Dr. Gail Golden, a psychologist. According to Dr. Golden, Mrs. Spicer was looking for support in her role as a single parent. In the course of her psychotherapy, however, she uncovered memories of childhood abuse, and this became the focus of their therapy.

It was agreed at the outset of the hearing that the details of Mrs. Spicer's abuse and the resulting treatment would not be discussed. In my opinion, State Farm attempted to honour this agreement and to respect Mrs. Spicer's privacy. It was not always easy, however, to identify the source of her post-accident problems. Her doctors acknowledged that her post-accident condition was complicated by her pre-existing anxiety disorder related to her abuse.

Mrs. Spicer also had some pre-accident complaints about pain. She complained occasionally to her family doctor, Dr. Larry Schmidt, about pain in her back, neck and elbow, and headaches, as well as about her knee problems. Dr. Schmidt also recorded three falls - one on January 31, 1991 and two on March 3, 1991. What is most striking about Dr. Schmidt's clinical notes, however, is Mrs. Spicer's heavy reliance on pain medication, particularly Tylenol 3. In the six months before the accident, it appears that she was taking an average of five to ten Tylenol 3's per day.

Dr. Schmidt explained that Mrs. Spicer had a number of pain problems, and that the medication helped keep her functioning. In cross-examination, he agreed that her emotional problems may have increased her need for medication, and that this level of medication indicates a high degree of pain, or pain perception.

Despite these pre-accident health problems, however, I find that Mrs. Spicer was keeping up with her extremely busy schedule. She missed some work due to health problems, but not a great deal. Her performance reviews at the Middlesex-London Health Unit continued to be quite good, and her manager at Comcare described her work as follows:

Judith Spicer demonstrated excellent nursing, assessment and communication skills. She worked week ends [sic] and vacations when she could be away from her full time job. She was very reliable in this part time position and always conducted herself in a professional manner.

c) The accident and its aftermath

The accident occurred on Saturday, April 13, 1991. Mrs. Spicer was on her way home from her last visit of the day for Comcare, when she collided with a vehicle making a left turn across her path. She testified that by the time she got home, she had pain under her left shoulder blade, radiating down her spine into her left leg. Later that same day, her son took her to the emergency department at Victoria Hospital. She was diagnosed as having a lower back strain, was prescribed pain medication, and sent home.

Mrs. Spicer's family doctor, Dr. Schmidt, provided follow-up care. He initially prescribed a regimen of ice, Tylenol 3's, and a towel collar. Because she complained of increasing pain, including neck pain, Dr. Schmidt referred Mrs. Spicer to the Canadian Back Institute, where she was assessed on April 23, 1991. It was their impression that she "was suffering primarily from mechanical pain secondary to acute soft tissue injuries sustained in her motor vehicle accident".

I find that neither Dr. Schmidt nor the Canadian Back Institute felt that Mrs. Spicer's injuries were particularly serious and both expected her to recover within a few months. The Middlesex-London Health Unit's records indicate that Mrs. Spicer initially thought that she would be able to return to work in early July 1991.

Mrs. Spicer applied to and received benefits from her private disability insurer, the Paul Revere Life Insurance Co. ("Paul Revere"). She also signed a form on June 1, 1991, opting for coverage under the Workers' Compensation Act, R.S.O. 1990, c.W.11. As a result, her situation was initially assessed by Paul Revere and the Workers' Compensation Board, not State Farm.

In order to facilitate her recovery, Mrs. Spicer started a physiotherapy program at the Canadian Back Institute. Her physiotherapist, Mr. Bob Jacobsen, reported that she initially made slow, but steady progress, especially with her neck pain. Starting in early June 1991, however, she complained of increased back pain and advised the Middlesex-London Health Unit that she would not be able to return to work in July 1991, as hoped.

Because of her slow recovery, the Worker's Compensation Board approved an extension of her physiotherapy program at the Canadian Back Institute until August 27, 1991. Mr. Jacobsen reported that Mrs. Spicer's back pain did not improve significantly, despite the extended period of treatment. He felt that she was "rapidly becoming a chronic pain patient", and suggested an appropriate referral.

The Worker's Compensation Board referred Mrs. Spicer for an assessment at the London Regional Evaluation Centre. In the meantime, she decided to enrol in two courses at the University of Western Ontario: Therapeutic Counselling and Abnormal Psychology. She subsequently withdrew from the Abnormal Psychology course because she was unable to keep up with the work.

The report of the London Regional Evaluation Centre is dated September 26, 1991. It is a multi-disciplinary assessment, signed by Dr. A. Bhardwaj, a consultant in Physical Medicine and Rehabilitation. The report concluded that it was unlikely that Mrs. Spicer would be able to return to her previous job, and that she required vocational rehabilitation. It was felt that the most suitable job for her would be "working in a nursing office".

I find that by the fall of 1991, Dr. Schmidt and the Workers' Compensation Board felt that Mrs. Spicer had a chronic pain problem, and that it was unlikely she would return to the type of active nursing jobs that she was doing at the time of the accident. Dr. Schmidt remained hopeful, however, that she might be able to work in some capacity within the year, depending on the results of a planned functional abilities evaluation and with assistance from vocational rehabilitation services through the Workers' Compensation Board.

The plans for further assessments and rehabilitation were interrupted because Mrs. Spicer decided to abandon her workers' compensation claim and file a lawsuit. As a result, the Workers' Compensation Board closed its file and did not provide further services. The process of reversing her decision to claim workers' compensation benefits also resulted in a stressful period during which Mrs. Spicer's income was reduced.

It was in this context that in or about December 1991, Mrs. Spicer applied to the University of Western Ontario for admission to the Master's program in counselling, starting in September 1992. State Farm suggested that, prior to the accident, she had been contemplating a career change and that this was an opportunity to pursue those plans. I am not persuaded that this is the case. Mrs. Spicer may well have considered working as a counsellor, but I find that she was not actively considering a career change at the time of the accident. I accept her explanation that she wanted to return to work to support her family and was interested in counselling as a possible option.

d) Ongoing medical care

In 1992, Mrs. Spicer continued to see Dr. Golden for psychological counselling. She also continued with her university course, attending classes twice a week for one and a half hours per class. However, other aspects of her situation changed quite dramatically.

In February 1992, Mrs. Spicer began to see Dr. Leslie Damude as her family doctor. I accept her explanation that she was not unhappy with Dr. Schmidt, but preferred a female doctor. Also in February 1992, State Farm retained a rehabilitation company, Westminster Rehabilitation Management, to help coordinate Mrs. Spicer's treatment. Dr. Damude was aware of Westminster Rehabilitation Management's involvement and, at least initially, there was no conflict about the appropriate course of treatment.

The vocational counsellor from Westminster Rehabilitation Management arranged for Mrs. Spicer to be assessed by Dr. Stewart Bailey, an orthopaedic surgeon. Dr. Bailey concluded that Mrs. Spicer was having "ongoing problems related to rather severe soft tissue injury of the lumbar, as well as the cervical spine". He recommended a further physiotherapy program to increase her range of motion. According to the vocational counsellor's report, Dr. Bailey felt that the prognosis for Mrs. Spicer returning to her former occupation was poor, and based on her reported symptoms, was sceptical about her ability to function as a full-time student.

As a result of Dr. Bailey's recommendations, Mrs. Spicer was referred to the Westminster Orthopaedic Rehabilitation Centre (W.O.R.C.) for physiotherapy designed to increase her range of motion and to provide a full cardiovascular conditioning program. Mrs. Spicer reported some initial benefits, but as the therapy focused more on progressive strengthening exercises, she complained of increased pain.

Dr. Damude decided to involve Dr. Robert Teasell, the Chief Physiatrist at University Hospital, as a consultant. She acknowledged that Mrs. Spicer's lawyer might have suggested Dr. Teasell, but maintained that she would not have made the referral if she felt it was inappropriate. I do not place any particular significance on the manner in which this referral was made. Mrs. Spicer's rehabilitation was not progressing well, and Dr. Teasell is well qualified to give advice in chronic pain cases. I note that Dr. Damude also asked Dr. Bailey, the doctor chosen by Westminster Rehabilitation Management, to re-assess Mrs. Spicer in light of her worsening symptoms.

Dr. Teasell examined Mrs. Spicer on June 19, 1992, and concluded that she was suffering from cervical and lumbar soft tissue injuries as a result of her accident. He felt that her increased symptoms were the result of the physiotherapy program's focus on strengthening. He recommended that she be involved in less strenuous stretching and aerobic exercises. In his outpatient note, Dr. Teasell expressed the following views about Mrs. Spicer's return to employment:

Returning to a job as a public health nurse with the lifting and bending, twisting is likely going to be difficult. A counselling job would be more appropriate. However, there is still potential that she may be able to return back to nursing. I would wait until the two year point had passed before giving up on that entirely.

Dr. Bailey re-assessed Mrs. Spicer on July 29, 1992, and concluded:

I do not feel that there is anything further we can offer the patient as far as medical management is concerned, other than to give her appropriate instruction with regard to physiotherapy, use of pain medication and above all, emotional support, in an effort to encourage her to return to some sort of productive working activity. I do not feel that she will be able to return to heavy nursing duties, as she had previously performed at Comcare, but hopefully, she will at least be able to be involved in some supervisory aspect.

I also feel that it would be wise for her to continue with an intermittent, but light physiotherapy program to maintain strength and flexibility of the spine and neck area. I think this would be of benefit for her, now and in the future.

In my opinion, the views expressed by Dr. Teasell and Dr. Bailey are quite similar. They both suggested that Mrs. Spicer's rehabilitation proceed somewhat cautiously, and were not optimistic about her ability to return to a physically demanding job.

It appears that at about this time, State Farm began to question whether Mrs. Spicer might be able to return to some type of work. Westminster Rehabilitation Management was asked to do a labour market survey. In a report dated July 7, 1992, the vocational counsellor concluded that there were appropriate jobs available to Mrs. Spicer, including company nurse, doctor's office nurse and research assistant. Therefore, the report concluded that vocational training was not required. Westminster Rehabilitation Management's involvement ceased at this point.

Mrs. Spicer's situation did not improve during the summer of 1992. Because of her continuing neck and back pain, she started going to the Bellwood Chiropractic Centre intermittently for chiropractic care. She was also admitted to University Hospital twice in August 1992 after taking excessive amounts of medication. The doctors treated these as suicide attempts. Mrs. Spicer maintained that these episodes relate to her childhood abuse, not the accident. It is difficult to evaluate this statement because due to the agreement about not intruding into the abuse issues, it was not pursued.

Dr. Teasell arranged for further physiotherapy at University Hospital, which continued through the fall of 1992. Mrs. Spicer was not admitted into the Master's program in counselling in September 1992, as she had hoped. She decided, however, to enrol in another course at the University of Western Ontario - Introduction to Clinical Psychology.

Paul Revere, Mrs. Spicer's private disability insurer, arranged for her to see Dr. John Clifford on October 27, 1992. He is a specialist in Physical Medicine and Rehabilitation, the same specialty as Dr. Teasell. Dr. Clifford concluded that Mrs. Spicer had probably sustained moderate soft tissue injuries to her neck and low back as a result of the accident, but had developed widespread complaints of chronic pain. He found her complaints "somewhat histrionic", but felt that "the presentation was more a result of anxiety rather than a volitional attempt to mislead." He found no evidence that she was malingering.

Dr. Clifford concluded that Mrs. Spicer had some work restrictions due to her pre-existing knee problems, but also had the following restrictions as a result of the accident:

(i) Neck;

• avoidprolonged positioning of the head and neck

• avoid repetitive/heavy lifting with the arms above the shoulders

(ii) Low Back:

• avoid repetitive bending or twisting

• avoid repetitive/heavy lifting at the waist

Dr. Clifford recommended that a coordinated functional restoration plan be established as soon as possible, including an active exercise program, vocational rehabilitation, and psychological support. He emphasized that functional restoration, not pain relief, must be the goal.

Mrs. Spicer's treatment, however, continued to be coordinated by Dr. Damude, with input from Dr. Teasell and Dr. Golden. She continued in physiotherapy at University Hospital. This was not the kind of exercise program that Dr. Clifford had in mind. According to Dr. Damude's report, dated March 25, 1993, she and Dr. Teasell specifically discussed Dr. Clifford's recommendations. They concluded, however, that Mrs. Spicer would not do well with such an aggressive approach.

When Dr. Teasell met with Mrs. Spicer on December 9, 1992, he felt that she was improving slowly, and recommended that she continue with the physiotherapy program, continue to see Dr. Golden, and exercise as much as possible. Unfortunately, Mrs. Spicer was involved in another motor vehicle accident on January 25, 1993. I find that this accident aggravated her symptoms, but her treatment remained essentially the same. She was also able to continue with her university course.

Dr. Damude continued to believe that Mrs. Spicer was unable to return to work and remained satisfied with her rehabilitation efforts. In a report dated March 25, 1993, she stated:

I feel that Judy has chronic pain syndrome secondary to soft tissue injuries and that her disability is significant and most likely permanent. I feel that it is unlikely that she will be able to return to her previous work. Any work she does in the future will need to meet the following restrictions: avoid lifting more than 10 kg. repetitively or 15 kg. at once, and completely avoid overhead lifting; avoid repetitive bending and twisting at the waist; avoid pushing and pulling activities as well as any activities with arms above the shoulder. She would also need to avoid prolonged sitting and standing for longer than 30 to 45 minutes without being able to change positions. She should avoid walking long distances. I feel that she would need to start with part-time work (under 20 hours per week). It is possible that she might be able to progress to full-time work, but this is uncertain and would depend on how she responded to a trial period.

I find that Dr. Damude was not suggesting that Mrs. Spicer return immediately to part-time work. Rather, she was looking toward the future. She and Dr. Teasell both supported Mrs. Spicer's plans to retrain as a counsellor, although Dr. Teasell did not think that she was ready to return to school full-time. Both doctors were concerned about her Tylenol #3 consumption and were working to limit her to six per day.

At about this time, State Farm arranged for a work capacity evaluation to be done by the Westminster Orthopaedic Rehabilitation Centre (W.O.R.C.). The occupational therapist, Ms. Moira Sonnenberg, reports that this assessment normally takes 12 - 15 hours. Due to Mrs. Spicer's limited endurance, however, her assessment involved eight and a half hours over three days. Ms. Sonnenberg concluded:

It is my opinion that due to the chronic nature of this client's condition her progress and functional improvement will be very gradual. As well, it is my opinion that she will continue to be restricted to sedentary part-time work indefinitely.

Based on this client's report of present health care involvement, it would appear that she has a wide range of services presently involved with her. It is my opinion that any change in her rehabilitation program is unnecessary at this time and would not facilitate a more rapid case resolution.

It appears that in the spring of 1993, the Paul Revere Insurance Company was also raising questions about the source of Mrs. Spicer's ongoing problems. In a report dated May 2, 1993, Dr. Golden clearly states her opinion that Mrs. Spicer's inability to return to work relates to the accident:

It seems absolutely clear to me that Mrs. Spicer's disability is the result of her injuries sustained in the accident, and that there is no "mental or nervous impairment" which prevents her from working. This opinion is supported by her educational and work history, the date of her ceasing work, and her determination to seek retraining so that she can return to full employment and financial independence.

Dr. Golden has continued to see Mrs. Spicer. She did not testify at the hearing, but prepared reports dated April 22, 1992, May 2, 1993, and October 2, 1994. The reports make it clear that she feels that Mrs. Spicer is well-motivated and has struggled as best she can to deal with a difficult situation.

Mrs. Spicer was finally admitted into the Masters of Education program in counselling, starting in September 1993. This is a two year program, with a normal courseload of three classes. On the advice of her doctors, Mrs. Spicer enrolled as a part-time student, taking only one class. She was able to complete this course, while continuing to meet regularly with her doctors and therapists.

In January 1994, Mrs. Spicer increased her courseload to two classes. In the fall 1994 term, she attended classes three half days per week. She expects to take one course in the winter of 1995 and one in the summer of 1995, finishing her course work.

In September 1994, Dr. Damude and Dr. Golden decided that it would be preferable to separate Mrs. Spicer's therapy so that Dr. Golden could focus on the abuse issues. Therefore, a referral was made to Dr. Michael MacDonald, a psychologist specializing in chronic pain treatment.

Mrs. Spicer had seen Dr. MacDonald once before on January 30, 1992, on referral from Dr. Schmidt, but had decided not to continue to see him at that time. Dr. MacDonald did not testify at the hearing, but his report, dated November 21, 1994, strongly supports Mrs. Spicer's claim. In his opinion, her inability to return to work relates to her motor vehicle accidents, and not to her childhood abuse. He agrees with Dr. Golden that Mrs. Spicer has a higher than usual pain threshold and capacity for pain tolerance. With respect to her prognosis, Dr. MacDonald concludes:

I am very pleased that Mrs. Spicer has been so willing to pursue retraining despite its difficulties. I believe that her chronic pain disability is permanent and the literature is quite clear on there being no cure for this problem. Ms. Spicer is taking the initiative in trying to maximize the potential recovery of the loss of her nursing career and this is a very beneficial factor in her rehabilitation.

Last year she was able to cope with two half days per week of coursework. In September, she moved up to three half days and has experienced much greater pain, fatigue, and greater difficulties coping. This pattern is a useful guide to her capacities for not only school activities but work activities as well. I suspect that in the future she will only be able to work on a very part-time basis and hopefully, if she is able to complete this program, it will allow her sufficient training and flexibility of career options to be able to do that.

State Farm arranged for Mrs. Spicer to return to see Dr. Clifford on November 9, 1994. In his report, dated November 22, 1994, he stressed that the "current medical literature strongly endorses an active program of treatment during the early stages of soft tissue injuries (as well as in the later stages of benign chronic pain perception)". He was quite critical of the treatment that Mrs. Spicer had received, stating that it was "inappropriate" and "undoubtedly serves to reinforce the ongoing expression of pain and dysfunction". He particularly questioned the lack of an active exercise program, and her continued reliance on medication, physiotherapy, and chiropractic care. On the basis of the surveillance evidence, Dr. Clifford also felt that Mrs. Spicer was showing pain magnification behaviour, although not necessarily malingering.

Dr. Clifford essentially repeated the recommendations that he had made in his first report. He also specifically disagreed with Dr. Damude and Dr. Teasell about Mrs. Spicer's ability to return to work. In his opinion, it was quite safe and appropriate for Mrs. Spicer to return to work within the "modest restrictions" set out in his first report.

In a final report, dated December 5, 1994, Dr. Clifford expressed the following opinion about Mrs. Spicer's ability to return to work:

With respect to the patient returning to work, the previously identified vocational restrictions remain appropriate - such that this patient should be seen as having a permanent partial Occupational Handicap. However within the context of these restrictions, it is safe and essential that this patient returns to full functional activities as quickly as possible. Further delays in re-establishing appropriate activity levels may only serve to reinforce ongoing dysfunction. That would clearly not be in this patient's best long term interests.

State Farm relies heavily on Dr. Clifford's opinion. In addition, it arranged for Crawford & Company Healthcare Management to review the various reports, conduct a labour market survey and report on the availability of jobs within Mrs. Spicer's limitations. The "Hypothetical Employability Assessment" concludes that jobs are available in the local area that she is qualified to perform, and that are within the physical restrictions set by her doctors.

e) Analysis and conclusions

State Farm paid Mrs. Spicer weekly income benefits on the basis that she was unable to return to the type of nursing work that she was doing at the Middlesex-London Health Unit and Comcare. The issue now is whether she is able to return to some other type of work.

According to section 12(5)(b) of the Schedule, Mrs. Spicer must establish, on a balance of probabilities, that she suffered injuries in the accident that have continuously prevented her from engaging in any occupation or employment for which she is reasonably suited by education, training or experience. State Farm is not required to pay any further weekly income benefits unless she establishes that she meets this test.

The parties provided a number of court decisions interpreting similar provisions in other legislation and insurance policies (see Appendix B). In my view, these decisions make it clear that each case depends upon its particular facts. It is possible, however, to identify a number of principles or guidelines that I believe apply to the interpretation of section 12(5)(b):

• The focus of the inquiry must be on the applicant's injuries, not the availability of jobs.

• The injuries must prevent the applicant from performing the duties of the alternative work, not simply make the job more difficult, or make the applicant somewhat less productive. However, the test is not limited to whether the applicant is physically capable of performing each component task of the job without risking further injury. The question is whether the applicant is substantially able to do the alternative job, considered as a whole, including reasonable hours and productivity.

• The range of alternative employment that may be considered depends on the applicant's background. It may include jobs that are different from the work that he or she was doing at the time of the accident, but only if they are reasonably suitable or appropriate for the applicant. If the job is substantially different in nature, status, or remuneration it may not be an appropriate alternative.

Mrs. Spicer's initial injuries were limited to soft tissue injuries to her neck and back. When her complaints of debilitating pain persisted, her doctors concluded that she had developed a chronic pain syndrome. The difficulty with this diagnosis is that there is no way to measure pain and, therefore, the doctors must rely on the person's description of his or her own symptoms. However, none of the doctors found any reason to doubt the sincerity of Mrs. Spicer's complaints; neither do I.

I found the testimony of Mrs. Spicer and her witnesses quite persuasive. There are complications in this case, but I am convinced that her life has changed dramatically as a result of real and persistent pain related to the accident. This is not a case of someone who is thriving and content to receive benefits. I was particularly impressed by descriptions of Mrs. Spicer's day to day difficulties. For example, she does much of her homework lying down with the help of a book holder built by Mr. Hann, a family friend; she has given up gardening, which she did for pleasure despite her busy pre-accident schedule; and, she has not attended any of her son's football games.

I was also impressed by the testimony of Mrs. Spicer's primary doctors - Dr. Schmidt, Dr. Damude and Dr. Teasell. They each expressed clear opinions based on a good understanding of her background and treatment history. It was suggested on behalf of State Farm that Dr. Damude, in particular, took on the role of advocate, rather than neutral medical practitioner. In my view, her testimony was quite partisan, but not inappropriately so. She believes that her patient's claim is legitimate and argued forcefully on her behalf. I found her evidence helpful.

Further, I do not find the surveillance evidence sufficiently strong to undermine Mrs. Spicer's position. The videotape shows her doing a number of things, including going to Dr. Clifford's office and to her place of worship. In addition to the fact that Mrs. Spicer was required to see Dr. Clifford, she has never claimed that she is housebound. She acknowledges that she is able to do many things, including attending school, but on a limited basis. I find nothing on the videotape to contradict her position in any substantial way.

Mr. Duffy submitted on behalf of State Farm that even if Mrs. Spicer's pain complaints are genuine, she is not prevented from returning to work. He argued that her doctors feel that she can work part-time, while Dr. Clifford believes that there is nothing to prevent her from returning to full-time employment.

I interpret the evidence of Dr. Damude and Dr. Teasell somewhat differently. In my view, they both believe that, as a practical matter, Mrs. Spicer is not able to return to work, even on a part-time basis.

They pointed to the struggle that she has had with her part-time studies as an indication that she could not cope with the more rigid demands of a job at all comparable to nursing. Dr. Damude and Dr. Teasell made it clear that they supported Mrs. Spicer's plan to retrain as a counsellor with the hope that by the time that she received her degree, she would be ready to do part-time sedentary work.

A major difficulty in chronic pain cases is that medical practitioners disagree about the assessment and treatment of long-term pain complaints. In this case, the two primary specialists, Dr. Clifford and Dr. Teasell, acknowledge that they have fundamentally different approaches. Both have impressive credentials, and explained their views clearly and forcefully.

Dr. Clifford takes a relatively narrow role in assessing patients. In his opinion, doctors have expertise in assessing physical limitations, not in evaluating limitations or employability based on subjective complaints of pain. He believes, therefore, that doctors should assess what the person is able to do safely. Based on this assessment, the person should be involved, as soon as possible, in a functional restoration program that focuses on increasing function, not reducing pain.

Dr. Teasell testified that while Dr. Clifford's approach is appealing, it does not work with all patients. In his view, pain must be managed and, therefore, the rehabilitation plan must balance the goals of increasing function and pain relief. Dr. Teasell testified that while he encourages his patients to be as active as possible, he advises them to be realistic about what they can handle. In Mrs. Spicer's case, he did not feel that she would do well in an aggressive rehabilitation program. In his opinion, she needed to learn to pace herself, including the pace of her rehabilitation.

Dr. Clifford raises important issues about the proper role of the physician in assessing disability, and argues his position persuasively. He indicated that this debate is taking place, quite properly, within the Ontario Medical Association. The current system, however, places doctors in a pivotal role. The Medical or Psychological Report form (Form 4 under the No-Fault Benefits Schedule) specifically asks doctors to answer the following question: "What, after discussion, is the estimate of when the claimant will be able to return to work or normal activities?" While not determinative, the doctor's opinion is important information, particularly if it is based on extensive knowledge of the person's situation.

In this case, I believe that the opinions of Mrs. Spicer's doctors, particularly Dr. Teasell and Dr. Damude, should be given considerable weight. They have encouraged her to remain active, and have made a concerted effort to coordinate her rehabilitation. Various therapies have been tried, including fairly aggressive exercise programs at the Canadian Back Institute and Westminster Orthopaedic Rehabilitation Centre, with limited success.

Whether or not it was "necessary" for Mrs. Spicer to pursue a Master's in education in counselling, in my view, it was a reasonable decision. She had to consider alternative work that was less physically demanding than the type of nursing that she had been doing. She was interested in counselling and felt that opening a private counselling practice was a viable option. Her doctors supported this plan and she pursued it.

I find that despite the flexibility available to a student, Mrs. Spicer had to work at the limits of her capacity in order to keep up with her part-time studies. In my opinion, this does not indicate an ability to work in a position remotely equivalent to what she was doing at the time of the accident. I conclude, therefore, that her accident-related injuries have continuously prevented her from engaging in any occupation or employment for which she is reasonably suited by education, training or experience.

State Farm submitted, in the alternative, that Mrs. Spicer's weekly income benefits should be reduced by income available through part-time work, according to section 15 of the Schedule, which states:

15.- The insurer may deduct from any benefit payable under this Part 80 per cent of any income received or available from any occupation or employment subsequent to the accident.

There is no evidence that a part-time job was definitely available to Mrs. Spicer. Therefore, State Farm is asking me to deem that income was available to her based on her failure to seek part-time employment. It is possible to debate whether all of the right decisions were made along the way but, in my view, Mrs. Spicer and her doctors have a reasonable plan in place to get her back into the workforce in appropriate alternative work in the foreseeable future. Therefore, I do not find that Mrs. Spicer failed to seek employment, and conclude that there should be no deduction for post-accident income.

2. Quantum

State Farm questioned the proper amount of Mrs. Spicer's weekly income benefits, claiming that she has been overpaid. At the commencement of the arbitration hearing, I decided that the issues of quantum and repayment could not be included in the hearing unless Mrs. Spicer consented. She consented on the understanding that these issues would be adjourned pending my decision on her further entitlement to weekly income benefits.

3. Expenses

An award for expenses may be made under section 282(11) of the Insurance Act, which provides as follows:

282 (11) 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.

Arbitrators have consistently granted expenses unless the claim was fraudulent, manifestly frivolous or vexatious, or the applicant's conduct unduly prolonged the proceedings. None of those concerns exist in this case. The issues were fully and fairly presented. Therefore, I conclude that I should exercise my discretion to award Mrs. Spicer her expenses related to the arbitration, calculated according to Schedule 1 of the Dispute Resolution Practice Code and in Ontario Regulation 664, R.R.O. 1990.

The parties are encouraged to reach an agreement as to the amount of the expenses. However, if an agreement cannot be reached, I remain seized of this matter and either party may apply for an assessment of the expenses.

Order:

1. Mrs. Spicer is entitled to ongoing weekly income benefits under section 12(5)(b) of the Schedule from April 14, 1994.

2. The quantum and overpayment issues were adjourned, pending this decision. If necessary, either party may ask that the hearing be resumed to deal with these issues.

3. Mrs. Spicer is entitled to her expenses related to the arbitration.

May 24, 1995

David R. Draper Arbitrator

Date

APPENDIX A

Exhibit 1

Medical Brief containing reports from the following:

Tab 1 Victoria Hospital

Tab 2 St. Joseph's Health Centre

Tab 3 Canadian Back Institute

Tab 4 Dr. A. Bhardwaj

Tab 5 Dr. Larry Schmidt

Tab 6 Dr. Stewart I. Bailey

Tab 7 Dr. Gail A. Golden

Tab 8 Dr. Leslie R. Damude

Tab 9 Dr. John C. Clifford

Tab 10 Dr. Robert Teasell

Tab 11 Len Cunning, B.Sc., P.T.

Tab 12 Diagnostic Imaging Associates

Tab 13 London Regional Evaluation Centre

Tab 14 Dr. Michael R. MacDonald

Exhibit 2

Medical Productions Brief containing records of the following:

Tab 1 Dr. L. Schmidt

Tab 2 Dr. Leslie R. Damude

Tab 3 Dr. Robert J. Mathies

Tab 4 Dr. Robert Teasell

Tab 5 Dr. Peter J. Fowler

Tab 6 Dr. Brian Taylor

Tab 7 University Hospital (Emergency)

Tab 8 University Hospital (Physiotherapy)

Tab 9 Victoria Hospital

Tab 10 The Paul Revere Life Insurance Company

Exhibit 3

Rehabilitation Brief containing reports from the following:

Tab 1 Westminster Rehabilitation Management

Tab 2 Westminster Orthopaedic Rehabilitation Centre

Tab 3 Crawford & Company Healthcare Management

Exhibit 4

The file of University Hospital.

Exhibit 5

Employment Productions Brief containing the records of:

Tab 1 Middlesex-London Health Unit

Tab 2 Comcare

Tab 3 Workers' Compensation Board

Tab 4 University of Western Ontario

Tab 5 Income Tax returns (1989 - 1993)

Exhibit 6

Handwritten calculations with respect to Mrs. Spicer's use of Tylenol.

Exhibit 7

The curriculum vitae of Dr. Robert Teasell.

Exhibit 8

Surveillance videotape

Exhibit 9

Medical Report for Health and Welfare Canada (Canada Pension Plan), completed by Dr. Schmidt on January 20, 1992.

Exhibit 10

EMG report of Victoria Hospital, dated December 27, 1990.

Exhibit 11

The curriculum vitae of Dr. John C. Clifford.

Exhibit 12

The curriculum vitae of Jacqueline Kobayashi.

In addition to the exhibits, the following documents were before the arbitrator from the Ontario Insurance Commission file:

• Report of Mediator, dated June 16, 1994.
• Application for Appointment of an Arbitrator, dated June 17, 1994.
• Response by Insurer, dated July 11, 1994.
• Letters from the pre-hearing arbitrator confirming pre-hearing discussions.
• Applicant's Book of Authorities.
• Insurer's Submissions of Law and Book of Authorities.

APPENDIX B

The Applicant's book of authorities contains copies of the following:

Workers' Compensation Operational Policy, Re-Employment

Coombe v. Constitution Insurance Co. (1980), 1980 CanLII 1715 (ON CA), 29 O.R. (2d) 729 (C.A.)

Dale v. Commercial Union Assurance Company of Canada, [1980] I.L.R. 1-1271 (Co. Ct.)

DePape v. The Manitoba Public Insurance Corporation, [1980] I.L.R. 1-1351 (Man. Q.B.)

Glassman v. The Constellation Assurance Company, 1983 CanLII 5496 (ON HCJ), [1983] I.L.R. 1-1668 (S.C.)

Lefebvre v. C.N.A. Assurance Co. (1978), 1978 CanLII 1353 (ON HCJ), 20 O.R. (2d) 37 (H.C.J.)

Morgan v. Dominion Insurance Corp. (1980), 1980 CanLII 1632 (ON HCJ), 31 O.R. (2d) 285 (H.C.J.)

Taaffe v. Sun Life Assurance Company, [1979] I.L.R. 1-1194 (H.C.J.)

The Insurer's book of authorities contains copies of the following:

Vincenza Di Censo and Wellington Insurance Company, August 31, 1994, OIC File No. A-004198

Brooks v. London Life, 1979 ALTASCAD 155, [1979] I.L.R. 1-1115 (Alta. S.C. A.D.)

Canadian Indemnity Co. v. Blanchard (1989), 47 C.C.L.I. 274 (P.E.I. S.C. [Appeal Division])

Constitution Insurance Co. of Canada v. Coombe, 1993 CanLII 5461 (ON CTGD), [1993] I.L.R. 1-2983 (Ont. Ct. Gen. Div.)

Doyle v. Toronto Dominion Bank (1992), 1992 CanLII 1257 (BC SC), 17 C.C.L.I. (2d) 305 (B.C.S.C.)

Kenni v. Insurance Corp. of British Columbia (1993), 1993 CanLII 1877 (BC SC), 14 C.C.L.I. (2d) 62 (B.C.S.C.)

Millward v. Maritime Life Assurance Co. (1989), 1989 ABCA 156, 38 C.C.L.I. 184 (Alta. C.A.)

Mutual of Omaha Insurance Co. v. MacDonald (1986), 1987 CanLII 5422 (NS CA), 25 C.C.L.I. 91 (N.S.S.C. [Appeal Div.])

Newton v. General Accident Assurance Co. (1988), 1988 CanLII 10341 (ON HCJ), 31 C.C.L.I. 87 (Ont. S.C.)

Paul Revere Life Insurance Co. v. Sucharov (1983), 1983 CanLII 168 (SCC), 5 D.L.R. (4th) 199 (S.C.C.)

Stronge v. London Life Insurance Co., [1993] I.L.R. 1-2931 (Ont.Ct. Gen.Div.)

Footnotes

1. 1Prior 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.