Neutral Citation: 1995 ONICDRG 67
File No. A-007593
ONTARIO INSURANCE COMMISSION
BETWEEN:
ELEANOR B. RODWAY
Applicant
and
ROYAL INSURANCE COMPANY OF CANADA
Insurer
DECISION
Issues:
The Applicant, Eleanor B. Rodway, was injured in a motor vehicle accident on January 1, 1991. She received statutory accident benefits from Royal Insurance Company of Canada (Royal), payable under Ontario Regulation 6721. Weekly income benefits were terminated after 156 weeks.
The issues in this hearing are:
Is Ms. Rodway entitled to weekly income benefits from the date benefits were terminated, under section 12(5)(b) of the Schedule?
Should the amount of Ms. Rodway's weekly income benefits be reduced under section 12 (4)(b)(i) of the Schedule, on the basis that payments for loss of income were available to her through a benefit plan at her employment?
Result:
Ms. Rodway is entitled to weekly income benefits from the date benefits were terminated, under section 12(5)(b) of the Schedule, in accordance with this decision. She is also entitled to interest on outstanding amounts under section 24 of the Schedule.
The issue of the deductibility of benefits under an employment benefit plan with SunLife Assurance Company of Canada has been deferred, pending resolution of a court action brought by the Applicant.
Ms. Rodway is entitled to her expenses incurred in respect to the arbitration.
Hearing:
The hearing was held in North York, Ontario, on November 21, November 24, December 12, 1994 and January 13 and 16, 1995, before me, Susan Naylor, arbitrator.
Present at the Hearing:
Applicant:
Eleanor B. Rodway
Applicant's
Neil Evan Sacks
Representative:
Barrister and Solicitor
Insurer's
William S. Zener
Representative:
Barrister and Solicitor
Witnesses:
The Applicant, Ms. Rodway
Lawson Husbands
Dr. James Roth
Eleanor Jackson
Joseph Monaghan
Exhibits:
23 exhibits were filed. They are listed in Appendix A.
Evidence and Findings:
1. Entitlement to weekly income benefits
Ms. Rodway experienced problems writing with her right (dominant) hand, following her car accident on January 1, 1991. She has been diagnosed as having "focal dystonia", also known as writer's cramp. She has no control over a pen and has not been able to write by hand since then. Ms. Rodway also suffers from headaches, chronic pain in her neck, shoulder and right arm, blurred vision and from tingling in certain fingers of her hand.
Before the accident, Ms. Rodway worked for Revenue Canada as an auditor. She never returned to work afterwards, and, in fact resigned from her former position, for reasons unrelated to the accident, some six months later. Royal ultimately paid Ms. Rodway benefits for three years, under section 12(1) of the Schedule, 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 if the insured person meets the qualifications set out in subsection (2) or (3).
After 156 weeks, the test for income loss benefits becomes stricter. Section 12(5)(b) of the Schedule says:
(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.
Royal disputes Ms. Rodway's entitlement to income benefits after 156 weeks on two principal grounds:
Firstly, it contends that Ms. Rodway's main problem, the focal dystonia, was probably not caused by the accident, but, if anything, emerged spontaneously.
Secondly, Royal contends that the focal dystonia and Ms. Rodway's shoulder and neck pain and other complaints do not prevent her from doing suitable work, and it questions her motivation.
I shall address these issues in order. However, to deal with these questions, it is necessary to have an understanding of Ms. Rodway's employment and personal situation in the period before the accident.
Background
In 1990, Ms. Rodway was 45 years old. She came to Canada from Guyana with her husband about 20 years ago, but they subsequently divorced. They have two children; in 1990, their son was 21 years old and living on his own, their daughter was 15 years old and living with Ms. Rodway.
Save for very brief interludes, Ms. Rodway has been employed all her working life; largely in the field of administration, bookkeeping and auditing. After coming to Canada, she worked for a life insurance company, which sponsored her through university. She ultimately received a B.A. in sociology. In 1980, Ms. Rodway started working for Revenue Canada, where she was employed in various capacities until the accident. Ms. Rodway started work at Revenue Canada as a clerk, responding to queries from the public by telephone, writing or over the counter. Later, she was promoted to a supervisory position. In 1987, she became a Canada pension/unemployment insurance rulings officer. Her job involved deciding whether individuals were pensionable and insurable, based on common law master-servant tests.
After a year in this job, Ms. Rodway was sent to work in the field as an auditor. Her job was to check on whether businesses were making the appropriate source deductions. She visited companies, initially making random visits and later by appointment. In the months immediately before the accident, she specialised in real estate company audits.
Ms. Rodway's employment involved extensive handwriting. She wrote up reports and letters by hand, and had them typed up by someone else. Dictaphones were not used in the office and office staff in Ms. Rodway's position did not have access to a computer for inputting data or word processing. Ms. Rodway had no background in computers.
Ms. Rodway had not settled on living in Canada. She came because of her husband's career and when her marriage broke up, she started thinking about returning to Guyana or to Barbados, where most of her family still lived. In her words, she "had no back-up system here". She visited her family in Barbados regularly.
Ms. Rodway had applied without success for work in taxation in the West Indies. She had also been trying to let her home in Canada for some time, with a view to moving. Her thinking on the subject of moving crystallised at around the time of the accident.
In the months before the accident, Ms. Rodway was under considerable personal stress. For some time, she had been experiencing a tempestuous relationship with her daughter, who was engaging in the kind of rebellious behaviour with which many parents of adolescent children are familiar. Ms. Rodway's daughter had gone to school in Barbados for a period of time, but returned to live with her mother in 1989. Both found the adjustment difficult. Ms. Rodway suffered from migraines and irritable bowel syndrome, which were exacerbated by stressful situations. On at least one occasion, after a fight with her daughter, in mid-August 1990, Ms. Rodway's symptoms necessitated a trip to the emergency unit at the local hospital. In the fall of 1990, the daughter moved out of her mother's home to live with her father.
In early December 1990, Ms. Rodway suffered a personal tragedy when her niece was accidentally killed in Barbados. She and her daughter flew back for the funeral. Ms. Rodway's great aunt, who was a mother figure to her, tried to persuade Ms. Rodway to move back to Barbados, while she, the great aunt, was still alive. This weighed heavily on Ms. Rodway's mind.
Economic events also influenced Ms. Rodway's thinking. Under the terms of her pension plan at work, she was able to cash out her contributions in July 1991, when she reached age 45 with ten years of service, if she left government service at that time. After that date, her benefits would be locked in. Ms. Rodway intended to use the money to start a new life.
When Ms. Rodway returned to Canada on New Year's Eve at midnight, she returned to a depressing and empty house. The phone had been disconnected, because of a mix up about payment. The culmination of these events crystallised Ms. Rodway's intention to move to Barbados or Guyana; only the matter of the exact timing of the move remained uncertain. She decided to begin packing up her house, and setting the moving process in motion. She had finished most of the packing by 5:00 a.m. the next morning, New Year's Day.
Causation
The accident happened that same day in the late afternoon. Ms. Rodway testified that she drove across town to visit a relative, in connection with her disconnected phone. Her car was rear-ended by another vehicle.
Ms. Rodway testified that, at first, she did not realise that her car had been hit; she knew something was wrong but thought the car had burst a tire. She testified that she had a headache after the collision. A friend drove her to the hospital, but Ms. Rodway left before seeing anyone, because the ward was so busy.
Ms. Rodway immediately noticed a problem using her right hand. She had difficulty writing the police report and remembers having to use her left hand to steady her writing hand, but she attributed the problem to a combination of nerves and the cold, and discounted it.
The next day, Ms. Rodway went to see her family doctor, Dr. Tam, complaining about a headache, neck pain, and bruising on her left leg. Dr. Tam diagnosed a whiplash injury, and prescribed a muscle relaxant and analgesics. He promptly referred Ms. Rodway to physiotherapy at Milton District Hospital.
When she first saw Dr. Tam, Ms. Rodway still did not appreciate anything was wrong with her right hand, but she noticed a problem writing within a day or two afterwards. She told her employer that she was unable to return to work, because of the accident.
At her initial assessment at the Department of Rehabilitative Services at Milton District Hospital on January 7, 1991, the physiotherapist recorded symptoms affecting both of Ms. Rodway's hands - she had tingling in digits 4 and 5 of her right hand and pain in digits 3 and 4 of the left hand. The Milton records document complaints of pain, weakness and "jumping" in her right arm and tingling in her fingers in subsequent attendances that month.
When she next saw her family doctor, on January 14, 1991, she also told him about her problem with writing.
These early records do not indicate any history of trauma to Ms. Rodway's hand or arm or to her head, in the accident. It was six months later when Dr. Harvey, one of the specialists she saw, recorded being told by Ms. Rodway that she may have banged her hand against the dashboard. In between, she saw a number of health practitioners, none of whom recorded this history.
In Ms. Rodway's examination-in chief and her cross-examination at the hearing, Ms. Rodway did not testify as to any such incident. However, on re-examination, she recalled that she hit her right elbow on the seat, and stretched her right thumb back at the point of impact.
I think that Ms. Rodway honestly believed that she had hurt her right arm in the car accident as she described, perhaps in an effort to understand the basis of her continuing symptoms. However, in the circumstances, it is difficult to believe that Ms. Rodway would not have told her doctors about it, if she was aware of it at the time. I think that Ms. Rodway's testimony in this regard is somewhat speculative, and I cannot place much reliance on it. I do not rule out, however, the possibility that Ms. Rodway suffered some form of injury affecting her hand in the accident, although the precise nature and mechanism of the injury is unknown.
The first recorded diagnosis of focal dystonia of the right hand was made on January 28, 1991 by Dr. Thomas Staunton, a consultant neurologist at Milton District Hospital. He reported (Exhibit 9):
I cannot say that this condition is directly the result of her accident, but this is certainly possible.
Since then, Ms. Rodway has been seen by numerous specialists, many of whom are acknowledged experts in the area of dystonia. The experts all agree with Dr. Staunton's diagnosis.
At the hearing, Dr. Roth testified as to current medical thinking about the condition of focal dystonia. He provided several informative articles on the subject, in particular, a 1993 review article entitled "Writer's cramp - A focal dystonia: Etiology, diagnosis and treatment", by Robert C. Rhoad and Dr. Peter Stern, published in the Journal of Hand Surgery.
Dr. Roth is an orthopaedic surgeon, with a specialty in hand and micro surgery. He is founder and director of the hand and upper limb centre at St. Joseph's Health Centre in London, and eminently qualified to provide expert opinion on the subject area.
According to the evidence before me, writer's cramp is a not uncommon but little-understood condition. It is a motor abnormality, represented by sustained involuntary muscle contractions. When writing, the agonist and antagonist muscles of the hand and forearm contract, rather than contracting alternatively, as usual. This involuntary contraction of all the muscles at the same time prevents the person from being able to write.
The range of activities affected by the condition varies. In cases classified as simple writer's cramp, people have difficulty writing but other manual motor activities are not affected. In other cases, difficulty in writing is accompanied by difficulties with other tasks of daily living. Ms. Rodway's difficulties were largely confined to writing, although some other activities - her ability to play the piano and grasp things like a pair of scissors, were also somewhat affected.
Dr. Roth testified that little is known about the etiology of writer's cramp. It was originally thought to be psychiatric in origin, but the prevailing medical view is that it is a physical disorder, probably related to the basal ganglia area of the brain. According to the literature, there is some suggestion that it may be an inherited condition. The review article filed indicates that, in some cases, writer's cramp has been reported following local trauma, but that this is not common. It states, at page 542:
Some authors have also reported a relationship in certain cases between local trauma and writer's cramp, Marsden and Sheehy noted that this occurrence tends to be relatively rare, as most patients with writer's cramp are unable to identify any injury and characterize the onset of their symptoms as insidious.
A study cited in the article suggested a prevalence rate for focal dystonia of 69 per million in the general population, although this was felt to be an underestimation.
Dr. Roth testified that because the etiology of writer's cramp was not understood, it was difficult to explain the possible mechanism of injury in an accident. He postulated that, if the etiology were organic and related to the brain, focal dystonia could be caused by a head injury. However, he declined to express an opinion on whether this type of harm could result from a whiplash injury, as falling outside his area of specialty.
Dr. Roth reported that in most of the cases he dealt with - two to five cases a year - the writer's cramp materialised without any specific enticing problem. He had never had a case in which the problem followed shortly after an accident. His experience is consistent with the vast majority of cases reported in the literature, which are without a known cause. Dr. Roth testified that it was difficult to understand how an injury to a limb would result in the condition.
This uncertain assessment was shared by Dr. A.E. Lang, an acknowledged expert in the field of focal dystonia. Dr. Lang is a staff consultant in the neurology division at the Toronto Hospital. He is the Director of the Movements Disorder Centre there and also Associate Professor in the Department of Medicine at the University of Toronto.
Dr. Lang, with his colleague, Dr. Feifel, saw Ms. Rodway on June 25, 1991. He reported of the focal dystonia that:
Its sudden appearance following the motor vehicle accident is hard to explain.
Dr. Lang's consultation report, marked Exhibit 8, Tab 1, was filed at the hearing. Neither party had indicated at the pre-hearing or when the hearing began that they intended to call Dr. Lang to expand on his report in person. However, mid-way through the hearing in early January 1995, Royal's counsel sought a two month adjournment of the hearing in order that Dr. Lang might attend to testify on the issue of causation. Ms. Rodway's counsel objected to the adjournment.
I expect that it would have been helpful to have the opinion of Dr. Lang directly on point. However, arbitration is a time-limited process, in which it is necessary to weigh the benefits of obtaining more complete evidence against the need to have adjudication conducted efficiently and speedily.
In the circumstances, I was not prepared to delay the proceedings further, in order to wait for Dr. Lang's testimony. I declined to adjourn the hearing, on the basis that both parties had had ample opportunity, prior to the commencement of the hearing, to arrange for Dr. Lang to testify. I declined to enforce a summons requiring Dr. Lang's attendance, on the same basis. Therefore, Dr. Lang's evidence as to causality is limited to the above sentence.
Ms. Rodway also saw Dr. Harvey on several occasions. Dr. Harvey is a specialist in physical medicine and rehabilitation, and Associate Professor of Medicine at McMaster University. In his report of his first examination of Ms. Rodway, Dr. Harvey stated:
In summary then, I think this woman has a writer's cramp or focal dystonia, which can be related to physical trauma, peripheral nerve entrapment, or sometimes psychological trauma. Often, the etiology is uncertain... [report, dated July 15, 1991, Exhibit 8, Tab 5]
Dr. Harvey conducted an EMG and nerve conduction studies to determine whether Ms. Rodway's focal dystonia was related to a nerve entrapment. The initial tests in mid-1991 showed mild abnormalities in the distribution of Ms. Rodway's right ulnar nerve. Dr. Harvey concluded that these findings were very mild, but
... could certainly be consistent with a traction injury to the lower roots in a whiplash injury.
He sent Ms. Rodway to a hand therapy program, and also referred her to Dr. J.E. Paulseth for an opinion on her medical management. Dr. Paulseth is a neurosurgeon and currently Clinical Assistant Professor of Neurology at McMaster University.
Dr. Paulseth agreed with Dr. Harvey. He concluded:
From the timing of the onset of her problems, it would certainly appear that this dystonia is post-traumatic. It is possible that the mild ulnar radicular lesion played a role in this. However, I do not believe that the neuropathy or radiculopathy is the major problem nor that surgery at either site would help here. [Report, November 13, 1991, marked Exhibit 8, Tab 7]
There was some improvement when the next set of tests was done in 1992.
Dr. Harvey had expected to see Ms. Rodway's focal dystonia improve with neurological gains, but this did not happen. Dr. Harvey then had an MRI scan of the cervical spine done to see if anything was causing pressure proximally. The MRI revealed a bulging disc at C5-6, that was causing mild compression of the cervical cord, with small herniations at C4-5 and 6-7 and degenerative changes. Dr. Harvey ruled out a relationship between the disc bulging and Ms. Rodway's focal dystonia or the tingling in her fingers. He sent Ms. Rodway to see Dr. Schnittker, a neurosurgeon, to determine if the bulging disc was a significant factor in Ms. Rodway's neck and arm pain, and whether surgery was an option.
In his report of May 16, 1994, Dr. Schnittker concluded that the cervical findings were not likely contributing to Ms. Rodway's neck and shoulder pain, which, in his opinion, were soft tissue injuries. He agreed with Dr. Harvey that the bulging disc was not contributing to Ms. Rodway's focal dystonia.
Dr. Roth reviewed all the test results and findings when he examined Ms. Rodway in late fall 1994. He agreed with the diagnosis of focal dystonia.
He thought that Ms. Rodway might have had some form of internal derangement of the right wrist, such as an injury to the meniscus or tendon, and had noted some findings that might suggest this when he examined Ms. Rodway: in particular, tenderness on the side of the wrist and base of the thumb. However, he did not feel that the history of Ms. Rodway's complaints in the period immediately after the accident were consistent with this diagnosis. He also was unable to find evidence of damage to the ulnar nerve or a mild traction injury to the cervical roots.
The medical evidence is uncertain as to the relationship between Ms. Rodway's focal dystonia and the accident. Little is known about the condition or its etiology. There are reports in the literature that focal dystonia has followed trauma, but this is rare and is outside the clinical experience of Dr. Roth. For the most part, the condition emerges spontaneously, without a known precipitating cause. Correspondingly, the mechanisms of injury in the case of trauma-linked dystonia are unknown.
It might be related to a head injury; the doctors are much less confident that it is related to peripheral trauma.
None of the experts, in Ms. Rodway's case, are able to identify, with any certainty, whether the accident caused Ms. Rodway's dystonia or to identify the mechanism of injury.
Counsel for Royal referred me to Rothwell v. Raes (1988), 1988 CanLII 4636 (ON HCJ), 66 O.R. (2d) 449 (Ont. H.C.J.); (1990), 1990 CanLII 6610 (ON CA), 2 O.R. (3d) 332 (C.A). This concerned a tort claim against the manufacturers of a whooping cough vaccine, brought on behalf of an infant who was diagnosed as suffering from a severe permanent brain injury shortly after receiving the vaccine. At issue was the causal connection between the condition and the vaccine. Mr. Justice Osler indicated that the onus on the plaintiff could be met by the "slimmest balance of probability" but not simply by demonstrating a possibility of a relationship. His reasoning was upheld on appeal.
In this case, the weight of the medical evidence before me suggests a relationship between the dystonia and the car accident, although the precise nature of the relationship is unclear. Dr. Staunton could not say for certain that the accident directly caused Ms. Rodway's condition, but felt that this was "certainly possible". Dr. Harvey stated that the etiology of the condition was often unknown but that it could be accident-related. He thought that his early neurological findings were consistent with a whiplash injury, but was puzzled when the dystonia did not get better with improved test results. Dr. Roth pointed to reports in the literature of a relationship between local trauma and writer's cramp. Dr. Paulseth expressed the relationship in the strongest terms: "it would certainly appear that this dystonia is post-traumatic".
In formulating his opinion, Dr. Paulseth, in particular, relied on the timing between the accident and the emergence of the condition. In this case, there is a very strong temporal connection between the accident and the onset of symptoms.
Before the accident, Ms. Rodway was fully functioning. She had worked all her life, despite personal difficulties and some health problems. She was engaged in work that required extensive handwriting, and had never had a problem in this area before.
Ms. Rodway immediately experienced problems with writing after the accident, although, in the heat of the moment, she did not attribute significance to them. However, within days, her physiotherapist had identified a problem with her right hand.
No expert evidence on the issue of causation was introduced on behalf of Royal. I did not have any expert evidence that rejected the probability of a connection between the accident and the emergence of Ms. Rodway's focal dystonia.
I am not required to determine causation on the basis of scientific or medical certainty. An applicant need only establish a probable connection - proof on the balance of probabilities. An adjudicator, in making that connection, is entitled to rely on common sense (Farrell v. Snell (1990), 1990 CanLII 70 (SCC), 72 D.L.R. (4th) 289 (S.C.C.)).
Based on the weight of the evidence before me, I am not prepared to conclude that the timing between the accident and the onset of symptoms was simply a matter of coincidence. I find that Ms. Rodway has established the necessary causal connection. On the facts of this case and in the context of the overall medical evidence before me, it is reasonable to draw an inference of causation - that Ms. Rodway's accident, more likely than not, caused her focal dystonia.
Counsel for Royal speculated that the personal stress that Ms. Rodway was under at the time of the accident may have some bearing on the emergence of her condition. Dr. Harvey, in his report, suggested that the condition could result from psychological trauma. There is nothing to suggest, however, that the car accident did not contribute materially to Ms. Rodway's psychological stress. Either way, she has established a sufficient link between the accident and her focal dystonia.
Disability
Ms. Rodway's principal limitation is that she is unable to write. She is unable to grip a pen or control its use, effectively preventing her from writing. The difference between her handwriting before and after the accident is graphically represented in the samples of handwriting that Ms. Rodway provided at the hearing.
As Dr. Roth explained: focal dystonia can be quite task-specific. Ms. Rodway is an accomplished pianist and has been able to continue with her piano-playing, although she does not enjoy it as much, as she has less control of her hand and diminished hand-span. She also complains of clumsiness and other limitations in the use of her hand, but, for the most part, she can do what she did before, except for writing.
Ms. Rodway also complains about headaches, neck, shoulder and right arm pain, blurred vision, and numbness and tingling in her little and ring finger.
For the first while, her neck and shoulder pain seemed less important than her writing disability, and indeed, from all the reports, seemed to be improving. However, more recently, these other complaints have assumed greater significance, as Ms. Rodway's disability drags on. In 1994, Dr. Harvey referred her to the chronic pain program at Chedoke-McMaster Hospitals, to provide her with coping strategies to deal with her ongoing pain. She was attending the program during the time of this hearing.
Continuing family problems likely have contributed to Ms. Rodway's headaches and irritable bowel syndrome, and to her post-accident depression. Although these stresses have added to her problems, and the contribution of cervical degenerative disc disease is uncertain, there is little doubt, based on the medical evidence, that her soft tissue symptoms relate to the automobile accident. However, these personal stresses have complicated Ms. Rodway's rehabilitation.
Despite her problems, for the most part, with some limitations, Ms. Rodway has managed to live a relatively normal life, outside of work.
Ms. Rodway resigned from Revenue Canada, as she had planned to do, in mid-July 1991. Her resignation does not have a material bearing on this case. The evidence does not indicate that Ms. Rodway intended to retire permanently from the workforce at this time or to change her chosen field of work. Evidence provided by Mr. Monaghan, the adjuster at Wejco Adjusters who was retained by Royal to handle her file, showed that her work at Revenue Canada could not be accommodated to enable her to return to it, in any event.
Ms. Rodway visited the West Indies on a number of occasions in 1991 and 1992. After she was able to rent her house in Ontario in late 1992, she set up house in Guyana where she lived until November 1993. She explored several leads for jobs in the West Indies in the area of taxation, without success, although her efforts can be described as tentative. Ms. Rodway made herself available for necessary medical treatment and rehabilitation, as required, but it is fair to say that her absence may have resulted in some miscommunication between herself, her counsel and Royal, over retraining.
In late 1993, Ms. Rodway returned to Ontario, to see her doctors and explore re-training opportunities. She testified that her plans to move permanently to Barbados or Guyana are now uncertain, because of her medical condition.
The medical evidence indicates that Ms. Rodway's focal dystonia is permanent and is unlikely to change in the near future. Her options are limited: there are no realistic surgical or medical alternatives. Essentially, Ms. Rodway must adapt to her limitations. Ms. Rodway was advised of this early on, but understandably had difficulty accepting this prognosis until she had exhausted all medical and surgical avenues.
I heard a great deal of evidence about the Blackburn writing device. In July 1991, Ms. Rodway was examined by Dr. Lang at the Toronto Hospital. Dr. Lang is an expert in focal dystonia and, in particular, in the use of the Blackburn writing device to ameliorate the effects of the condition. An article entitled "Usefulness of a writing device in writer's cramp", co-authored by Dr. Lang in the publication, Neurology, was marked Exhibit 13.
Dr. Lang got Ms. Rodway to use the device in the course of his examination, and noted it helped her writing:
There was a dramatic improvement both in her ability to write and her speed
He gave Ms. Rodway a prescription for the device, but she did not fill it.
Ms. Rodway testified that she did not buy the device because it hurt her shoulder when she duplicated its movements at home. She explained that she was still hopeful that a cure for the problem could be found.
It has been suggested that Ms. Rodway did not reasonably avail herself of the benefit of assistive devices, which could have helped with her writing.
According to the evidence before me, the Blackburn writing device has a tripod design. Two legs rest on ball bearings, a pen or pencil is inserted in a holder making a third leg. The person moves the pen across paper by rolling the tripod on the ball bearings, using their shoulder and forearm muscles rather than their hand and fingers.
Dr. Roth was asked to comment on the device. He said that if a person had an arm or shoulder problem, manoeuvring the device could be painful. However, he conceded that the movements required were within Ms. Rodway's pain-free range of motion, when he examined her. The article provided reported that, in a trial, use of the writing device resulted in an improvement in the majority of patients, but in practical terms only 30 per cent obtained useful benefit.
Based on the evidence before me, I am not prepared to second-guess Ms. Rodway's reluctance to use the device, especially at such an early stage of her condition. I accept her evidence that the motion bothered her shoulder. It is not clear to me that, in Ms. Rodway's case, the device would have a significant impact in terms of assisting her in employment requiring extensive writing.
The weight of the evidence indicates that Ms. Rodway is unable to return to any job that requires significant handwriting. However, there is an issue as to what extent the effect of her pain complex further limits the range of jobs open to her.
Dr. Travis, a psychologist, conducted a vocational assessment of Ms. Rodway in April 1992. His recommendations focused on retraining Ms. Rodway in computers, so that she could return to a job in the area in which she had previously worked, without the need for writing.
Ms. Rodway was enthusiastic about computer training. She explored the possibility of taking a course in the West Indies, and of having a computer purchased for her as part of her rehabilitation. In part, due to what seems to have been some miscommunication between Ms. Rodway, her lawyer and Royal, nothing came of these inquiries.
Dr. Harvey concluded that Ms. Rodway could return to gainful employment, but required retraining in the use of a computer. He recommended a functional abilities evaluation to identify the areas of retraining that were most likely to be successful.
Dr. Harvey cautioned that Ms. Rodway's positioning at the computer could be a problem because of her neck pain, and suggested to Eleanor Jackson, Ms. Rodway's vocational rehabilitation counsellor, that she should check on the ergonomic set-up of Ms. Rodway's work station.
Ms. Jackson started working with Ms. Rodway when Ms. Rodway returned to Canada. She has a great deal of experience in assisting people with disabilities to return to work. Ms. Jackson focused on computer training for Ms. Rodway, because in her view, it offered the most flexibility. She arranged for Ms. Rodway to attend a typing course at the Academy of Learning in Kitchener, and suggested that Royal purchase a home computer for Ms. Rodway to practise on.
It was arranged that Ms. Rodway would do two courses, a one-handed typing course and an introduction to personal computers; if she completed these successfully, she would go on to do two accounting programs. The first two courses seemed to go well. According to Ms. Jackson, the person running the program was very pleased with Ms. Rodway's progress but had some concerns about the next two courses, because of the amount of concentration they required. He noticed that Ms. Rodway seemed to be in pain some days, and sometimes left the class early. He wondered whether Ms. Rodway's medication interfered with her concentration, and asked if it could be changed or reduced. Dr. Harvey adjusted Ms. Rodway's medication to address the problem.
Ms. Rodway did not start the next set of accounting courses. This was in part because she was unsettled about her medical condition, and was awaiting admission to the pain clinic, and, in part, due to a change in her living arrangements that took her away from the area. She started the in-patient pain clinic program at Chedoke-McMaster Hospitals at the end of 1994. A report from Dr. Eldon Tunks, a psychiatrist and program director of the pain program at Chedoke Rehabilitation Centre, dated December 14, 1994, is marked Exhibit 11. Dr. Tunks found that Ms. Rodway was "distinctly demoralised" when she had entered the program but that her morale and insight had improved at the end of it. Her hand and pain problems had not resolved.
Based on comparisons with similar patients, Dr. Tunks gave Ms. Rodway a 70 per cent chance of not being able to return to employment or self-employment, especially because of her right hand problem, which he felt would be an obstacle in training as well as performance. He concluded:
I believe that because of the right hand impairment and other associated pain and morale problems, these combined features would more likely than not make her not competitive in retraining or in alternative work or self employment.
Dr. Tunks' view was more guarded than that of Dr. Harvey or Dr. Roth, who felt that Ms. Rodway was capable of gainful employment if she was given appropriate training. In making their recommendations, both doctors took into account Ms. Rodway's overall condition. In his evidence, Dr. Roth commented on Ms. Rodway's ability to return to work from both the perspective of her focal dystonia and the pain in her right limb and neck:
I do feel that Mrs. Rodway has a permanent partial disability with respect to her right upper limb and will not be able to return to jobs and activities requiring repetitive or heavy lifting, gripping or pinching with her right hand, use of her right hand outstretched in front of her or above the shoulder level. She will be unable to return to writing.
I have considered the evidence, and had the opportunity of listening to and observing Ms. Rodway, who is obviously bright, articulate and organised. I share the opinions of Dr. Roth and Dr. Harvey that Ms. Rodway is able to engage in retraining and to return to gainful employment, provided that her writing disability is accommodated, the physical limitations set out in Dr. Roth's report are addressed and the ergonomic set-up of Ms. Rodway's work station is considered. I am not persuaded that Ms. Rodway's complaints of pain in her neck and shoulder and other problems restrict her employment to any greater extent.
To qualify for ongoing benefits under section 12 (5)(b) of the Schedule, Ms. Rodway must establish that her injuries continuously prevent her from engaging in any occupation for which she is reasonably suited by education, training or experience.
Counsel provided me with a number of cases that considered similar language in other automobile insurance and disability provisions. The decisions make it clear that each case turns on its own facts and the applicant's particular background. The factors include: the nature of the work compared with what the applicant did before, the hours of work and level of remuneration, the applicant's employment experience and length of time spent in different jobs, his or her age, and his or her qualifications and technical training and know-how.
Suitable work is not limited to what the applicant was doing at the time of the accident, provided that it is not totally unrelated to his or her previous experience. (see Campbell v. Canada Life Assurance Co. (1990), 1990 CanLII 11298 (MB CA), 45 C.C.L.I. 73 (Man.C.A.); Dale v. Commercial Union Assurance Company of Canada, [1980] I.L.R. 1-1271 (Co. Ct.). Conversely, work is not necessarily suitable because an applicant has done a stint of it in the past. In each case, the question is: what can an applicant reasonably and realistically be expected to do, given his or her background and particular circumstances?
Ms. Jackson was asked to explore other job directions for Ms. Rodway. She completed a transferable skills analysis, and identified a number of jobs, such as dispatcher, order clerk, receptionist, administrative assistant and insurance claims clerk, that might be suitable for Ms. Rodway. However, virtually all the jobs identified required some form of keyboard experience or required Ms. Rodway to work up the use of her left hand. According to Ms. Jackson's evidence, Ms. Rodway requires computer training to be competitive in these positions. Alternatively, the jobs suggested - such as a receptionist - had to be so narrowly defined, as to rule out most receptionist positions; in the words of her counsel: "a very unique job, with very specific circumstances".
In DePape v. Manitoba Public Insurance Corporation, 1980 CanLII 3092 (MB QB), [1981] I.L.R. 1-1351 (Q.B.), the plaintiff was held to be totally disabled under the policy, where the evidence was that she could do a "low pressure" job in a clerical-receptionist field. The judge commented:
..counsel for the defendant did not give me any specific examples of clerical-receptionist employment which the plaintiff was capable of doing. All he did was point to individual things such as answering a single line telephone, typing at a slow speed, photocopying and filing which the plaintiff can do and to suggest that the plaintiff might, for example, obtain a job as a secretary to a not very demanding employer.
Other positions suggested, such as a salesperson in a boutique, were entirely outside of Ms. Rodway's working experience, as well as likely outside the physical restrictions set out by Dr. Roth.
In Davis v. Manitoba Public Insurance Corporation (1984), 1984 CanLII 3918 (MB QB), 32 Man.R. (2d) 212 (Q.B.), the applicant had been an accountant for more than 20 years, and could not go back to a desk job. Given her long standing experience in accounting, the judge ruled:
She was competent in that field and had no other skills to offer an employer. It simply would not have been reasonable to expect the plaintiff to re-train for employment that would obviate the necessity of sitting at a desk.
Given Ms. Rodway's background and employment experience, I do not think that a job as a salesperson in a boutique store is reasonable or realistic.
Counsel for Royal Insurance submitted that Ms. Rodway should be somewhat more flexible in the areas of work she was prepared to consider, in view of the fact that she had intended to leave her existing employment and move elsewhere. Even taking this into account, however, I am still satisfied that Ms. Rodway is presently continuously precluded from any employment for which she is reasonably suited by education, training or experience. None of the jobs suggested by Ms. Jackson are suitable for Ms. Rodway, without further retraining.
I find that Ms. Rodway has made reasonable efforts to rehabilitate herself and to explore employment and retraining opportunities. Her efforts in this regard include going to Employment and Immigration Canada, trying to become involved in a new business venture, and attending a life insurance course, of her own accord.
Ms. Rodway impressed me as anxious to restore her life to normal and get back to gainful employment. This is consistent with the views expressed by the doctors who saw her. While Ms. Rodway's morale was understandably low, none of her doctors challenged her motivation.
According to the evidence before me, the best prospects for a successful rehabilitation in Ms. Rodway's case are to build on her background and skills and re-equip her with the tools necessary to remain in her chosen field of bookkeeping and auditing, (Report of Dr. Keith Travis, marked Exhibit 8, Tab 10; Report of Ms. Jackson, marked Exhibit 4). The evidence indicates that this can best be accomplished by Ms. Rodway completing computer training, including the accounting packages. Ms. Jackson estimated that the total training program would take up to six months. The results of the functional abilities assessment recommended by Dr. Harvey would provide a more precise delineation of what Ms. Rodway can and cannot do, to assist in her retraining and re-employment.
Based on the evidence, it appears to me that, with appropriate assistance, Ms. Rodway should be able to successfully complete computer training and be positioned to return to the workforce, within a relatively short sphere of time.
This case is similar to that in Green v. Mutual of Omaha (1983), 1983 CanLII 5504 (NS SC), 4 C.C.L.I. 34 (N.S.S.C.), in which the comment was made:
This is certainly not a case where payments under the plan should be made indefinitely. There is no question that, with retraining, the plaintiff would be able to engage in other gainful work or service.
On this basis, I find that Ms. Rodway is entitled to weekly income benefits from the date benefits were terminated, under section 12(5)(b) of the Schedule. She is entitled to interest on outstanding amounts under section 24 of the Schedule.
Collateral benefits
When she was working at Revenue Canada, Ms. Rodway was covered under the federal government's group disability plan with SunLife Assurance Company of Canada (SunLife). Ms. Rodway did not submit a claim for benefits under the policy until November 6, 1991. SunLife denied benefits in a letter dated January 17, 1992, on the basis that Ms. Rodway was not disabled under the terms of the policy. Ms. Rodway did not pursue the claim further at that time; however, she subsequently started an action against SunLife for the benefits. A Statement of Claim, dated October 3, 1994, was filed as Exhibit 22. Given the pending legal action, the issue of the deduction of benefits available to Ms. Rodway under the SunLife policy should be deferred, until resolution of the court proceedings.
Expenses
Ms. Rodway is entitled to her reasonable expenses incurred in respect to the arbitration proceeding under section 282(11) of the Insurance Act, and Ontario Regulation 664.
Order
Ms. Rodway is entitled to weekly income benefits from the date benefits were terminated, under section 12(5)(b) of the Schedule, in accordance with this decision. She is also entitled to interest on outstanding amounts under section 24 of the Schedule.
The issue of the deductibility of benefits under an employment benefit plan with SunLife Assurance Company of Canada has been deferred, pending resolution of a court action brought by the Applicant.
Ms. Rodway is entitled to her expenses incurred in respect to the arbitration.
June 12, 1995
Susan Naylor
Arbitrator
Date
Appendix A
Exhibit 1
Letter dated January 17, 1992 from M.L.Flores, SunLife of Canada, and other documents
Exhibit 2
Letter dated February 5, 1993 from Jess Giangioppi, and miscellaneous material
Exhibit 3
Letter dated November 16, 1994 from M. Henry, Thomson Rogers and with attachments
Exhibit 4
Report of Rehabilitation Services of Canada, dated September 19, 1994, and attachments.
Exhibit 5
Job Description, CPP/UI Coverage Officer
Exhibit 6
Handwriting Sample
Exhibit 7
Pre-accident Handwriting Sample
Exhibit 8
Applicant's Medical Brief
Exhibit 9
Report of Dr. Staunton dated December 5, 1994
Exhibit 10
Details of Computer Training from the Computer Resource and Training Centre, dated March 24, 1993
Exhibit 11
Report of Dr. Eldon Tunks, Chedoke-McMaster Hospitals, dated December 14, 1994
Exhibit 12
Report of Dr. James Roth, Hand and Upper Limb Centre, St. Joseph's Health Centre, dated January 11, 1995
Exhibit 13
Brief Communications: Usefulness of a writing device in writer's cramp; Ranjit Rang & Anthony Lang, Neurology, July 1991, Volume 41, page 1136
Exhibit 14
Letter from L Fortier, dated March 19, 1992
Exhibit 15
Letter from Dr. H.S. Williams, dated December 20, 1994
Exhibit 16
Letter from Dr. Anthony Lang, undated, with attachments
Exhibit 17
Handwritten notes of Joe Monaghan, Wejco Adjusters
Exhibit 18
Letter from Joe Monaghan, Wejco Adjusters, dated September 15, 1992
Exhibit 19
Profile of Eleanor Jackson, Rehabilitation Specialist
Exhibit 20
Letter from Eleanor Jackson, Rehabilitation Specialist, dated December 14, 1994
Exhibit 21
OHIP Summary of Services
Exhibit 22
Statement of Claim issued on October 3, 1994
Exhibit 23
Letter from Sun Life, dated July 13, 1994
In addition, I was provided with the curricula vitae of the following:
Dr. John E. (Rick) Paulseth
Dr. Hon-Yin Albert Tam
Dr. Thomas Gerard Staunton
Dr. David T. Harvey
Dr. Anthony Lang
Dr. Eldon Tunks
Dr. Joseph Schnittker
Subsequent to the hearing, and on consent of the parties, I was provided with the Milton Hospital Records