Neutral Citation: 1995 ONICDRG 69
File No. A-001231
ONTARIO INSURANCE COMMISSION
BETWEEN:
ISABELL ALLISON
Applicant
and
MARKEL INSURANCE COMPANY OF CANADA
Insurer
DECISION
Issues:
The Applicant, Isabell Allison, was injured in a motor vehicle accident on December 3, 1990. She applied for and received statutory accident benefits from the Insurer, payable under Ontario Regulation 6721. Weekly income benefits were terminated by the Insurer on December 23, 1991. The parties were unable to resolve their disputes through mediation and the Applicant applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The issues in this hearing are:
- Is the Applicant entitled to weekly income benefits pursuant to section 12 of the Schedule after December 23, 1991?
The Applicant also claims interest on any amounts owing, and her expenses incurred in the hearing.
The Insurer sought an award pursuant to section 282(11.2) of the Insurance Act.
Result:
The Applicant is not entitled to weekly income benefits pursuant to section 12 of the Schedule after December 23, 1991.
The Applicant is not entitled to her expenses of the hearing.
Hearing:
The hearing was held in North York, Ontario, on May 23, 24 and 25, 1995.
Present at the Hearing:
Applicant: Isabell Allison
Applicant's Representative: Ron Weinberger Barrister and Solicitor
Insurer's Representative: Brian Leck Barrister and Solicitor
Insurer's Officer: Paul Ballantyne
Evidence and Findings:
The Accident
On December 3, 1990 Isabell Allison boarded a streetcar. As she went to show her pass to the operator, the streetcar lurched and Ms. Allison fell to the floor between the seats. She recalls landing on her left side. People asked her if she was all right and she was helped onto a seat. She was taken by ambulance to Wellesley Hospital where she was examined and released the same day.
It was agreed by all the doctors who examined Ms. Allison that she suffered soft tissue injuries. However, the extent and nature of those injuries are in issue.
Ms. Allison has not returned to her employment since the day of the accident.
The Law
Section 12(1) of the Schedule provides:
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 . . .
Essential Tasks
In 1980, the Applicant started working nights in nursing homes providing care to elderly and bed-ridden patients. Later she took on a second job for an agency which placed her in private homes during the day to provide companionship to elderly or disabled clients. At the time of the accident, Ms. Allison was working only days for S.R.T. Med-Staff International. This agency placed Ms. Allison in private homes to assist elderly and disabled clients. At the time of the accident, Ms. Allison had four clients she saw regularly for three or four hour periods. She might see one in the morning and another in the afternoon for a total of approximately 32 hours per week.
The parties disagreed as to the nature of Ms. Allison's work. A letter from S.R.T. indicates that Ms. Allison's work as a homemaker included assisting patients in meal preparation, laundry, light housekeeping and shopping. Ms. Allison said that she had difficulty expressing herself and that she was sometimes embarrassed to talk about some aspects of her job. She said that she did what the client wanted done, which included cleaning bathroom tubs and floors. She also assisted in the transfer of one immobile client from his bed to the bath-tub and another from his bed to a wheelchair.
Six doctors filed reports. Dr. Zeldin described Ms. Allison's duties as light housekeeping. Dr. Lexier reported that Ms. Allison assisted bedridden patients for transfer from bed to wheelchair and bed to washroom. Dr. Lloyd was of the view that since Ms. Allison only looked after one or two patients, the amount of lifting was minimal. Up to August 24, 1994, Dr. Charendoff thought Ms. Allison was doing light housekeeping. However, in the same report, he notes that Ms. Allison has not returned to work as the work is heavy. Dr. Godfrey refers to Ms. Allison as a "houseworker" in his reports.
Ms. Allison's explanation that she was embarrassed to talk about the heavier housekeeping parts of her work to some people and her explanation that she did what she was asked to do by her clients was consistent. She saw some clients three times a week for three or four hours at a time. Given her explanations and the time she spent with these clients, I am satisfied that the essential tasks of her employment included washing floors and tubs and assisting in the transfer of bedridden clients to wheelchair and bath-tub.
Pre-accident condition
In June 1988, Ms. Allison suffered an injury to her low back when she fell down stairs while working. She testified that she was off work at least twice and missed an unspecified number of months from work. Dr. Godfrey treated Ms. Allison immediately after the fall. Six months later, he diagnosed a chronic ligamentous strain of the low back. He admitted that it was possible that this injury had not resolved in 1990 at the time of the fall in the streetcar.
Evidence of injuries sustained in the accident of December 3, 1990
The evidence of Ms. Allison's injuries consisted of her testimony, three photographs of scarring on her shoulder, the notes and reports of seven doctors, and the testimony of four doctors.
Dr. Artinian was Ms. Allison's family doctor at the time of the accident, and his Form 4 medical reports were filed. Dr. Artinian referred Ms. Allison to Dr. Godfrey, a specialist in rehabilitation medicine, on May 30, 1991, and to Dr. Charendoff, an orthopaedic surgeon, on June 10, 1991. Dr. Godfrey and Dr. Charendoff provided a number of consultation reports to Dr. Artinian and Ms. Allison's counsel, and both doctors testified at the hearing.
The Insurer arranged for Ms. Allison to see four orthopaedic surgeons. Ms. Allison saw Dr. Evans on March 19, 1991, Dr. Zeldin on October 16, 1991, Dr. Lexier on June 2, 1992, and Dr. Lloyd on May 3, 1993. Drs. Zeldin and Lexier testified at the hearing.
The evidence showed few objective signs of injury. A brain scan, electroencephalogram and ultrasound examination of both shoulders were all normal.
It was not clear from the evidence what injuries Ms. Allison suffered in the fall in the streetcar.
Ms. Allison testified that while she was in the ambulance on the way to the hospital, her head was pounding and that she could scarcely move her leg. She was in pain from her low back down. She added that her whole body was in pain. She also testified that she experienced most of the pain when she got home from the hospital. For the first few months, daily headaches were her worst problem. However, she also testified that she did not make any complaints at the Wellesley Hospital. She explained that no one asked her about her pain.
From April 1991 to the end of October 1992, Ms. Allison underwent approximately 200 physiotherapy treatments. She said that she stopped the treatments on the advice of a friend from church and because she wanted to see if her body would heal on its own.
Ms. Allison testified that she could not return to work because she was not able to perform her duties, that she would feel worse and that her strength was poor. She said that she could not lift patients because it is a strain on her lower back. She experiences pain in her shoulder if she tries to vacuum her entire apartment, however, she can deal with the pain. She feels that she is only capable of light duties. Ms. Allison described light duties as providing companionship, assisting with banking, and babysitting the clients.
Three photographs taken May 29, 1992, show raised scars on Ms. Allison's left shoulder covering an area about five cm. by three cm. Ms. Allison testified that she did not complain to anyone at the Wellesley Hospital about her injuries because no one asked. However, when she got home, she had a burning feeling on her shoulder and found that the skin was off and there was blood on her blouse and coat. She said that the abrasions healed very slowly. Apparently this problem was not treated at the Wellesley Hospital. Only Dr. Lexier and Dr. Lloyd note the scarring, and that is about two years after the accident. Ms. Allison's family doctor, Dr. Artinian, seems unaware of the abrasion or scarring. Ms. Allison saw Dr. Artinian the day after the accident. In his first Form 4 Medical Report dated December 21, 1990, Dr. Artinian records:
Attention span by serial months poor. Marked tenderness over the left shoulder cuff abduction of left shoulder painful from 60-100. Marked tenderness over left hip. ROM of neck markedly restricted. Soft tissue swelling and tenderness of left foot. Tenderness over lat. maleolus [sic] of left ankle.
Dr. Artinian does not mention the abrasions which lead to the keloid scarring which Ms. Allison now claims was the result of her fall. Neither does he mention the daily headaches which were Ms. Allison's most serious problem according to her testimony.
Dr. Evans saw Ms. Allison on March 19, 1991. He reports that the primary problem is low back pain radiating to the left leg and left shoulder. He makes no notes on Ms. Allison's condition immediately after the accident.
Dr. Godfrey does not record Ms. Allison's condition immediately after the accident. On May 30, 1991, he notes pain over the left shoulder, hip, foot and ankle and diagnoses multiple soft tissue injuries around the left shoulder girdle region. In August 1991, Dr. Godfrey reports low back pain for the first time. In testimony he explained that his initial finding of left hip pain included the lower back. He also explained that by urging Ms. Allison to return to work in August and October 1991, he meant she should return to modified work. He explained that although he found that Ms. Allison had full range of motion in her shoulder in October 1991, she was not capable of transferring clients between wheelchair and bed because it would strain her shoulder.
Dr. Charendoff reports on August 8, 1991 that Ms. Allison initially had bruising of her left shoulder and back as well as swelling. According to what Ms. Allison tells him, she did not develop headaches until one month after the accident. The headaches are accompanied by a new symptom, numbness down the entire left side of her body to the foot and ankle. Three years later, on August 24, 1994, Dr. Charendoff amends Ms. Allison's initial complaints by reporting that on the day following the accident, she experienced severe pain on the left side of her head and left shoulder and low back area.
In his report of October 16, 1991, Dr. Zeldin notes that Ms. Allison had a great deal of difficulty recalling the details of her injury. He notes that when she was taken to the Wellesley Hospital, she complained of pain in her back, hip and left shoulder. On his examination, he notes that she was complaining of pain in the back, hip and left shoulder and that the shoulder pain had gradually improved. He testified that when he saw her, the shoulder had a full range of motion and was not a significant complaint.
Dr. Lexier reports in June 1992 that Ms. Allison's low back pain started a few days after the accident. At the time he saw her, the major complaint was low back pain. Head and shoulder complaints have become minor.
Dr. Lloyd commented in his report of May 1993 that Ms. Allison was not the best of historians. She was not able to give him a precise description of her complaints when she was taken to the Emergency Department at the Wellesley Hospital, other than to indicate that she had pain from her low back, her left upper back and left scapular region. According, to Dr. Lloyd, the headaches did not start until March 1993, although they were her principal complaint. Pain in the neck radiating into the shoulder was a subsidiary complaint.
Findings
I have examined the medical evidence in detail in order to determine what Ms. Allison's complaints were. The evidence of her complaints was largely inconsistent and contradictory.
On the first day of the hearing, Ms. Allison testified that she did not complaint of pain when she was taken to the Wellesley Hospital because no one asked her. She said that she felt most of the pain when she returned home from the hospital. On the second day of the hearing, she testified that she was in severe pain when she arrived at the Wellesley Hospital. She testified that her head was pounding, she had pain in her low back, that her whole body was in pain and that she could scarcely move her leg. She testified that she complained at the hospital of pain in her neck and shoulder.
She testified that her most serious problem was headaches which started the day of the accident. She also said that the headaches started the day after the accident. She saw her family doctor the day after the accident and two times a week for the first few months. She testified that she told him everything.
However, there is no mention of headaches in his report in the weeks following the accident. Dr. Charendoff reported that Ms. Allison's headaches did not develop until one month after the accident.
Dr. Lloyd reported that the headaches started in March 1993. Dr. Godfrey testified that he heard no complaints of headaches.
Ms. Allison testified that she suffered abrasions which resulted in permanent keloid scars, however her family doctor makes no note of this. It appears that although blood from the abrasion stained Ms. Allison's blouse and coat, the abrasion was not treated at the hospital and Ms. Allison did not notice the abrasion until she got home.
Although Ms. Allison told her family doctor everything, he did not report her low back pain in his report in the days following the accident. Ms. Allison subsequently told Dr. Zeldin and Dr. Lloyd that she complained of low back pain on the day of the accident, and she told Dr. Lexier that the back pain developed a few days after the accident.
Lastly, Ms. Allison testified that she could not transfer patients because of low back pain. Dr. Godfrey testified that she could not transfer patients because it would strain her shoulder.
Counsel for the Applicant seemed to take the position that Ms. Allison suffered soft tissue injuries and pain with back pain possibly being the more predominant symptom. Counsel for the Insurer took the position that the Applicant suffered low back pain for a short period. The only consistent evidence is that Ms. Allison complained of pain in the left shoulder area which gradually resolved. By December 23, 1991, the shoulder pain was no longer significant or disabling in any way.
Ms. Allison did not satisfy the burden of proving that she sustained injuries in the accident which substantially disabled her from performing the essential tasks of her employment after December 23, 1991. The evidence of her injuries and complaints is inconsistent and contradictory. I have taken into account Ms. Allison's claim that she cannot express herself clearly, that she was embarrassed to talk about some aspects of her work and that it has been over four years since the accident. I also considered that Ms. Allison was able to persuasively describe the heavier and more menial aspects of her job in the face of other evidence that her work involved only light housekeeping. However, for the most part, the testimony she gave at this hearing about her injuries and her pains, and the histories she gave to each of the seven doctors who examined her, was inconsistent and contradictory.
As well, Ms. Allison deliberately withheld relevant information from the doctors who examined her. She did not advise them that in June 1988 she had suffered an injury to her low back when she fell down stairs while working.
All the doctors indicated that their diagnoses were dependent on the complaints of the patient and that unless they have strong reason to disbelieve the patient, they accept what the patient says as being true.
Each of the doctors who examined Ms. Allison in connection with the fall in the streetcar asked her about her prior health and injuries. She told only Dr. Charendoff about the fall down the stairs. However, she did not tell him that she had injured her back. She told him that she had a slight injury to her knee. Dr. Charendoff reports that she denied prior complaints or treatment to her back.
The reports of Drs. Charendoff, Evans, Zeldin, Lexier and Lloyd clearly indicate that these doctors asked Ms. Allison about her prior health and that she reported that she was in good health and had no prior injuries. When asked why she did not reveal the 1988 injury to the other doctors, she said that she does not remember if she told Dr. Evans. She said that Drs. Zeldin, Lexier and Lloyd did not ask her if she was hurt before. In 1988 Ms. Allison missed a number of months from work as a result of the injury she suffered when she fell down the stairs. I find that the five doctors asked Ms. Allison about her previous health and that she misled them by claiming that she had no prior health problems.
As I have found that Ms. Allison's complaints to the doctors were inconsistent and contradictory, I place little weight on the doctors' findings.
Ms. Allison has not established that she suffered a substantial inability to perform the essential tasks of her employment after December 23, 1991 as a result of any injury she suffered in the fall on the streetcar on December 3, 1990.
Expenses
The Applicant seeks an award of the expenses she has incurred in this arbitration. An award for expenses may be made under section 282(11) of the Insurance Act, which provides as follows:
The arbitrator may award to the insured person such expenses incurred in respect of an arbitration proceeding as may be prescribed in the regulations to the maximum set out in the regulations.
The prescribed expenses and amounts are set out in Schedule 1 of the Dispute Resolution Practice Code and in Ontario Regulation 273/90 "Schedule".
In the case of Ralph McCormick and Economical Mutual Insurance Company, October 2, 1991, OIC File No. A-000139, Arbitrator Susan Naylor made the following comments about expenses, with which I agree:
The discretion to award expenses should be exercised, having regard to the intent and purpose of the legislative scheme. The arbitration process has been established under the Insurance Act, as amended, in order to facilitate applicants' access to relatively inexpensive, speedy and informal adjudication of disputes regarding no-fault benefits. The discretion to award expenses should be exercised in accordance with this objective, having regard to the individual circumstances of each case.
Accordingly, it is appropriate to award an applicant his or her expenses, unless, in the circumstances of the particular case, it is determined that the application for appointment of an arbitrator was manifestly frivolous or vexatious, or that the applicant's conduct unreasonably prolonged the proceedings.
The Insurer asks for an assessment against the Applicant pursuant to section 282(11.2) of the Insurance Act on the grounds that the Applicant misrepresented her medical condition to the doctors.
Section 282(11.2) provides
If an insured person commences an arbitration that, in the opinion of the arbitrator, is frivolous, vexatious or an abuse of process, the arbitrator may award an amount to be paid by the insured person to the insurer that does not exceed the amount assessed against the insurer in respect of the arbitration under section 14.
The four doctors who testified said that in a case such as this, with few objective signs of injury and continuing complaints of pain, the history which the patient relates to the doctor is of prime importance in arriving at a diagnosis. Dr. Lexier said that history-taking was 90 per cent of diagnosis. Accordingly, the patient's ability to relate her symptoms and her honesty in doing so is of importance in determining her entitlement to accident benefits. I have noted that Ms. Allison was a poor historian in that her complaints of pain were inconsistent and contradictory. As well, she attempted to deceive five doctors by refusing to reveal her prior back problem when asked about her prior health. When faced with trying to explain the attempted deception, she compounded the misrepresentation by saying that the doctors did not ask her. The reports of five doctors clearly show that she was asked about her prior health problems and the report of Dr. Charendoff clearly shows that she misrepresented that the only result of the fall down the stairs was a slight injury to the right knee from which she had totally recovered.
In a case such as this, a determination of the Applicant's entitlement to benefits largely depends on the Applicant's ability and honesty in relating her complaints to the doctors and this tribunal. Although Ms. Allison may have little control over her ability to relate her complaints, she can decide whether she will be honest in revealing the state of her pre-accident health. I have clear evidence that the Applicant has been dishonest with respect to the state of her pre-accident health. There was no evidence to mitigate the attempted deception. In the circumstances I decline to award her expenses. Although this may represent a departure from the principle of awarding expenses to the applicant unless the application is manifestly frivolous or vexatious, or unless the applicant's conduct unreasonably prolonged the proceedings, I do not believe that this decision contravenes the spirit of the McCormick decision.
Although I find that Ms. Allison's testimony and complaints to the doctors were inconsistent and contradictory, I do not attribute this entirely to dishonesty. I am not satisfied that she deliberately misrepresented facts other than those I have noted. In these circumstances, I do not feel that an assessment against Ms. Allison pursuant to section 282(11.2) of the Insurance Act is justified.
Order:
The Applicant is not entitled to further weekly income benefits after December 23, 1991.
The Applicant is not entitled to her expenses pursuant to section 282(11).
The Insurer is not entitled to an assessment pursuant to section 282(11.2).
June 14, 1995
William J. Renahan Arbitrator
Date