ONTARIO INSURANCE COMMISSION
Neutral Citation: 1995 ONICDRG 93
File No. A-006832
BETWEEN:
L. B. Applicant
and
WELLINGTON INSURANCE COMPANY Insurer
DECISION
The Applicant, L.B., was injured in a motor vehicle accident on December 5, 1991. She applied for and received statutory accident benefits from her Insurer, Wellington Insurance Company, payable under Ontario Regulation 6721. Wellington Insurance Company paid Ms. B. weekly income benefits under section 12 of the Schedule until October 31, 1992.
Ms. B. claims ongoing entitlement to weekly income benefits. 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.
Issues:
The issues to be determined at the arbitration hearing are:
Is the Applicant entitled to weekly income benefits from and after October 31, 1992 under section 12 of the Schedule?
The Applicant claims interest on any overdue weekly income benefits and her expenses in relation to this arbitration.
Result:
The Applicant is entitled to weekly income benefits to the date of the hearing.
The Applicant is entitled to interest pursuant to section 24(4) of the Schedule.
The Applicant is entitled to her expenses in respect of this arbitration.
Hearing:
A hearing was held on May 30 and 31, 1994, and on October 5, 1994, in North York, Ontario, before me, Suesan Alves, arbitrator. Written submissions were provided by counsel in October 1994.
Present at the Hearing:
Applicant: L.B.
Applicant's Representative: Peter Clyne Barrister and Solicitor
Insurer's Representatives: Chris Blom, Barrister and Solicitor on May 30 and 31, 1994 Bruce D. McCartney, Barrister and Solicitor on October 5, 1994
Witnesses for the Applicant: Dr. Shack, Ms. B., Ms. Maw.
Witnesses for the Insurer: Ms. Zielinski, Dr. Hawke.
The exhibits filed at the hearing and other documents before the arbitrator are detailed in Appendix A.
Portions of the evidence at the hearing were recorded by Legal Transcript Services.
Positions of the parties:
Counsel for the Applicant submits that Ms. B. suffers from chronic pain syndrome as a result of the motor vehicle accident of December 5, 1991, that she is substantially disabled from performing the essential tasks of her occupation or employment and is therefore entitled to weekly income benefits after October 31, 1992.
Counsel for the Insurer submits that the Applicant sustained a soft tissue injury in the motor vehicle accident, the physical symptoms of which were short-lived, so that by October 31, 1992, at least on a physical level, Ms. B. was capable of returning to her job. The Insurer contends that beyond that date, there is no convincing evidence that the Applicant suffered from any emotional, psychological or psychiatric disability. Any ongoing disability is caused by Ms. B.'s pre-accident history of physical and emotional problems, and post-accident stresses which are unrelated to the motor vehicle accident.
Evidence and Findings:
Pre-accident occupation:
Ms. B. has been employed as a utility attendant at CN Tower Limited since April 1988. Counsel agreed that her pre-accident duties consisted of dishwashing, cleaning the work area, kitchen and dining room, manually loading and unloading racks of dishes on and off the dishwasher, vacuuming, scrubbing pots and pans, and cleaning floors and walls. Her duties required her to stand for most of the day, to lift 10 to 20 pounds on a frequent basis, and 50 pounds on an occasional basis. Much of her job required pushing, pulling, walking, lifting and carrying.
Ms. B. testified that she has worked and has been independent since the age of 17; at the time of the hearing she was 47 years of age. She stated that she had worked very hard, sometimes at more than one job, and had managed to purchase two homes.
Pre-accident condition:
On November 5, 1991, approximately one month before the motor vehicle accident, Ms. B. injured her right breast at work while lifting and stacking 25 pound crates containing glasses. Ms. B.'s breast became bruised and swollen; she took time off work to recuperate and claimed workers' compensation benefits.
The evidence as to the impact of the breast injury on Ms. B. is conflicting. On the one hand, there is a medical opinion in the WCB files that Ms. B. recovered fully from her breast injury by December 2, 1991, and was left with no permanent impairment. On the other hand, Ms. B. has made a number of statements that her breast continues to be painful. The Insurer contends that Ms. B. did not return to work following the breast injury.
Following the motor vehicle accident, the Insurer retained Rehabilitation Services of Canada to assist Ms. B. in returning to her former level of activity. The worker assigned to the file at Rehabilitation Services of Canada, Ms. Sheila Slater, reported to the Insurer on April 13, 1992, that she met with the personnel manager at CN Tower Limited in relation to Ms. B. In that report, Ms. Slater states "She returned to work on December 2, 1991 for a ten hour shift. Additionally, she worked December 3 and 4, for ten hour shifts. The client was involved in a motor vehicle accident on December 5, 1991."2 I find on the basis of Ms. B.'s testimony, the WCB records and Ms. Slater's report of April 13, 1992, that Ms. B. returned to work following the breast injury at her regular job for the full ten hour shift on December 2, 3 and 4, 1991.
Post-accident condition:
The motor vehicle accident occurred at approximately 2:00 a.m. on December 5, 1991, while the Applicant was returning home from work on December 4, 1991. She was a passenger in a car driven by her husband, when the vehicle was rear-ended. Ms. B. was taken via ambulance to the Ajax-Pickering hospital and was discharged later that morning.
Following the motor vehicle accident, Ms. B. next worked on December 11, 1991. She was off work on December 12 and returned to work on December 13 and 14, 1991. She has not returned to work at CN Tower Limited since December 14, 1991.3 Ms. B. testified that she worked with difficulty on those dates, at times resting and receiving assistance from her co-workers. The clinical notes and records of Dr. Williams, Ms. B.'s family physician at that time, dated December 17, 1991, state "she is not well, but considers her job her life-line".
I accept that Ms. B. experienced some work-related stresses and interpersonal difficulties in her job at CN Tower Limited in late 1990 and in early 1991. I also accept the statements of her treating physicians, Dr. Williams and Dr. Srinivasan, that she is well motivated, likes her job at CN Tower Limited, and is motivated to return to work. Because of her seniority, she will have a job to return to once she recuperates.
Dr. Williams diagnosed Ms. B.'s injuries as a result of the motor vehicle accident on December 5, 1991, as: post-traumatic headache, whiplash to cervical spine, lumbar sacral strain, contusion of right knee and reactive depression. Ms. B. claims that pain in her neck and low back cause her to be unable to perform the physical tasks of her work.
As early as February 1992, Ms. Slater, a rehabilitation worker at Rehabilitation Services of Canada, described Ms. B.'s prospects for rehabilitation as "quite guarded....It appears that the client is depressed and there is a significant functional element...that, in all likelihood, will interfere with her rehabilitation potential."4
Applicant's medical evidence:
Dr. Martin Shack, Ms. B.'s family physician since March 2, 1992, testified at the hearing. Dr. Shack is the chief of family practice at the North York Branson Hospital. He also carries on a family practice. He has seen Ms. B. on some 22 occasions over approximately two years. Dr. Shack testified that he initially diagnosed Ms. B. with a myofascial injury to her cervical and lumbar spines, post-traumatic stress disorder, and reactive depression which was secondary to the motor vehicle accident, and, to a lesser degree, her family problems.
In his report of November 26, 1993, Dr. Shack concluded that in all probability, Ms. B. will be left with a plateau of chronic pain and discomfort in her cervical and lumbar-sacral spines. He stated: "I believe the accident of December 5, 1991, has resulted in a post traumatic stress disorder and this has aggravated and perpetuated [Ms. B.'s] underlying depression which is also present."
Dr. Shack testified that the most accurate diagnosis of Ms. B.'s condition was chronic pain syndrome. He noted that the ten common features of chronic pain syndrome are:
Pain of more than six months' duration, usually precipitated by acute illness or trauma,
the degree of pain is excessive in relation to physical findings,
the pain is usually refractory to a number of treatments,
pain usually becomes the central focus of the patient's life,
the patient may become addicted to narcotics, sedatives or other drugs,
the patient tends to perceive the problem as urgent,
the patient commonly perceives pain as the only problem,
the patient experiences a sense of personal helplessness and loss of control over her life,
the patient displays an attitude of suffering associated with abnormal posturing, crying, excessive bed rest, and
unemployment and serious disruptions occur in relationships with spouse and family.
Dr. Shack testified that when he examined these features, what struck him was that "this is Ms. B."
Dr. Shack agreed that his diagnosis is based on Ms. B.'s statements about her pain. He asserted, emphatically, that Ms. B. has been very open and sincere with him: she tells the truth, and it is clear to him that she is not faking her problems.
In his testimony, Dr. Shack acknowledged the difficulty in scientifically attributing the cause of chronic pain syndrome. He described chronic pain syndrome as a group of symptoms in people who have severe chronic pain reflecting physical, psychological and environmental factors. He stated that it is a "multidisciplinary diagnosis". From his review of the clinical notes and records forwarded to him from Ms. B.'s former family doctor, he noted that she had experienced previous family problems, depression and coping problems, but not chronic pain. Dr. Shack testified that prior to the motor vehicle accident, Ms. B. had experienced a number of significant stresses; however she had been able to cope with the stress and to continue to work.
Dr. Shack testified that in the case of Ms. B., two of the three spheres, the psychological and environmental stresses, were already present at the time of the motor vehicle accident. He described Ms. B. as a "sitting duck waiting for chronic pain syndrome". In his opinion, the motor vehicle accident added the final piece to the puzzle, overwhelmed her ability to cope, and initiated chronic pain syndrome. He stated that without the motor vehicle accident, Ms. B. would not have developed chronic pain.
Dr. Shack was cross-examined with respect to a notation on a covering history sheet "Nov. 91 CPS". Dr. Shack agreed that CPS was his abbreviation for chronic pain syndrome. He testified that he was not treating Ms. B. in November 1991; Ms. B. transferred to his care on March 2, 1992. He explained that this notation was an error; he stated that it is not his opinion that Ms. B.'s chronic pain syndrome was the result of her breast injury in November 1991. He noted that she returned to work following the breast injury and prior to the motor vehicle accident. He did not agree with the suggestion that Dr. Williams had diagnosed Ms. B. with chronic pain syndrome before she transferred to his care.
Dr. Shack supports the Applicant's position that she is unable to do her job because of the severity of the pain which she experiences in her neck and back. He views her as totally disabled from her work at CN Tower Limited.
Dr. Shack referred Ms. B. to a psychiatrist, Dr. Srinivasan, on her first appointment with him. Ms. B. was under Dr. Srinivasan's care between March 1992 and November 1992. On May 19, 1992, Ms. B. was admitted to North York Branson Hospital for reactive depression and chronic pain. She was discharged on June 5, 1992.5 Although Ms. B. suffered from anxiety, tension, and had some underlying depression prior to the accident of December 5, 1991, this was the first occasion on which Ms. B. was hospitalized for reactive depression. Following Ms. B.'s discharge, Dr. Srinivasan provided "supportive psychotherapy". In November 1992, Ms. B. discontinued her therapy sessions as she did not feel comfortable with the treatment she was receiving.
Dr. Shaker, chief psychologist at the North York Branson Hospital conducted a psychological assessment of Ms. B. at Dr. Srinivasan's request. In her report of June 9, 1992, Dr. Shaker noted that Ms. B. "appears to be experiencing the clinical signs of a generalized anxiety disorder of uncharacteristic nature....Her proclivity to dramatize distress as an attention-getting device should be noted". Dr. Shaker cautioned that while there would likely be an "auspicious beginning" to therapy, she will likely "resist genuine moves to become independent...she may become disillusioned, withdrawal [sic] from treatment and regress to the pretreatment level of adjustment."
Dr. Martin, a neurologist, saw Ms. B. at Dr. Shack's request in August 1992. Dr. Martin noted conflicting findings on active and passive examination of Ms. B. He concluded that she suffered from myofascial pain syndrome to her neck, upper and lower back, and depression. Dr. Sheffman of the North York Pain Clinic saw Ms. B. at Dr. Shack's request on September 17, 1992. He noted inconsistent and inappropriate pain behaviour. His diagnostic impression was chronic pain syndrome. He suggested a psychological and/or psychiatric evaluation.
On October 14, 1993, Dr. Belcon, a specialist in rheumatology and internal medicine, examined Ms. B. He found it difficult to examine Ms. B., diagnosed fibromyalgia which he stated would likely go on to become chronic pain syndrome. He found her to be totally disabled from her job. Although he did not have her complete medical history, Dr. Belcon attributed her disability "with almost 100% probability" to the motor vehicle accident. While Dr. Belcon's opinion supports the Applicant's position, and Dr. Shack's opinion, it is compromised by his lack of history.
The Insurer's medical evidence:
The Insurer contends that there is no organic cause for Ms. B.'s physical complaints. On August 26, 1992, the Applicant was examined at the request of the Insurer by Dr. James Houston, orthopaedic surgeon. Dr. Houston found no organic pathology which would account for the intensity and persistence of symptoms, nor for the degree of disability alleged by Mrs. B. He could find no organic reason to account for the contradictory findings on physical examination. Dr. Houston noted twice in his report that Ms. B. had been off work at the time of the motor vehicle accident. He concluded that "A functional element strongly suggested itself as being the dominant factor in this case." He recommended that it was in Ms. B.'s own best interest to get back to living as normal a life as possible, including returning to her old job or something similar.
Dr. Hawke, a neurologist and psychiatrist, examined Ms. B. at the request of the Insurer on April 14, 1994. In his report dated April 18, 1994, he states "One gained the impression that she was quite honest in her story or, more accurately, that she really believed what she was relating..... the examination makes one question this to some degree." In a subsequent report dated June 7, 1994, he indicates that "there was gross exaggeration of her symptomatology and after reviewing the more recent documents, would certainly feel that she was quite capable of returning to work if she so desired in October of 1992."
The Insurer contends that Ms. B. does not suffer from chronic pain syndrome. In his report dated June 7, 1994, Dr. Hawke states:
To be true of chronic pain in the literal sense, the individual must be suffering from actual pain itself or sincerely believe that the pain is present.
This diagnosis, I feel, is definitely disproven by the assessment by Dr. Sheffman in 1992. Originally, she held her head very rigidly with minimal movement but by distraction, he was able to obtain quite full movement of the neck. Had there been any actual pain or had she believed there was actual pain, then it would have been impossible to have made this change and to move the neck freely.
Dr. Hawke was questioned about Ms. B.'s background in cross-examination. He was then asked whether he would agree that this was a recipe for chronic pain syndrome. Dr. Hawke agreed that it was. He maintained that Ms. B.'s ability to move her neck freely was the reason why he concluded that she did not suffer from chronic pain syndrome. Dr. Hawke agreed in cross-examination that there was no chronic pain syndrome contained in Dr. Williams' chart in relation to Ms. B.
The Insurer contends that Ms. B's post-accident depression appeared to be generated by factors unrelated to the motor vehicle accident. In his report dated June 7, 1994, Dr. Hawke summarized the factors which led to Ms. B.'s hospitalization in May 1992 as: (a) Ms. B.'s care for and concern about a daughter who suffered from chronic schizophrenia; (b) Ms. B.'s difficulty with her husband because she was not carrying out her normal household activities and because of a lack of sexual relationships; (c) Ms. B.'s inadequate relationships with the rest of her family; and (d) Ms. B.'s financial problems. Dr. Hawke noted that at least some of these problems were longstanding. Dr. Hawke stated that "I would feel that the impact of the accident itself on this period of depression was minimal."
Dr. Shack disagreed with Dr. Hawke's evidence that Ms. B's ability to move her neck freely means that she is not suffering actual pain. Dr. Shack testified that he had reviewed Dr. Houston's report of August 26, 1992, and Dr. Hawke's report of April 18, 1994. Dr. Shack noted that Dr. Houston was seeking a physical cause for the Applicant's complaints, such as a torn muscle; when he was unable to find it, he concluded that Ms. B. was exaggerating. He did not find the inconsistencies in Ms. B.'s behaviour noted in Dr. Houston's and Dr. Hawke's reports "overly surprising". He described Dr. Houston's report as one which set out a perfect description of chronic pain syndrome.
Dr. Shack stated that while from a physical point of view Ms. B. could return to work without harming herself, her pain in her neck and back is such that she is unable to do so. Dr. Shack testified that he probably deals with more cases involving psychosocial medicine, and sees many more cases of chronic pain syndrome than do Dr. Hawke or Dr. Houston.
Attempts to return to work
In early October 1992, Ms. B. attempted to complete activities similar to her job in a church setting: catering and serving food, and assisting with mopping the floor. Ms. B. found that she was unable to move and required assistance.
In December 1992, Dr. Shack suggested that Ms. B. was ready to attempt to do part-time light work, perhaps of a clerical nature, with no heavy lifting, repetitive bending, excessive walking, or significant use of stairs or ladders. Dr. Shack testified that although he found her to be substantially disabled, his hope was that her pain could be sufficiently controlled to allow her to ease herself back into the workforce gradually. No light work was available from her employer.
Ms. B. testified that before attempting to work outside the home, she wished to see whether she could first increase her level of activity around her home. She attempted to babysit children in her home. She was unable to manage this as her medication made her too sleepy. The parents removed the children from her care. She concluded that her pain from working outside the home would be too severe.
Conclusion:
This was a difficult case. Like Dr. Hawke, I was struck by Ms. B.'s apparent genuine belief in her own statements, which at times conflicted with the documentary evidence. Some of Ms. B.'s testimony was not plausible. Many of the specialists who examined her noted contradictory findings on active and passive examination. Her psychological evaluation notes her "proclivity to dramatize distress". She has complained of problems with her memory.
Ms. B. has, however, been candid in disclosing the personal details of her life, relationships and physical problems to physicians, rehabilitation workers, Canada Life and to the Workers' Compensation Board.
Ms. B.'s conclusion that she was substantially disabled was supported by her family physician, Dr. Shack. Dr. Shack was a highly persuasive witness on Ms. B.'s behalf. Although he supported Ms. B.'s position, he was not a partisan witness. Dr. Shack had no hesitation in disagreeing with some aspects of Ms. B.'s evidence. For example, he did not hesitate to say that Ms. B.'s use of a cane, very much in display during the hearing, was unnecessary. He acknowledged that his patient disagreed with his recommendation that she should attempt part-time clerical work as a potential way of easing herself back into the workforce. Dr. Shack also acknowledged the difficulties of establishing the cause of chronic pain syndrome.
Dr. Shack has seen Ms. B. on 22 occasions over the course of two years. He had the opportunity to repeatedly assess her and to sort out those aspects of her complaints which reflected poor memory and attention-seeking behaviour, which are common features of chronic pain syndrome, from true malingering. I accept his view that the Applicant has reported her pain to him as she feels it.
Dr. Shack has provided a plausible analysis of Ms. B.'s problems which takes into account her pre-existing difficulties, her strong attachment to the workforce, her ability to work and to cope prior to the motor vehicle accident and the role of the motor vehicle accident in initiating chronic pain syndrome. He agreed that this motor vehicle accident in and of itself would not have caused Ms. B. to develop chronic pain syndrome.
Dr. Shack's analysis is supported by Ms. B.'s significant depression which occurred following the motor vehicle accident. There was no evidence that Ms. B.'s would have developed chronic pain syndrome in any event. I accept Dr. Shack's opinion that Ms. B. would not have developed chronic pain syndrome without the motor vehicle accident. In my view, his evidence establishes on the balance of probabilities that the motor vehicle accident significantly contributed to the development of Ms. B.'s chronic pain syndrome and her disability.
Expenses:
The Applicant seeks an award of her expenses. An arbitrator has a discretion to award these expenses pursuant to section 282(11) of the Insurance Act.
In exercising my discretion I have considered the principles guiding an award of expenses, as set out by Senior Arbitrator Susan Naylor in the case of Ralph McCormick and Economical Mutual Insurance Company, October 2, 1991, OIC File No. A-000139, and approved by the Director of Arbitrations in the case of Vito Luigi Calogero and The Co-Operators General Insurance Company, February 13, 1992, OIC File No. P-000251:
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 Applicant is entitled to her expenses as set out in Schedule 1 of the Dispute Resolution Practice Code. In the event that the parties cannot agree as to the total amount of expenses, I remain seized of this issue and a party may apply for assessment of the expenses before me.
Order:
The Applicant is entitled to weekly income benefits to the date of the hearing.
The Applicant is entitled to interest on overdue weekly income benefits pursuant to section 24(4) of the Schedule.
The Applicant is entitled to her expenses of this arbitration.
July 10, 1995
Suesan Alves Arbitrator
Date
APPENDIX A
Exhibit 1 Joint Productions Brief with 16 Tabs.
Exhibit 2 Copy of letter dated November 23, 1993, from Ms. Zielinski to Dr. Shack.
Exhibit 3 Copy of letter dated October 12, 1992, from Ms. Zielinski to Dr. Shack.
Exhibit 4 Referral Sheet dated August 18, 1992.
Exhibit 5 Canada Life Supplementary Claim for CIBC Creditor Disability Insurance Plans dated September 25, 1992.
Exhibit 6 Attending Physician's Supplementary Statement.
Exhibit 7 Curriculum vitae of Christine Zielinski.
Exhibit 8 Letter from Wellington Insurance Company terminating benefits.
Exhibit 9 Report of Dr. Hawke dated June 7, 1994.
OTHER DOCUMENTS BEFORE THE ARBITRATOR:
Submissions and Brief filed on behalf of the Applicant.
Submissions on behalf of Wellington Insurance Company.
Reply submissions of Wellington Insurance Company.
Response on behalf of Applicant to submissions of counsel for the Insurer.
Report of Mediator, dated December 5, 1991
Application for Appointment of an Arbitrator, dated January 4, 1994
Response by Insurer, dated February 7, 1994
Pre-hearing letter, dated March 28, 1994
Footnotes
- Prior 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.
- Report of Rehabilitation Services of Canada dated April 13, 1992, Exhibit 1, tab 13(B), page 4.
- Report of Rehabilitation Services of Canada dated April 13, 1992, Exhibit 1, tab 13(B), page 4.
- Report of Rehabilitation Services of Canada dated February 28, 1992, Exhibit 1, tab 13(A), page 6.
- Chart Copy In Patient Registration Form and Integrated Progress Notes, North York Branson Hospital, Exhibit 1, tab 1(A), pages 27 and 28.