Neutral Citation: 1996 ONICDRG 14
ONTARIO INSURANCE COMMISSION
BETWEEN:
GRAZYNA A. PYRZ
Applicant
and
CONTINENTAL INSURANCE COMPANY
Insurer
DECISION
Issues:
The Applicant, Grazyna A. Pyrz, was injured in a motor vehicle accident on May 18, 1992. She applied for and received statutory accident benefits from the Insurer, payable under Ontario Regulation 672.1 Weekly income benefits were terminated by the Insurer on August 28, 1993. 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 issue in this hearing is:
Is the Applicant entitled to weekly income benefits under section 12(1) of the Schedule after August 28, 1993?
The Applicant also claims interest on any amounts owing, and her expenses incurred in the hearing.
Result:
The Insurer is not required to pay any further weekly income benefits to Ms. Pyrz.
The Insurer shall pay Ms. Pyrz her expenses incurred in respect of this arbitration.
Hearing:
The hearing was held in London, Ontario, on May 8 and 9, 1995, before me, Asfaw Seife, arbitrator.
Present at the Hearing:
Applicant:
Grazyna A. Pyrz
Applicant's Representative:
Ian M. Boundy Barrister and Solicitor
Insurer's Representative:
Harry P. Brown Barrister and Solicitor
Insurer's Officer:
Linda Popovacki Claims Representative
The hearing was recorded by Fred Sharp of Triune Reporting. Mr. Jan Nagabezynski of A.N.A.T. provided interpretation services in the Polish and English languages.
Witnesses:
Grazyna Pyrz The Applicant
Zbigniew Pyrz The Applicant's Husband
Dr. Robert Teasell Specialist in Physical Medicine and Rehabilitation.
Exhibits:
Listed in Appendix "A" to this decision.
EVIDENCE AND FINDINGS:
Ms. Pyrz is 43 years old, married with two children, 15 and 17 years of age. Ms. Pyrz and her husband came to Canada on December 14, 1988 from Poland, where Ms. Pyrz had worked as a technical surveyor for 13 years. In Canada, Ms. Pyrz first took a job as a sewing machine operator. She attended English language classes for 20 weeks and started working as a cook. From February 1990 up to the time of the accident, Ms. Pyrz had been working at Grandma Lee's ("GL") in North Bay.
The accident of May 18, 1992 occurred when the car in which Ms. Pyrz was a passenger went out of control as a result of a blown tire. The car rolled over and landed in a ditch, with its right side on the ground. Ms. Pyrz's husband was driving the car. Ms. Pyrz was seated in the back, on the right side next to the right passenger door. She was wearing her seat-belt. Ms. Pyrz's two children were also in the car at the time of the accident.
Ms. Pyrz testified that she did not feel any pain at the time of impact. She does not remember if any part of her body hit the interior of the car. She did not lose consciousness. Someone called emergency and the entire family was taken to hospital. At emergency, neither Ms. Pyrz nor the other occupants complained about any injuries; neither did they receive treatment. They went home.
Ms. Pyrz testified that she stayed at home for one week after the accident. She did not feel any pain; however she did not go to work because she was "in shock from the accident."
Ms. Pyrz returned to work one week after the accident and worked for about three weeks until Friday, June 19, 1992, when, after working the full shift, she began to feel pain in her back and neck for the first time after the accident. She testified that the manager of the restaurant told her not to return to work; however, the manager's notes in the attendance records2 show that on Monday, June 22, Ms. Pyrz called the manager and told her that she was unable to come to work due to a sore back resulting from the accident. Since that time, Ms. Pyrz has not returned to work at GL or any other employment. She claims she continues to be unable to perform the essential tasks of her employment at GL because of injuries she sustained in the accident.
The Law:
In order to be entitled to weekly income benefits under section 12(1) of the Schedule after August 28, 1993, Ms. Pyrz must prove, on the balance of probabilities, that as a result of the injuries from the accident she suffers a substantial inability to perform the essential tasks of her pre-accident employment.
Ms. Pyrz's Essential Tasks:
Ms. Pyrz testified about her essential tasks at GL. A job description prepared by her former employer was also filed in evidence. Based on this I find that Ms. Pyrz's essential tasks consisted of the following: on a daily basis, chopping vegetables using knives and food processor; slicing lunch meats using an electric slicer; grinding meats using a food processor; assisting in the preparation of salads; preparing soup and chili, and cleaning up the work area. Twice a week, she baked, and prepared chicken and meat pie and lasagna. .
There was no repetitive bending, reaching, or working overhead. The work did not involve heavy lifting or carrying. Objects that Ms. Pyrz was required to lift and carry did not exceed 22 pounds. Lifting was required when moving pots from counter to stove or oven, and putting away orders of meats and vegetables, and retrieving them for use. The primary physical requirements were: prolonged standing and repetitive arm motions. Ms. Pyrz walked around the kitchen while performing her various tasks. The majority of the work was conducted in a standing, slightly forward flexion posture. Standing in one spot was restricted to a maximum of one hour a day when slicing meats.
Ms. Pyrz worked five days a week, six to seven and a half hours a day, with two ten-minute breaks, and a one-hour lunch break.
Medical Evidence:
Ms. Pyrz was examined by Dr. Dodick, her family doctor, on June 24, 1992. In a Medical Report dated June 25, 1992,3 Dr. Dodick stated that Ms. Pyrz complained of pain in her neck, right hip, and right shoulder. He noted that movements of the neck were performed to full range but produced pain in extremes of flexion and extension. He found no tenderness in the region of the right shoulder and the right hip. Ms. Pyrz was able to move these areas to full range. He noted moderate discomfort in mid-dorsal and lumbar regions of the spine. X-rays of Ms. Pyrz's cervical spine, taken on June 22, 1992, were normal. Dr. Dodick's diagnosis was hyperextension injury of the neck, contusion of mid-dorsal and lumbar spine, and contusion of right shoulder and right hip. He prescribed analgesics and referred her to physiotherapy. He ordered x-rays of her dorsal spine.
Dr. Dodick estimated the duration of Ms. Pyrz's disability from three to four weeks.
Ms. Pyrz saw Dr. Dodick again on July 22, 1992. In a Medical Report dated July 29, 1992,4 Dr. Dodick noted that movements of Ms. Pyrz's neck and back had improved considerably and that her injuries to the right shoulder and right hip had healed completely. X-rays of her dorsal spine revealed no abnormalities. Dr. Dodick felt that Ms. Pyrz could return to her work as of August 5, 1992.
Ms. Pyrz did not return to work on August 5, 1992, as recommended by Dr. Dodick. She saw him on August 17, 1992. In his report dated August 24, 1992,5 Dr. Dodick noted that Ms. Pyrz "has continuing occipital headaches associated with nausea. She continues to have pain in the lower aspect of the posterior neck." In contrast to the earlier visits, Dr. Dodick found that the rotation of Ms. Pyrz's head was now limited to about half the normal, as was extension and flexion of the neck. He found tenderness and spasm in the posterior cervical muscles and tenderness in the interscapular region. He made arrangements for further physiotherapy. He estimated she could return to work on September 21, 1992.
Ms. Pyrz testified that the physiotherapy treatments did not help her. In fact, she felt worse after each session. Ms. Pyrz did not return to work on September 21, 1992 as anticipated by Dr. Dodick. She testified that by the fall of 1992, she began to have a "problem with [her] nerves." She said her condition grew progressively worse; she could only stand or sit comfortably from 30 to 40 minutes. She said she did not feel she could return to work at GL "because of neck, and back problems." She said she could not have worked even part-time.
On September 30, 1992, Dr. Dodick saw Ms. Pyrz again. In his report of October 23, 1992,6 he noted as follows:
The claimant insists that she has continuing symptoms in her neck pain and occipital headaches. The symptoms are aggravated by any attempts to do work even light duties. She finds that when she stands for any time, she develops pain in the lower aspect of her lumbosacral spine. Examination revealed almost complete movement of her neck and spine. She has subjective tenderness in posterior aspect of the left neck and L5-S1 region of the back.
Dr. Dodick found no objective evidence of pain. He noted that her symptoms appeared largely functional, and that "there appears to be a depression element to her somatic complaints." He started her on anti-depressants and recommended a Functional Capacities Assessment.
Dr. Dodick's notes of this visit indicate that Ms. Pyrz told him that she has attempted to return to work on a part-time basis on October 5, 1992. She reported to him that she could not continue working after the 9th of October 1992 and had not returned to work since that time. At the hearing, Ms. Pyrz denied returning to work after June 19, 1992, or telling Dr. Dodick about attempting to return to work, either full or part-time. The attendance records of GL confirm that Ms. Pyrz's last day of work was indeed June 19, 1992.
When questioned by the Insurer's counsel regarding the discrepancy between the record and Dr. Dodick's notes, Ms. Pyrz simply repeated that she never told Dr. Dodick about attempting a return to work. When questioned why Dr. Dodick would record such information if it had not been provided by her, Ms. Pyrz was unable to provide a plausible explanation.
Considering the nature of Dr. Dodick's report of October 23, 1992, and given the fact that Dr. Dodick had told Ms. Pyrz on two previous occasions that she was fit to return to work, I find that Ms. Pyrz told the doctor that she had attempted to return to work in an effort to convince him that her complaints of pain were based on an actual attempt to perform her pre-accident activities.
Absent any explanation, I accept Dr. Dodick's notes to be reflective of the information provided by Ms. Pyrz at the time. I find that because of Ms. Pyrz's report that she had problems performing her essential tasks at work, Dr. Dodick refrained from making another estimate of return to work date until the Functional Capacities Assessment had been completed.
Dr. Dodick has not seen Ms. Pyrz after October 23, 1992. In cross-examination, Ms. Pyrz testified that she decided not to see Dr. Dodick any more because he told her he could not help her. Ms. Pyrz's husband testified that they were unable to schedule an appointment with Dr. Dodick because he did not want to see her anymore. Nothing in Dr. Dodick's reports supports this. I do not find Ms. Pyrz's account credible. I find that Ms. Pyrz's decision not to see her family doctor of long-standing was dictated by the fact that she felt he was not supportive of her claim of disability.
Dr. Dodick was not called to give evidence in this arbitration.
The Functional Capacities Assessment (the "FCA") was conducted at Thunder Bay Physiotherapy Associates on November 11 and 12, 1992.7 This was considered a preliminary assessment since the results of the functional testing were not compared to the physical requirements of Ms. Pyrz's job at GL. The evaluator was not provided with a job description; nor was a job site analysis conducted; rather, her assessment was compared to the CCDO guidelines which classifies the job of a cook in a small establishment as "light." The FCA reached no conclusion whether Ms. Pyrz could perform the job requirements of her pre-accident employment; however, based on her performance of the test, it determined that Ms. Pyrz was functioning between "a light and medium work level, with a maximum safe lifting capacity of 25 lbs from floor to waist height, 38 lbs for a horizontal lift, and 33 lbs for a 100 foot carry." These restrictions are well within the demands of her job, as she described them herself. The FAC stated that "work tolerances for such activities as prolonged standing (beyond 35 minutes), sitting (beyond 30 minutes), repetitive tasks involving the upper extremities (e.g. chopping/dicing of food stuffs, etc.), and especially overhead work, have yet to be determined in a realistic work setting."
Between May 30, 1993 and June 30, 1993, Ms. Pyrz was enrolled in a vocational rehabilitation and "Employee Work Preparation Programme" (work hardening) which she said did not help her return to work.8
Ms. Pyrz testified that in June 1993, she began to experience sleeping problems because of her back pain. She took further physiotherapy treatments in August 1993, however, her neck and back problems continued to get worse. 'I was feeling very bad. I could not return to work because I felt worse than before I started physiotherapy. I tried to do something at home but with rest and help of the children."
Ms. Pyrz was assessed by an orthopaedic specialist, Dr. Burrell, in an independent medical examination arranged by the Insurer. In his report dated June July 5, 1993,9 on examining Ms. Pyrz, Dr. Burrell found that the range of motion of the cervical spine revealed 'a virtually full range of motion, with mild discomfort on extremes of left rotation. Thoracic rotation is full, and apparently pain-free. Range of motion of the lumbar spine is quite full and pain-free."
Dr. Burrell confirmed the diagnosis of soft tissue injury in the cervical and thoracic area as a result of the accident. With regard to her functional abilities, Dr. Burrell felt that 'if her lifting and bending were modified to light and infrequent lifting, and if she were allowed to change position from standing to sitting occasionally, she would be able to return to work as a cook."
In a "Return to Work" note10 dated September 12, 1993, Dr. Burrell certified that as of July 5, 1993, Ms. Pyrz had recovered sufficiently to be able to return to her pre-accident work with the restrictions "as per Functional Capacities Assessment."
On August 28, 1993, the Insurer terminated Ms. Pyrz's weekly income benefits on the basis that she was no longer substantially disabled from performing her essential tasks.
During this time, Ms. Pyrz was taking only Advil and 222's for treatment of her symptoms. In the fall of 1993, she claims she was very stressed and her "neck and back pain was very, very bad." However, she did not seek any treatment other than taking pain killers.
On January 20, 1994, Ms. Pyrz saw an orthopaedic specialist of her choice, Dr. Remus.
Dr. Remus made no recommendation with respect to return to work. In his report dated January 27, 1994,11 he noted:
[Ms. P] complained of general discomfort on palpation over the posterior aspect of her cervical spine at C5-6 and also in the thoracic region from T3-T6. There was tenderness on palpation over both trapezii... Her range of motion of her cervical spine is full as is the range of movement of the thoracic spine although she complains of pain on extremes of motion. The patient has no obvious motor sensory reflex deficits noted. Her range of movement of her thoracolumbar spine is full other than for some tightness of her hamstrings... no specific restrictions in straight leg raising or obvious neurological deficit noted.
In January and February 1994, Ms. Pyrz took massage and chiropractic treatments, however, these only helped in relieving her symptoms temporarily, for short periods of time. Ms. Pyrz has received no treatment since that time.
In July 1994, Ms. Pyrz and her family moved to London where her husband started searching for a job. He had lost his job in Thunder Bay in 1992, some time after the accident. He was on unemployment insurance for one year. He subsequently found a new job in London in 1995.
In London, Ms. Pyrz was first seen by Dr. R.K. Lo, a family physician, on August 12, 1994. Since that time, she has seen him on several occasions with complaints of continued neck, back and shoulder pain.12
From November 1994 to February 1995, Ms. Pyrz took English and typing classes three hours a day, five days a week. She said she took pain killers to help her sit through the classes. She sat at a desk and used a computer for typing. She claims that most of the time she attended classes in pain, but on occasion, when the pain was severe, she did not attend classes.
On March 2, 1995, Ms. Pyrz was seen by Dr. Robert Teasell, a specialist in physical medicine and rehabilitation at University Hospital in London.
Dr. Teasell's report13 was filed in evidence by the Applicant. Dr. Teasell was called by the Insurer to testify in cross-examination.
Dr. Teasell noted Ms. Pyrz's chief complaints when he saw her to be neck and upper thoracic pain. He has made no notes of complaints of back pain.
Dr. Teasell stated in his report that Ms. Pyrz has developed chronic posterior neck pains as well as pain in the upper thoracic area as a result of the soft tissue injuries she received in the accident. He found that her condition is aggravated "by what appears to be a scoliosis which I suspect is of longstanding. This has resulted in some apparent scapular winging on the right side although I suspect that this is due to the scoliosis and not due to a long thoracic nerve palsy." He concluded that "...physically she is not going to be able to do work with heavy lifting, working with her arms above the level of her shoulders or heavy pushing or pulling." In cross-examination, Dr. Teasell explained that "heavy" lifting, pushing or pulling meant lifting, pulling or pushing five to ten kilograms (11 to 22 pounds) repetitively, or 10 to 20 kilograms (22 to 44 pounds), occasionally. In addition, he stated that "sitting and standing in one position for long periods of time particularly with neck in forward flexed position would be hard."
Dr. Teasell agreed that if Ms. Pyrz is capable of performing at the level of what the FCA found she could do, that would be within his guidelines for her and he would find her capable of returning to work.
Dr. Teasell commented that the FCA's primary concern was safety in carrying and lifting weights which were within Ms. Pyrz's capability; however, he said he "would not have emphasised it [the safety concern] as the FCA people did."
Ms. Pyrz testified that at the present time, she feels "very bad, stress," lots of pain in her back and neck, and suffers headaches. She cannot drive for long time and cannot stand or sit for more than half an hour at a time. Some days she feels better than others, but she has pain all the time. She testified that since the accident, she has not felt she could go back to work. She said: "I want to go back to work - I have always worked full time except when I had a baby."
Ms. Pyrz's husband testified about Ms. Pyrz's pre-accident and post-accident activities. He corroborated Ms. Pyrz's testimony about the nature of the accident and her complaints of pain. He observed her to be in pain ever since the accident, and that since June of 1993, her pains have become worse than before.
While she did everything around the house before the accident, Mr. Pyrz said that after the accident, his wife required help from him and her children with cleaning, laundry, and washing dishes.
Mr. Pyrz testified that neither he nor the children were injured in the accident. He and his wife stayed at home from work for one week because of the shock of the accident. In response to the Insurer's question, Mr. Pyrz stated that the most stressful time for the family was when the Insurer stopped payment of Ms. Pyrz's weekly income benefits, not when he lost his job or when her mother passed away in December of 1993.
CONCLUSION:
As stated earlier in this decision, in order to be entitled to weekly income benefits, Ms. Pyrz must establish that as a result of the injuries from the accident, she suffers a substantial inability to perform the essential tasks of her pre-accident employment. As stated in numerous arbitration decisions "substantial inability" means not some disability, and not total disability, but a significant disability which prevents an applicant from carrying out essential tasks to a significant extent. Pain is not compensable unless it is so debilitating that it results in a substantial inability to perform essential tasks.
The evidence indicates that Ms. Pyrz sustained soft tissue injuries to her neck, shoulder and back as a result of the accident. The evidence also shows that by October 1992 she was showing considerable improvement. She had little restriction of movement in the affected areas. As early as July 1992, her family doctor, Dr. Dodick, felt that she could return to work without any restrictions.
In July 1993, Dr. Burrell recommended a return to work, if bending and lifting were restricted to light and infrequent lifting, and if Ms. Pyrz were allowed to change positions from standing to sitting occasionally. In March 1995, Dr. Teasell agreed that without repetitive heavy lifting, pulling and pushing (in excess of 22 pounds), occasional lifting in excess of 44 pounds, or working with her arms above the level of her shoulders, Ms. Pyrz would be able to perform her tasks at GL safely. The restrictions recommended by the doctors are consistent with the results of the assessment conducted in November 1992 which found that Ms. Pyrz was able to function between a light and medium work level, with an ability to lift a maximum of 25 pounds safely.
In my view, the medical evidence suggests strongly that Ms. Pyrz is substantially capable of performing her pre-accident essential tasks. I find it significant that while Ms. Pyrz claimed that she could not sit or stand for periods of longer than 30 minutes without changing her position, and could not work at the meat slicer for one hour a day with her head in a forward flexed position, she was nevertheless able to attend typing and English language classes for three hours a day, five days a week. This causes me to question her credibility. Her credibility was also affected by my finding that she told Dr. Dodick that she had returned to work on a part-time basis in early October 1992, something that did not happen. I also do not find her testimony about why she decided not to see Dr. Dodick credible.
Both Ms. Pyrz and her husband testified that Ms. Pyrz's condition started deteriorating rapidly in the fall of 1993. This apparent change is not accounted for by the medical evidence. I find it noteworthy that this period in Ms. Pyrz's life coincided with financial difficulties resulting from her husband's unemployment insurance benefits running out, and the Insurer terminating her weekly income benefits.
Having considered the evidence in its entirety, I find that although Ms. Pyrz may suffer from pain as a result of her accident related injuries, I am not satisfied, on the balance of probabilities, that after August 28, 1993, she suffers from a substantial inability to perform her essential tasks.
Expenses:
Under section 282(11) of the Insurance Act, I have discretion to award an applicant his or her expenses in respect of the arbitration. In this case, I decided to exercise my discretion in Ms. Pyrz's favour. Although Ms. Pyrz is unsuccessful in the arbitration hearing, I do not find that she commenced the arbitration proceeding in bad faith, or without any merit to her case. Accordingly, I grant Ms. Pyrz her arbitration expenses. If there is a disagreement about the amount, an assessment may be arranged by contacting the Registrar's Office at the Ontario Insurance Commission.
ORDER:
The Insurer is not required to pay Ms. Pyrz further weekly income benefits.
The Insurer shall pay Ms. Pyrz her expenses incurred in respect of the arbitration.
January 24, 1996
Asfaw Seife Arbitrator
Date
Appendix A
Exhibits:
Exhibit 1:
Medical brief
Exhibit 2:
Clinical notes and records of Dr. R. Lo
Exhibit 3:
Job description and weekly time sheets at Grandma Lee's
Exhibit 4:
Application for Accident Benefits dated June 22, 1992
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.
- Exhibit 3
- Exhibit 1, page 1
- Exhibit 1, page 3
- Exhibit 1, page 4
- Exhibit 1, page 6
- Exhibit 1, page 9
- Exhibit 1, pages 17 and 49
- Exhibit 1, page 42
- Exhibit 1, page 47
- Exhibit 1, page 56
- The clinical notes and records of Dr. Lo - Exhibit 2
- Exhibit 1, page 72