Neutral Citation: 1996 ONICDRG 178

OIC A-013657

ONTARIO INSURANCE COMMISSION

BETWEEN:

RADMILA MAKSIMOVIC

Applicant

and

AXA INSURANCE (CANADA)

Insurer

DECISION

Issues:

The Applicant, Radmila Maksimovic, was injured in a motor vehicle accident on November 2, 1992. She applied for and received statutory accident benefits from AXA Insurance (Canada) ("AXA"), payable under Ontario Regulation 672.¹ Weekly income benefits were terminated by AXA on October 2, 1994. After the commencement of the hearing the parties settled the issue of Mrs. Maksimovic's entitlement to benefits under section 12 (1) of the Schedule. AXA agreed to pay Mrs. Maksimovic weekly income benefits until November 2, 1995, less the Canada Pension Plan benefits paid to her during the three year period. Mrs. Maksimovic agreed to withdraw her claim against AXA for a special award. The parties, however, were unable to resolve the dispute over Mrs. Maksimovic's entitlement to benefits under section 12 (5)(b) of the Schedule. Mrs. Maksimovic proceeded with arbitration on this issue under the Insurance Act, R.S.O. 1990, c.I.8, as amended (the "Act".

The issues in this hearing are:

1. Is Mrs. Maksimovic entitled to weekly income benefits under section 12 (5)(b) of the Schedule on the basis that her injury continues to prevent her from being engaged in any occupation or employment for which she is reasonably suited by education, training and experience?

Mrs. Maksimovic also claims interest on any amounts owing, and her expenses incurred in respect of the arbitration.

Result:

1. Mrs. Maksimovic is entitled to ongoing weekly income benefits under section 12 (5)(b) of the Schedu le from the date of benefit termin ation onward s, with interest

2. Mrs. Maksimovic is entitled to her expenses incurred in respect of the arbitration.

Hearing:

The hearing was held at the offices of the Ontario Insurance Commission in North York, Ontario, on September 16, 17, 18 and 19, 1996 before me, Beth Allen, arbitrator. In view of a rehabilitation report filed by Mrs. Maksimovic on the last hearing day, I gave AXA until October 4, 1996 to decide whether it wished to commission a report in response and/or to call a further witness. The proceedings were recorded by Ms. Hopkinson of Holly & Strauch. The proceedings were interpreted by Ms. Belchevski and Ms. Verica of OmniCom Professional Language Services Ltd.

Present at the Hearing:

Applicant:

Radmila Maksimovic

Mrs. Maksimovic's

Paul R. Jewell

Representative:

Barrister and Solicitor

AXA's

Thomas McEwen

Representative:

Barrister and Solicitor

AXA's

Samantha Phillips

Officer:

Witnesses:

For Applicant:

Radmilla Maksimovic

Dr. Marvin Weber

Dr. Dobrila Vujnovic

Donauth Bharat

Debbie Heughan

Biljana Bekvalac

Vladan Maksimovic

Vesna Vukasovic

Zoran Maksimovic

Jasmina Maksimovic

Robert Lychenko

Exhibits:

Exhibits are listed in Schedule "A" to the decision.

Evidence and Findings:

Background:

Education and Employment:

Mrs. Radmila Maksimovic, a married, 49-year-old mother of two adult children, was born in Yugoslavia and emigrated to Canada in 1976 with her husband, Vladan and the children. Mrs. Maksimovic married at age 15 and has lived with her husband for 34 years. She attended school for about ten years in Yugoslavia. After her arrival in Canada she attended a brief English course.

Mrs. Maksimovic began working shortly after she arrived in Canada. She testified that she worked consistently, with few breaks in employment, until the accident. She first worked packing meat for a butcher. She thought she might have worked at that job for about a year. Mrs. Maksimovic next got a full-time job working in the kitchen at the Faculty Club at the University of Toronto. There she cooked, made salads and sandwiches and worked as a waitress in the dining room. While employed at the Faculty Club, she completed an evening course in food preparation at George Brown College.

Mrs. Maksimovic next obtained a full-time job with Beaver Foods but continued to work on a part-time basis at the Faculty Club as a waitress, doing both jobs until she got a factory job. At Beaver Foods she also made salads, sandwiches, cooked and baked cakes. Mrs. Maksimovic had difficulty recalling how long she had held the Faculty Club and Beaver Foods jobs. Given that Mrs. Maksimovic worked at the butcher shop until about 1977 and began a the full-time factory job in 1987, the evidence suggests that she worked at these jobs for a total of about ten years. However, Mrs. Maksimovic expressed some uncertainty whether, within this ten year period, she was unemployed or had held any other jobs.

Mrs. Maksimovic began the full-time factory job at Robert Shaw Controls in around 1987 and remained there until 1990. At Robert Shaw she assembled and packaged controls for refrigerators and stoves. Mrs. Maksimov thought after leaving Robert Shaw she might have collected Unemployment Insurance benefits for a brief period before getting a job at in the delicatessen department of an A&P grocery store, where she stayed for about four months.

Mrs. Maksimovic left the A&P job when she received word that her mother in Yugoslavia was terminally ill with cancer. In the spring of 1990 she returned to Yugoslavia for about five months, cared for her mother and made the funeral arrangements before she left. She returned to Canada in about August 1991 and her mother died on October 10, 1991.

Mrs. Maksimovic was rehired by Beaver Foods in November 1991 where she worked for about a year until the accident in November 1992. She testified that at this job she prepared, cooked and served breakfasts and lunches to about 100 people. She cooked eggs, bacon, ham and sausages, made salads, sandwiches and coffee. Mrs. Maksimovic worked with about five or six co-workers. The job involved a great deal of standing and rushing around during busy times. It also involved some heavy work - lifting cases of 24 juice bottles, boxes of milk and stacks of dinner plates and carrying trays of food. She also had to bend down to put bread, cookies and coffee into cupboards.

Household and Social Activities:

Mrs. Maksimovic testified that she did all of the housework, assisted her husband with yard work and was very active socially before the accident. She accomplished this while being employed full-time outside the house. She called a number of witnesses who testified consistently in support of this evidence. AXA presented no compelling evidence to refute this evidence.

Mrs. Maksimovic lived at home with her husband and two children. At various times her children's spouses also lived in the family home. Mrs. Maksimovic's husband, her son, Zoran and her daughter-in-law, Jasmina, Zoran's wife, testified for Mrs. Maksimovic.

Mrs. Maksimovic attended to the children, did all the cooking, house cleaning and laundry, made lunches and did grocery shopping before the accident. She also knitted and did needle work. She cared for the vegetable and flower gardens. Her husband and son cut the grass and shovelled snow. Mr. Maksimovic has been employed as a cabinet maker on a full-time basis with the same company for over 20 years.

Neither Jasmina, who moved into the family home in October 1990 and still lives there, or Mrs. Maksimovic's daughter, Svetlana, who moved out of the home with her husband in 1995, contributed to the housework. Jasmina was 20 years old when she moved to the house and was thought too young to assist. Nor were either of the children or their spouses required to contribute financially to the household while they resided there. They assisted financially when they felt they could. Jasmina stressed that in Serbian families the wife and mother does all of the housework. Jasmina stated that when she moved to Canada she knew nothing about cooking or cleaning since her mother had done everything around the family home. However, circumstances changed dramatically, particularly for Jasmina, after the accident.

Socially, Mrs. Maksimovic was very active before the accident. Mrs. Maksimovic and her husband testified that they often socialized. They enjoyed taking their children to picnics, visiting friends, having friends over, and going to Serbian dances almost weekly. Svetlana, Zoran and Jasmina often had their friends over to the house. Mrs. Maksimovic and the family witnesses testified that Mrs. Maksimovic enjoyed the company of these friends. She talked with the friends, joked with them and made them coffee. In Jasmina's words Mrs. Maksimovic "used to be like a friend with my friends." Mrs. Maksimovic did not complain when her children and their friends played music and spoke loudly. This, too, changed after the accident.

The Accident:

On November 2, 1992, at about 5:45 a.m., Mrs. Maksimovic was on her way to work at Beaver Foods, when the accident occurred. She walked to the intersection of Dundas Street West and Shorncliffe Drive, stopped for a red light and waited to cross. Mrs. Maksimovic had intended to catch a bus on the opposite side of the street. She testified that she recalled the light turning green and recalls nothing beyond that point until she "woke up" in Queensway General Hospital as a female police officer was speaking to her. P.C. Heughan testified on behalf of Mrs. Maksimovic. She indicated that she began to interview Mrs. Maksimovic in the hospital at about 8:00 that morning.

Mrs. Maksimovic had been struck by a bus. She does not remember the collision with the bus.

Mrs. Maksimovic called as a witness Mr. Bharat, the driver of the bus that struck her. He supplied some details about the prelude to and aftermath of the accident. At the time, Mr. Bharat was employed by Penetang-Midland Coach Lines Limited. On November 2, he set out en route to the Pearson International Airport. He described the conditions on that morning as dark, rainy and windy. He was travelling northbound on Shorncliffe Drive with the intention of turning left to drive westward on Dundas West. As Mr. Bharat approached the intersection the light turned red. Once it turned green he entered the intersection halfway and stopped to wait for oncoming traffic to clear the intersection before continuing the left turn. When he was in the process of making the left turn, he heard a "thump" at the front left side of the bus.

Mr. Bharat testified that he did not see Mrs. Maksimovic when the bus hit her, but saw her shadow and the top of her head. He estimated that he struck Mrs. Maksimovic while making the turn at about ten kilometres per hour. He immediately called his company's dispatcher who called the ambulance and police. The first police officers arrived at the scene about fifteen minutes later and the ambulance shortly thereafter. P.C. Heughan arrived at about 6:12 a. m.

Mr. Bharat testified that moments after impact he left the bus and found Mrs. Maksimovic sitting on the road, leaning on one arm. For most of the time before the ambulance arrived Mrs. Maksimovic remained sitting in the middle of the road with her eyes open. He attempted to speak to her a few times. She looked at him without answering. She reacted similarly with a woman who approached her. Mr. Bharat could not determine whether Mrs. Maksimovic knew what had happened to her. Mrs. Maksimovic testified through an interpreter at the hearing, so the extent of her English skills was not apparent. The evidence did not disclose whether Mrs. Maksimovic's lack of responsiveness at the accident scene was due to her state of alertness or her English skills.

Mr. Bharat also indicated that at one point Mrs. Maksimovic laid down on the road and rolled twice in a westerly direction away from the crosswalk, for three or four feet each roll. She remained at her final place of rest until the police arrived. When the ambulance attendants arrived and questioned her about pain, she pointed to her shoulder and the side of her head.

Mrs. Maksimovic's Injuries

The ambulance call report and the Queensway Hospital emergency records reveal that Mrs. Maksimovic sustained a number of injuries in the accident. Mrs. Maksimovic remained in emergency for a few hours. The hospital emergency records indicate that the bus struck her left side. She complained of left-sided body pain - in her ribs, neck, elbow and leg. The records also report a complaint of a headache (occipital pain). A photograph taken of Mrs. Maksimovic by her son sometime after the accident, and entered by Mrs. Maksimovic as a exhibit, reveals what appears to be bruises over her left brow and on her left shoulder. Mrs. Maksimovic was prescribed Tylenol pain medication.

The evidence suggests that Mrs. Maksimovic did not actually lose consciousness as a result of the accident but rather suffered confusion and retrograde and posttraumatic amnesia.

X-rays of Mrs. Maksimovic's chest, left ribs and cervical spine, taken at the hospital, were negative. Due to the apparent trauma to Mrs. Maksimovic's head, the attending doctor at emergency referred her to Dr. Chu, a neurologist and internal medicine specialist, for neurological testing. An EEG report dated November 30, 1992 records negative findings. The results of an HMPAO brain scan (SPECT scan) conducted on January 7, 1993 were normal.

Mrs. Maksimovic's Life After the Accident:

According to Mrs. Maksimovic and her family, Mrs. Maksimovic was bedridden for the first two or three weeks after the accident. Mrs. Maksimovic testified that she suffered severe daily headaches, neck and back pain. Dr. Voynovic, Mrs. Maksimovic's family doctor since 1986, visited Mrs. Maksimovic at her home on the day after the accident. Testifying for Mrs. Maksimovic, she indicated that Mrs. Maksimovic complained of dizziness, headaches, neck pain and insomnia. She had superficial bruises on her left elbow, shoulder, leg and knee. She could only leave her bed with assistance. Mrs. Maksimovic visited Dr. Voynovic's office on November 5. At this time Dr. Voynovic noted bruises on Mrs. Maksimovic's left temple and difficulty flexing her neck to the left.

Repeatedly, throughout her testimony, Mrs. Maksimovic answered questions about her health by stating: "I can't remember. I don't know. Maybe the doctors know." Because of difficulty obtaining answers to questions, her counsel frequently had to lead her through much of the evidence about her present and past health.

Mrs. Maksimovic testified that from the time of the accident to the present, she has continued to suffer physically from chronic headaches and back pain. Mrs. Maksimovic stated that emotionally she has suffered from insomnia, depression, anxiety and crying spells. She testified that she is never happy anymore. When her counsel asked her during examination-in-chief to explain her anxiety and depression and the reasons for these conditions, she displayed little insight into her emotional state.

Mrs. Maksimovic testified that since the accident she feels very tired due to constant lack of sleep. She usually must sleep during the day. According to Mrs. Maksimovic, because of her depression, concentration and memory problems she does not like to speak to others. She also described experiencing sensitivity to light and noise associated with headaches which causes her to spend a great deal of time in her room by herself.

The family members who testified for Mrs. Maksimovic uniformly confirmed that she has become a very different person since the accident. According to the family members evidence, where once she undertook all of the housework and some yard work as well as full-time employment and an active social life, since the accident she does little more than bathe herself, make her bed and occasionally water the flowers and go for walks. Mrs. Maksimovic’s family members described Mr. Maksimovic’s transformation from a smiling, sociable and spirited individual to a withdrawn, depressed, nervous, helpless, weepy and pain-ridden person. With the exception of the occasional visit with one friend, she no longer socializes in or outside the home. She withdraws when the children’s friends visit and complains about noise. Mr. Maksimovic testified that since the accident Mrs. Maksimovic has not permitted him to share their marital bed.

Jasmina testified that after the accident her role rapidly changed from making little or no contribution toward maintaining the household, to being responsible for nearly every task. Jasmina has done the cooking, cleaning, vacuuming, laundry and shopping. She shares the banking and gardening with Mr. Maksimovic. Mrs. Maksimovic’s poor memory and concentration render her unreliable in carrying out household chores. So, although more recently, under Jasmina’s supervision, Mrs. Maksimovic has assisted with menial kitchen tasks, Jazmina cannot rely on her to take initiative or to complete a task. Jasmina attends school on a full-time basis and prepares the daily meals. She testified that she performs the other household chores on weekends.

Mrs. Maksimovic’s Post-Accident Medical Conditions:

While Mrs. Maksimovic contended that as a result of the accident she suffers from such physical conditions as back and neck pain, her testimony focussed on the debilitating effects of her chronic headaches, psychological, emotional and cognitive disorders. Although AXA’s counsel agreed that Mrs. Maksimovic suffered a concussion, he submitted that Mrs. Maksimovic is not disabled from returning to employment. He further argued in the alternative that if she is disabled her disability was not caused by the accident.

Medical practitioners who treated or assessed Mrs. Maksimovic provided two basic diagnoses for her condition - posttraumatic stress disorder (PTSD) and a closed head injury with post-concussive symptoms. Dr. Krstich and Dr. Hanick, both psychiatrists and Dr. Harminc, a psychologist diagnosed PTSD.

Dr. Weber, a neurologist who assessed Mrs. Maksimovic and testified on her behalf, diagnosed a closed head injury with post-concussive symptoms. According to Dr. Weber the post-concussive symptom complex associated with a head injury is similar to that associated with PTSD. These symptoms include chronic pain, depression/anxiety, memory loss/poor concentration, cognitive dysfunction, light and noise phobias, flashbacks of the trauma, nightmares, fatigue and anti-social behaviour. Based on the results of neurological testing (an EEG, a SPECT scan and brain mapping) conducted on Mrs. Maksimovic in June and August 1994, Dr. Weber concluded that Mrs. Maksimovic's symptoms have an organic base in a head injury.

Dr. Weber explained that a closed head injury cannot be objectively observed in a patient. However, it can be extrapolated from the type of trauma, the symptoms and the effect of the trauma on electrical changes in the brain. Dr. Weber conceded that many factors can affect the reliability of the results; for instance, the accuracy of the patient's medical history as provided to the assessor, whether the patient has taken medication before testing, or whether the patient moves or blinks her eyes during testing. Dr. Weber acknowledged his uncertainty about the extent, if any, that any of these or other factors might have had on the outcome of Mrs. Maksimovic's tests. He admitted in cross-examination that he was not aware that Mrs. Maksimovic had provided an inaccurate medical history during his assessment: he was not aware that pre-accident Mrs. Maksimovic had experienced anxiety and depression and had taken a number of medications for these conditions.

AXA's counsel argued, and Dr. Weber acknowledged, that in fact there is a diversity of medical opinions² on the usefulness of the EEG, SPECT scan and brain mapping for evaluating closed head injuries. This point is strengthened by the fact that the results of Dr. Weber's EEG and SPECT scan, conducted in 1994, were positive while previous EEG and SPECT scan assessments conducted by Dr. Chu reported negative results.

Although I do not believe Mrs. Maksimovic convincingly established the closed head injury diagnosis, I do accept that she suffered trauma to her head and associated symptoms as a result of the bus striking her. Mrs. Maksimovic presented expert medical evidence that she suffers from a closed head injury and/or PTSD. However, I do not believe that in order for me to decide this case, I am required to select between the diagnoses. For this reason, I am not prepared to accept the alternative diagnosis of PTSD either. Nevertheless, I do find that Mrs. Maksimovic presented credible evidence that she suffers from a complex of debilitating symptoms, irrespective of the diagnosis with which these symptoms might be associated - namely, chronic headaches, depression and anxiety, memory loss, lack of concentration, insomnia, fatigue and light and sound phobias.

Causation:

AXA attempted to establish a causal connection between Mrs. Maksimovic's disability after the accident and her pre-accident health. Counsel for AXA pointed to medical evidence of pre-accident conditions similar to those Mrs. Maksimovic claims arose from the accident; he also referred alternatively to other pre-accident conditions which AXA contended were not caused by the accident but which, if she is disabled at all, caused or contribute to her disability. However, AXA presented little convincing evidence to challenge Mrs. Maksimovic's evidence that the accident caused a dramatic degeneration in her health.

Referring mainly to the clinical notes and records of the family doctor, Dr. Voynovic, AXA's counsel submitted that there is evidence that Mrs. Maksimovic suffered from headaches, anxiety and low back pain before the accident. Regarding headaches, he pointed to one entry in each of the years, 1987, 1989 and 1990, where Dr. Voynovic records headache complaints. Mrs. Maksimovic stated that she did not recall having headaches before the accident. Dr. Voynovic testified that before the accident, Mrs. Maksimovic did not complain of chronic headaches. She indicated that she only prescribed medication for headache pain once, on December 15, 1990.

AXA's counsel also referred to four entries in 1990 and 1991 where Dr. Voynovic records complaints of anxiety. She prescribed various tranquillizers on these occasions. Again, Mrs. Maksimovic stated that she did not recall experiencing anxiety before the accident. Dr. Voynovic explained that this was not a persisting condition before the accident. Referring to her clinical notes and records, she testified that, as with the headaches, Mrs. Maksimovic experienced anxiety in direct relation to stressful events occurring in her life. For instance, in 1990 she was involved with two weddings and in 1991 she was anxious about her imminent return to Yugoslavia and her mother's terminal illness.

Again, referring to Dr. Voynovic's clinical notes, AXA's counsel pointed to an entry in late 1991 pertaining to back pain, for which Dr. Voynovic prescribed a muscle relaxant and an anti-inflammatory, and to a reference in a 1992 note to swollen right and left knees. Mrs. Maksimovic did not recall these complaints either. However, when questioned about references to bilateral leg pain due to varicose veins and high blood sugar, she acknowledged these as ongoing pre-accident conditions.

In my opinion, AXA has failed to provide persuasive evidence that Mrs. Maksimovic’s post-accident disability is causally connected to her pre-accident medical conditions. There is no evidence that the pre-accident headaches, anxiety, back pain and knee complaints arose from anything more than acute episodes. Similarly, I am not convinced that Mrs. Maksimovic’s varicose veins and high blood sugar have significantly, if at all, affected her before or after the accident. Mrs. Maksimovic’s employment history has been generally consistent, particularly in the year before the accident. There is no evidence that before the accident any of her pre-accident conditions affected her attendance at work, her ability to undertake her household responsibilities or her social life. I am persuaded by Mrs. Maksimovic’s evidence that the accident has disrupted these aspects of her life.

Mrs. Maksimovic's Medical and Rehabilitation Treatment and Assessment

Medical Treatment and Assessment:

Shortly after the accident Dr. Voynovic referred Mrs. Maksimovic for assessment and treatment of both her physical and psychological complaints. Mrs. Maksimovic retained Evergreen Rehabilitation Services Inc. ("Evergreen") to manage her rehabilitation program and to coordinate the efforts of health care practitioners and facilities from June 1993.

Dr. Voynovic referred Mrs. Maksimovic to Dr. O'Reilly, a physical medicine specialist, who first saw her on December 1, 1992. He concluded in a report dated December 1, 1992 that: "This lady has had a rather frightening accident and concussion by definition. There is no evidence of any significant physical injury." He concluded, based on her physical condition, that she should return to work within two weeks.

Dr. Voynovic also referred Mrs. Maksimovic to see Dr. Krstich, a psychiatrist, who saw her on a monthly basis from December 24, 1992 to March 14, 1994. In her report dated March 11, 1993, she diagnosed PTSD and prescribed anti-depressants and muscle relaxants.

Dr. Chu, a neurologist who conducted the initial neurological assessment on Mrs. Maksimovic, further assessed her in December 1992, February 1993 and February 1994. He reported negative neurological findings. In his report dated June 9, 1994 he concluded: "I believe the main limiting factor of her recovery, and factors that restrict her activities at home and work is due largely to reactive depression and the post-traumatic syndrome."

Dr. Voynovic also referred Mrs. Maksimovic to Dr. Harminc, a psychologist, who testified on her behalf. He saw Mrs. Maksimovic on a weekly basis from January 1994 to August 1995, at which time AXA terminated payment for this service. After conducting a number of tests, Dr. Harminc diagnosed Mrs. Maksimovic's condition as PTSD. In his report dated October 7, 1994, Dr. Harminc noted some improvement in her condition with therapy and recommended that she continue. In testimony Mrs. Maksimovic expressed a positive reaction to Dr. Harminc, perhaps the only positive reaction she had throughout the hearing.

AXA brought evidence from a number of medical practitioners who variously assessed that Mrs. Maksimovic is either not disabled, or if she is, her disability is due to pre-existing or post-accident causes.

On February 17, 1994 Dr. Costa, a psychiatrist, examined Mrs. Maksimovic on behalf of AXA. He reviewed Mrs. Maksimovic's background medical data and after examining her, he concluded in his report dated February 17, 1994 : "Even if she would be significantly disabled psychologically, I think again that it is important to remember that at this moment, her psychiatric problems are mostly non-accident related. I also believe that Mrs. Maksimovic is quite capable of carrying out her tasks of daily living."

Dr. Costa largely drew these conclusions from his findings that unresolved childhood issues, her mother's death and the alleged loss of her job two weeks post-accident had a significant emotional impact on Mrs. Maksimovic. Dr. Costa made this assessment after one visit with Mrs. Maksimovic. However, neither Dr. Krstich nor Dr. Harminc found that these factors featured among her post-accident emotional problems. Nor were these factors, if acknowledged at all, central to Mrs. Maksimovic's and her family members' oral evidence about her emotional condition. In fact, regarding the effect of her mother's death, Mrs. Maksimovic was rehired by Beaver Foods one month after the death and she remained there on a full-time basis until the accident.

AXA submitted into evidence Dr. Gray's medical report dated July 30, 1995. Dr. Gray, a neurologist, assessed Mrs. Maksimovic on October 17, 1994. After reviewing documentation of her medical history and examining Mrs. Maksimovic he concluded: "...based on the accident injuries she said she sustained... she should have recovered and that there is a pre-existing basis for ongoing complaints and a great deal of functional overlay and lack of motivation to return to her previous occupation."

Dr. Lipson, a physician retained by AXA, came to a similar conclusion in his letter of September 9, 1994. Further, Dr. Moddel, a neurologist, acknowledging her psychological problems, concluded in his August 25, 1994 report that the accident "plays very little part in this patient's continuing disabilities and her problems are clearly on a psychological basis." These doctors also came to their conclusions after one interview with Mrs. Maksimovic.

Dr. Wood, a psychologist, met with Mrs. Maksimovic on behalf of AXA on two occasions - October 21 and December 16, 1994. In his report, undated, he concluded that Mrs. Maksimovic derived a great deal of secondary gain in the form of the attention and nurturing she received from her family. He believed that she embellished her symptomology and made little effort to return to her pre-accident life.

Rehabilitation Treatment and Assessment:

Until her involvement with the Accident Rehabilitation Centre ("ARC") in February 1994, Mrs. Maksimovic's rehabilitation consisted only of passive modalities. Within a few weeks after the accident, Mrs. Maksimovic began a physiotherapy program at the recommendation of Dr. Voynovic. For several months she underwent such treatments as heat packs and ultrasound to the neck and lower back. Mrs. Maksimovic testified that this program failed to relieve her pain. Dr. O'Reilly recommended pool therapy at Queensway Hospital. Mrs. Maksimovic participated for several months and claimed she experienced pain relief. At Dr. Voynovic's recommendation, she resumed pool therapy at the Etobicoke Olympium for several more months in late 1993 and 1994.

Evergreen first became involved with Mrs. Maksimovic's case in June 1993. According to Mr. Lychenko of Evergreen, who testified on behalf of Mrs. Maksimovic, AXA abruptly and unexpectedly terminated funding for this service in February 1994 requiring him to discontinue Mrs. Maksimovic's rehabilitation plan. In a report dated August 14, 1995 Mr. Lychenko concluded that Mrs. Maksimovic was not employable. He stated she would have to overcome her problems with chronic pain and he recommended that she be referred for psychological treatment.

AXA retained ARC from February 21, 1994 to June 21, 1994 to conduct a functional restoration program with Mrs. Maksimovic involving cardiovascular and muscle strengthening exercises, work strengthening activities, pain control and nutrition education. Psychosocial and neurological assessments of Mrs. Maksimovic conducted by ARC revealed severe depression. A functional capacity assessment revealed sub-maximal effort on her part and a significant pain focus. Mrs. Maksimovic frequently expressed that her depressive feelings were a barrier to her performance in the program. ARC reported that Mrs. Maksimovic made moderate gains during the 60-session program and Mrs. Maksimovic acknowledged that she benefitted physically from the exercises. ARC concluded, based on her performance and the functional assessment results, that Mrs. Maksimovic was not capable of returning to her pre-accident employment. Her work speed, lifting, carrying, standing and walking abilities did not appear to meet the demands of a full-time cooking job.

REASONS FOR DECISION:

I have found that the head trauma sustained by Mrs. Maksimovic is the cause of her headaches and the complex of psychological, emotional and cognitive disorders she has suffered since the accident. In accordance with the requirements of section 12 (5)(b) of the Schedule, I must determine whether Mrs. Maksimovic's condition disables her from undertaking any employment for which she is reasonably suited by education, training and experience.

Mrs. Maksimovic submitted that her headaches and the complex of psychological, emotional and cognitive problems associated with her head trauma disable her from returning to any type of work. AXA, on the other hand, contended that the accident did not disable Mrs. Maksimovic from returning to reasonably suitable employment.

After a careful review of the evidence, I conclude that Mrs. Maksimovic is disabled from engaging in any type of employment. While the evidence shows that her shoulder, neck and lower back pain might be somewhat limiting, I find that her headaches, and the complex of psychological, emotional and cognitive symptoms have significantly disabled her from returning to work.

Although there were definite problems with Mrs. Maksimovic's testimony, generally she presented as a credible and believable witness. She displayed less than average ability as a historian, particularly when asked to provide details of her medical history, dates, time periods and names of persons with whom she has dealt. However, despite this, she was able to give a general account of her life before the accident: her work history, her household activities, her social life and aspects of her medical history. I note that her testimony was generally consistent with that of her family members and the medical practitioners who testified on her behalf.

In coming to this assessment of Mrs. Maksimovic's credibility, I took into consideration that central features of her disability are memory loss and concentration problems. It did not appear to me that Mrs. Maksimovic's memory failures were attempts to be evasive, but rather seemed to legitimately result from a precarious emotional state. I also recognize that Mrs. Maksimovic has seen well over a dozen doctors since the accident and numerous insurer and rehabilitation personnel. It is understandable, even without a memory problem, that under these circumstances one would have a problem recalling names. Mrs. Maksimovic was also being called upon to remember medical history, including conversations with her family doctor, dating as far back as ten years ago.

I acknowledge the interest Mrs. Maksimovic's family members have in the outcome of this hearing and the feelings of loyalty for Mrs. Maksimovic Dr. Voynovic might have for a patient of ten years. I have weighed these factors in my assessment of credibility and find that the family members and Dr. Voynovic provided trustworthy and generally consistent evidence of Mrs. Maksimovic's life before and after the accident.

Moreover, AXA did not effectively challenge Mrs. Maksimovic's evidence. AXA arranged for Mrs. Maksimovic to be assessed by a number of specialists, each of whom came to conclusions unfavourable to Mrs. Maksimovic based on one or two interviews with her. I prefer the medical opinions of the medical practitioners who treated Mrs. Maksimovic over extended periods of time - Dr. Voynovic, Dr. Krstich and Dr. Harminc.

I am, therefore, convinced by the evidence before me that Mrs. Maksimovic suffered a shocking and devastating experience when she was struck by a bus while on her way to work on November 2, 1992. I believe that Mrs. Maksimovic's life changed drastically; that the accident transformed her from a vital, hard-working, sociable individual to a person she and her family can scarcely recognize.

Mrs. Maksimovic and her family members stressed that, day-in and day-out from the time of the accident until the present, Mrs. Maksimovic has merely existed, dogged by excruciating headaches, severe depression, anxiety and a combination of other symptoms. Her medication appears not have given her significant relief. She testified that she lives a very sad and lonely life because she cannot tolerate being around even her family members. She cannot tolerate human noise; she has problems keeping up her end of a conversation; she cries unexpectedly and uncontrollably; she cannot concentrate and she has persistent memory problems. She says she is never happy anymore. However, in spite of Mrs. Maksimovic's state, it appeared to me that, while her family members were frustrated by Mrs. Maksimovic's circumstances, they were very supportive of her.

Given these circumstances, it would not be reasonable to expect Mrs. Maksimovic to have the capacity to engage in any type of employment, at least until such time that her condition is much alleviated.

It is unfortunate that Mrs. Maksimovic was not permitted by AXA to benefit from the continued services of a rehabilitation case manager. Mrs. Maksimovic appeared to be progressing as a result of the efforts of Evergreen. Dr. Harminc, a psychologist who treated Mrs. Maksimovic for nearly two years, began to see improvement only to have his treatment abruptly terminated. More importantly, Mrs. Maksimovic felt she had good rapport with Dr. Harminc and was benefitting from his treatment. Her psychological and emotional problems might have resolved considerably had she been allowed to continue with Dr. Harminc's treatment. Further, Mrs. Maksimovic was not introduced to an active rehabilitation and work hardening program until nearly a year and a half after the accident when she entered ARC's program. ARC's reports also record moderate gains on her part. If introduced to an appropriate rehabilitation program at an earlier stage, Mrs. Maksimovic's physical condition might have been much improved by now.

Perhaps, with the resumption of an appropriate physical rehabilitation program and psychological treatment by a suitable psychologist, Mrs. Maksimovic's medical conditions might in the future be resolved to such a point that she might be able to return to work and a productive life.

Since I find that Mrs. Maksimovic is substantially disabled from returning to any suitable employment, her benefits should be reinstated from November 2, 1995 onwards, with interest.

Expenses:

In view of my decision, I exercise my discretion under section 282 (ten) of the Insurance Act to allow Mrs. Maksimovic her expenses incurred in respect of the arbitration.

Order:

1. AXA shall pay Mrs. Maksimovic weekly ongoing income benefits at the established rate from November 2, 1995 onwards, with interest.

2. Mrs. Maksimovic is entitled to her expenses incurred in respect of the arbitration.

(Signed)

October 22, 1996

Beth Allen Arbitrator

Date

SCHEDULE "A"

Exhibits

1

Motor Vehicle Accident Report dated November 2, 1992

2

Photograph of Radmila Maksimovic

3

Medical Brief of AXA (14 tabs)

4

Rehabilitation Brief of AXA (4 tabs)

5

Revenue Canada Income Assessment Report 1990 of Radmila Maksimovic

5(a)

Revenue Canada T1 General 1991 of Radmila Maksimovic

5(b)

Revenue Canada T1 General 1992 of Radmila Maksimovic

6

Curriculum Vitae of Dr. Marvin B. Weber

7

Applicant’s Medical Brief (21 tabs)

8

Medical Report of Dr. Marvin B. Weber dated March 6, 1995

9

Notice of Entitlement, Canada Pension Plan dated April 19, 1995

10

Letter from Dr. C. Bloomfield dated January 28, 1988

11

Hand-drawn map of intersection, Dr. D. Vujnovic's clinical notes and records

12

Letter from Dr. William-Paul Warren dated July 22, 1996

13

Letter from Dr. D. Vujnovic to Dr. Karasik dated September 16, 1996

14

Letter from Evergreen Rehabilitation Services Inc. dated May 27, 1996

15

Letter from Evergreen Rehabilitation Services Inc. dated August 14, 1995

Schedule "A"

Exhibits

16

Letter from Evergreen Rehabilitation Services Inc. dated April 1, 1996

17

Medical Report of Dr. Trevor Gray dated July 30, 1995

18

Curriculum Vitae of Dr. Trevor Gray

19(a)

Charles M. Epstein, M.M., "Computerized EEG in the Courtroom," Neurology 1994, 44:1568 - 1569

19

(b) Report of the Therapeutics and Technology Assessment Subcommittee of the American Academy of Neurology, "Assessment of Brain SPECT," Neurology 1996; 46:278 - 285

20

Excerpt from DSM IV, "Posttraumatic Stress Disorder" pp. 424 - 429

21

Curriculum Vitae of Robert Lychenko

22

Rehabilitation Brief of Radmila Maksimovic (26 tabs)

23

Medical Report of Dr. Richard G. Wood undated, with his curriculum vitae attached.

Footnotes

1. 1Prior to January 1, 1994, Ontario Regulation 672 was called the No-Fault Benefits Schedule. After that date it became the Statutory Accident Benefits Schedule —Accidents Before January 1, 1994. In this decision, the term "Schedule" will be used to refer to Regulation 672.
2. 2Charles M. Epstein, M.M.,"Computerized EEG in the Courtroom, Neurology 1994, 44:1568 - 1569; Report of the Therapeutics and Technology Assessment Subcommittee of the American Academy of Neurology, "Assessment of Brain SPECT," Neurology 1996; 46:278 - 285